B-137583, NOV 28, 1958

B-137583, NOV 28, 1958

PRECIS-UNAVAILABLE

DAVID K. CARLISLE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 1, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM AND A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION INCIDENT TO TRAVEL PERFORMED BY YOU AS A COMMISSIONED OFFICER OF THE ARMY WHILE STATIONED IN GERMANY.

LETTER ORDER NO. 6-50, HEADQUARTERS, 39TH ENGINEER GROUP, APO 164, UNITED STATES ARMY, DATED JUNE 27, 1957, UNDER WHICH YOUR CLAIM IS MADE, PURPORTS TO CONFIRM VERBAL ORDERS OF THE COMMANDING OFFICER OF JANUARY 10, 1957, PLACING YOU ON TEMPORARY DUTY TO FRANKFURT, GERMANY, FOR A PERIOD OF APPROXIMATELY ONE DAY FOR CONFERENCE WITH THE COMMANDING GENERAL, 7TH ENGINEER BRIGADE. SUCH ORDERS STATE "OFF AUTH TO PROCEED FROM PRESENT STA TO ABOVE NAMED PLACE (FRANKFURT) O/A 10 JAN 57." ALSO IT WAS STATED THAT TRAVEL BY GOVERNMENT AUTOMOBILE OR PRIVATELY - OWNED AUTOMOBILE WAS AUTHORIZED. IT APPEARS THAT YOU LEFT HELLINGEN, GERMANY, AT 6:30 A.M., JANUARY 10, 1957, AND PROCEEDED TO FRANKFURT BY WAY OF STUTTGART, AND THAT FOLLOWING YOUR CONFERENCE WITH THE COMMANDING GENERAL, 7TH ENGINEER BRIGADE, YOU RETURNED TO HELLINGEN AT 7 P.M. ON THE SAME DAY. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE TRAVEL IN QUESTION WAS PERFORMED FOR PERSONAL REASONS AND LACKED THE ELEMENT OF PUBLIC INTEREST NECESSARY TO AUTHORIZE REIMBURSEMENT OF THE EXPENSES INVOLVED FROM APPROPRIATED FUNDS. IT IS YOUR CONTENTION THAT YOU WERE ORDERED AND REQUIRED TO PERFORM THE TRAVEL ON OFFICIAL BUSINESS AND SO ENTITLED TO THE ALLOWANCES CLAIMED.

THE PERFORMANCE OF PUBLIC BUSINESS BY DIRECTION OF COMPENTENT TRAVEL ORDERS IS THE BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE PROVISIONS OF SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3000 OF THOSE REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES FOR TRAVEL OR TEMPORARY DUTY UNLESS PERFORMED PURSUANT TO COMPETENT WRITTEN TRAVEL ORDERS ISSUED IN ADVANCE OF THE TRAVEL. PARAGRAPH 3002-2 PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. HOWEVER, THAT AUTHORITY IS CONSIDERED TO CONTEMPLATE ONLY THOSE SITUATIONS WHERE EXIGENCIES OF THE SERVICE MAKE UNFEASIBLE THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE OF TRAVEL IF THE DEFICIENCY IS REMEDIED AT THE EARLIEST PRACTICABLE TIME BY THE ISSUANCE OF CONFIRMING ORDERS.

IN CIRCUMSTANCES WHERE THE PERFORMANCE OF TRAVEL IS CONSIDERED BENEFICIAL TO THE SERVICE BUT NOT TO THE EXTENT THAT PUBLIC BUSINESS IS INVOLVED, IT HAS BEEN THE PRACTISE OF THE UNIFORMED SERVICE TO ISSUE AUTHORIZATION-TYPE ORDERS PERMITTING THE PERFORMANCE OF TRAVEL WHILE THE TRAVELER REMAINS IN A DUTY STATUS PROVIDING, OF COURSE, THAT HE WILL ASSUME ITS COST. TRAVEL OF THAT TYPE IS NOT CONSIDERED TO BE ON PUBLIC BUSINESS BY DIRECTION OF COMPETENT ORDERS WITHIN THE CONTEMPLATION OF THE CITED LAW AND REGULATIONS. SEE IN THAT CONNECTION, PARAGRAPH 6453 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES "AN ORDER PERMITTING A MEMBER TO TRAVEL AS DISTINGUISHED FROM DIRECTING A MEMBER TO TRAVEL, DOES NOT ENTITLE HIM TO EXPENSES OF TRAVEL."

NOTHING IN THE AVAILABLE RECORD INDICATES THAT EXIGENCIES OF THE SERVICE PREVENTED THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE OF THE TRAVEL IN QUESTION OR, IF SUCH WERE THE CASE, THAT THE ORDERS OF JUNE 27, 1957, ISSUED MORE TAN FIVE MONTHS AFTER THE TRAVEL WAS PERFORMED SERVED THE PURPOSE OF VALIDATING THE VERBAL ORDERS AT THE EARLIEST PRACTICABLE TIME WITHIN THE CONTEMPLATION OF THE CITED REGULATIONS. HOWEVER, EVEN IF SUCH ORDERS COULD BE CONSIDERED TO HAVE ACCOMPLISHED THAT PURPOSE, THERE WOULD APPEAR TO BE NO BASIS FOR CONSIDERING YOUR CLAIM PAYABLE, SINCE SUCH ORDERS MERELY AUTHORIZED AND DID NOT DIRECT THE TRAVEL IN QUESTION, INDICATING THAT SUCH TRAVEL, WHILE POSSIBLY BENEFICIAL TO THE SERVICE, WAS NOT CONSIDERED TO INVOLVE PUBLIC BUSINESS TO THE EXTENT OF AUTHORIZING THE PAYMENT OF TRAVEL EXPENSES. WHILE THIRD INDORSEMENT OF MAY 8, 1957, FROM 7TH ENGINEER BRIGADE TO THE COMMANDING OFFICER, 39TH ENGINEER GROUP, STATES THAT THE TRAVEL AND DUTY PERFORMED BY YOU "WAS OFFICIAL" THE VIEW THAT SUCH TRAVEL WAS PERFORMED BY YOU FOR PERSONAL REASONS RATHER THAN ON PUBLIC BUSINESS WAS EXPRESSED IN LETTER FROM THAT COMMANDING OFFICER DATED MARCH 13, 1957, A COPY OF WHICH ACCOMPANIED YOUR CLAIM.

UNDER THE CIRCUMSTANCES SHOWN, YOUR CLAIM IS REGARDED AS HAVING SUCH DOUBTFUL VALIDITY AS NOT TO WARRANT FAVORABLE ACTION BY US. ACCORDINGLY, THE SETTLEMENT OF JULY 1, 1958, IS SUSTAINED.