B-126473, APR. 13, 1956

B-126473, APR. 13, 1956

TO THE HONORABLE, SECRETARY OF THE TREASURY:

REFERENCE IS MADE TO LETTER OF DECEMBER 23, 1955, FROM THE ACTING SECRETARY OF THE TREASURY REQUESTING A DECISION AS TO WHETHER UNDER THE PROVISIONS OF SUBSECTION 2 (M) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1129, THE PRESCRIBED MILEAGE ALLOWANCE IS A COMMUTATION OF ALL EXPENSES, INCLUDING FERRY FARES, BRIDGE TOLLS, AND THE LIKE, AUTHORIZED FOR MILITARY PERSONNEL USING PRIVATELY OWNED CONVEYANCES IN CONDUCTING OFFICIAL GOVERNMENT BUSINESS WITHIN THE LIMITS OF THEIR DUTY STATIONS.

SUBSECTION 2 (M) OF THAT ACT READS AS FOLLOWS:

"/M) MEMBERS OF THE UNIFORMED SERVICES (AS DEFINED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED) MAY BE DIRECTED BY APPROPRIATE REGULATION OF THE HEAD OF THE EXECUTIVE AGENCY IN WHICH THEY ARE SERVING TO SECURE TRANSPORTATION NECESSARY IN CONDUCTING OFFICIAL GOVERNMENT BUSINESS WITHIN THE LIMITS OF THEIR DUTY STATIONS. EXPENSES SO INCURRED BY SUCH MEMBERS FOR TRAIN, BUS, STREETCAR, TAXICAB, FERRY, BRIDGE, AND SIMILAR FARES AND TOLLS, OR FOR USE OR PRIVATELY OWNED VEHICLES AT A FIXED RATE PER MILE, SHALL BE DEFRAYED BY THE AGENCY IN WHICH THEY ARE SERVING, OR THE PERSONNEL SO DIRECTED SHALL BE REIMBURSED FOR SUCH EXPENSES.'

SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, APPLICABLE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT, SPECIFICALLY AUTHORIZES REIMBURSEMENT FOR THE ACTUAL COST OF FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS IN ADDITION TO A MILEAGE ALLOWANCE FOR THE USE OF PRIVATELY OWNED AUTOMOBILES WHEN ENGAGED ON OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR DESIGNATED POSTS OF DUTY OR PLACES OF SERVICE.

UNLIKE THE TRAVEL EXPENSE ACT OF 1949, SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES A MILEAGE ALLOWANCE "IN LIEU OF COST OF TRANSPORTATION.' IN ACCORDANCE WITH THE ESTABLISHED RULE THAT MILEAGE ALLOWANCES AUTHORIZED BY STATUTE IN LIEU OF TRANSPORTATION EXPENSES, UNLESS OTHERWISE QUALIFIED, ARE INTENDED AS A COMMUTATION FOR ALL TRANSPORTATION EXPENSES (11 COMP. GEN. 175; 15 COMP. GEN. 819; 22 COMP. GEN. 572), WE HELD IN DECISION OF APRIL 18, 1955, 34 COMP. GEN. 531, THAT REIMBURSEMENT FOR TURNPIKE TOLLS PAID BY AN ARMY OFFICER WHO WAS AUTHORIZED TO TRAVEL BY PRIVATELY OWNED CONVEYANCE MAY NOT BE MADE IN ADDITION TO THE MILEAGE AUTHORIZED "IN LIEU OF COST OF TRANSPORTATION.'

SUBSECTION 2 (M) OF THE ACT OF SEPTEMBER 1, 1954, DOES NOT AUTHORIZE A MILEAGE ALLOWANCE FOR TRAVEL IN LIEU OF THE COST OF TRANSPORTATION, HOWEVER, BUT AUTHORIZES A MILEAGE ALLOWANCE "FOR USE OF PRIVATELY OWNED VEHICLES.' IN OTHER WORDS, THE MILEAGE ALLOWANCE REASONABLY APPEARS TO BE INTENDED AS APPROPRIATE COMPENSATION FOR THE CAPITAL INVESTMENT AND THE COST OF OPERATING PRIVATELY OWNED VEHICLES AND NOT REIMBURSEMENT FOR ALL TRANSPORTATION COSTS. IN ITS REPORT ON THIS SUBSECTION, THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS (SEE PAGE 8, SENATE REPORT NO. 1941, 83D CONGRESS ON H. R. 8753, WHICH BECAME THE ACT OF SEPTEMBER 1, 1954) SAID:

"* * * IT IS THE PURPOSE OF THIS SUBSECTION TO ALLOW PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES FOR THESE TRAVELING EXPENSES ON THE SAME BASIS AS PERMITTED FOR CIVILIAN GOVERNMENT EMPLOYEES.'

SINCE UNDER THE PROVISIONS OF SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949 CIVILIAN GOVERNMENT EMPLOYEES ARE ENTITLED TO FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS IN ADDITION TO A MILEAGE ALLOWANCE FOR THE USE OF PRIVATELY OWNED AUTOMOBILES, IT APPEARS CLEAR THAT MILITARY PERSONNEL ARE ENTITLED TO REIMBURSEMENT FOR FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS IN ADDITION TO THE MILEAGE ALLOWANCE AUTHORIZED FOR THE USE OF PRIVATELY OWNED CONVEYANCES IN CONDUCTING OFFICIAL GOVERNMENT BUSINESS WITHIN THEIR DUTY STATIONS.

WHILE FREQUENTLY IN A STATUE THE WORD "OR" IS A COORDINATING PARTICLE THAT INTRODUCES AN ALTERNATIVE, IT SIGNIFIES THE CONJUNCTIVE AND DISJUNCTIVE INTERCHANGEABLY IF THAT IS CONSISTENT WITH THE LEGISLATIVE INTENT. UNION STARCH AND REFINING CO. V. N.L.R.B., 186 F.2D 1008, 1014. IN THIS CASE BOTH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY INDICATE THAT THE WORD OR" IS USED AS A CONJUNCTIVE.

FOLLOWING OUR DECISION OF APRIL 18, 1955, APPARENTLY THE APPLICABLE COAST GUARD REGULATIONS WERE AMENDED TO PROVIDE THAT FERRY FARES AND BRIDGE AND ROAD TOLLS MAY NOT BE PAID IN ADDITION TO THE MILEAGE ALLOWANCE AUTHORIZED FOR THE USE OF PRIVATELY OWNED VEHICLES. SINCE IN THE CIRCUMSTANCES PRESCRIBED IN SECTION 2 (M) OF THE ACT OF SEPTEMBER 1, 1954, THE REIMBURSEMENT FOR SUCH FARES AND TOLLS IS DIRECTING IN ADDITION TO PAYMENT OF A MILEAGE ALLOWANCE FOR THE SAME TRAVEL, THE AMENDED REGULATION IS INCONSISTENT WITH THE LAW IN THAT RESPECT AND MAY NOT BE APPLIED AS DEPRIVING MEMBERS OF THE RIGHTS SO GRANTED. OTHERWISE PROPER CLAIMS OF COAST GUARD MEMBERS PENDING SINCE THE DATE OF THE ISSUANCE OF SUCH ERRONEOUS REGULATIONS MAY BE ALLOWED ON THAT BASIS.