B-138950, JUNE 25, 1959, 38 COMP. GEN. 873

B-138950, JUNE 25, 1959, 38 COMP. GEN. 873

MILITARY PERSONNEL - TRAVEL EXPENSES AND SUBSISTENCE - PER DIEM - OLYMPIC, ETC., SPORTS EVENTS ALTHOUGH DEFENSE APPROPRIATION ACTS SPECIFICALLY PROVIDE FUNDS FOR TRAVEL OF MILITARY PERSONNEL WHO ATTEND REGIONAL, NATIONAL, AND INTERNATIONAL MARKSMANSHIP COMPETITIONS, AND THE ACT OF SEPTEMBER 2, 1958, 10 U.S.C. 716, AUTHORIZES, BY IMPLICATION, EXPENDITURES FOR TRAVEL AND TRANSPORTATION EXPENSES OF MEMBERS WHO PARTICIPATE IN INTERNATIONAL AMATEUR SPORTS COMPETITION OR IN PAN-AMERICAN AND OLYMPIC GAMES, SUCH ACTS DO NOT INDICATE THAT PUBLIC FUNDS MAY BE EXPENDED FOR ANY TRAVEL NOT INCIDENT TO THE PERFORMANCE OF PUBLIC BUSINESS EXCEPT AS SPECIFICALLY AUTHORIZED BY LAW; HENCE, AN ARMY REGULATION WHICH PURPORTS TO AUTHORIZE PAYMENT OF TRAVEL EXPENSES OF MEMBERS PARTICIPATING IN ARMY SPORTS PROGRAMS IS INVALID, AND CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENT OF TRAVEL EXPENSES AND PER DIEM UNDER SUCH REGULATION MUST BE WITHHELD. TRAVEL OF MEMBERS OF THE ARMED FORCES IN CONNECTION WITH PARTICIPATION IN SPORTS EVENTS AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, AND PARAGRAPHS 3050 AND 6454 OF THE JOINT TRAVEL REGULATIONS, SO THAT PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM FOR SUCH TRAVEL IS UNAUTHORIZED.

TO THE SECRETARY OF THE ARMY, JUNE 25, 1959:

IT HAS COME TO OUR ATTENTION IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS THAT PER DIEM PAYMENTS ARE BEING MADE TO ARMY PERSONNEL UNDER PARAGRAPH 6A (5), CHANGE 1, DATED MARCH 11, 1957, REISSUED IN CHANGE 2, DATED JANUARY 21, 1958, ARMY REGULATIONS 28-52, AS ILLUSTRATED BY THE PAYMENT OF $13.20 MADE ON VOUCHER NO. 6474, IN THE FEBRUARY 1958 ACCOUNTS OF SAM T. WILSON, TO ISAAC W. HUGHES, SP-3 RA11306353, FOR PER DIEM COVERING THE PERIOD FEBRUARY 18 TO 22, 1958, WHILE HE WAS PARTICIPATING IN THE ARMY SPORTS PROGRAM IN ITALY.

BY ORDERS OF HEADQUARTERS, U.S. ARMY LOGISTICAL COMMAND, USASETAF, APO 19, DATED FEBRUARY 18, 1958, ISAAC W. HUGHES WAS DIRECTED TO PROCEED FROM LEGHORN, ITALY, TO VERONA, ITALY, ON OR ABOUT FEBRUARY 18, 1958, FOR APPROXIMATELY FOUR DAYS' TEMPORARY DUTY "FOR THE PURPOSE OF PARTICIPATING IN SETAF SKI TOURNAMENT," AND UPON COMPLETION OF THE MISSION RETURN TO HIS HOME STATION. HE WAS PAID PER DIEM FOR TEMPORARY DUTY PERFORMED UNDER SUCH ORDERS FROM FEBRUARY 18 TO 22, 1958.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE 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 NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE RASE,"PUBLIC BUSINESS" AS SO USED, RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.

THE REGULATIONS GOVERNING THE ARMY SPORTS PROGRAM ARE CONTAINED IN ARMY REGULATIONS 28-52, DATED JANUARY 3, 1956. PARAGRAPH 2 OF THE REGULATIONS PROVIDES THAT THE MISSION OF THE ARMY SPORTS PROGRAM IS TO PROVIDE OPPORTUNITIES AND ENCOURAGE ARMY PERSONNEL, BOTH MALE AND FEMALE, TO PARTICIPATE IN SPORTS DURING OFF-DUTY HOURS. A MEMBER'S PARTICIPATION IN THE ARMY SPORTS PROGRAM UNDER THE REGULATIONS IS VOLUNTARY ON THE PART OF THE MEMBER AND IT APPEARS THAT THE MEMBERS INVOLVED ARE AUTHORIZED TO PARTICIPATE IN SKI TOURNAMENTS, AND OTHER SPORTS EVENTS, ONLY BECAUSE THEY INDICATE TO THEIR COMMANDING OFFICER A DESIRE TO DO SO.

WE HAVE CONSISTENTLY HELD THAT, IN GENERAL, PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM TO MEMBERS IN CONNECTION WITH THEIR PARTICIPATION, OTHER THAN COMMAND SUPERVISION, IN SPORTS EVENTS AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY IS NOT AUTHORIZED SINCE SUCH TRAVEL MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY THE APPLICABLE STATUTE AND REGULATIONS. SEE B-138197, DATED FEBRUARY 6, 1959; B-133593, DATED OCTOBER 21, 1957.

PARAGRAPH 6A (5), CHANGE 1, DATED MARCH 11, 1957, REISSUED IN CHANGE 2, DATED JANUARY 21, 1958, ARMY REGULATIONS 28-52, PURPORTS TO AUTHORIZE THE USE OF APPROPRIATED FUNDS FOR TRAVEL EXPENSES OF PERSONNEL, MILITARY OR CIVILIAN, FOR PARTICIPATION IN ACTIVITIES OF THE ARMY SPORTS PROGRAM. LETTER DATED FEBRUARY 11, 1959, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, TO OUR ARMY AUDIT BRANCH, INDIANAPOLIS, INDIANA, EXPRESSES THE ADMINISTRATIVE VIEW THAT THIS REGULATION IS LEGALLY PROPER. IN SUPPORT OF SUCH VIEW, THE LETTER REFERS TO SECTION 716, PUBLIC LAW 85- 861, APPROVED SEPTEMBER 2, 1958, 10 U.S.C. 716, AND ALSO TO THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1959, 72 STAT. 711, P.L. 85-724, AUGUST 22, 1958.

THE APPROPRIATION ACTS SPECIFICALLY PROVIDE FUNDS FOR TRAVEL OF RIFLE TEAMS, MILITARY PERSONNEL, AND INDIVIDUALS ATTENDING REGIONAL, NATIONAL, AND INTERNATIONAL MARKSMANSHIP COMPETITIONS. THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1442, 10 U.S.C. 716, WHICH PROVIDES FOR THE TRAINING OF MEMBERS OF THE UNIFORMED SERVICES FOR PARTICIPATION IN PAN AMERICAN GAMES AND OLYMPIC GAMES, AND ANY OTHER INTERNATIONAL COMPETITION IN AMATEUR SPORTS, IF THE SECRETARY OF STATE DETERMINES THAT THE INTERESTS OF THE UNITED STATES WILL BE SERVED BY PARTICIPATION IN THAT COMPETITION, AUTHORIZES, BY IMPLICATION, THE EXPENDITURE OF APPROPRIATED FUNDS FOR THE TRAVEL AND TRANSPORTATION EXPENSES OF SUCH PARTICIPANTS. THUS, TO THE EXTENT THAT THESE ACTS MAY HAVE ANY BEARING UPON THE QUESTION OF THE AVAILABILITY OF APPROPRIATED FUNDS FOR THE PAYMENT OF TRAVEL EXPENSES OF PERSONNEL, MILITARY OR CIVILIAN, PARTICIPATING IN ACTIVITIES OF THE ARMY SPORTS PROGRAM, THEY WOULD APPEAR TO SERVE ONLY TO INDICATE THAT SUCH TRAVEL MAY NOT BE AT PUBLIC EXPENSE UNLESS AUTHORIZED AS SUCH BY STATUTE, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION. WE FIND NOTHING IN THE ANNUAL APPROPRIATION ACTS PROVIDING FUNDS FOR THE WELFARE AND RECREATION OF MEMBERS OF THE UNIFORMED SERVICES TO INDICATE THE PUBLIC FUNDS MAY BE EXPENDED FOR TRAVEL IN THAT CONNECTION EXCEPT AS OTHERWISE AUTHORIZED BY LAW, THAT IS BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949. INDICATED ABOVE, THAT SECTION OF THE CAREER COMPENSATION ACT OF 1949 CONSISTENTLY HAS BEEN INTERPRETED AS PROVIDING FOR THE PAYMENT OF TRAVEL EXPENSES ONLY WHEN SUCH TRAVEL IS ON PUBLIC BUSINESS. HENCE, THE CONCLUSION APPEARS REQUIRED THAT, TO THE EXTENT THAT IT PURPORTS TO AUTHORIZE THE EXPENDITURE OF PUBLIC FUNDS FOR PAYMENT OF TRAVEL EXPENSES OF PERSONNEL, MILITARY OR CIVILIAN, FOR PARTICIPATION IN ACTIVITIES OF THE ARMY SPORTS PROGRAM, PARAGRAPH 6 (A), CHANGE 1, DATED MARCH 11, 1957, REISSUED IN CHANGE 2, DATED JANUARY 21, 1958, ARMY REGULATIONS 28-52, IS WITHOUT AUTHORITY OF LAW AND OF NO EFFECT.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TO WITHHOLD CREDIT IN DISBURSING OFFICERS' ACCOUNTS FOR ANY AMOUNTS PAID AS TRAVEL EXPENSES AND PER DIEM UNDER PARAGRAPH 6A (5), CHANGE 2, ARMY REGULATIONS 28-52, DATED JANUARY 21, 1958.