B-138342, FEB 27, 1959

B-138342, FEB 27, 1959

PRECIS-UNAVAILABLE

MR. JACK L. STOUT:

YOUR LETTER OF DECEMBER 9, 1958, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF NOVEMBER 25, 1958, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF MILEAGE FOR 1,544 MILES AT $0.08 PER MILE IN LIEU OF COST BY COMMON CARRIER FROM MARCH 30 TO APRIL 1, 1958.

TRAVEL AUTHORIZATION NO. B-115, DATED MARCH 24, 1958, AUTHORIZED YOU APPROXIMATELY 10 DAYS TEMPORARY DUTY TO TRAVEL FROM YOUR HEADQUARTERS OKLAHOMA CITY AIR FORCE STATION TO TEXARKANA AFS, ARKANSAS, ENGLAND AFB, LOUISIANA, ELLINGTON AFB, TEXAS, LACKLAND AFB, TEXAS, DUNCANVILLE AFS, TEXAS, AND RETURN TO YOUR HEADQUARTERS. VARIATIONS IN ITINERARY WERE AUTHORIZED. THE TRAVEL ORDER AUTHORIZED TRAVEL BY GOVERNMENT AIR, COMMERCIAL AIR, OR SURFACE TRANSPORTATION, OR TRAVEL BY PRIVATELY OWNED VEHICLE, REIMBURSEMENT TO BE LIMITED TO COST TO GOVERNMENT OF TRAVEL BY USUAL MODE OF TRANSPORTATION. THE TRAVEL WAS PERFORMED BETWEEN MARCH 30, 1958, AND APRIL 4, 1958. YOU WERE ACCOMPANIED BY TWO MEMBERS OF THE ARMED FORCES FOR TEMPORARY DUTY AT THE MILITARY INSTALLATIONS VISITED. YOU WERE REIMBURSED $128.83 REPRESENTING CONSTRUCTIVE COST OF TRAVEL BY COMMON CARRIER ($68.08), PER DIEM ($57.75) AND MILEAGE $3 (30 MILES AT $0.10 PER MILE). SUBSEQUENT TO THE COMPLETION OF YOUR TRAVEL YOUR ORDERS WERE AMENDED BY ORDER NO. B 187, DATED APRIL 18, 1958, TO AUTHORIZE MILEAGE AT $0.08 PER MILE. YOU ARE NOW CLAIMING REIMBURSEMENT FOR 1,544 MILES AT $0.08 PER MILE.

IN THE AMENDED TRAVEL ORDER THERE IS AN X PLACED IN THE BOX IN PARAGRAPH 16C REGARDING THE USE OF PRIVATELY OWNED AUTOMOBILE WHICH READS AS FOLLOWS:

"ADMINISTRATIVELY DETERMINED THIS MODE OF TRANSPORTATION IS MORE ADVANTAGEOUS TO THE GOVERNMENT."

ON THE BACK OF THE AMENDED ORDER THERE IS A TYPEWRITTEN STATEMENT SIGNED BY COLONEL NESTER E. COLE, USAF, DEPUTY FOR MATERIEL WHICH READS AS FOLLOWS:

"THIS TDY REQUEST IS AMENDED IN VIEW OF THE ORIGINAL INTENT HAVING BEEN ESTABLISHED FOR EITHER MILITARY AIR OR TRAVEL BY PRIVATELY OWNED CONVEYANCE. DUE TO ADMINISTRATIVE ERROR PLUS THE NON-AVAILABILITY OF MILITARY AIR AND AN ADDITIONAL THREE (3) REQUIRED STOPS TPA WAS UTILIZED. IT IS THEREFORE REQUESTED THAT THE ATTACHED FORM 233, BE HONORED AND REVISION IN COMPUTATION IN PAY BE MADE ACCORDINGLY."

WE NOTE THAT PARAGRAPH 24 OF THE AMENDED ORDER AS WELL AS THE ORIGINAL TRAVEL ORDER PROVIDES THAT REQUEST FOR TRAVEL IS APPROVED UNDER AUTHORITY OF THE SECRETARY OF THE AIR FORCE AS PROVIDED IN AIR FORCE MANUAL 40-10. WHILE NO AUTHORITY IS CITED BY COLONEL COLE FOR AMENDING THE ORIGINAL TRAVEL ORDER TO AUTHORIZE AN INCREASED ALLOWANCE AFTER THE COMPLETION OF THE TRAVEL WE DIRECT YOUR ATTENTION TO AIR FORCE MANUAL 40-10, CHAPTER 2, PARAGRAPH 6 WHICH IS THE AUTHORITY FOR AMENDING TRAVEL ORDERS UNDER CERTAIN CONDITIONS. PARAGRAPH 6C PROVIDES IN PART AS FOLLOWS:

"C. ***. AN AMENDMENT WILL NOT BE ISSUED WITH RETROACTIVE EFFECT TO CHANGE ALLOWANCES PRESCRIBED IN AN ORDER UNDER WHICH TRAVEL HAS BEEN PERFORMED."

ALSO PARAGRAPH 31B REGARDING REIMBURSEMENT OF TRAVEL EXPENSES PROVIDES IN PART AS FOLLOWS:

"B. AUTHENTICATING CLAIMS. A REIMBURSEMENT CLAIM MUST BE SUPPORTED BY PROPER AUTHORIZATIONS, APPROVALS, CERTIFICATIONS AND REQUIRED RECEIPTS. PER DIEM AND MILEAGE ALLOWANCES AUTHORIZED IN A TRAVEL ORDER CONSTITUTE ADMINISTRATIVE DETERMINATION AND CANNOT BE AMENDED RETROACTIVELY AFTER PERFORMANCE OF TRAVEL. ***."

ASIDE FROM THE FACT THAT THE DEPARTMENT OF THE AIR FORCE IS PREVENTED BY REGULATIONS FROM AMENDING TRAVEL ORDERS AFTER THE COMPLETION OF TRAVEL TO AUTHORIZE INCREASED ALLOWANCES IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCE VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY, SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTE OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL OF THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTANCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713; 24 ID. 439.

THEREFORE, AS THE TRAVEL AUTHORIZATION NO. 115, DATED MARCH 24, 1958, WAS NOT AMBIGUOUS OR INCOMPLETE, AND UPON THE PRESENT RECORD, IT DOES NOT APPEAR TO CONTAIN AN OBVIOUS ERROR; AND SINCE THE AIR FORCE IS WITHOUT AUTHORITY TO AMEND TRAVEL ORDERS RETROACTIVELY TO INCREASE ALLOWANCES AFTER THE TRAVEL HAS BEEN COMPLETED, THE ACTION TAKEN IN OUR OFFICE SETTLEMENT OF NOVEMBER 25, 1958, IN DISALLOWING YOUR CLAIM IS SUSTAINED.