B-149746, OCT. 12, 1962

B-149746: Oct 12, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RA: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. BY THOSE ORDERS YOU WERE DIRECTED TO PROCEED ON OR ABOUT JUNE 25. THE ORDERS WERE ISSUED UNDER AUTHORITY OF DEPARTMENT OF ARMY MESSAGE 49958. IN THAT MESSAGE IT WAS STATED THAT EXPENSES OF TRAVEL WOULD BE CHARGED TO A DEPARTMENT OF THE ARMY APPROPRIATION SUBJECT TO BEING REIMBURSED BY COLONEL FRANK J. THE RECORD SHOWS THAT TRANSPORTATION REQUESTS WERE ISSUED FOR YOUR TRAVEL FROM COLORADO SPRINGS. ADDITIONAL TRAVEL WAS PERFORMED BY PRIVATELY OWNED VEHICLE AND TAXI. YOUR CLAIM FOR PER DIEM AND FOR REIMBURSEMENT FOR THESE EXPENSES WAS DISALLOWED BY THE SETTLEMENT DATED JULY 31. FOR THE REASON THAT THE EXPENSES OF YOUR TRAVEL WERE NOT CONSIDERED TO BE AN OBLIGATION OF THE GOVERNMENT AND THAT AN ADMINISTRATIVE REPORT SHOWED THAT THE EXPENSES WERE TO BE PAID BY COLONEL REDDING.

B-149746, OCT. 12, 1962

TO EDWARD M. WINNER, SP-5, RA:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1962, REQUESTING REVIEW OF SETTLEMENT DATED JULY 31, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 25 TO 29, 1961, AND ADDITIONAL TRANSPORTATION EXPENSES, FOR TRAVEL INCIDENT TO YOUR ORDERS OF JUNE 23, 1961, AS AMENDED.

BY THOSE ORDERS YOU WERE DIRECTED TO PROCEED ON OR ABOUT JUNE 25, 1961, FROM YOUR DUTY STATION AT FORT CARSON, COLORADO, TO ARLINGTON, VIRGINIA, FOR THE PURPOSE OF APPEARING AS A WITNESS IN CIVIL COURT PROCEEDINGS, CIRCUIT COURT, ARLINGTON COUNTY COURTHOUSE, AT 9:00 A.M. ON JUNE 26, 1961. THE ORDERS WERE ISSUED UNDER AUTHORITY OF DEPARTMENT OF ARMY MESSAGE 49958, DATED JUNE 21, 1961. IN THAT MESSAGE IT WAS STATED THAT EXPENSES OF TRAVEL WOULD BE CHARGED TO A DEPARTMENT OF THE ARMY APPROPRIATION SUBJECT TO BEING REIMBURSED BY COLONEL FRANK J. REDDING (RET.), 6919 DINWIDDIE STREET, SPRINGFIELD, VIRGINIA. THE RECORD SHOWS THAT TRANSPORTATION REQUESTS WERE ISSUED FOR YOUR TRAVEL FROM COLORADO SPRINGS, COLORADO, TO WASHINGTON, D.C., AND RETURN. ADDITIONAL TRAVEL WAS PERFORMED BY PRIVATELY OWNED VEHICLE AND TAXI. YOUR CLAIM FOR PER DIEM AND FOR REIMBURSEMENT FOR THESE EXPENSES WAS DISALLOWED BY THE SETTLEMENT DATED JULY 31, 1962, FOR THE REASON THAT THE EXPENSES OF YOUR TRAVEL WERE NOT CONSIDERED TO BE AN OBLIGATION OF THE GOVERNMENT AND THAT AN ADMINISTRATIVE REPORT SHOWED THAT THE EXPENSES WERE TO BE PAID BY COLONEL REDDING.

IT APPEARS TO BE YOUR BELIEF THAT SINCE YOU WERE ORDERED TO PERFORM THE TRAVEL TO ARLINGTON, VIRGINIA, TO APPEAR AS WITNESS IN BEHALF OF LEIGH STEVEN REDDING, YOU WERE IN A TEMPORARY DUTY STATUS AND THEREFORE SHOULD BE ALLOWED PER DIEM. YOU ALSO POINT OUT THAT IN THE DEPARTMENT OF ARMY MESSAGE REFERRED TO ABOVE IT IS STATED THAT THE EXPENSES SHOULD BE CHARGED TO AN ARMY APPROPRIATION, AND IT IS YOUR VIEW, THEREFORE, THAT THE GOVERNMENT MUST PAY YOUR TRAVEL EXPENSES AND OBTAIN REIMBURSEMENT FROM COLONEL REDDING.

TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A). PARAGRAPH 6300-3 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER ON ACTIVE DUTY IS SUBPOENAED TO APPEAR AS A WITNESS FOR A STATE, DISTRICT OF COLUMBIA, A COMMITTEE OF CONGRESS, A PRIVATE INDIVIDUAL, OR CORPORATION, THE MEMBER SHALL NOT RECEIVE ANY ALLOWANCES FOR TRAVEL AND TRANSPORTATION FROM THE SERVICE WITH WHICH HE IS SERVING AND THAT ARRANGEMENTS FOR PAYMENT OF THE TRAVEL AND SUBSISTENCE EXPENSES OF THE WITNESS SHOULD BE MADE IN ADVANCE BETWEEN THE WITNESS AND THE INDIVIDUAL OR AGENCY DESIRING HIS TESTIMONY.

THE REGULATIONS GOVERNING THE APPEARANCE OF ARMY MILITARY PERSONNEL AS WITNESSES BEFORE CIVIL COURTS AND ADMINISTRATIVE TRIBUNALS PURSUANT TO THE REQUEST OF COUNSEL, SUBPOENA (EXCLUDING SUBPOENA DUCES TECUM), OR OTHER COURT ORDER, TO TESTIFY WITH RESPECT TO INFORMATION OBTAINED IN THE COURSE OF THEIR OFFICIAL DUTIES, ARE CONTAINED IN ARMY REGULATION 27-5, DATED JANUARY 14, 1960. PARAGRAPH 25C PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"C. WITNESSES FOR PRIVATE INDIVIDUAL, CORPORATION OR AGENCY.

(1) TRAVEL ARRANGEMENTS. ARRANGEMENTS FOR ATTENDANCE OF MILITARY OR CIVILIAN PERSONNEL AUTHORIZED TO APPEAR AS WITNESSES FOR A PRIVATE INDIVIDUAL, CORPORATION, OR AGENCY WILL NORMALLY BE MADE BY THE REQUESTING PARTY WITH THE COMMANDING OFFICER OF THE WITNESS.

"/2) STATUS OF WITNESS. IF AUTHORIZED TO APPEAR AS A WITNESS FOR A PRIVATE INDIVIDUAL, CORPORATION OR AGENCY, AND THE TESTIMONY TO BE GIVEN RELATES TO HIS OFFICIAL DUTIES, TO INFORMATION OBTAINED IN HIS OFFICIAL CAPACITY, OR TO THE ACTIVITIES OF THE DEPARTMENT OF THE ARMY, A MILITARY PERSON MAY ATTEND IN A DUTY STATUS. IF AUTHORIZED TO APPEAR AS A WITNESS BUT HIS TESTIMONY DOES NOT RELATE TO HIS OFFICIAL DUTIES, OFFICIAL CAPACITY, OR ACTIVITIES OF THE DEPARTMENT OF THE ARMY, A MILITARY PERSON MAY BE PLACED IN THE STATUS OF ORDINARY LEAVE. IN EITHER EVENT, THE STATUS OF A CIVILIAN EMPLOYEE WILL BE DETERMINED IN ACCORDANCE WITH CPR LI.6.

"/3) TRAVEL EXPENSES. ARRANGEMENTS FOR PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES OF THE WITNESS, OTHER THAN SUCH MONETARY ALLOWANCES FOR SUBSISTENCE AS MAY NORMALLY BE FURNISHED TO THE ENLISTED PERSONNEL IN A LEAVE STATUS, ARE SOLELY A MATTER BETWEEN THE WITNESS AND THE PARTY SEEKING HIS APPEARANCE. WITNESSES ORDINARILY SHOULD BE ADVISED TO REQUIRE ADVANCE PAYMENT OF S.'

THE REGULATION QUOTED ABOVE IS BASED ON THE RULE THAT A MEMBER'SENTITLEMENT TO TRANSPORTATION AND TRAVEL ALLOWANCE FOR TRAVEL PERFORMED UNDER ORDERS DEPENDS ON WHETHER THE TRAVEL IS ON PUBLIC BUSINESS. THE TERM "PUBLIC BUSINESS" RELATES TO THE OFFICIAL 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 ACTIVITY AND FUNCTIONS. PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. THAT RULE CLEARLY IS FOR APPLICATION WHERE ORDERS ISSUED UNDER AUTHORITY OF THE ABOVE-QUOTED REGULATIONS ARE FOR THE PURPOSE OF AUTHORIZING A MEMBER TO APPEAR AS A WITNESS FOR A PRIVATE INDIVIDUAL WHILE IN A DUTY STATUS. CONSEQUENTLY, TO THE EXTENT SUCH ORDERS PURPORT TO AUTHORIZE EXPENDITURE OF PUBLIC FUNDS FOR PAYMENT OF TRAVEL EXPENSES INCIDENT TO A MEMBER'S APPEARANCE AS A WITNESS IN A CIVIL PROCEEDING, THEY ARE WITHOUT AUTHORITY OF LAW AND OF NO EFFECT. SEE 9 COMP. GEN. 414. THUS, THE FACT THAT YOUR ORDERS OF JUNE 23, 1961, AS AMENDED, AUTHORIZED YOU TO ATTEND THE CIVIL PROCEEDINGS IN A DUTY STATUS DOES NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR EXPENSES. THEREFORE, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, AND THE SETTLEMENT OF JULY 31, 1962, IS SUSTAINED.

WHILE THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER WE SUGGEST THAT YOU PRESS YOUR CLAIM FOR REIMBURSEMENT FOR THE EXPENSES OF YOUR TRAVEL AGAINST COLONEL FRANK J. REDDING (RET.), 6919 DINWIDDIE STREET, SPRINGFIELD, VIRGINIA, VIA THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., AND THAT IT BE DIRECTED TO THE ATTENTION OF LIEUTENANT COLONEL JOSEPH L. BAILEY, LITIGATION DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, WHO IS FAMILIAR WITH THE MATTER. FOR THIS PURPOSE, WE HAVE ENCLOSED A COPY OF THIS LETTER TO YOU.