B-126388, FEB. 21, 1956

B-126388, FEB. 21, 1956

TO MAJOR ROY H. HAGGERTY, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF NOVEMBER 7, 1955, FORWARDED HERE BY SECOND INDORSEMENT DATED DECEMBER 15, 1955, SUBMITS FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF CAPTAIN JOHN A. FREDERICK FOR REIMBURSEMENT OF EXPENSES OF TRAVEL PERFORMED BY PRIVATELY OWNED CONVEYANCE FROM NEW YORK, NEW YORK, TO KINGSTON, NEW YORK, AND RETURN, OCTOBER 16, 1955.

BY PARAGRAPH 2, SPECIAL ORDERS NO. 201, DATED OCTOBER 14, 1955, NEW YORK MILITARY DISTRICT HEADQUARTERS, 90 CHURCH STREET, NEW YORK, NEW YORK, CAPTAIN FREDERICK WAS PLACED ON TEMPORARY DUTY FOR APPROXIMATELY FOUR DAYS AND DIRECTED TO PROCEED ON OR ABOUT OCTOBER 16, 1955, TO FORT DEVENS, MASSACHUSETTS, FOR THE PURPOSE OF ATTENDING AN ARMY RESERVE SUPPLY CONFERENCE, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS PROPER DUTY STATION AT NEW YORK. THE ORDERS DID NOT SPECIFY ANY MODE OF TRANSPORTATION. IT IS SHOWN THAT THE OFFICER DEPARTED NEW YORK AT 1:30 P.M.; DEPARTED KINGSTON AT 2:00 P.M. AND ARRIVED AT NEW YORK CITY AT 11:00 P.M. ALL SUCH TRAVEL WAS PERFORMED ON THE SAME DAY BY PRIVATELY OWNED CONVEYANCE. THE OFFICER STATES, ON THE VOUCHER, THAT BECAUSE OF WEATHER CONDITIONS--- HURRICANE IN THE NEW ENGLAND AREA -- DISRUPTING NORMAL ROUTES OF TRAVEL TO FORT DEVENS, MASSACHUSETTS, THE AMERICAN AUTOMOBILE ASSOCIATION RECOMMENDED AN ALTERNATE ROUTE, BUT, UPON REACHING KINGSTON, NEW YORK, HE WAS ADVISED BY THE NEW YORK STATE POLICE TO RETURN TO NEW YORK CITY AS SECTIONS OF THAT ROUTE WERE BARRED TO ALL TRAVEL. IT IS REPORTED THAT TRANSPORTATION BY COMMON CARRIER WAS AVAILABLE FOR THE TRAVEL NECESSARY TO THE PERFORMANCE OF THE ORDERED TEMPORARY DUTY.

YOU SAY THAT IN THE CIRCUMSTANCES DOUBT EXISTS AS TO WHETHER THE TRAVEL PERFORMED MAY BE CONSIDERED TRAVEL ON OFFICIAL BUSINESS. IF THE ANSWER IS IN THE AFFIRMATIVE, YOU ASK WHETHER TRAVEL TIME IS TO BE COMPUTED ON THE BASIS CONSTRUCTIVE TRAVEL BY RAIL FROM NEW YORK TO KINGSTON AND RETURN, EVEN THOUGH NOT ON THE OFFICIAL ROUTE.

THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDE IN PARAGRAPH 3050 THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A "TRAVEL STATUS," AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO "COMPETENT TRAVEL ORDERS," INCLUDING PERIODS OF NECESSARY TEMPORARY DUTY. PARAGRAPH 4203-3A PROVIDES THAT WHEN AUTHORIZED TRAVEL IS PERFORMED AT PERSONAL EXPENSE THE MEMBER WILL BE REIMBURSED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF FIVE CENTS PER MILE FOR THE OFFICIAL DISTANCE. PARAGRAPH 4204-1 PROVIDES THAT, WHEN THE DIRECTED MODE OF TRANSPORTATION, PER DIEM ALLOWANCE WILL BE COMPUTED AS THOUGH THE MODE OF TRANSPORTATION UTILIZED WAS DIRECTED, THE TOTAL AMOUNT PAYABLE NOT TO EXCEED CONSTRUCTIVE TRAVEL BY COMMON CARRIER OVER THE OFFICIAL ROUTE.

UNDER THE PROVISIONS OF THESE REGULATIONS, WHERE THE MODE OF TRANSPORTATION DIRECTED IN HIS ORDERS IS FOUND NOT TO BE AVAILABLE, A MEMBER OF THE UNIFORMED SERVICES MAY PERFORM THE REQUIRED TRAVEL BY ANY AVAILABLE MODE OF TRANSPORTATION WHICH HE MAY ELECT WITH REIMBURSEMENT LIMITED, IF THE TRAVEL IS BY OTHER THAN COMMON CARRIER, TO THE AMOUNT PAYABLE FOR CONSTRUCTIVE TRAVEL BY COMMON CARRIER OVER THE OFFICIAL ROUTE. IN LIKE MANNER, WHERE THE ORDERS DO NOT SPECIFY ANY MODE OF TRANSPORTATION, THE MEMBER MAY ELECT ANY AVAILABLE MEANS SUBJECT TO THE SAME LIMITATION AS TO REIMBURSEMENT. THE PRIMARY DUTY OF AN OFFICER UNDER ORDERS TO TEMPORARY DUTY, HOWEVER, IS TO PERFORM THE DUTY ENJOINED. HENCE, THE SELECTION OF A MODE OF TRANSPORTATION FOR PERFORMING REQUIRED TRAVEL INCIDENT TO SUCH DUTY NECESSARILY IS LIMITED TO THE MODE OR MODES WHICH, AT THE TIME TRAVEL IS COMMENCED, PROMISES ASSURANCE OF SUCCESSFUL COMPLETION.

AT THE TIME THE TRAVEL HERE INVOLVED WAS COMMENCED STORMS OF UNUSUAL VIOLENCE HAD DISRUPTED HIGHWAY TRAVEL BETWEEN NEW YORK AND FORT DEVENS, WHICH FACT WAS KNOWN TO THE OFFICER. HE NEVERTHELESS ELECTED TO UNDERTAKE THE TRAVEL BY AUTOMOBILE OVER A CIRCUITOUS ROUTE WHICH PROVED TO BE IMPASSABLE, AND WHICH AT NO TIME BROUGHT HIM APPRECIABLY NEARER THE TEMPORARY DUTY STATION. IF UPON RETURNING TO NEW YORK HE HAD PROCEEDED TO FORT DEVENS BY ANOTHER ROUTE OR BY OTHER MEANS, HE WOULD HAVE BEEN ENTITLED TO ALLOWANCES ONLY FOR THE OFFICIAL DISTANCE FROM NEW YORK TO FORT DEVENS AND TO NOTHING FOR THE PRECEDING TRAVEL TO KINGSTON AND RETURN TO NEW YORK. IT SEEMS CLEAR THAT HE IS NOT ENTITLED TO BE PAID FOR TRAVEL THAT HE COULD NOT HAVE BEEN PAID FOR EVEN IF HE HAD COMPLIED WITH HIS ORDERS AND COMPLETED THE JOURNEY. IT FOLLOWS THAT NO RIGHT ACCRUED TO ALLOWANCES ON ACCOUNT OF THE TRAVEL IN QUESTION.

THE VOUCHER, TOGETHER WITH SPECIAL ORDERS NO. 201 SUBMITTED WITH YOUR LETTER, WILL BE RETAINED HERE.