B-135985, JUN. 13, 1958

B-135985, JUN. 13, 1958

TO PRIVATE ELIAS A. VEJAS-ESQUIVEL, US-55556579:

REFERENCE IS MADE TO YOUR COMMUNICATION OF APRIL 16, 1958, REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 30, 1957, WHICH DISALLOWED YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL FROM FORT LEE, VIRGINIA, TO SAN FRANCISCO, CALIFORNIA, UNDER ORDERS DATED DECEMBER 19, 1956.

BY ORDERS DATED DECEMBER 19, 1956, HEADQUARTERS, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, YOU WERE ORDERED TO PROCEED FROM THAT STATION TO THE QUARTERMASTER SCHOOL, FORT LEE, VIRGINIA, TO ATTEND A GENERAL SUPPLY COURSE OF INSTRUCTION FOR A PERIOD OF SIX WEEKS, IN ADDITION TO TRAVEL TIME, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER ORGANIZATION AND STATION AT SAN FRANCISCO. THE ORDERS FURTHER DIRECTED THAT THE TRAVEL SHOULD BE PERFORMED BY MILITARY AIRCRAFT, IF AVAILABLE, OR BY USE OF GOVERNMENT TRANSPORTATION REQUESTS "IN ACCORDANCE WITH JTR PARA 4203-3D.' IN YOUR PRESENT COMMUNICATION YOU STATE THAT AFTER COMPLETION OF THE TEMPORARY DUTY YOU HAD NO TICKET TO RETURN TO YOUR PERMANENT DUTY STATION NOR WERE YOU ADVISED THAT YOU SHOULD CALL UPON THE TRANSPORTATION OFFICER FOR RETURN TRANSPORTATION; THAT, THEREFORE, YOU CALLED UPON THE FINANCE OFFICER WHO ADVANCED YOU SUFFICIENT MONIES TO PURCHASE YOUR RETURN TICKET. FIRST ENDORSEMENT DATED MAY 31, 1957, HEADQUARTERS, QUARTERMASTER TRAINING COMMAND, U.S. ARMY, FORT LEE, VIRGINIA, REPORTED THAT TRANSPORTATION REQUESTS WERE AVAILABLE AT THAT STATION.

PARAGRAPH 4203-3D, CHANGE 47, DATED JUNE 1, 1956, JOINT TRAVEL REGULATIONS, PROVIDES AS OLLOWS:

"D. ORDERS DIRECTING UTILIZATION OF TRANSPORTATION REQUESTS. WHEN TRAVEL ORDERS SPECIFICALLY DIRECT (AS DISTINGUISHED FROM AUTHORIZE) THE ISSUANCE OF TRANSPORTATION REQUESTS VIA SPECIFIC MODES OF TRANSPORTATION BUT THE MEMBER PERFORMS TRAVEL AT PERSONAL EXPENSE, PAYMENT OF THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IS PROHIBITED UNLESS THE APPROPRIATE AUTHORITY RESPONSIBLE FOR FURNISHING SUCH TRANSPORTATION REQUESTS CERTIFIES THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE OR THE MODE OF TRANSPORTATION DIRECTED WAS NOT AVAILABLE AT THE TIME AND PLACE REQUIRED IN TIME TO COMPLY WITH THE ORDERS. * * *"

AN ENLISTED MAN'S RIGHTS ARE DETERMINED ON THE BASIS OF THE TERMS AND CONDITIONS OF THE ORDERS WHICH DIRECT HIS TRAVEL. THE ADMINISTRATIVE REGULATIONS CITED IN YOUR TRAVEL ORDERS DATED DECEMBER 19, 1956, WERE PROMULGATED UNDER AUTHORITY OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, AND HENCE HAVE THE FORCE AND EFFECT OF LAW. IT FOLLOWS THAT, IN THE LIGHT OF THE SPECIFIC PROHIBITION IN THE ADMINISTRATIVE REGULATIONS REFERRED TO IN YOUR TRAVEL ORDERS, NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF A MONETARY ALLOWANCE FOR THE TRAVEL IN QUESTION, NOTWITHSTANDING THE FACT THAT YOU WERE NOT FURNISHED TRANSPORTATION IN KIND. IN THIS CONNECTION, SEE UNITED STATES V. SHORT, 240 F.2D 292, 298, AND THE COURT CASES CITED IN THAT DECISION. ON THE BASIS, HOWEVER, THAT THE LAW CONTEMPLATES THAT OFFICIAL TRAVEL SHALL BE AT GOVERNMENT EXPENSE, AND SINCE IT IS NOT ENTIRELY CLEAR IN THE CIRCUMSTANCES OF THIS CASE THAT YOU PERFORMED THE TRAVEL IN QUESTION BY OTHER THAN THE AUTHORIZED MEANS SOLELY BECAUSE OF YOUR OWN ELECTION WITHOUT FAULT ON THE PART OF THE DISBURSING OFFICER INVOLVED, WE WILL CONSIDER ANY CLAIM YOU MAY CHOOSE TO SUBMIT FOR REIMBURSEMENT FOR THE ACTUAL EXPENSES INCURRED BY YOU IN RETURNING TO YOUR STATION AT SAN FRANCISCO NOT TO EXCEED THE COSTS OTHERWISE AUTHORIZED FOR THE TRAVEL, AND TO THE EXTENT THAT SUCH EXPENSES ARE SUPPORTED BY RECEIPTS OR OTHER ACCEPTABLE EVIDENCE.

THE SETTLEMENT OF OCTOBER 30, 1957, IS SUSTAINED ON THE BASIS OF THE PRESENT RECORD.