A-24273, NOVEMBER 2, 1928, 8 COMP. GEN. 225

A-24273: Nov 2, 1928

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TRAVELING EXPENSES - AIR TRAVEL - ARMY OFFICER WHERE AN OFFICER OF THE ARMY TRAVELED BY AIR UNDER ORDERS NOT SPECIFICALLY DIRECTING TRAVEL BY AIR HE IS ENTITLED TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES UNDER THE LAW AND REGULATIONS APPLICABLE TO TRAVEL BY AIR. MILEAGE IS NOT AUTHORIZED FOR TRAVEL BY AIR. 1928: THERE IS FOR CONSIDERATION THE PAYMENT. CREDIT FOR WHICH WAS SUSPENDED IN THE SETTLEMENT OF HIS ACCOUNTS. " AS FOLLOWS: SIR: YOU ARE REQUESTED TO PROCEED TO LANGLEY FIELD. UPON COMPLETION OF THIS TEMPORARY DUTY YOU ARE AUTHORIZED TO RETURN TO YOUR PRESENT STATION. WHILE TRAVELING UNDER THIS AUTHORITY YOU WILL BE ALLOWED EIGHT CENTS PER MILE IN ACCORDANCE WITH LAW. IS AVAILABLE FOR "TRAVELING EXPENSES OF MEMBERS AND EMPLOYEES.'.

A-24273, NOVEMBER 2, 1928, 8 COMP. GEN. 225

TRAVELING EXPENSES - AIR TRAVEL - ARMY OFFICER WHERE AN OFFICER OF THE ARMY TRAVELED BY AIR UNDER ORDERS NOT SPECIFICALLY DIRECTING TRAVEL BY AIR HE IS ENTITLED TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES UNDER THE LAW AND REGULATIONS APPLICABLE TO TRAVEL BY AIR. MILEAGE IS NOT AUTHORIZED FOR TRAVEL BY AIR. A 16016, NOVEMBER 20, 1926, AND A-19385, AUGUST 13, 1927, REVERSED.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 2, 1928:

THERE IS FOR CONSIDERATION THE PAYMENT, IN THE CIRCUMSTANCES HEREAFTER RECITED, OF $19.30 MILEAGE FROM WASHINGTON, D.C., TO LANGLEY FIELD, VA., AND RETURN, TO MAJ.GEN. JAMES E. FECHET, C., UNITED STATES ARMY, BY J. F. VICTORY, SPECIAL DISBURSING AGENT, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, VOUCHER NO. 1466, THIRD QUARTER, 1928, CREDIT FOR WHICH WAS SUSPENDED IN THE SETTLEMENT OF HIS ACCOUNTS, CERTIFICATE K-29322 MS., DATED JULY 12, 1928.

BY LETTER DATED MARCH 1, 1928, THE SECRETARY OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS ADVISED "MAJOR GENERAL JAMES E. FECHET, U.S.A., AIR CORPS, WAR DEPARTMENT, WASHINGTON, D.C., " AS FOLLOWS:

SIR: YOU ARE REQUESTED TO PROCEED TO LANGLEY FIELD, VIRGINIA, TO INSPECT THE ACTIVITIES OF THE LANGLEY MEMORIAL AERONAUTICAL LABORATORY AND THE AIRCRAFT CARRIER LEXINGTON STATIONED AT HAMPTON ROADS, VIRGINIA.

UPON COMPLETION OF THIS TEMPORARY DUTY YOU ARE AUTHORIZED TO RETURN TO YOUR PRESENT STATION.

WHILE TRAVELING UNDER THIS AUTHORITY YOU WILL BE ALLOWED EIGHT CENTS PER MILE IN ACCORDANCE WITH LAW.

VOUCHER STATED IN FAVOR OF JAMES E. FECHET, MAJOR GENERAL, UNITED STATES ARMY, AIR CORPS, WAR DEPARTMENT, WASHINGTON, D.C., AND SIGNED "J. E. FECHET, MAJOR GENERAL, U.S.A., MEMBER OF MITTEE," CLAIMED MILEAGE AMOUNTING TO $19.30, THE TRAVEL AND TRANSPORTATION FURNISHED BEING STATED ON THE REVERSE OF THE VOUCHER AS FOLLOWS:

TABLE

DATE

1928

MAR. 2. LEFT WASHINGTON 7.40 A.M.

ARRIVED LANGLEY FIELD 8.50 A.M.

LEFT LANGLEY FIELD 4.50 P.M.

ARRIVED WASHINGTON 6 P.M.

MILEAGE: WASHINGTON TO LANGLEY FIELD AND RETURN 386 MILES

AT $0.08 -------------------------- $30.88

LESS $0.03 PER MILE FOR AIRPLANE TRANSPORTATION

FURNISHED BY GOVERNMENT ---------------------- 11.58

$19.30

THE ACT OF MARCH 3, 1915, 38 STAT. 930, PROVIDES THAT THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS SHALL CONSIST OF, AMONG OTHERS,"TWO MEMBERS OF THE WAR DEPARTMENT FROM THE OFFICE IN CHARGE OF MILITARY AERONAUTICS.' THE APPROPRIATION FOR THE FISCAL YEAR 1928 FOR THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, ACT OF FEBRUARY 11, 1927, 44 STAT. 1078-1079, IS AVAILABLE FOR "TRAVELING EXPENSES OF MEMBERS AND EMPLOYEES.' ARMY OFFICERS DETAILED OR ASSIGNED IN ACCORDANCE WITH LAW TO DUTY OTHER THAN STRICTLY ARMY DUTY, UNLESS THE LAW SPECIFICALLY PROVIDES OTHERWISE, ARE ENTITLED ONLY TO THE PAY AND ALLOWANCES FIXED BY LAW FOR THEIR ARMY OFFICE. (3 COMP. DEC. 88; 5 COMP. GEN. 399.) THE TRAVEL EXPENSES (WHETHER REIMBURSABLE IN THE FORM OF MILEAGE OR AS ACTUAL EXPENSES OF TRAVEL) TO WHICH AN OFFICER OF THE ARMY IS ENTITLED WHO MAY BE A MEMBER OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, AND PAYABLE UNDER THE APPROPRIATIONS FOR THAT COMMITTEE, ARE THE SAME AS WOULD BE PAYABLE IF THE TRAVEL WERE ON ARMY DUTY AND PAYABLE UNDER THE APPROPRIATIONS FOR THE ARMY.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS AMENDED AND REENACTED BY THE ACT OF JUNE 1, 1926, 44 STAT. 680, PROVIDES---

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. * *

PRIOR TO THE FOREGOING ACT, THE ACT OF JUNE 12, 1906, 34 STAT. 246, HAD PROVIDED, FOR OFFICERS OF THE ARMY, THAT---

* * * OFFICERS * * * WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS * * * SHALL BE PAID SEVEN CENTS PER MILE AND NO MORE; DISTANCES TO BE COMPUTED AND MILEAGE TO BE PAID OVER THE SHORTEST USUALLY TRAVELED ROUTES, WITH DEDUCTION AS HEREINAFTER PROVIDED; * * *.

IN 25 COMP. DEC. 234, IT WAS HELD THAT AT THE TIME OF THE PASSAGE OF THE ACT OF 1906 TRAVEL BY AIRPLANE WAS NOT CONTEMPLATED; THAT THE LAW WAS NOT APPLICABLE THERETO; AND THAT IN THE ABSENCE OF LEGISLATION PROVIDING FOR MILEAGE ALLOWANCE FOR AIR TRAVEL, THERE WAS NO AUTHORITY TO PAY MILEAGE FOR SUCH TRAVEL. IN 25 COMP. DEC. 448 (1918), IT WAS SAID:

THE MILEAGE LAWS RELATE TO LAND TRAVEL, AND TO WATER TRAVEL OTHER THAN THAT DESIGNATED "SEA TRAVEL.' THERE IS NO LAW AUTHORIZING PAYMENT OF MILEAGE FOR SEA TRAVEL OR FOR AIR TRAVEL.

* * * TRAVEL BY AIRPLANE UNDER REGULAR TRAVEL ORDERS, WHEN NOT ON AVIATION DUTY, DOES NOT ENTITLE AN OFFICER TO MILEAGE UNDER THE PROVISIONS OF EXISTING LAWS RELATING TO PAYMENT OF MILEAGE. IT WOULD SEEM, HOWEVER, THAT SUCH OFFICER IS LAWFULLY ENTITLED TO REIMBURSEMENT OF ACTUAL NECESSARY EXPENSES INCURRED BY HIM IN TRAVEL PERFORMED IN OBEDIENCE TO ORDERS.

THERE BEING ONLY THE MILEAGE APPROPRIATION AND NO APPROPRIATION FOR TRAVEL EXPENSES FOR OFFICERS OF THE ARMY TRAVELING IN THE UNITED STATES, AND NO AUTHORITY OF LAW FOR PAYMENT OF ACTUAL EXPENSES, EXCEPT FOR SEA TRAVEL, THE STATEMENT IN THE LAST SENTENCE OF THE FOREGOING QUOTED DECISION WAS APPARENTLY WITHOUT SUPPORT. THE NET EFFECT OF THE DECISIONS CITED WAS THAT THE MILEAGE LAW DID NOT APPLY TO TRAVEL BY AIR AND THAT NO PAYMENT OF EXPENSES OF SUCH TRAVEL WAS OTHERWISE AUTHORIZED. THE CONGRESS SUBSEQUENTLY PROVIDED, IN THE ACT OF JULY 11, 1919, 41 STAT. 109:

* * * THAT HEREAFTER ACTUAL AND NECESSARY EXPENSES ONLY, NOT TO EXCEED $8 PER DAY, SHALL BE PAID TO OFFICERS OF THE ARMY AND CONTRACT SURGEONS WHEN TRAVELING BY AIR ON DUTY WITHOUT TROOPS, UNDER COMPETENT ORDERS: * * *.

THIS PROVISION FOR "ACTUAL AND NECESSARY EXPENSES" FOR TRAVEL BY AIR ON DUTY WITHOUT TROOPS UNDER COMPETENT ORDERS WAS, BY SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 633, EXTENDED TO OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD IN THE FOLLOWING LANGUAGE:

THAT ALL OFFICERS, * * * OF ALL BRANCHES OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, WHEN DETAILED TO DUTY INVOLVING FLYING, SHALL RECEIVE * * * THE SAME ALLOWANCE FOR TRAVELING EXPENSES AS ARE NOW AUTHORIZED FOR THE PERFORMANCE OF LIKE DUTIES IN THE ARMY. * * *

THIS PROVISION WAS LAST AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, BUT THE AMENDMENT LEFT THE FOREGOING PROVISION UNCHANGED.

THE TWO PROVISIONS CONTAINED IN THE ACT OF JUNE 10, 1922, THE ONE FOR MILEAGE IN SECTION 12, AND THE OTHER FOR ACTUAL AND NECESSARY EXPENSES FOR TRAVEL BY AIR IN SECTION 20, ARE CONCLUSIVE THAT FOR TRAVEL BY AIR THE MILEAGE LAWS ARE NOT APPLICABLE, AND THE ONLY FORM OF REIMBURSEMENT IS FOR ACTUAL AND NECESSARY EXPENSES WITHIN THE LIMITS FIXED BY THE ACT OF JULY 11, 1919. THE TEST UNDER THESE TWO PROVISIONS OF LAW IS, HOW WAS THE TRAVEL PERFORMED; IF BY LAND, MILEAGE IS AYABLE; IF BY AIR, ACTUAL AND NECESSARY EXPENSES WITHIN THE LIMITS FIXED BY LAW AND REGULATION. THE LAW IS SPECIFIC. WHEN TRAVELING BY AIR, MILEAGE SHALL NOT BE PAID, BUT REIMBURSEMENT SHALL BE ON THE BASIS OF ACTUAL AND NECESSARY EXPENSES. THE MEASURE OF REIMBURSEMENT FIXED BY LAW IS NOT AFFECTED BY FAILURE TO PRESCRIBE IN THE ORDERS THE METHOD OF TRAVEL OR BY STATING A BASIS OF PAYMENT NOT APPLICABLE TO THE MODE OF TRAVEL. THE ORDER, TO BE COMPETENT, MUST EMANATE FROM AN AUTHORIZED SOURCE, MUST DIRECT TRAVEL SUCH AS IS AUTHORIZED OR CONTEMPLATED BY LAW, AND MUST CONFORM TO OTHER REQUIREMENTS ESTABLISHED BY LAW FOR TRAVEL OF OFFICERS OF THE ARMY. BUT WHETHER THE MEASURE OF REIMBURSEMENT SHALL BE MILEAGE OR ACTUAL AND NECESSARY EXPENSES IS TO BE DETERMINED BY HOW THE TRAVEL WAS PERFORMED. THE REGULATION ISSUED BY THE WAR DEPARTMENT UNDER THE ACT OF JULY 11, 1919, PARAGRAPH 1280 1/2, ADDED BY C.A.R. NO. 91, JULY 29, 1919, PROVIDED:

ACTUAL AND NECESSARY EXPENSES ONLY, NOT TO EXCEED $8 PER DAY, WILL BE PAID TO OFFICERS OF THE ARMY AND TO CONTRACT SURGEONS FOR AIR TRAVEL WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, THE TRAVEL ORDERS SPECIFYING THAT THE TRAVEL IS NECESSARY IN THE MILITARY SERVICE AND THAT TRAVEL BY AIR CRAFT IS AUTHORIZED.

THE DECISIONS HAVE GENERALLY INDICATED THE NECESSITY FOR THE ORDER TO DIRECT TRAVEL BY AIR, AND WHERE THERE HAS BEEN TRAVEL BY AIR AND BY LAND UNDER AN ORDER NOT DIRECTING TRAVEL BY AIR, THE QUESTION HAS ARISEN ASTO THE MEASURE OF REIMBURSEMENT. SUCH A CASE WAS A-16016, LIEUT. COMMANDER FENN, UNITED STATES NAVY, WHO WAS DIRECTED TO PROCEED TO NAMED POINTS FOR TEMPORARY DUTY AND TO RETURN TO HIS STATION IN WASHINGTON, D.C., AND ACCOMPANIED AN AVIATION OFFICER TRAVELING IN THE SAME GENERAL DIRECTION, PART OF THE TRAVEL HAVING BEEN BY RAIL AND PART BY AIR. ON SUBMISSION OF THE QUESTION IT WAS DETERMINED THE ORDER BEING IN THE USUAL FORM ENTITLING AN OFFICER TO MILEAGE AND THE ORDER NOT PRESCRIBING TRAVEL BY AIR THAT HE WAS ENTITLED TO REIMBURSEMENT ON A MILEAGE BASIS. A SIMILAR CASE, A- 19385, BRIG.GEN. WILLIAM E. GILLMORE, A.C., UNITED STATES ARMY, ALSO A MEMBER OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, TRAVELED FROM DAYTON, OHIO, TO WASHINGTON, D.C., BY RAIL TO ATTEND A MEETING OF THE COMMITTEE AND RETURNED BY AIR AS A PASSENGER. THE ORDERS BEING SILENT AS TO THE METHOD OF TRAVEL, MILEAGE WAS AUTHORIZED. BOTH THESE CASES REPRESENT THAT UNLESS MILEAGE WAS ALLOWED, THE OFFICERS WOULD BE ENTITLED TO NO FORM OF REIMBURSEMENT FOR THE PORTION OF THE TRAVEL PERFORMED BY AIR.

IN THE PRESENT CASE, HOWEVER, THERE IS NO QUESTION OF MIXED TRAVEL AND THE USE OF THE AIRPLANE WAS ENTIRELY FOR THE PURPOSE OF MAKING THE JOURNEY. THE COST OF ITS OPERATION WAS THEREFORE AN ACTUAL INCREASED COST TO THE GOVERNMENT. THAT THE MEANS OF TRAVEL SELECTED WAS A TIME SAVER IS UNDOUBTEDLY TRUE, BUT THE ONLY ACTUAL EXPENSE TO WHICH GENERAL FECHET WAS PUT BY REASON OF THE TRAVEL WAS FOR LUNCH AT LANGLEY FIELD. ALL LAWS FOR REIMBURSEMENT OF TRAVELING EXPENSES, WHETHER IN THE FORM OF COMMUTATION, AS MILEAGE OR PER DIEM IN LIEU OF SUBSISTENCE, OR AS REIMBURSEMENT OF ACTUAL EXPENSES, CONTEMPLATE NECESSITY FOR EXPENSES SUBSTANTIALLY EQUIVALENT TO THE AMOUNT REIMBURSABLE. IT APPEARS FROM ORDERS OF THE WAR DEPARTMENT THAT THE WAR DEPARTMENT HAS DETERMINED FROM ITS OPERATIONS THAT THE MAINTENANCE COST PER FLYING HOUR OF AN AIRPLANE, AND INCLUDING THE COST OF AIRPLANE UPKEEP, GASOLINE, AND OIL CONSUMED IS $51.75. THE FLYING TIME OF GENERAL FECHET WAS TWO HOURS AND TWENTY MINUTES AND ON THIS BASIS THE COST TO THE GOVERNMENT FOR MAINTAINING AND OPERATING THE AIRPLANE WAS $120.75. IF TO THIS IS TO BE ADDED THE $19.30 PAID AS MILEAGE, THERE WOULD BE INVOLVED AN APPARENT TOTAL COST TO THE GOVERNMENT OF $140.05, TO TRANSPORT THE OFFICER FROM WASHINGTON TO LANGLEY FIELD AND RETURN, THE MILEAGE DISTANCE BEING SHOWN AS 386 MILES. HAD THE MEASURE OF REIMBURSEMENT BEEN MILEAGE AND THE TRAVEL BEEN BY RAIL, THE COST TO THE GOVERNMENT WOULD HAVE BEEN SUBSTANTIALLY 8.6 CENTS PER MILE FOR 386 MILES, OR $33.20. OBVIOUSLY A STATUTE PROVIDING FOR DEDUCTION OF 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED BY THE UNITED STATES NEVER CONTEMPLATED THE FURNISHING OF TRANSPORTATION COSTING THE GOVERNMENT 31 CENTS PER MILE.

THE ITEM IN THIS CASE WILL BE PASSED, BUT HEREAFTER, IRRESPECTIVE OF WHETHER THE ORDERS DIRECT TRAVEL BY AIR, REIMBURSEMENT WILL BE ON THAT BASIS WHEN TRAVEL IS BY AIR. IF TRAVEL IS BY AIR, THE SOLE AND ONLY REIMBURSEMENT AUTHORIZED IS THE ACTUAL AND NECESSARY EXPENSES INCURRED. IF THE TRAVEL IS BY AIR AND BY LAND, THE PORTION OF THE JOURNEY BY LAND WILL BE REIMBURSED UNDER THE MILEAGE LAWS AND THE PORTION OF THE TRAVEL BY AIR UNDER THE LAW AND REGULATIONS APPLICABLE TO TRAVEL BY AIR.

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