B-173858, DEC 29, 1971

B-173858, DEC 29, 1971

CIVILIAN EMPLOYEE - INDIRECT TRAVEL - REIMBURSEMENT OF COSTS AFFIRMING DECISION, B-173858, OCTOBER 26, 1971, WHICH HELD BARRY SIDMAN LIABLE FOR THE PUBLISHED AIRLINE FARE FOR TRAVEL PERFORMED ON A FOREIGN- FLAG AIRLINE BY CLAIMANT AND HIS FAMILY INCIDENT TO TRAVEL PERFORMED BY AN INDIRECT ROUTE FROM RIO DE JANEIRO, BRAZIL, TO WASHINGTON, D.C., FOR HOME LEAVE AND TRANSFER. WHILE THE INDIRECT TRAVEL IN QUESTION WAS APPROVED BY AN OFFICIAL, IT WAS NOT AN APPROVAL IN ACCORD WITH THE APPLICABLE REGULATIONS. ACCORDINGLY, SUCH APPROVAL MAY NOT BE CONSIDERED A PROPER OFFICIAL ACT SO AS TO LIMIT LIABILITY TO THE DIFFERENCE IN COST OF THE INDIRECT TRAVEL AS COMPARED TO THE COST BY THE CONSTRUCTIVE DIRECT TRAVEL. SEE B-171592, FEBRUARY 26, 1971.

TO MR. BARRY SIDMAN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 26, 1971, B-173858, TO MR. RICHARD J. HENRY, AUTHORIZED CERTIFYING OFFICER. THAT DECISION HELD THAT YOU ARE LIABLE FOR THE PUBLISHED AIRLINE FARE FOR TRAVEL PERFORMED ON A FOREIGN-FLAG AIRLINE BY YOU AND YOUR FAMILY INCIDENT TO TRAVEL BY AN INDIRECT ROUTE FROM RIO DE JANEIRO, BRAZIL, TO WASHINGTON, D.C., FOR HOME LEAVE AND TRANSFER.

THE FACTS AND REASONS FOR OUR DETERMINATION ARE STATED IN OUR DECISION AND WILL NOT BE REPEATED HERE. YOU STATE THAT THE SOURCE OF THE AUTHORITY FOR YOUR TRAVEL WAS THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, AND BELIEVE THAT YOUR LIABILITY FOR EXCESS COSTS DUE TO THE INDIRECT TRAVEL BY FOREIGN AIR CARRIER IS LIMITED TO COSTS IN EXCESS OF THE RIO-WASHINGTON ECONOMY FARE, AS INDICATED BY THE OFFICIAL WHO AUTHORIZED A REVISED ITINERARY PROVIDING FOR INDIRECT TRAVEL VIA GERMANY.

THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS, WHICH APPEAR IN VOLUME 6, FOREIGN AFFAIRS MANUAL (FAM), ARE PRESCRIBED IN ACCORDANCE WITH THE AUTHORITY GRANTED TO THE SECRETARY OF STATE BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED; TO THE DIRECTOR, UNITED STATES INFORMATION AGENCY, UNDER REORGANIZATION PLAN 8, 1953, AND EXECUTIVE ORDER 10477 DATED AUGUST 1, 1953; AND TO THE ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT BY THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, EXECUTIVE ORDER 10973 DATED NOVEMBER 3, 1961, AS AMENDED, AND STATE DEPARTMENT DELEGATION OF AUTHORITY NO. 104 OF NOVEMBER 3, 1961, AS AMENDED. SUCH REGULATIONS ARE, THEREFORE, STATUTORY IN NATURE AND MAY NOT BE WAIVED.

APPLICABLE REGULATIONS IN VOLUME 6, FOREIGN AFFAIRS MANUAL, IN EFFECT AT THE TIME OF THE TRAVEL, WERE AS FOLLOWS:

"134.1 POLICY

"IT IS THE POLICY OF THE UNITED STATES GOVERNMENT, AND THE POLICY SET FORTH BY CONCURRENT RESOLUTION OF THE SENATE AND HOUSE OF REPRESENTATIVES (S. CON. RES. 53, 87TH CONG., 76 STAT. 1428), THAT ALL OFFICIAL AIR TRAVEL BY GOVERNMENT EMPLOYEES AND THEIR DEPENDENTS BE PERFORMED ON AMERICAN-FLAG CARRIERS EXCEPT WHEN OTHERWISE NECESSITATED BY THE OFFICIAL BUSINESS CONCERNED OR TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE. THE STANDARDS OUTLINED IN THESE REGULATIONS FOR PERMISSIBLE TRAVEL ON FOREIGN-FLAG AIRLINES ARE PROVIDED, IN GENERAL, FOR INSTANCES WHEN AMERICAN-FLAG AIRLINES ARE NOT AVAILABLE OR EFFORTS TO UTILIZE AN AMERICAN-FLAG AIRLINE WOULD RESULT IN EXCESSIVE DELAY, COST, OR PERSONAL INCONVENIENCE. FULL CONSIDERATION SHOULD BE GIVEN TO THE INTENT OF THE ABOVE-STATED POLICY BEFORE ARRANGING TRAVEL ON FOREIGN-FLAG AIRLINES. IN THE APPLICATION OF THOSE REGULATIONS, THE TERM 'REGULARLY SCHEDULED SERVICE' MEANS A SERVICE THAT OPERATES AT LEAST THREE TIMES WEEKLY.

"134.4 INDIRECT, DELAYED, OR INTERRUPTED TRAVEL

"WHEN AIR TRAVEL IS PERFORMED BY AN INDIRECT ROUTE, OR DELAYED, OR INTERRUPTED FOR PERSONAL CONVENIENCE, USE OF A FOREIGN-FLAG AIRLINE CANNOT EXCEED THAT WHICH WOULD HAVE BEEN NECESSARY FOR TRAVEL PERFORMED ON A DIRECT, USUALLY TRAVELED ROUTE. FOR AUDIT PURPOSES, THE PUBLISHED AIRLINE FARES FOR THE FOREIGN CARRIER SEGMENTS ON THE DIRECT ROUTE AND ON THE ROUTE ACTUALLY TRAVELED WILL SERVE AS THE BASIS FOR COMPARISON (ALSO SEE SECTION 131.3). TRAVEL ON FOREIGN-FLAG AIRLINES THAT WOULD HAVE BEEN PERMISSIBLE UNDER THE PROVISIONS OF SECTION 134.2, PARAGRAPHS D AND E (ALSO PARAGRAPHS F AND G IF FOREIGN CURRENCY IS ACTUALLY USED FOR TRAVEL AS PERFORMED), AND SECTION 134.3 MAY BE USED FOR COMPARISON PURPOSES AS FOREIGN CARRIER SEGMENTS ON THE DIRECT ROUTE.

"134.6 FAILURE TO COMPLY

"FAILURE TO COMPLY WITH THE PROVISIONS OF SECTIONS 134.2, 134.3, AND 134.4 WILL SUBJECT THE EMPLOYEE TO PERSONAL FINANCIAL RESPONSIBILITY AS FOLLOWS:

"B. WHEN TRAVELERS USE FOREIGN-FLAG AIRLINES FOR ONE OR MORE SEGMENTS OF A JOURNEY IN CONFLICT WITH THESE REGULATIONS, THEY WILL BE HELD RESPONSIBLE FOR THE DOLLAR VALUE OF THE PUBLISHED AIRLINE FARE APPLYING TO THE ROUTE SEGMENTS INVOLVED.

"NOTE: WHEN TRAVEL IS INDIRECT AND ALSO INVOLVES UNAUTHORIZED USE OF A FOREIGN AIRLINE, THE TRAVELER IS RESPONSIBLE FOR PAYING THE LARGER OF EITHER:

"(1) THE FARE COST OF THE INDIRECT ROUTING IN EXCESS OF THE COST VIA A DIRECT ROUTE; OR

"(2) THE PUBLISHED FARE FOR THE UNAUTHORIZED FOREIGN AIRLINE SEGMENT."

SECTION 134.2, VOLUME 6, FOREIGN AFFAIRS MANUAL, SETS FORTH VARIOUS CIRCUMSTANCES WHEN TRAVEL BY FOREIGN AIR CARRIERS MAY BE USED. IN GENERAL THEY PERMIT THE USE OF FOREIGN AIR CARRIERS ONLY TO PREVENT THE DELAY OF OFFICIAL BUSINESS OR TO PERMIT THE USE OF EXCESS FOREIGN CURRENCY.

IN THE INSTANT CASE TRAVEL COULD HAVE BEEN PERFORMED BY AN AMERICAN AIR CARRIER DIRECTLY FROM RIO DE JANEIRO TO WASHINGTON. TRAVEL BY FOREIGN CARRIER TO EUROPE WAS PERFORMED FOR YOUR PERSONAL CONVENIENCE RATHER THAN FOR THE PERFORMANCE OF OFFICIAL TRAVEL. THEREFORE, WHILE THE INDIRECT TRAVEL IN QUESTION WAS APPROVED BY AN OFFICIAL, IT WAS NOT AN APPROVAL IN ACCORD WITH THE APPLICABLE REGULATIONS. ACCORDINGLY, SUCH APPROVAL MAY NOT BE CONSIDERED A PROPER OFFICIAL ACT SO AS TO LIMIT YOUR LIABILITY TO THE DIFFERENCE IN COST BETWEEN THE COST OF THE INDIRECT TRAVEL AS COMPARED TO THE COST BY THE CONSTRUCTIVE DIRECT TRAVEL. SEE B-171592, FEBRUARY 26, 1971, COPY ENCLOSED.

IN VIEW OF THE ABOVE, OUR DECISION OF OCTOBER 26, 1971, MUST BE SUSTAINED.