A-79048, AUGUST 19, 1936, 16 COMP. GEN. 154

A-79048: Aug 19, 1936

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UNDER ORDERS RECITING "SINCE THE OFFICER WILL BE PLACED TO NO ADDITIONAL EXPENSE BY THE PERFORMANCE OF THIS TRAVEL. THE PAYMENT OF MILEAGE IS NOT AUTHORIZED. " IS NOT ENTITLED TO MILEAGE FOR TRAVEL PERFORMED THEREUNDER. 1936: THERE IS FOR CONSIDERATION THE CLAIM OF CAPT. FOR MILEAGE FOR TRAVEL PERFORMED BY GOVERNMENT AUTOMOBILE OR BY PRIVATELY OWNED AUTOMOBILE WHEN GOVERNMENT AUTOMOBILE WAS AVAILABLE. THE ORDERS PROVIDING THAT "GOVERNMENT MOTOR TRANSPORTATION IS AVAILABLE. AS THE OFFICER HAS ELECTED TO USE HIS OWN TRANSPORTATION NO MILEAGE WILL BE AUTHORIZED FOR THE JOURNEY.'. CONTAINED THE ADDITIONAL PROVISION: * * * SINCE THE OFFICER WILL BE PLACED TO NO ADDITIONAL EXPENSE BY THE PERFORMANCE OF THIS TRAVEL.

A-79048, AUGUST 19, 1936, 16 COMP. GEN. 154

MILEAGE - ARMY OFFICERS - TRAVEL BY GOVERNMENT AUTOMOBILE OR PRIVATELY OWNED CAR - TRANSIENT DUTIES AT OUTLYING STATIONS AN ARMY OFFICER ORDERED TO TRAVEL BY GOVERNMENT AUTOMOBILE, ACCOMPANIED BY OTHERS, FOR THE PERFORMANCE OF TRANSIENT DUTIES AT OUTLYING STATIONS, UNDER ORDERS RECITING "SINCE THE OFFICER WILL BE PLACED TO NO ADDITIONAL EXPENSE BY THE PERFORMANCE OF THIS TRAVEL, THE PAYMENT OF MILEAGE IS NOT AUTHORIZED," IS NOT ENTITLED TO MILEAGE FOR TRAVEL PERFORMED THEREUNDER.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, AUGUST 19, 1936:

THERE IS FOR CONSIDERATION THE CLAIM OF CAPT. RAY B. CONNER, FINANCE DEPARTMENT, UNITED STATES ARMY, FOR MILEAGE FOR TRAVEL PERFORMED BY GOVERNMENT AUTOMOBILE OR BY PRIVATELY OWNED AUTOMOBILE WHEN GOVERNMENT AUTOMOBILE WAS AVAILABLE, AS FOLLOWS: OCTOBER 3, 1933:

FORT DOUGLAS, UTAH, TO DIAMOND FORK CAMP F-3 AND RETURN, 210 MILES, UNDER PARAGRAPH 12 OF SPECIAL ORDERS NO. 119, DATED HEADQUARTERS, FORT DOUGLAS DISTRICT CIVILIAN CONSERVATION CORPS, FORT DOUGLAS, UTAH, OCTOBER 3, 1933, FOR THE PURPOSE OF PAYING CIVILIAN EMPLOYEES EMPLOYED AT CAMP DIAMOND FORK. DECEMBER 21, 1933:

FORT DOUGLAS TO OGDEN, UTAH, AND RETURN, 80 MILES, UNDER PARAGRAPH 4 OF SPECIAL ORDERS NO. 180, DATED AT THE SAME HEADQUARTERS DECEMBER 21, 1933, FOR THE PURPOSE OF CONSULTING FORESTRY FFICIALS; THE ORDERS PROVIDING THAT "GOVERNMENT MOTOR TRANSPORTATION IS AVAILABLE. AS THE OFFICER HAS ELECTED TO USE HIS OWN TRANSPORTATION NO MILEAGE WILL BE AUTHORIZED FOR THE JOURNEY.' FEBRUARY 11 TO 14, 1934:

FORT DOUGLAS TO ST. GEORGE CAMP S-213, UTAH, 336 MILES; THENCE TO MOAPA CAMP PE-202, NEV., 93 MILES; THENCE TO ZION PARK CAMP NP-2, UTAH, 145 MILES; THENCE TO SALINA CAMP PE-219, 338 MILES; THENCE TO FORT DOUGLAS, 161 MILES--- A TOTAL DISTANCE OF 1,073 MILES, UNDER PARAGRAPH 1 OF SPECIAL ORDERS NO. 19, DATED AT THE SAME HEADQUARTERS FEBRUARY 9, 1934, FOR THE PURPOSE OF CONDUCTING CONFERENCES WITH AGENT FINANCE OFFICERS. APRIL 12 TO 13, 1934:

FORT DOUGLAS TO LEEDS CAMP F-24, UTAH, AND RETURN, 640 MILES, UNDER PARAGRAPH 4 OF SPECIAL ORDERS NO. 59, DATED AT THE SAME HEADQUARTERS APRIL 12, 1934, FOR THE PURPOSE OF MAKING PAYMENTS TO CCC PERSONNEL THEREAT. MAY 19, 1934:

FORT DOUGLAS TO UINTA RIVER CAMP F-29, UTAH, AND RETURN, 372 MILES, UNDER PARAGRAPH 5 OF SPECIAL ORDERS NO. 85, DATED AT THE SAME HEADQUARTERS MAY 16, 1934, FOR THE PURPOSE OF MAKING PAYMENTS TO THE CIVILIAN PERSONNEL EMPLOYED THEREAT.

ALL THE ORDERS EXCEPT THE ONE OF DECEMBER 21, 1933, COVERING THE JOURNEY TO OGDEN, UTAH, AND RETURN, PROVIDED THAT TRAVEL WOULD BE BY GOVERNMENT AUTOMOBILE AND THAT A CHAUFFEUR AND ONE OR TWO ADDITIONAL ENLISTED MEN WOULD ACCOMPANY THE OFFICER, AND CONTAINED THE ADDITIONAL PROVISION:

* * * SINCE THE OFFICER WILL BE PLACED TO NO ADDITIONAL EXPENSE BY THE PERFORMANCE OF THIS TRAVEL, THE PAYMENT OF MILEAGE IS NOT AUTHORIZED.

THE CLAIM BRINGS IN QUESTION THE LEGALITY OF THIS PROVISION OF HIS ORDERS AND A SIMILAR PROVISION IN THOSE OF DECEMBER 21, 1933, QUOTED ABOVE.

SECTION 12 OF THE JOINT PAY ACT, 42 STAT. 631, AS AMENDED, 44 ID. 680, PROVIDES THAT OFFICERS ,WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE" WITH DEDUCTIONS OF 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED BY THE GOVERNMENT OR FOR TRAVEL OVER LAND-GRANT OR BOND-AIDED RAILROADS, AS PROVIDED IN THE ACT OF JUNE 12, 1906, 34 STAT. 246. THE THEORY OF THE CLAIM APPEARS TO BE THAT MOVEMENT IS TRAVEL AND THAT AN OFFICER ORDERED TO PERFORM A DUTY REQUIRING MOVEMENT IS ENTITLED TO THE PRESCRIBED MILEAGE LESS THE DEDUCTION FOR TRANSPORTATION FURNISHED. MILEAGE IS A FORM OF REIMBURSEMENT, PERRIMOND V. UNITED STATES, 19 CT.CLS. 509. IT HAS BEEN CONSISTENTLY HELD THAT AN OFFICER ORDERED TO PERFORM A DUTY THAT CAN BE PERFORMED ONLY BY MOVEMENT IS NOT ENTITLED TO MILEAGE FOR THE TRAVEL INCIDENT TO THE PERFORMANCE OF THE ORDERED DUTY. 19 COMP. DEC. 19; 26 ID. 81, AND 226, AND 1 COMP. GEN. 461. BUT IN THIS CASE THE DUTY TO BE PERFORMED WAS TO BE PERFORMED AT A DISTANCE, AND TRANSPORTATION AND A DETACHMENT OF ENLISTED MEN WERE FURNISHED FOR THE PURPOSE OF ENABLING THE OFFICER TO REACH THE PLACE FOR THE PERFORMANCE OF DUTY AND RETURN TO HIS PROPER STATION, AND IS THEREFORE NOT OF THE SAME CHARACTER AS THE DECIDED CASES CITED. IT IS TO BE NOTED THAT THE CLAIM ON THE BASIS PRESENTED IS FOR MILEAGE AMOUNTING TO $10.50 FOR THE JOURNEY FROM FT. DOUGLAS TO DIAMOND FORK CAMP AND RETURN, REQUIRING ONLY A PORTION OF OCTOBER 3, 1933; $4.00 FOR THE TRIP TO OGDEN, REQUIRING ONLY A PORTION OF THE DAY; $53.15 FOR THE JOURNEY FEBRUARY 11 TO 14, 1934; $32 FOR THE JOURNEY APRIL 12 AND 13, 1934, AND $18.60 FOR THE JOURNEY PERFORMED MAY 19, 1934.

OBVIOUSLY, THE COMMANDING OFFICER COULD REQUIRE AN OFFICER TO PERFORM DUTY EITHER WITHIN THE LIMITS OF OR ADJACENT TO HIS STATION AND BUT A SHORT DISTANCE AWAY AS, FOR EXAMPLE, 4, 5, OR 6 MILES FROM THE USUAL PLACE OF PERFORMANCE OF DUTY, AND THERE COULD BE NO VALID CLAIM FOR MILEAGE FOR THE DISTANCE THE OFFICER WAS MOVED BY GOVERNMENT AUTOMOBILE WITH A GOVERNMENT CHAUFFEUR FROM HIS OFFICE TO THE PLACE OF PERFORMANCE OF THE DUTY AND RETURN TO HIS OFFICE DURING THE ORDINARY BUSINESS HOURS OF THE DAY. THIS BEING TRUE, WHAT IS THE LIMIT OF THE COMMANDING OFFICER'S AUTHORITY IN THIS RESPECT? REIMBURSEMENT FOR EXPENSES INCURRED IS THE BASIS FOR THE PAYMENT OF MILEAGE AS A COMMUTATION OF TRAVEL EXPENSES. THE COMMANDING OFFICER KNOWS THE CONDITIONS UNDER WHICH THE OFFICER IS QUARTERED AND SUBSISTED AND KNOWS THE CONDITIONS UNDER WHICH HE CAN SECURE QUARTERS AND SUBSISTENCE WHEN IN THE PERFORMANCE OF DUTY WITHIN THE DISTRICT UNDER THE COMMAND OF THE COMMANDING OFFICER BUT AT A DISTANCE FROM HIS STATION. HE CAN DETERMINE THAT THE OFFICER IN THE PERFORMANCE OF THE ASSIGNED DUTY WILL BE PUT TO NO EXPENSE IN THE PERFORMANCE OF THE DUTY AND THAT PAYMENT OF MILEAGE FOR THE INCIDENTAL TRAVEL WOULD BE IN THE NATURE OF A GRATUITY RATHER THAN REIMBURSEMENT. IF THE COMMANDING OFFICER MAKES SUCH A FINDING OF FACT AND EMBODIES IT IN AN ORDER DIRECTING THE PERFORMANCE OF THE DUTY, UNDER THE LAW THE ORDER IS NOT A COMPETENT ORDER FOR THE PAYMENT OF MILEAGE. IT WOULD BE AN ANOMALOUS SITUATION, INDEED, IF UNDER MODERN CONDITIONS OF WARFARE AND TRANSPORTATION A STAFF OFFICER FAR BEHIND THE LINES MOVING FROM POINT TO POINT IN COMPARATIVE SAFETY IN THE PERFORMANCE OF THE DUTY FOR WHICH HE IS COMMISSIONED IN THE ARMY IN CONNECTION WITH THE PAY, SUPPLY, SUBSISTENCE, ETC., OF THE TROOPS AT THE FRONT, SHOULD BE MANDATORILY ENTITLED TO MILEAGE AT 5 CENTS WHEN SO MOVING IN A GOVERNMENT CONVEYANCE UNDER GOVERNMENT ESCORT, WHEN A LINE OFFICER ENGAGED AT THE FRONT, TRAVELING EQUAL DISTANCES, IN SIMILAR CIRCUMSTANCES, FREQUENTLY UNDER FIRE, WOULD BE ENTITLED TO NOTHING BECAUSE HE WAS ON DUTY WITH TROOPS. THE LAW INTENDS NO SUCH DISCRIMINATION AND THE COMMANDING OFFICER HAS AMPLE AUTHORITY TO QUALIFY HIS ORDERS FOR THE PERFORMANCE OF DUTY REQUIRING SUCH MOVEMENT TO NEGATIVE THE PAYMENT OF MILEAGE WHICH WOULD NOT BE A REIMBURSEMENT OF ANY EXPENDITURES MADE BY THE OFFICER BUT IN FACT WOULD SUPPLEMENT THE OFFICER'S PAY AND ALLOWANCES. THE CLAIM WILL ACCORDINGLY BE DISALLOWED.