A-39721, DECEMBER 15, 1931, 11 COMP. GEN. 235

A-39721: Dec 15, 1931

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THE APPROVAL OF SUCH TRAVEL BY THE SECRETARY OF STATE AND THE FACT THAT NO AMERICAN VESSELS WERE AVAILABLE AT THE DATE OF SUCH TRAVEL BY THE DEPENDENTS. AS AN AMERICAN VESSEL WAS AVAILABLE HAD THE DEPENDENTS ACCOMPANIED THE OFFICER AND THERE WAS NO OFFICIAL NECESSITY FOR THE USE OF THE FOREIGN VESSEL WITHIN THE PURVIEW OF SEC. 601 OF THE MERCHANT MARINE ACT OF 1928. WHEREIN HE WAS ADVISED OF THE SUSPENSION OF CREDIT. THE OFFICER WAS ADVISED OF HIS DETAIL FOR DUTY IN WASHINGTON AND THAT. DUE TO THE FACT THAT NO PASSAGE WAS AVAILABLE ON A VESSEL OF AMERICAN REGISTRY AT THAT TIME. THE TRAVEL WAS APPROVED BY THE SECRETARY OF STATE AUGUST 13. IN JUSTIFICATION OF THAT ACTION THE FOLLOWING EXPLANATION IS SUBMITTED IN LETTER OF OCTOBER 19.

A-39721, DECEMBER 15, 1931, 11 COMP. GEN. 235

TRAVELING EXPENSES - FOREIGN VESSELS - DEPENDENTS OF A FOREIGN SERVICE OFFICER WHERE THE DEPENDENTS OF A FOREIGN SERVICE OFFICER RETURNING TO THE UNITED STATES DO NOT ACCOMPANY THE OFFICER BUT FOR PERSONAL REASONS PRECEDE HIM, THE APPROVAL OF SUCH TRAVEL BY THE SECRETARY OF STATE AND THE FACT THAT NO AMERICAN VESSELS WERE AVAILABLE AT THE DATE OF SUCH TRAVEL BY THE DEPENDENTS, DO NOT AUTHORIZE THE ALLOWANCE OF CREDIT FOR EXPENDITURES SO MADE UPON THE FOREIGN VESSEL, AS AN AMERICAN VESSEL WAS AVAILABLE HAD THE DEPENDENTS ACCOMPANIED THE OFFICER AND THERE WAS NO OFFICIAL NECESSITY FOR THE USE OF THE FOREIGN VESSEL WITHIN THE PURVIEW OF SEC. 601 OF THE MERCHANT MARINE ACT OF 1928, 45 STAT. 697.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, DECEMBER 15, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 19, 1931, RELATIVE TO A NOTICE OF EXCEPTION ADDRESSED TO EDWIN C. WILSON, FOREIGN SERVICE OFFICER, UNDER DATE OF SEPTEMBER 26, 1931, WHEREIN HE WAS ADVISED OF THE SUSPENSION OF CREDIT, IN HIS ACCOUNT FOR THE PERIOD AUGUST 9 TO SEPTEMBER 30, 1930, FOR AN ITEM OF $126 CHARGED AS STEAMSHIP FARE AND STEWARDS' TIPS FOR HIS SON FROM HAVRE, FRANCE, TO NEW YORK ON THE STEAMSHIP LAFAYETTE IN CONNECTION WITH THE OFFICER'S TRANSFER FROM PARIS TO WASHINGTON, D.C., IN AUGUST, 1930.

IT APPEARS THAT BY TELEGRAM ADDRESSED TO THE AMERICAN EMBASSY, PARIS, FRANCE, JULY 26, 1930, THE OFFICER WAS ADVISED OF HIS DETAIL FOR DUTY IN WASHINGTON AND THAT, IN PURSUANCE THEREOF, HE SAILED FROM CHERBOURG ON THE STEAMSHIP LEVIATHAN ON AUGUST 28, 1930. HIS SON PRECEDED HIM IN ORDER TO UNDERGO AN OPERATION IN THE UNITED STATES BEFORE ENTERING SCHOOL AND, DUE TO THE FACT THAT NO PASSAGE WAS AVAILABLE ON A VESSEL OF AMERICAN REGISTRY AT THAT TIME, HE SAILED WITH RELATIVES AUGUST 9, 1930, ON THE STEAMSHIP LAFAYETTE OF THE COMPAGNIE GENERALE TRANSATLANTIQUE.

THE TRAVEL WAS APPROVED BY THE SECRETARY OF STATE AUGUST 13, 1931,AND IN JUSTIFICATION OF THAT ACTION THE FOLLOWING EXPLANATION IS SUBMITTED IN LETTER OF OCTOBER 19, 1931:

PARAGRAPH NO. 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS READS AS FOLLOWS:

"7. APPROVAL.--- WHENEVER TRAVEL HAS BEEN PERFORMED AND EXPENSE INCURRED ON ACCOUNT OF AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, THE TRAVEL VOUCHER MUST BE APPROVED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR BY AN OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE, AND SUCH APPROVAL SHALL CONSTITUTE THE AUTHORITY FOR THE TRAVEL. ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A STATEMENT SATISFACTORY TO THE APPROVING OFFICIAL OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.'

PARAGRAPH NO. 30 OF THE DEPARTMENT'S "SUPPLEMENT OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS" READS AS FOLLOWS:

"30. THE EXPENSES OF THE FAMILY OF AN OFFICER OR CLERK ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE WILL BE ALLOWED, UNDER THE LIMITATIONS IMPOSED BY THESE REGULATIONS AND EXISTING LAW, WHETHER THEY ACCOMPANY, OR FOLLOW, OR PRECEDE HIM PROVIDED THEIR DEPARTURE IS SUBSEQUENT TO THE DATE OF THE RECEIPT OF HIS TRAVEL ORDER, AND PROVIDED FURTHER THAT THEIR DEPARTURE PRIOR TO THE OFFICER OR CLERK IS SPECIALLY AUTHORIZED BY THE SECRETARY OF STATE. SUCH EXPENSES WILL NOT BE ALLOWED, HOWEVER, WHERE THE MEMBERS OF THE FAMILY FOLLOWING HIM BEGIN THE JOURNEY LATER THAN SIX MONTHS AFTER THE DATE OF DEPARTURE OF THE OFFICER OR CLERK, EXCEPT BY SPECIAL AUTHORIZATION OF THE SECRETARY OF STATE.'

THE DEPARTMENT INTERPRETS PARAGRAPH NO. 7 ABOVE TO MEAN THAT WHEN CIRCUMSTANCES REQUIRE A SUBSEQUENT APPROVAL OF TRAVEL EXPENSES, IN LIEU OF PRIOR AUTHORIZATION, SUCH APPROVAL SHALL HAVE THE FULL FORCE AND EFFECT THAT A PRIOR AUTHORIZATION THEREOF WOULD HAVE HAD. THE REQUIREMENT IS STATED THAT "ALL VOUCHERS * * * MUST CONTAIN A STATEMENT SATISFACTORY TO THE APPROVING OFFICIAL OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.' BY INSTRUCTION OF AUGUST 13, 1931, A COPY OF WHICH WAS FORWARDED TO YOU WITH A LETTER FROM THE BUREAU OF ACCOUNTS DATED AUGUST 18, 1931, THE DEPARTMENT DID SO APPROVE THE PRIOR DEPARTURE OF THE SON OF THE OFFICER HERE INVOLVED, AND IT IS CONTENDED THAT SUCH APPROVAL HAS PRECISELY THE SAME FORCE AND EFFECT THAT A PRIOR INSTRUCTION AUTHORIZING DEPARTURE ON THE EXACT DATE (IN THIS CASE AUGUST 9, 1930) WOULD HAVE HAD.

IT SEEMS EVIDENT, UNDER PARAGRAPH NO. 30 OF THE DEPARTMENT'S SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THAT THE SECRETARY OF STATE, OR SUCH OFFICIAL AS MAY HAVE BEEN DESIGNATED BY HIM, HAS THE SAME POWER TO AUTHORIZE TRAVEL OF THE FAMILIES OF FOREIGN SERVICE OFFICERS OR EMPLOYEES THAT HE HAS TO AUTHORIZE THE TRAVEL OF THE OFFICERS OR EMPLOYEES THEMSELVES.

IT IS CONSEQUENTLY CONTENDED THAT THE SECRETARY OF STATE HAS THE POWER TO AUTHORIZE THE DEPARTURE OF EITHER OFFICERS OR THEIR FAMILIES ON ANY DATE WHICH HE MAY FIX, FOR REASONS SATISFACTORY TO HIM, AND THAT WHEN TRAVEL HAS BEEN PERFORMED WITHOUT SUCH PRIOR AUTHORITY, HIS SUBSEQUENT APPROVAL THEREOF HAS THE SAME EFFECT EXACTLY AS WOULD HAVE BEEN HAD BY A PRIOR AUTHORIZATION. IN THIS CASE THE OFFICER INVOLVED SAILED ON AUGUST 28, 1930, AND HIS SON SAILED ON AUGUST 9, 1930. THE PRIOR DEPARTURE OF THE SON WAS SUBSEQUENTLY SPECIFICALLY APPROVED BY THE OFFICIAL DESIGNATED BY THE SECRETARY OF STATE FOR SUCH PURPOSES, WHICH APPROVAL HAD THE SAME EFFECT THAT AN AUTHORIZATION DIRECTING THE SAILING OF THE SON ON AUGUST 9, 1930, WOULD HAVE HAD. IT BEING CONCEDED THAT THE SECRETARY OF STATE HAS POWER TO AUTHORIZE THE TRAVEL OF FAMILIES OF OFFICERS AND EMPLOYEES AT SUCH TIMES AND FOR SUCH PURPOSES AS HE SEES FIT, IT APPEARS THAT CREDIT SHOULD BE ALLOWED IN THE ACCOUNTS OF THE OFFICER INVOLVED FOR THE AMOUNTS NOW SUSPENDED.

SO FAR AS THE REQUIREMENTS OF SECTION 601 OF THE MERCHANT MARINE ACT OF MAY 22, 1928, ARE CONCERNED, THERE WAS SUBMITTED WITH THE ORIGINAL ACCOUNTS A LETTER FROM THE UNITED STATES LINES, DATED NOVEMBER 5, 1930, IN SUPPORT OF THE OFFICER'S STATEMENT THAT NO VESSELS OF AMERICAN REGISTRY WERE AVAILABLE DURING THE PERIOD AUGUST 9 TO 28, 1930. NO EVIDENCE HAS BEEN ADDUCED TO REFUTE THE STATEMENTS THEREIN CONTAINED, AND IT IS BELIEVED THAT SUCH STATEMENTS PROPERLY SERVICE TO PLACE THE SITUATION WITHOUT THE REQUIREMENTS OF THE SAID ACT.

UNDER THE PROVISIONS OF THE SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARY OF STATE APRIL 27, 1927, REIMBURSEMENT IS AUTHORIZED TO A FOREIGN SERVICE OFFICER FOR THE TRAVEL EXPENSES OF MEMBERS OF HIS FAMILY WHO PRECEDE HIM TO HIS NEW POST OF DUTY, PROVIDED THEIR DEPARTURE IS SUBSEQUENT TO THE DATE OF THE RECEIPT OF HIS TRAVEL ORDER AND IS SPECIFICALLY AUTHORIZED BY THE SECRETARY OF STATE. IS CONTEMPLATED THAT SUCH AUTHORITY WILL BE GRANTED IN ADVANCE OF THE TRAVEL, BUT IN CASES WHERE, DUE TO THE EXISTENCE OF AN EMERGENCY, IT IS IMPRACTICABLE TO OBTAIN THE REQUIRED AUTHORIZATION PRIOR TO THE PERFORMANCE OF THE TRAVEL, SUBSEQUENT ADMINISTRATIVE APPROVAL IS NOT QUESTIONED BY THIS OFFICE.

HOWEVER, IN ALL CASES OF TRAVEL OVERSEAS, TO OR FROM FOREIGN COUNTRIES, REIMBURSEMENT OF EXPENSES THEREBY INCURRED IS SUBJECT TO THE REQUIREMENTS OF SECTION 601 OF THE MERCHANT MARINE ACT OF MAY 22, 1928, 45 STAT. 697, WHICH PROVIDES:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING OF OFFICIAL BUSINESS OVERSEAS TO FOREIGN COUNTRIES, OR TO ANY OF THE POSSESSIONS OF THE UNITED STATES, SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHEN SUCH SHIPS ARE AVAILABLE, UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.

THIS SECTION OF THE STATUTE LEAVES NO CHOICE BUT TO DENY CREDIT FOR "ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP" IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR, AND IT IMPOSES UPON THE COMPTROLLER GENERAL OF THE UNITED STATES THE DUTY AND RESPONSIBILITY OF DETERMINING THE SUFFICIENCY OF THE PROOF OF THE NECESSITY FOR THE USE OF A FOREIGN VESSEL. THE ONLY REASON RECOGNIZED IN THE STATUTE FOR THE USE OF A FOREIGN VESSEL IS THE NECESSITY OF THE TRAVELER'S MISSION. THE MISSION MUST, OF COURSE, BE AN OFFICIAL ONE AND THE NECESSITY MUST RELATE TO THE MISSION AND MUST BE ONE OF WHICH WAS KNOWN IN ADVANCE AND WHICH FORMED THE PRIMARY REASON FOR USING A FOREIGN SHIP. 10 COMP. GEN. 245. IT HAS BEEN HELD ALSO THAT THE STATUTORY RESTRICTION APPLIES TO THE TRAVEL EXPENSES OF DEPENDENTS OF OFFICERS AND EMPLOYEES PAYABLE UNDER GOVERNMENTAL APPROPRIATIONS. 9 COMP. GEN. 210.

APPARENTLY YOUR LETTER OF OCTOBER 19, 1931, SEEKS TO JUSTIFY THE USE OF THE FOREIGN VESSEL ON THE THEORY THAT AS YOU HAVE AUTHORITY TO AUTHORIZE DEPENDENTS TO PERFORM TRAVEL IN ADVANCE OF THE TRAVEL BY THE OFFICER, AND UNDER CERTAIN CIRCUMSTANCES TO APPROVE SUCH TRAVEL AFTER IT HAS BEEN PERFORMED WITH THE SAME EFFECT AS THOUGH AUTHORIZED IN ADVANCE, AND THAT AS THE TRAVEL IN THIS INSTANCE WAS APPROVED AS BEGINNING ON AUGUST 9, 1930, AND THERE WAS NO AMERICAN VESSEL SAILING ON THAT DATE, THE USE OF A FOREIGN VESSEL WAS AUTHORIZED ON THE GROUND THAT NO AMERICAN VESSEL WAS AVAILABLE.

THIS OFFICE DOES NOT QUESTION THE RIGHT OR AUTHORITY OF THE SECRETARY OF STATE TO AUTHORIZE THE TRANSPORTATION OF DEPENDENTS OF FOREIGN SERVICE OFFICERS IN ADVANCE OF THE OFFICER'S CHANGE OF STATION, OR, UNDER CERTAIN CONDITIONS, TO APPROVE SUCH TRAVEL AFTER IT HAS BEEN PERFORMED. BUT THERE EXISTS NO RIGHT OR AUTHORITY TO FIX ONE EXACT DATE OF DEPARTURE FOR SUCH ADVANCE TRAVEL SO AS TO DEFEAT THE PURPOSES OF SECTION 601 OF THE MERCHANT MARINE ACT. THE PROVISIONS OF SAID SECTION ARE FOR OBSERVANCE AT ALL TIMES, AND BY ALL OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT, AND TRANSPORTATION CHARGEABLE TO APPROPRIATED FUNDS SHOULD BE SO ARRANGED AS TO GIVE EFFECT TO SAID PROVISIONS. THAT IS TO SAY, UNLESS THERE IS AN OFFICIAL NECESSITY FOR TRAVEL AT SUCH TIMES OR UNDER SUCH CONDITIONS AS TO MAKE IT NECESSARY TO USE A VESSEL OF OTHER THAN AMERICAN REGISTRY, THE ORDERS OR AUTHORIZATIONS FOR THE TRAVEL MUST BE SUCH AS TO MAKE POSSIBLE THE USE OF AMERICAN VESSELS. THE NORMAL PROCEDURE WOULD BE FOR THE DEPENDENTS OF THE FOREIGN SERVICE OFFICERS TO ACCOMPANY THE OFFICER, AND THEIR FAILURE TO DO SO WAS NOT DUE TO ANY NECESSITY FROM THE GOVERNMENT'S STANDPOINT. HAD THE SON ACCOMPANIED HIS FATHER UPON HIS RETURN TO THIS COUNTRY, THE TRANSPORTATION WOULD HAVE BEEN UPON AN AMERICAN VESSEL. THE MANDATORY PROVISIONS OF THE MERCHANT MARINE ACT CAN NOT BE ESCAPED BY PERFORMING TRAVEL FOR PERSONAL REASONS AT OTHER TIMES THAN REQUIRED BY OFFICIAL BUSINESS EVEN WHERE THE TRAVEL AT SUCH TIME IS SPECIFICALLY AUTHORIZED OR APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED.

THE USE OF THE FOREIGN VESSEL BY THE OFFICER'S SON WAS NOT DUE TO ANY OFFICIAL NECESSITY OF THE OFFICER'S MISSION BUT MERELY TO THE DESIRE OR NECESSITY FOR THE SON TO UNDERGO AN OPERATION IN TIME TO ENABLE HIM TO ENTER SCHOOL AT THE BEGINNING OF THE SCHOOL YEAR. EXPENSES INCURRED BY REASON OF ILL HEALTH OF A TRAVEL ARE PERSONAL EXPENSES, 6 COMP. GEN. 278; A-30090, OCTOBER 29, 1931. IT MUST BE HELD, THEREFORE, THAT THE REASONS FOR THE USE OF THE FOREIGN VESSEL DO NOT SATISFY THE REQUIREMENTS OF SECTION 601 OF THE MERCHANT MARINE ACT.