B-140669, OCTOBER 19, 1960, 40 COMP. GEN. 218

B-140669, OCTOBER 19, 1960, 40 COMP. GEN. 218

MILITARY PERSONNEL - TRAVEL EXPENSES - "PUBLIC BUSINESS," - ACCUSED MEMBER'S RETURN TO CUSTODY OF FOREIGN GOVERNMENT IN VIEW OF THE RESPONSIBILITY ASSUMED BY THE UNITED STATES UNDER THE NATO STATUS OF FORCES TREATY AND THE JAPANESE ADMINISTRATIVE AGREEMENT TO RETURN TO THE HOST GOVERNMENT UPON DEMAND ANY ACCUSED MEMBER OF THE UNITED STATES ARMED FORCES RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES, THE TRAVEL OF AN ACCUSED MEMBER UNDER COMPETENT ORDERS FROM HIS DUTY STATION TO THE PLACE OF HIS TRIAL BY A FOREIGN COURT, OR TO SOME OTHER PLACE FOR THE PURPOSE OF RELEASING HIS CUSTODY TO THE FOREIGN GOVERNMENT, IS REGARDED AS TRAVEL ON PUBLIC BUSINESS ENTITLING THE MEMBER TO TRAVEL AND TRANSPORTATION ALLOWANCES ON A MILEAGE AND PER DIEM BASIS AS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS; HOWEVER, THE RESPONSIBILITY OF THE UNITED STATES GOVERNMENT IN SUCH CASES IS LIMITED TO PROVIDING FOR THE APPEARANCE OF THE ACCUSED MEMBER AT THE DESIGNATED PLACE UPON DEMAND, AND THE MEMBER MAY NOT BE CONSIDERED AS REMAINING IN A TRAVEL STATUS FOR THE PURPOSE OF ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES WHILE AT SUCH PLACE. THE COSTS OF TRAVEL OF A MEMBER OF THE ARMED FORCES, WHO HAD BEEN RETURNED TO MILITARY CONTROL UNDER AN ADMINISTRATIVE AGREEMENT BETWEEN JAPAN AND THE UNITED STATES, FROM A MILITARY INSTALLATION TO A DESIGNATED PLACE FOR PSYCHIATRIC EVALUATION IN CONNECTION WITH A JAPANESE CRIMINAL PROSECUTION OF THE MEMBER CONSTITUTE AN EXPENSE INCIDENT TO REPRESENTATION BEFORE A JUDICIAL TRIBUNAL WITHIN THE CONTEMPLATION OF 10 U.S.C. 1037, THE LEGISLATIVE INTENT OF WHICH WAS TO AUTHORIZE, REGARDLESS OF MILITARY STATUS AND INDEPENDENTLY OF ANY QUESTION OF PUBLIC BUSINESS, SUCH EXPENDITURES AS ARE ACTUALLY NECESSARY TO PROVIDE ADEQUATELY FOR THE DEFENSE OF THE ACCUSED, INCLUDING THE COST OF TRAVEL BY THE ACCUSED WHEN NECESSARY IN THE PREPARATION OF HIS DEFENSE; HOWEVER, NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY AUTHORIZES THE COMMUTATION OF SUCH EXPENDITURES ON A MILEAGE AND PER DIEM BASIS, THEREFORE THE MEMBER IS ENTITLED TO REIMBURSEMENT OF THE AMOUNTS EXPENDED BY HIM IN PERFORMING THE TRAVEL. 140669, OCTOBER 8, 1959, MODIFIED.

TO THE SECRETARY OF DEFENSE, OCTOBER 19, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 2, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING FURTHER CONSIDERATION OF OUR DECISION B-140669, DATED OCTOBER 8, 1959, TO MAJOR A. H. SCHAFER, USAF, ACCOUNTING AND FINANCE OFFICER, DEPARTMENT OF THE AIR FORCE, WHICH DENIED PAYMENT ON A VOUCHER COVERING PER DIEM AND MILEAGE FOR TEMPORARY DUTY AND TRAVEL BY AN AIR FORCE ENLISTED MAN UNDER ORDERS ISSUED AT JOHNSON AIR FORCE BASE, JAPAN. SUCH ORDERS PURPORTED TO DIRECT TRAVEL AND TEMPORARY DUTY ON A MILEAGE AND PER DIEM BASIS FOR THE PURPOSE OF PSYCHIATRIC EVALUATION AT KYOTO, JAPAN, BY A JAPANESE PHYSICIAN IN CONNECTION WITH A JAPANESE CRIMINAL PROSECUTION OF THE AIRMAN WHO HAD BEEN RETURNED TO MILITARY CONTROL PURSUANT TO AN ADMINISTRATIVE AGREEMENT BETWEEN JAPAN AND THE UNITED STATES. THE EXAMINATION WAS ORDERED BY THE JAPANESE COURT UPON REQUEST OF COUNSEL FOR BOTH DEFENSE AND PROSECUTION WITH RESPECT TO A CRIME FOR WHICH THE ACCUSED HAD BEEN INDICTED ON OCTOBER 31, 1957. IT WAS SHOWN THAT THE TRAVEL FROM JOHNSON AIR BASE, JAPAN, TO KYOTO, JAPAN, AND RETURN, WAS PERFORMED BY RAIL AND THAT NO QUARTERS OR SUBSISTENCE WERE FURNISHED BY THE JAPANESE AUTHORITIES.

PAYMENT ON THE VOUCHER WAS DENIED FOR THE REASON/THAT THE TRAVEL INVOLVED WAS NOT TRAVEL ON PUBLIC BUSINESS AND UNDER APPLICABLE CAREER COMPENSATION ACT, 37 U.S.C. 231 NOTE, AND JOINT TRAVEL REGULATION PROVISIONS THE EXPENSES OF TRAVEL WHICH DOES NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. IN THE COURSE OF THE DECISION WE DISCUSSED THE ACT OF JULY 24, 1956, 70 STAT. 630, NOW 10 U.S.C. 1037, RELATING TO THE PAYMENT OF CERTAIN EXPENSES INCIDENT TO REPRESENTATION BEFORE FOREIGN JUDICIAL AND ADMINISTRATIVE TRIBUNALS OF PERSONS SUBJECT TO THE UNIFORMED CODE OF MILITARY JUSTICE AND EXPRESSED THE OPINION THAT SUCH PROVISIONS DID NOT INCLUDE THE COST OF BOARD, LODGING AND TRANSPORTATION OF A PRISONER WHO IS REQUIRED TO TRAVEL IN CONNECTION WITH HIS TRIAL.

IN HIS REQUEST FOR RECONSIDERATION OF THIS DECISION THE ASSISTANT SECRETARY STATES THAT IT HAS BEEN CONSTRUED AS PROHIBITING THE USE OF APPROPRIATED FUNDS IN ANY CIRCUMSTANCE FOR THE PURPOSE OF TRANSPORTING AN ACCUSED MEMBER OF THE UNITED STATES ARMED FORCES FROM HIS DUTY STATION TO THE SITUS OF HIS TRIAL BY A FOREIGN COURT. THE ASSISTANT SECRETARY DISCUSSES THE COMMITMENTS BY THE UNITED STATES UNDER THE NATO STATUS OF FORCES TREATY AND THE JAPANESE ADMINISTRATIVE AGREEMENT TO RELEASE THE ACCUSED TO THE FOREIGN GOVERNMENTS INVOLVED UPON CERTAIN CONTINGENCIES OR AT THEIR REQUEST AND DISTINGUISHES TRAVEL FOR SUCH PURPOSES FROM THE BENEFITS PROVIDED BY 10 U.S.C. 1037. HE URGES THAT BECAUSE OF THE NEED TO FULFILL ITS INTERNATIONAL OBLIGATIONS THE INTEREST OF THE UNITED STATES IN THE APPEARANCE OF ACCUSED MILITARY PERSONNEL BEFORE FOREIGN CRIMINAL COURTS IS SUFFICIENT TO CONSTITUTE TRAVEL FOR SUCH PURPOSE AS TRAVEL ON PUBLIC BUSINESS SO AS TO WARRANT THE USE OF APPROPRIATED FUNDS TO COVER THE EXPENSES INCIDENT TO TRAVEL BY ACCUSED MEMBERS FROM THEIR DUTY STATIONS TO PLACE OF TRIAL.

THE DECISION OF OCTOBER 8, 1959, DID NOT RELATE TO THE EXPENSES OF TRANSPORTATION INCIDENT TO RETURNING A MEMBER TO PLACE OF TRIAL OR OTHERWISE RELEASING THE CUSTODY OF AN ACCUSED MEMBER TO A FOREIGN GOVERNMENT PURSUANT TO A TREATY OR ADMINISTRATIVE AGREEMENT OBLIGATION; IT CONSIDERED THE QUESTION OF WHETHER TRAVEL OF AN ACCUSED MEMBER IN COMPLIANCE WITH AN ORDER OF A FOREIGN COURT FOR THE PURPOSE OF A PSYCHIATRIC EXAMINATION IN CONNECTION WITH THE PENDING CRIMINAL CHARGES AGAINST HIM WAS TRAVEL ON PUBLIC BUSINESS WITHIN THE PURVIEW OF THE STATUS AND REGULATIONS PROVIDING REIMBURSEMENT FOR SUCH TRAVEL ON A MILEAGE AND PER DIEM BASIS. IN SUCH CIRCUMSTANCES AND SINCE THE MEMBER INVOLVED WAS IN A STATUS TANTAMOUNT TO THAT OF A PRISONER OF THE JAPANESE AUTHORITIES (COMPARE 36 COMP. GEN. 173), AND THE TRAVEL WAS NOT FOR ANY PURPOSE OF RETURNING HIM TO JAPANESE CONTROL BUT WAS INCIDENT TO OR IN CONNECTION WITH THE CHARGES AGAINST HIM, IT WAS OUR VIEW THAT IT COULD NOT BE REGARDED AS MILITARY DUTY SUCH AS WOULD CONSTITUTE IT TRAVEL ON PUBLIC BUSINESS AND REIMBURSABLE AS SUCH UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS. UNDER THE NATO STATUS OF FORCES TREATY AND THE JAPANESE ADMINISTRATIVE AGREEMENT ( ARTICLE XVII (5) (C) (, THE UNITED STATES HAS ASSUMED THE RESPONSIBILITY OF RETURNING TO THE HOST GOVERNMENT UPON DEMAND ANY ACCUSED MEMBER THEREFORE RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES. ACCORDINGLY, THE TRAVEL OF AN ACCUSED MEMBER OF THE UNITED STATES ARMED FORCES UNDER COMPETENT ORDERS FROM HIS DUTY STATION TO THE SITUS OF HIS TRIAL BY A FOREIGN COURT OR TO SOME OTHER PLACE FOR THE PURPOSE OF RELEASING HIS CUSTODY TO THE FOREIGN GOVERNMENT CONCERNED WILL BE ACCEPTED BY THIS OFFICE AS TRAVEL ON PUBLIC BUSINESS ENTITLING THE MEMBER TO TRAVEL AND TRANSPORTATION ALLOWANCES ON A MILEAGE AND PER DIEM BASIS AS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS. SINCE, HOWEVER, THE GOVERNMENT'S RESPONSIBILITY IN SUCH CASES IS LIMITED TO PROVIDING FOR THE APPEARANCE OF THE ACCUSED MEMBERS AT DESIGNATED PLACES UPON DEMAND, WE SEE NO PROPER BASIS ON WHICH IT MAY BE CONSIDERED THAT THE MEMBERS REMAIN IN A TRAVEL STATUS AFTER ARRIVAL AT SUCH PLACES SO AS TO ENTITLE THEM TO ANY TRAVEL AND TRANSPORTATION ALLOWANCES WHILE AT THOSE PLACES.

WITH REFERENCE TO THE CASE WHICH WAS THE SUBJECT OF THE DECISION OF OCTOBER 8, 1959, WE HAVE RE-EXAMINED THE LEGISLATIVE HISTORY OF THE STATUTE CODIFIED IN 10 U.S.C. 1037, AND WE NOW CONCLUDE THAT, IN ENACTING THE LAW, CONGRESS INTENDED, REGARDLESS OF ANY MILITARY DUTY STATUS AND INDEPENDENTLY OF ANY QUESTION OF PUBLIC BUSINESS, TO AUTHORIZE SUCH EXPENDITURES AS ARE ACTUALLY NECESSARY TO PROVIDE ADEQUATELY FOR THE DEFENSE OF THE ACCUSED, INCLUDING EXPENDITURES TO COVER THE COST OF TRAVEL BY THE ACCUSED WHEN NECESSARY IN THE PREPARATION OF THE DEFENSE. WE FIND NOTHING IN THE LAW OF ITS LEGISLATIVE HISTORY, HOWEVER, WHICH WOULD JUSTIFY A CONCLUSION THAT SUCH EXPENDITURES MAY BE COMMUTED ON A MILEAGE AND PER DIEM BASIS. SINCE THE DEFENSE ATTORNEY IN THE CASE WAS A PARTY TO THE MOTION WHICH RESULTED IN THE COURT'S ORDER FOR THE PSYCHIATRIC EXAMINATION, IT APPEARS REASONABLE TO VIEW IT AS HAVING BEEN CONSIDERED NECESSARY TO THE PREPARATION OF AN ADEQUATE DEFENSE FOR THE MEMBER. ACCORDINGLY, WE CONCLUDE THAT THE COSTS OF SUCH TRAVEL ARE TO BE VIEWED AS AN EXPENSE INCIDENT TO REPRESENTATION BEFORE A JUDICIAL TRIBUNAL WITHIN THE CONTEMPLATION OF 10 U.S.C. 1037, AND THE DEPARTMENTAL REGULATIONS ISSUED PURSUANT THERETO; AND THAT THE MEMBER CONCERNED IS ENTITLED TO REIMBURSEMENT OF THE AMOUNTS EXPENDED BY HIM IN PERFORMING THE TRAVEL. OUR COMMENTS IN THE DECISION OF OCTOBER 8, 1959, CONCERNING THE APPLICATION OF 10 U.S.C. 1037 TO COSTS OF BOARD, LODGING AND TRANSPORTATION ARE MODIFIED ACCORDINGLY. WE ASSUME THAT THE DISBURSING OFFICER CONCERNED WILL BE SO ADVISED.