B-149121, JUN. 29, 1962

B-149121: Jun 29, 1962

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WHEREBY REIMBURSEMENT WAS LIMITED TO THE CONSTRUCTIVE COST OF TRAVEL BY COMMON CARRIER. PRIVATELY OWNED AUTOMOBILE IN SUCH CIRCUMSTANCES WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT BECAUSE THE COST WAS LESS. YOU CONCLUDE THAT MILEAGE AND PER DIEM PAYABLE FOR THE PERFORMANCE OF SUCH TRAVEL WAS NOT LIMITED TO COST BY COMMON CARRIER. THE PERTINENT PROVISIONS OF THE FOREIGN SERVICE TRAVEL REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED ARE AS FOLLOWS: "4.31 PAYMENT OF TRAVEL EXPENSES INVOLVED IN THE USE OF PRIVATELY OWNED CONVEYANCES. IS AUTHORIZED ON A MILEAGE BASIS IN ACCORDANCE WITH THE PROVISIONS OF. IT IS HEREBY DETERMINED THAT TRAVEL BY PRIVATELY-OWNED CONVEYANCE IN CONNECTION WITH THE EMPLOYEE'S OFFICIAL TRAVEL IS MORE ADVANTAGEOUS TO THE GOVERNMENT.

B-149121, JUN. 29, 1962

TO MR. MARTIN F. STOW:

YOUR LETTER OF APRIL 11, 1962, REQUESTS REVIEW OF THE ACTION OF OUR OFFICE IN RAISING AN EXCEPTION AGAINST PAYMENT MADE TO YOU IN THE AMOUNT OF $216.85 FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM WASHINGTON, D.C., TO WALNUT CREEK, CALIFORNIA, UPON RESIGNATION FROM THE FOREIGN SERVICE, WHEREBY REIMBURSEMENT WAS LIMITED TO THE CONSTRUCTIVE COST OF TRAVEL BY COMMON CARRIER. YOU CONTEND THAT UNDER SECTION 4.32 OF THE FOREIGN SERVICE REGULATIONS (IN EFFECT AT THAT TIME) A GENERAL DETERMINATION HAD BEEN MADE THAT TRAVEL BY, RATHER THAN SHIPMENT OF, PRIVATELY OWNED AUTOMOBILE IN SUCH CIRCUMSTANCES WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT BECAUSE THE COST WAS LESS. THEREFORE, YOU CONCLUDE THAT MILEAGE AND PER DIEM PAYABLE FOR THE PERFORMANCE OF SUCH TRAVEL WAS NOT LIMITED TO COST BY COMMON CARRIER.

THE PERTINENT PROVISIONS OF THE FOREIGN SERVICE TRAVEL REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED ARE AS FOLLOWS:

"4.31 PAYMENT OF TRAVEL EXPENSES INVOLVED IN THE USE OF PRIVATELY OWNED CONVEYANCES, FOR THE CONVENIENCE OF THE TRAVELER, IS AUTHORIZED ON A MILEAGE BASIS IN ACCORDANCE WITH THE PROVISIONS OF, AND AT THE MAXIMUM RATES SPECIFIED IN SGTR 3.5B, PROVIDED THAT, WHEN A TRAVEL AUTHORIZATION SPECIFIES A LOWER MILEAGE RATE THAN THAT AUTHORIZED HEREIN, THE PROVISIONS OF THE TRAVEL AUTHORIZATION SHALL GOVERN.

"4.32 IN THE APPLICATION OF FSTR 4.31, IT IS HEREBY DETERMINED THAT TRAVEL BY PRIVATELY-OWNED CONVEYANCE IN CONNECTION WITH THE EMPLOYEE'S OFFICIAL TRAVEL IS MORE ADVANTAGEOUS TO THE GOVERNMENT, WITHIN THE MEANING OF SGTR 3.5B (1), IN ANY OF THE FOLLOWING CASES:

"C. WHEN AN EMPLOYEE IS AUTHORIZED TO TRANSPORT EFFECTS, BUT NO DETERMINATION HAS BEEN MADE UNDER FSTR 5.21 THAT THE SHIPMENT OF A PRIVATELY-OWNED CONVEYANCE IS NECESSARY OR EXPEDIENT, AND THE EMPLOYEE OR A MEMBER OF HIS FAMILY WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE, EVEN THOUGH UNACCOMPANIED, DRIVES SUCH CONVEYANCE ON A MILEAGE BASIS BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION. * * * * * * *

"5.21 A TRAVEL AUTHORIZATION WHICH INCLUDES AUTHORITY FOR THE TRANSPORTATION OF EFFECTS SHALL CONSTITUTE AUTHORITY FOR THE TRANSPORTATION OF 1 AUTOMOBILE OWNED BY THE EMPLOYEE OR BY A MEMBER OF HIS FAMILY WHEN IT IS DETERMINED THAT WATER, RAIL, OR AIR TRANSPORTATION OF THE AUTOMOBILE IS NECESSARY OR EXPEDIENT FOR ANY PARTY OR ALL OF THE DISTANCE BETWEEN THE POINTS OF ORIGIN AND DESTINATION. IT IS HEREBY DETERMINED THAT TRANSPORTATION OF AN AUTOMOBILE FOR ALL OF THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION IS NECESSARY OR EXPEDIENT WHEN NEITHER THE AUTHORIZED NOR THE ACTUAL POINTS OF ORIGIN AND DESTINATION ARE CONNECTED BY A HARD SURFACED ALL-WEATHER HIGHWAY OR BY AUTOMOBILE FERRY OR BOTH, OR WHEN AN EMPLOYEE IS TRANSFERRED OR ABSENT FROM HIS POST UNDER ORDERS (INCLUDING COMBINED HOME LEAVE AND TRANSFER ORDERS) AND IS, THEREFORE, UNABLE TO DRIVE THE AUTOMOBILE FROM THE OLD POST TO THE NEW POST. AUTHORITY TO DETERMINE WHETHER TRANSPORTATION OF A PRIVATELY OWNED AUTOMOBILE IS NECESSARY OR EXPEDIENT IN OTHER CASES IS HEREBY DELEGATED TO THE OFFICER AUTHORIZING OR APPROVING THE TRAVEL INCLUDING TRANSPORTATION OF EFFECTS.'

THE CIRCUMSTANCES OF YOUR TRAVEL BETWEEN WASHINGTON, D.C., AND WALNUT CREEK, CALIFORNIA, ARE NOT INCLUDED IN ANY OF THE SITUATIONS CONSIDERED IN SECTION 5.21 OF THE FOREIGN SERVICE TRAVEL REGULATIONS AUTHORIZING AN EXPENSE TO THE GOVERNMENT FOR THE SHIPMENT OF AUTOMOBILES AND THEREFORE YOU WERE NOT ENTITLED TO THE SHIPMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE. UNDER SIMILAR CIRCUMSTANCES, WE HAVE HELD THAT SECTION 4.32 (C) OF THE FOREIGN SERVICE TRAVEL REGULATIONS MAY NOT BE CONSTRUED AS, IN FACT, A VALID DETERMINATION OF ADVANTAGE TO THE GOVERNMENT SO AS TO AUTHORIZE PAYMENT OF MILEAGE AND PER DIEM IN EXCESS OF THE COST BY COMMON CARRIER. IN VIEW THEREOF, AND SINCE NO DETERMINATION OF ADVANTAGE OTHERWISE WAS MADE YOU ARE NOT ENTITLED TO REIMBURSEMENT OF MILEAGE AND PER DIEM IN EXCESS OF COMMON CARRIER COSTS.

FURTHERMORE, EVEN THOUGH YOU MAY HAVE BEEN ADVISED BY THE ADMINISTRATIVE AGENCY THAT REIMBURSEMENT ON THE BASIS CLAIMED WAS PROPER, THE GOVERNMENT IS NOT BOUND BY THE ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. THE OVERPAYMENT SHOULD BE REFUNDED WITHOUT FURTHER DELAY.