B-195031 OM, DEC 12, 1979
Highlights
CLAIMS DIVISION: RETURNED IS CLAIM FILE Z-2785211 PERTAINING TO THE CLAIM OF ALEXANDER NETTLES. DETERMINED THAT THE TRAVEL ORDER COULD NOT BE AMENDED RETROACTIVELY WHICH HAD THE EFFECT OF LETTING STAND THE ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEE'S DEBT OF $71.97 AND THE CHARGE OF 2 DAYS' ANNUAL LEAVE FOR EXCESS TRAVEL TIME WAS CORRECT. NETTLES WAS GIVEN TRAVEL ORDERS TO TEMPORARY DUTY (TDY) IN OKLAHOMA CITY. THE TDY WAS PERFORMED DURING JANUARY AND FEBRUARY 1977. HE USED 2 WORKDAYS GOING AND 2 WORKDAYS RETURNING ALTHOUGH 3 DAYS' TRAVEL WERE REQUIRED IN BOTH INSTANCES. IT WAS ADMINISTRATIVELY DETERMINED THAT HAD MR. NETTLES TRAVELED BY AIR THE TRIP COULD HAVE BEEN MADE IN ONE HALF DAY EACH WAY.
B-195031 OM, DEC 12, 1979
DIGEST: ALEXANDER NETTLES, JR. - CLAIM FOR REIMBURSEMENT OF RAIL TRAVEL IN CONNECTION WITH TEMPORARY DUTY AND RESTORATION OF ANNUAL LEAVE - B-195031-O.M.
DIRECTOR, CLAIMS DIVISION:
RETURNED IS CLAIM FILE Z-2785211 PERTAINING TO THE CLAIM OF ALEXANDER NETTLES, JR., FOR REIMBURSEMENT OF RAILROAD TRANSPORTATION COSTS AND RESTORATION OF ANNUAL LEAVE IN CONNECTION WITH TEMPORARY DUTY.
THE CLAIMS DIVISION'S SETTLEMENT OF DECEMBER 19, 1978, DETERMINED THAT THE TRAVEL ORDER COULD NOT BE AMENDED RETROACTIVELY WHICH HAD THE EFFECT OF LETTING STAND THE ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEE'S DEBT OF $71.97 AND THE CHARGE OF 2 DAYS' ANNUAL LEAVE FOR EXCESS TRAVEL TIME WAS CORRECT.
ON DECEMBER 16, 1976, MR. NETTLES WAS GIVEN TRAVEL ORDERS TO TEMPORARY DUTY (TDY) IN OKLAHOMA CITY, OKLAHOMA, WHICH PROVIDED THAT SHOULD THE EMPLOYEE ELECT TO TRAVEL BY RAIL, REIMBURSEMENT FOR THE TRAVEL WOULD BE ON A COMPARATIVE COST BASIS, BASED UPON COSTS AND TRAVEL AUTHORIZED BY AIR.
THE TDY WAS PERFORMED DURING JANUARY AND FEBRUARY 1977. MR. NETTLES TRAVELED FROM RONKONKOMA, NEW YORK, TO OKLAHOMA CITY BY RAIL. HE USED 2 WORKDAYS GOING AND 2 WORKDAYS RETURNING ALTHOUGH 3 DAYS' TRAVEL WERE REQUIRED IN BOTH INSTANCES. IT WAS ADMINISTRATIVELY DETERMINED THAT HAD MR. NETTLES TRAVELED BY AIR THE TRIP COULD HAVE BEEN MADE IN ONE HALF DAY EACH WAY.
THE RESTRICTION IN MR. NETTLES' ORDERS OF DECEMBER 16 APPEARS TO HAVE BEEN MADE WITH FULL KNOWLEDGE OF HIS FEAR OF FLYING AND HIS DESIRE TO TRAVEL BY RAIL. EVEN IF THIS WAS NOT KNOWN HE IMMEDIATELY BROUGHT A GRIEVANCE ACTION TO TEST HIS RIGHT TO TRAVEL BY RAIL AT GOVERNMENT EXPENSE. THE AGENCY POSITION, HOWEVER, WAS NOT CHANGED UNTIL AFTER THE TRAVEL WAS PERFORMED BUT AFTER MR. NETTLES PERFORMED THE TRAVEL BY RAIL THE GRIEVANCE WAS RESOLVED IN HIS FAVOR.
THE RULE THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO CHANGE THE RIGHTS OF THE EMPLOYEE OR THE GOVERNMENT IS NOT APPLICABLE IF THE TRAVEL ORDER IS CONTRARY TO AGENCY REGULATION.
TRAVEL REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION, DOT 1500.6, CHG. 7, DATED JULY 1, 1976, AUTHORIZE TRAVEL BY TRAINS, AIRPLANES, HELICOPTERS, SHIPS, BUSES, STREETCARS, SUBWAYS, TAXICABS; GOVERNMENT FURNISHED AND CONTRACT RENTAL AUTOMOBILES AND AIRPLANES; PRIVATELY OWNED AND RENTED AUTOMOBILES AND AIRPLANES; AND ANY OTHER NECESSARY MEANS OF CONVEYANCE. PARAGRAPH 412.A OF DOT 1500.6 PROVIDES IN PERTINENT PART THAT:
"*** IN SELECTING THE MODE OF TRAVEL, THE AUTHORIZING OFFICIAL WILL GIVE CONSIDERATION TO THE DESIRES OF THE TRAVELER TO THE EXTENT THAT THEY ARE NOT INCONSISTENT WITH THE FOLLOWING FACTORS UPON WHICH THE MODE SELECTED WILL BE BASED:
"(6) PHYSICAL CONDITION OF EMPLOYEE AND AGE AND CONDITION OF FAMILY MEMBERS."
SINCE THE AGENCY WAS ON NOTICE OF THE EMPLOYEE'S FEAR OF FLYING, AND HAVING APPROVED RAIL TRAVEL IN SIMILAR CIRCUMSTANCES ON ANOTHER OCCASION, THE REQUIREMENT THAT THE TRAVEL PERFORMED IN JANUARY AND FEBRUARY 1977 BE ON A COMPARATIVE COST BASIS BASED UPON COSTS AND TRAVEL AUTHORIZED BY AIR WAS CONTRARY TO THE AGENCY'S OWN REGULATIONS AND WAS THEREFORE IN ERROR.
ACCORDINGLY, MR. ALEXANDER NETTLES, JR., SHOULD BE REIMBURSED FOR ACTUAL COST OF COMMON CARRIER RAIL TRAVEL, PER DIEM ESTABLISHED FOR TRAVEL TIME BY RAIL TO OKLAHOMA CITY AND RESTORATION OF 2 DAYS' ANNUAL LEAVE.