B-142421, AUGUST 1, 1960, 40 COMP. GEN. 65

B-142421: Aug 1, 1960

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FOREIGN SERVICE PERSONNEL - TRAVEL EXPENSES - PERSONAL CONVENIENCE THE CONSTRUCTIVE TRAVEL COST LIMITATIONS IN THE FOREIGN SERVICE TRAVEL REGULATIONS APPLICABLE IN THE DETERMINATION OF THE AMOUNT DUE WHEN OFFICIAL TRAVEL IS INTERRUPTED OR PERFORMED BY CIRCUITOUS ROUTES FOR PERSONAL REASONS. GENERALLY DO NOT CONTRAVENE ANY EXPRESS PROVISIONS IN THE TRAVEL EXPENSE ACT OF 1949 AND ARE WITHIN THE AUTHORITY VESTED IN THE SECRETARY OF STATE UNDER THE FOREIGN SERVICE ACT OF 1946. PER DIEM AND INCIDENTAL EXPENSES) WITH THE CONSTRUCTIVE COST OF DIRECT TRAVEL OVER A USUALLY TRAVELED ROUTE AND THE PAYMENT OF THE LESSER OF THE TWO AMOUNTS WILL NOT BE QUESTIONED. WHICH WERE QUESTIONED BECAUSE THEY EXCEEDED THE MAXIMUM CONSTRUCTIVE COST AUTHORIZED UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

B-142421, AUGUST 1, 1960, 40 COMP. GEN. 65

FOREIGN SERVICE PERSONNEL - TRAVEL EXPENSES - PERSONAL CONVENIENCE THE CONSTRUCTIVE TRAVEL COST LIMITATIONS IN THE FOREIGN SERVICE TRAVEL REGULATIONS APPLICABLE IN THE DETERMINATION OF THE AMOUNT DUE WHEN OFFICIAL TRAVEL IS INTERRUPTED OR PERFORMED BY CIRCUITOUS ROUTES FOR PERSONAL REASONS, WHILE INCONSISTENT WITH SIMILAR PROVISIONS IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS APPLICABLE TO TRAVEL OF GOVERNMENT EMPLOYEES, GENERALLY DO NOT CONTRAVENE ANY EXPRESS PROVISIONS IN THE TRAVEL EXPENSE ACT OF 1949 AND ARE WITHIN THE AUTHORITY VESTED IN THE SECRETARY OF STATE UNDER THE FOREIGN SERVICE ACT OF 1946; THEREFORE, PAYMENTS MADE TO FOREIGN SERVICE PERSONNEL ON THE BASIS OF A COMPARISON OF THE TOTAL ACTUAL EXPENSE (TRAVEL EXPENSES, PER DIEM AND INCIDENTAL EXPENSES) WITH THE CONSTRUCTIVE COST OF DIRECT TRAVEL OVER A USUALLY TRAVELED ROUTE AND THE PAYMENT OF THE LESSER OF THE TWO AMOUNTS WILL NOT BE QUESTIONED. PAYMENTS REPRESENTING REIMBURSEMENT FOR INDIRECT AND INTERRUPTED TRAVEL BY A FOREIGN SERVICE OFFICER AND HIS DEPENDENTS FROM JOHANNESBURG, SOUTH AFRICA, TO HUNTINGTON, NEW YORK, INCIDENT TO A PERIOD OF HOME LEAVE AND RETURN, WHICH WERE QUESTIONED BECAUSE THEY EXCEEDED THE MAXIMUM CONSTRUCTIVE COST AUTHORIZED UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, ALTHOUGH WITHIN THE MAXIMUM CONSTRUCTIVE COST LIMITS OF THE FOREIGN SERVICE REGULATIONS WILL NO LONGER BE QUESTIONED SINCE CONSTRUCTIVE COST PROVISIONS OF FOREIGN SERVICE REGULATIONS ARE NOT CONTRARY TO THE TRAVEL EXPENSE ACT OF 1949; AND ALSO, NO OBJECTION TO THE PAYMENTS WILL BE MADE ON THE BASIS THAT AIR TRAVEL FROM JOHANNESBURG TO ITALY, THEN TO NEW YORK VIA SHIP, IS NOT THE USUALLY TRAVELED ROUTE FOR CONSTRUCTIVE COST COMPUTATION PURPOSES.

TO THE SECRETARY OF STATE, AUGUST 1, 1960:

ON APRIL 11, 1960, YOUR ASSISTANT SECRETARY OF STATE REQUESTED THAT WE REMOVE THREE AUDIT EXCEPTIONS TOTALING $1,765.51, STATED AGAINST D.O. VOUCHERS NOS. 393, 394, AND 395, SEPTEMBER 1958, ACCOUNTS OF K. R. ROSE, UNITED STATES DISBURSING OFFICER, PRETORIA, UNION OF SOUTH AFRICA. THOSE EXCEPTIONS WERE TAKEN TO CERTAIN PAYMENTS REPRESENTING REIMBURSEMENT FOR INDIRECT AND INTERRUPTED TRAVEL OF MR. BERNARD A. BRAMSON AND HIS DEPENDENTS FROM JOHANNESBURG, SOUTH AFRICA, TO HUNTINGTON, NEW YORK, INCIDENT TO A PERIOD OF HOME LEAVE AND RETURN TO JOHANNESBURG.

THE AMOUNT ALLOWED MR. BRAMSON WAS DETERMINED IN ACCORDANCE WITH THE FOREIGN SERVICE TRAVEL REGULATIONS. IN 180 FSTR 1.2R, THE TERM "CONSTRUCTIVE COST" IS DEFINED AS "THE TOTAL TRAVEL EXPENSES (PER DIEM TRANSPORTATION, AND INCIDENTAL EXPENSES) WHICH WOULD HAVE BEEN INCURRED IN DIRECT TRANSPORTATION, WITHOUT DEVIATION OR INTERRUPTION FOR PERSONAL CONVENIENCE, BY A USUALLY TRAVELED ROUTE * * *.' THE FOREIGN SERVICE TRAVEL REGULATIONS CONTEMPLATE THAT WHEN A TRAVELER DELAYS OR DEVIATES FROM A USUALLY TRAVELED ROUTE HE WILL BE ALLOWED THE ACTUAL TRAVEL EXPENSES INCURRED, INCLUDING PER DIEM, UP TO THE AMOUNT OF THE CONSTRUCTIVE COST AS DEFINED IN 180 FSTR 1.2R. (SEE ALSO 180 FSTR 3.5 AND 3 FSM III 137.23.) IN DETERMINING THE AMOUNT DUE A TRAVELER FOR INTERRUPTED OR CIRCUITOUS ROUTE TRAVEL UNDER THOSE REGULATIONS, THE TOTAL EXPENSE OF THE TRAVEL (TRANSPORTATION EXPENSES, PER DIEM, AND INCIDENTAL EXPENSES) IS TO BE COMPARED WITH THE CONSTRUCTIVE COST--- INCLUDING TRANSPORTATION, PER DIEM, AND INCIDENTAL EXPENSES--- OF DIRECT TRAVEL OVER A USUALLY TRAVELED ROUTE AND THE LESSER OF THE TWO AMOUNTS WOULD BE THAT TO WHICH THE TRAVELER IS ENTITLED.

THE AMOUNT ALLOWED MR. BRAMSON, WHILE APPARENTLY WITHIN THE MAXIMUM CONSTRUCTIVE COST LIMITS OF THE FOREIGN SERVICE TRAVEL REGULATIONS, EXCEEDS THE MAXIMUM CONSTRUCTIVE COST AUTHORIZED UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. SECTION 3.3 OF THOSE REGULATIONS IS AS FOLLOWS:

IN CASE A PERSON FOR HIS OWN CONVENIENCE TRAVELS BY AN INDIRECT ROUTE OR INTERRUPTS TRAVEL BY DIRECT ROUTE, THE EXTRA EXPENSE WILL BE BORNE BY HIMSELF. REIMBURSEMENT OF EXPENSES SHALL BE BASED ONLY ON SUCH CHARGES AS WOULD HAVE BEEN INCURRED BY A USUALLY TRAVELED ROUTE. * * *

SECTION 6.10 OF THOSE REGULATIONS SAYS:

WHERE FOR TRAVELER'S PERSONAL CONVENIENCE OR THROUGH THE TAKING OF LEAVE THERE IS INTERRUPTION OF TRAVEL OR DEVIATION FROM THE DIRECT ROUTE, THE PER DIEM IN LIEU OF SUBSISTENCE ALLOWED WILL NOT EXCEED THAT WHICH WOULD HAVE BEEN INCURRED ON UNINTERRUPTED TRAVEL BY A USUALLY TRAVELED ROUTE.

HENCE, THE PRIMARY QUESTION INVOLVED IS WHETHER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS OR THE CONFLICTING PROVISIONS OF THE FOREIGN SERVICE TRAVEL REGULATIONS ARE CONTROLLING.

THE FOREIGN SERVICE TRAVEL REGULATIONS WERE PROMULGATED UNDER THE AUTHORITY GRANTED THE SECRETARY OF STATE BY SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1136, TO PRESCRIBE REGULATIONS AND PAY TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE. HOWEVER, SECTION 9 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, 5 U.S.C. 842, ENACTED SOME THREE YEARS LATER PROVIDES IN PART AS FOLLOWS:

THE SUBSISTENCE EXPENSE ACT OF 1926 AND THE AUTO MILEAGE ACT OF FEBRUARY 14, 1931, ARE REPEALED. ALL ACTS * * * APPLICABLE TO CIVILIAN OFFICERS OR EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS, PROVIDING FOR REIMBURSEMENT OF ACTUAL TRAVEL AND TRANSPORTATION EXPENSE, AND ALL OTHER ACTS, GENERAL OR SPECIAL, WHICH ARE INCONSISTENT WITH OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT * * * ARE HEREBY MODIFIED, BUT ONLY TO THE EXTENT OF INCONSISTENCY OR CONFLICT WITH THE PROVISIONS OF THIS ACT.

IT IS CLEAR THAT THE EFFECT OF SECTION 9 OF THE TRAVEL EXPENSE ACT OF 1949 WAS NOT TO REPEAL SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, BECAUSE SECTION 911 WAS NOT AMONG THE ACTS SPECIFICALLY REPEALED BY SECTION 9. MOREOVER, ANY AUTHORITY VESTED IN THE SECRETARY OF STATE UNDER SECTION 911 THAT IS NOT IN IRRECONCILABLE CONFLICT WITH THE PROVISIONS OF THE TRAVEL EXPENSE ACT OF 1949 WOULD APPEAR TO BE UNAFFECTED BY THE ENACTMENT OF THE LATTER ACT. IN THAT CONNECTION WE NOTE THAT BOTH HOUSE REPORT 389, APRIL 5, 1949 (SEE PAGE 6, LAST SENTENCE IN EXPLANATION OF SECTION 8) AND SENATE REPORT 428, MAY 27, 1949, (SEE PAGE 7, LAST SENTENCE IN EXPLANATION OF SECTION 8), IN REFERENCE TO SECTION 9 (REPEALER PROVISION) OF THE TRAVEL EXPENSE ACT OF 1949 SAY THAT "THIS SECTION IS NOT DESIGNED TO AFFECT CERTAIN SPECIAL TRAVEL PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 801.' MOREOVER, IT ALSO APPEARS SIGNIFICANT THAT ON APRIL 5, 1955, SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946 WAS AMENDED TO EXTEND THE AUTHORITY OF THE SECRETARY OF STATE TO PRESCRIBE REGULATIONS AND PAY TRAVEL EXPENSES IN THE CASE OF DEPENDENTS OF FOREIGN SERVICE PERSONNEL WHO RETURN TO THE UNITED STATES FOR SECONDARY OR COLLEGE EDUCATION, THUS IMPLIEDLY RECOGNIZING THE AUTHORITY OF THE SECRETARY TO REGULATE GENERALLY IN CONNECTION WITH TRAVEL EXPENSES UNDER THE FOREIGN SERVICE ACT. SEE ACT OF APRIL 5, 1955, 69 STAT. 27, 22 U.S.C. 1136 (9).

THE FURTHER QUESTION THEN ARISES WHETHER SECTION 6 OF THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 839, IS IN IRRECONCILABLE CONFLICT WITH THE FOREIGN SERVICE TRAVEL REGULATIONS RELATING TO REIMBURSEMENT FOR CONSTRUCTIVE TRAVEL. THAT SECTION PROVIDES THAT "EXCEPT AS OTHERWISE PERMITTED BY THIS ACT * * * ONLY ACTUAL AND NECESSARY TRAVEL EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT OR REAPPOINTMENT UNDER THE UNITED STATES.' WE SAID IN OUR DECISION OF JUNE 24, 1956, B 131381, CITED IN THE ASSISTANT SECRETARY'S LETTER, THAT IN VIEW OF THIS SECTION THERE MAY NOT BE ALLOWED IN THE CASE THERE INVOLVED "ANY SAVINGS IN TRANSPORTATION COST AGAINST AN OVERCLAIM OF PER DIEM.' WHILE THE HOLDING IN THAT DECISION IS CONSIDERED TO BE CORRECT BECAUSE REQUIRED BY THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THERE CONSIDERED, OUR PRESENT VIEW IS THAT SECTION 6 OF THE TRAVEL EXPENSE ACT OF 1949 ALONE, WHERE THOSE REGULATIONS DO NOT APPLY, WOULD NOT REQUIRE THAT CONCLUSION. THE EFFECT OF SECTION 6 MERELY IS TO PRECLUDE COMMUTED REIMBURSEMENT FOR OFFICIAL TRAVEL OF CIVILIAN EMPLOYEES UNLESS IT IS MADE IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949. THE COMMUTED PAYMENTS AUTHORIZED BY THAT ACT ARE PAYMENTS OF PER DIEM AND MILEAGE INCIDENT TO OFFICIAL TRAVEL. NO PAYMENT AT ALL, EITHER UPON AN ACTUAL EXPENSE OR UPON A COMMUTED BASIS, IS AUTHORIZED FOR OTHER THAN OFFICIAL TRAVEL.

NEITHER SECTION 6 NOR ANY OTHER PROVISION OF THE TRAVEL EXPENSE ACT OF 1949, NOR ANY PROVISION OF THE FOREIGN SERVICE ACT OF 1946, OF WHICH WE ARE AWARE, SPECIFICALLY PRESCRIBES THE MANNER OF REIMBURSING AN EMPLOYEE WHO, WITH OFFICIAL APPROVAL, INTERRUPTS OR PERFORMS OFFICIAL TRAVEL BY AN INDIRECT ROUTE FOR HIS PERSONAL CONVENIENCE. RATHER, THE MATTER SEEMS TO FALL WITHIN THE REGULATORY AUTHORITY OF THE DIRECTOR, BUREAU OF THE BUDGET, AND THE SECRETARY OF STATE, RESPECTIVELY, SUBJECT TO THE IMPLIED LIMITATION THAT REIMBURSEMENT MAY NOT IN ANY CASE EXCEED THE MAXIMUM AMOUNT PAYABLE HAD UNINTERRUPTED TRAVEL BEEN PERFORMED OVER A USUALLY TRAVELED ROUTE BY AN AUTHORIZED MEANS OF TRANSPORTATION. SINCE THE CONSTRUCTIVE COST REGULATIONS APPEARING IN THE FOREIGN SERVICE TRAVEL REGULATIONS DO NOT CONTRAVENE ANY EXPRESS PROVISION OF THE TRAVEL EXPENSE ACT OF 1949, THEIR PROMULGATION APPEARS TO BE WITHIN THE AUTHORITY VESTED IN YOU BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED. THUS, WHILE INCONSISTENT WITH SIMILAR REGULATIONS APPLICABLE TO TRAVEL OF GOVERNMENT EMPLOYEES GENERALLY PROMULGATED BY THE DIRECTOR, BUREAU OF THE BUDGET, WE WILL NOT OBJECT TO OTHERWISE PROPER PAYMENTS MADE IN ACCORDANCE WITH THE FOREIGN SERVICE TRAVEL REGULATIONS. ALSO, WE NO LONGER WILL OBJECT TO THE PAYMENTS IN QUESTION ON THE GROUND THAT TRAVEL BY AIR FROM JOHANNESBURG TO ITALY, THENCE TO NEW YORK VIA SHIP CANNOT BE REGARDED AS A USUALLY TRAVELED ROUTE FOR CONSTRUCTIVE COST COMPUTATION PURPOSES.

THEREFORE, APPROPRIATE ACTION IN ACCORDANCE WITH THIS DECISION WILL BE TAKEN CONCERNING THE EXCEPTIONS IN QUESTION.

WE HAVE NOTED THE ASSISTANT SECRETARY'S REFERENCE ON PAGE 5 OF THIS LETTER CONCERNING THE NATURE, NEEDS, AND PECULIARITIES OF THE FOREIGN SERVICE ASSIGNMENTS AND THE SPECIAL TRAVEL REQUIREMENTS STEMMING THEREFROM. WE HAVE SEVERAL OBSERVATIONS CONCERNING THE PARTICULAR PROVISIONS OF THE REGULATIONS APPLICABLE TO THE FOREIGN SERVICE. WE FEAR THAT IN BOTH INTERPRETATION AND ACTUAL PRACTICE THE LEGAL LIMITS OF THE REGULATIONS MAY NOT BE FULLY UNDERSTOOD AND FOLLOWED. FOR EXAMPLE, IN ONE CASE AN EMPLOYEE'S DEPENDENT WAS AUTHORIZED ONE-WAY FIRST-CLASS TRANSPORTATION FROM THE UNITED STATES TO AN OVERSEAS POINT. THE TRANSPORTATION REQUEST WAS EXCHANGED BY THE CARRIER FOR AN ECONOMY CLASS ROUND-TRIP TICKET BETWEEN THE AUTHORIZED POINTS OF TRAVEL. THE BASIS FOR ALLOWING THE ROUND-TRIP FARE IS NOT APPARENT IN SUCH CASE EVEN THOUGH IT MAY EQUAL ONLY THE COST OF ONE-WAY FIRST-CLASS FARE. UPON REACHING THE AUTHORIZED DESTINATION THE OFFICIAL TRAVEL WAS COMPLETED AND THE OBLIGATIONS AND RIGHTS OF THE PARTIES WERE FOR DETERMINATION. THE COST OF THE PERSONAL RETURN TRIP WAS NOT PROPERLY FOR CONSIDERATION SO FAR AS THE EMPLOYEE'S RIGHT TO PAYMENT. THIS CASE MERELY EMPHASIZES THE TYPE OF PROBLEM THAT CAN ARISE UNDER THE REGULATIONS.

AT THE TIME OF THE REVISION OF THE FOREIGN SERVICE REGULATIONS, AS REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER, THE REGULATIONS OF THE BUREAU OF THE BUDGET WERE MORE LIBERAL THAN AT PRESENT CONCERNING THE MATTER UNDER CONSIDERATION. NOT ONLY IS A RESTRICTION IMPOSED ON PER DIEM IN THE BUREAU'S REGULATIONS AS POINTED OUT IN OUR DECISION B 131381, ABOVE, BUT BY BUREAU OF THE BUDGET CIRCULAR A-7, REVISED, TRANSMITTAL MEMORANDUM NO. 15, MAY 16, 1960, A BROAD POLICY URGING THE USE OF LOWER THAN FIRST-CLASS AIR ACCOMMODATIONS WAS ISSUED. UNDER THE BUREAU'S POLICY THE TYPE AND COSTS OF ACCOMMODATIONS AUTHORIZED FOR DIRECT AND INDIRECT TRAVEL BY AIR MAY BE EXPECTED TO BECOME MORE NEARLY UNIFORMED.

WHILE OPERATION OF THE FOREIGN SERVICE REGULATIONS WOULD NOT INCREASE THE GOVERNMENT'S DIRECT DOLLAR VALUE EXPENDITURES OVER THOSE WHICH WOULD BE INCURRED IF THE MOST EXPENSIVE AUTHORIZE MODE, ROUTING, AND ACCOMMODATIONS WERE USED, IT DOES NOT NOW APPEAR THAT THE MOST EXPENSIVE ACCOMMODATIONS WILL ACTUALLY BE USED IN ALL CASES OF DIRECT TRAVEL. ALSO, IT IS, WE BELIEVE, EVIDENT THAT GREATER ADMINISTRATIVE OPERATING COSTS ARE LIKELY TO RESULT IN BOTH YOUR OFFICE AND OURS BECAUSE OF THE PROBLEMS NECESSARILY PRESENTED, PARTICULARLY IN THOSE CASES IN WHICH TRANSPORTATION REQUESTS ARE USED AND "EXCHANGE ORDERS" ARE ISSUED BY CARRIER. SEE 1 FSM III 132, AND 1 REGULATIONS AND PROCEDURES MANUAL, 285.92. IN SHORT, UNAUTHORIZED TRAVEL MAY BE OBTAINED WHEN AN OFFICIAL TRAVELER IS PERMITTED TO EXCHANGE TRANSPORTATION REQUESTS FOR ANY TRANSPORTATION HE MAY WISH SUBJECT ONLY TO A MONETARY LIMITATION. BY USING A CHEAPER CLASS AND MODE OF TRANSPORTATION THAN THAT AUTHORIZED IN THE TRANSPORTATION REQUEST, CONCEIVABLY HE ALSO COULD SECURE TRANSPORTATION FOR UNAUTHORIZED TRAVELERS, OR ADDITIONAL TRANSPORTATION TO UNAUTHORIZED POINTS AFTER HE, IN FACT, HAS REACHED HIS DESTINATION. IN SOME CASES, PERHAPS, HE MIGHT EVEN RECEIVE A REFUND OF THE VALUE OF THE UNUSED EXCHANGE TRANSPORTATION. FAILURE OF PARTIES CONCERNED TO MAKE APPROPRIATE NOTATIONS OF ACTUAL TRAVEL AND SERVICE RENDERED ALREADY HAS PRESENTED OUR OFFICE WITH CONSIDERABLE AUDIT DIFFICULTIES AND WE URGE THAT YOU TAKE APPROPRIATE ACTION TO INSURE AGAINST ABUSES IN THIS AREA. WE SHOULD APPRECIATE YOUR INFORMING US OF ANY ACTION YOU MAY TAKE IN THIS MATTER.