B-144743, MAR. 27, 1961

B-144743, MAR. 27, 1961

TO CAPTAIN FRANK T. STROUD:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1960, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 27, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES INCURRED AS AN OFFICER OF THE U.S. ARMY RESERVE IN YOUR TRAVEL FROM ALBUQUERQUE, NEW MEXICO, TO FORT BENJAMIN HARRISON, INDIANA, AND RETURN, INCIDENT TO ACTIVE DUTY FOR TRAINING ORDERS DATED MAY 21, 1959.

BY LETTER ORDERS 5-582 ISSUED MAY 21, 1959, BY HEADQUARTERS, VIIIU.S. ARMY CORPS (RESERVE), AUSTIN, TEXAS, YOU AND FOUR OTHER OFFICERS WERE DIRECTED TO PROCEED FROM ALBUQUERQUE, NEW MEXICO, TO FORT BENJAMIN HARRISON, INDIANA, FOR ACTIVE DUTY FOR TRAINING EFFECTIVE JUNE 14, 1959, AND TO RETURN HOME ON JUNE 28, 1959. GROUP TRAVEL BY COMMERCIAL RAIL, BUS OR AIR WAS DIRECTED, AND TRANSPORTATION REQUESTS AND MEAL TICKETS FOR AIR TRAVEL WERE FURNISHED. THE RECORD INDICATES THAT YOU DID NOT USE THE TRANSPORTATION FURNISHED FOR YOU, BUT CHOSE TO TRAVEL BY PRIVATELY OWNED VEHICLE AND BY RAIL AT PERSONAL EXPENSE.

IN YOUR LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU REFER TO PREVIOUS CORRESPONDENCE IN WHICH YOU STATED THAT YOU WERE UNABLE TO TRAVEL AS SPECIFIED IN THE ORDERS FOR REASONS OF PERSONAL HARDSHIP BECAUSE OF YOUR WIFE'S CONDITION, HER INABILITY TO DRIVE A CAR, AND THE SICKNESS OF YOUR SON, WHICH REQUIRED THAT YOU TAKE YOUR FAMILY FROM ALBUQUERQUE TO DENVER, COLORADO, TO STAY WITH RELATIVES DURING YOUR TOUR OF ACTIVE DUTY TRAINING. AFTER YOUR RETURN FROM TRAINING DUTY, YOU REQUESTED THAT THE ORDERS BE AMENDED TO PERMIT REIMBURSEMENT FOR THE EXPENSE YOU INCURRED, BUT SUCH REQUEST WAS ADMINISTRATIVELY DENIED, AND UPON APPEAL THE DENIAL WAS UPHELD. SUBSEQUENTLY YOUR CLAIM FOR TRAVEL EXPENSES WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 27, 1960, FOR THE REASON THAT YOU WERE ENTITLED ONLY TO TRANSPORTATION AND MEALS IN KIND SINCE YOUR ORDERS SPECIFIED THAT THE TRAVEL BE PERFORMED AS GROUP TRAVEL.

PARAGRAPH 4100 OF THE JOINT TRAVEL REGULATIONS DEFINES "GROUP TRAVEL" AS A MOVEMENT OF THREE OR MORE MEMBERS TRAVELING IN A GROUP FOR WHICH TRANSPORTATION WILL BE FURNISHED BY GOVERNMENT CONVEYANCE OR GOVERNMENT TRANSPORTATION REQUEST FROM THE SAME POINT OF ORIGIN TO THE SAME DESTINATION UNDER ONE ORDER WHICH IS SPECIFICALLY DESIGNATED BY THE ORDER ISSUING AUTHORITY AS A ,GROUP TRAVEL ORDER.' PARAGRAPH 4101 PROVIDES THAT A MEMBER PERFORMING GROUP TRAVEL IS NOT ENTITLED TO MILEAGE OR MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION, AND THAT HE WILL BE SUBSISTED EN ROUTE BY MEALS PURCHASED OR FURNISHED BY THE GOVERNMENT. PARAGRAPH 4103 PROVIDES THAT ORDERS COVERING GROUP TRAVEL SHOULD NOT ORDINARILY INCLUDE MEMBERS AUTHORIZED OR PERMITTED TO TRAVEL SEPARATELY FROM THE GROUP, BUT THAT WHEN A MEMBER WHO IS SPECIFICALLY AUTHORIZED BY THE ORDER ISSUING AUTHORITY TO TRAVEL SEPARATELY IS INCLUDED IN THE GROUP TRAVEL ORDERS HE SHALL BE ENTITLED TO PROPER TRAVEL ALLOWANCE FOR THAT TRAVEL. SUCH PROVISIONS RECOGNIZE AN EXCEPTION TO THE LIMITATION STATED IN PARAGRAPH 4101 ONLY IN CASES WHERE THE ORDERS EXPRESSLY CONTAIN AUTHORITY FOR THE MEMBER TO TRAVEL SEPARATELY. WITHOUT THAT AUTHORITY NO BASIS WOULD EXIST FOR THE PAYMENT OF TRAVEL EXPENSES FOR SEPARATE TRAVEL PERFORMED UNDER GROUP TRAVEL ORDERS REGARDLESS OF THE CAUSE OR NEED FOR THE SEPARATE TRAVEL.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES WITH RESPECT TO PER DIEM AND OTHER TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED BY THE MEMBER UNDER HIS 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 STATUTES OR REGULATIONS UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS. KATMER V. UNITED STATES, 52 CT.CL. 32; 23 COMP. GEN. 713, 24 ID. 439, 34 ID. 427. SINCE SUCH ELEMENTS DO NOT APPEAR TO BE PRESENT IN THIS CASE, THE ADMINISTRATIVE DENIAL OF YOUR REQUEST FOR THE RETROACTIVE AMENDMENT OF YOUR ORDERS WAS PROPER IN THE MATTER.

THE DISALLOWANCE OF YOUR CLAIM WAS REQUIRED UNDER THE LAW AND APPLICABLE REGULATIONS SINCE YOUR ORDERS DID NOT AUTHORIZE SEPARATE TRAVEL. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 27, 1960, IS SUSTAINED.