B-157853, MAR. 9, 1966

B-157853, MAR. 9, 1966

TO THE SECRETARY OF STATE:

WE REFER TO LETTER OF FEBRUARY 11, 1966, FROM YOUR ACTING DEPUTY UNDER SECRETARY FOR ADMINISTRATION, REQUESTING THAT WE RECONSIDER OFFICE SETTLEMENT OF AUGUST 3, 1965, AND CONFIRMING DECISION OF NOVEMBER 2, 1965, B-157853, WHEREIN REIMBURSEMENT FOR TRAVEL PERFORMED BY MR. H. REID BIRD AND HIS WIFE BETWEEN NEW YORK, NEW YORK, AND SAO PAULO, BRAZIL, INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM LISBON, PORTUGAL, TO SAO PAULO, BRAZIL, WAS LIMITED TO THE CONSTRUCTIVE COST OF DIRECT TRAVEL BY LESS THAN FIRST-CLASS AIR ACCOMMODATIONS.

WE UNDERSTAND THAT THERE WERE NO PASSENGER SHIPS LEAVING NEW YORK FOR SANTOS, BRAZIL, THE NEAREST SEAPORT TO SAO PAULO, WITHIN A REASONABLE TIME FROM THE CONTEMPLATED DEPARTURE OF MR. REID AND HIS WIFE FROM NEW YORK FOR SAO PAULO AND THAT, THEREFORE, MR. REID AND HIS WIFE PERFORMED SHIP TRAVEL FROM NEW YORK TO VALPARAISO, CHILE, AND THENCE BY AIR TO SAO PAULO.

THE POSITION OF YOUR DEPARTMENT IS SUMMARIZED IN NEXT TO LAST PARAGRAPH OF YOUR DEPUTY UNDER SECRETARY'S LETTER AS FOLLOWS:

"IN VIEW OF THE FACT THAT AMERICAN PASSENGER SHIPS WERE UNAVAILABLE FOR TRANSPORTATION FROM THE UNITED STATES TO SANTOS, BRAZIL FOR AT LEAST 56 DAYS FOLLOWING THE DEPARTURE OF MR. AND MRS. BIRD, AND PURSUANT TO PARAGRAPH 117 V OF 6 FAM OF OUR REGULATIONS WE HAVE DETERMINED THAT A "USUALLY TRAVELED ROUTE" FROM THE UNITED STATES TO SAO PAULO WOULD BE BY SHIP FROM THE UNITED STATES TO LIMA AND FROM THERE TO SAO PAULO BY AIR. CONSEQUENTLY, THE INDIRECT PORTION OF THE JOURNEY TAKEN BY MR. AND MRS. BIRD WOULD BE FROM LIMA TO VALPARAISO BY SHIP AND FROM THERE TO SAO PAULO BY AIR. THUS, MR. BIRD SHOULD BE LIMITED IN REIMBURSEMENT FOR THE INDIRECT PORTION OF THE JOURNEY TO ECONOMY AIR AND RELATED MISCELLANEOUS EXPENSES FROM LIMA (PORT OF CALLAO) TO SAO PAULO.'

YOUR DEPARTMENT'S LETTER EXPRESSES THE VIEW THAT THE LIMITATION ON REIMBURSEMENT FOR INDIRECT TRAVEL APPEARING IN 6 FAM 131.4 IS FOR APPLICATION ONLY TO THAT PORTION OF THE JOURNEY THAT IS INDIRECT AND NOT TO THE DIRECT PORTION OF THE JOURNEY. WE CONCUR IN THAT VIEW.

HOWEVER, THE PRIMARY BASIS UPON WHICH YOUR DEPARTMENT WOULD DETERMINE THE EMPLOYEE'S TRAVEL REIMBURSEMENT ENTITLEMENT IS THAT SINCE NO AMERICAN SHIP WAS AVAILABLE BETWEEN NEW YORK, NEW YORK, AND SANTOS, BRAZIL, WITHIN A REASONABLE TIME FROM THE DATE OF THE TRAVEL OF MR. BIRD THE DETERMINATION IS WARRANTED THAT TRAVEL VIA SHIP FROM NEW YORK TO LIMA, PERU, AND THENCE BY AIR TO SAO PAULO CONSTITUTES A USUALLY TRAVELED ROUTE. WE CANNOT AGREE WITH SUCH VIEW. THE COST LIMITATION APPEARING IN 6 FAM 117V CLEARLY PRECLUDES ANY SUCH CONCLUSION.

IN OUR CONSIDERATION OF MR. BIRD'S CASE WE NOTE THAT CERTAIN PORTIONS OF YOUR REGULATIONS DEALING WITH REIMBURSEMENT FOR INDIRECT TRAVEL ARE NOT ENTIRELY CLEAR. 6 FAM 131.3 PROVIDES, IN EFFECT, THAT A TRAVELER MAY BE REIMBURSED FOR THE COST OF THAT PORTION OF THE TRAVEL THAT IS INDIRECT IN AN AMOUNT UP TO THE TOTAL CONSTRUCTIVE COST OF PER DIEM, TRANSPORTATION AND INCIDENTAL EXPENSES THAT WOULD HAVE BEEN INCURRED HAD THE INDIRECT PORTION OF THE TRAVEL IN FACT BEEN PERFORMED BY A USUALLY TRAVELED ROUTE. STANDING ALONE THIS REGULATION CLEARLY WOULD HAVE ENTITLED THE TRAVELER TO THE CONSTRUCTIVE COST OF THE LOWEST FIRST-CLASS SHIP TRAVEL FROM NEW YORK TO SANTOS, BRAZIL, AND THENCE OVERLAND TO SAO PAULO. APPARENTLY SECTION 131.3 OF THE REGULATIONS WAS RELIED UPON BY THE ADMINISTRATIVE OFFICIALS IN ADVISING MR. BIRD OF HIS ENTITLEMENT.

ON THE OTHER HAND SECTION 131.4 IMPOSES OTHER LIMITATIONS UPON REIMBURSEMENT FOR INDIRECT TRAVEL. WHILE WE CONSIDER THE BETTER LEGAL VIEW TO BE THAT THE EFFECT OF SECTION 131.4 IS TO IMPOSE MORE RESTRICTIVE LIMITATIONS UPON THE GENERAL INDIRECT TRAVEL REIMBURSEMENT PROVISIONS OF SECTION 131.3, TO SAY THE LEAST THE TWO SECTIONS ARE CONFUSING PARTICULARLY SINCE NO MENTION IS MADE IN SECTION 131.3 OF THE FURTHER LIMITATIONS APPEARING IN SECTION 131.4. HENCE, A PERSON AFTER EXAMINING 131.3 REASONABLY MIGHT CONCLUDE THAT NO FURTHER EXAMINATION WAS NECESSARY IN REGARD TO INDIRECT TRAVEL REIMBURSEMENT. MOREOVER, WE NOTE THAT SECTION 131.4 IS SILENT AS TO WHETHER LIMITATIONS STILL APPLY WHERE SURFACE TRANSPORTATION IS NOT AVAILABLE AT THE TIME--- ALTHOUGH AIR TRANSPORTATION IS AVAILABLE--- SUCH AS IN THE INSTANT CASE, OR IN A SITUATION UNDER 131.4 WHERE NEITHER SURFACE NOR AIR TRANSPORTATION IS AVAILABLE AT THE TIME BY A DIRECT ROUTE. WE ASSUME THIS CONFUSION IN THE REGULATIONS RESULTED IN MR. BIRD'S HAVING BEEN IMPROPERLY ADVISED.

UNDER THE CIRCUMSTANCES AND SINCE WE UNDERSTAND THAT YOUR REGULATIONS ARE BEING REVISED TO CLARIFY THEIR INTENDED SCOPE, WE NOW CONSIDER IT APPROPRIATE TO MODIFY OUR PREVIOUS ACTION IN MR. BIRD'S CASE AND ALLOW MR. BIRD THE CONSTRUCTIVE COST OF MINIMUM FIRST-CLASS SURFACE TRANSPORTATION, PLUS APPLICABLE PER DIEM, FOR HIMSELF AND HIS WIFE FROM NEW YORK TO SAO PAULO VIA SANTOS, TOGETHER WITH APPROPRIATE INCIDENTAL ADJUSTMENTS CONSISTENT THEREWITH.

A SUPPLEMENTAL SETTLEMENT IN ACCORDANCE WITH THE FOREGOING WILL ISSUE IN DUE COURSE.