B-150263, JAN 12, 1971

B-150263, JAN 12, 1971

OVERPAYMENTS - TRANSPORTATION EXPENSES MODIFYING PRIOR DECISION WHICH DISALLOWED CLAIM BY BERNARD J. LEVY, CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR REFUND OF $494.75 WITHHELD FROM HIS PAY, REPRESENTING OVERPAYMENTS FOR TRANSPORTATION BETWEEN SAIGON, VIETNAM AND THE UNITED STATES IN 1967 AND 1968. IN 1967 WHEN CLAIMANT WAS ISSUED ANNUAL LEAVE AND TRAVEL WAS AUTHORIZED ON MILITARY AIRCRAFT ON A SPACE AVAILABLE BASIS, AND THE TRAVEL WAS PERFORMED BY A CIRCUITOUS ROUTE BY COMMERCIAL AIR, THE GOVERNMENT WAS CORRECT IN RECOUPING THE DIFFERENCE BETWEEN COMMERCIAL AND GOVERNMENT EXPENSE. HOWEVER, CONCERNING TRAVEL IN 1968, BECAUSE THE ORDER DID NOT RESTRICT TRAVEL TO MILITARY AIRCRAFT, BUT AUTHORIZED UTILIZATION OF COMMERCIAL TRANSPORTATION AS AN ALTERNATIVE AND BECAUSE CLAIMANT WAS ISSUED A CERTIFICATE OF NON-AVAILABILITY OF MILITARY TRANSPORTATION, CLAIMANT WAS ENTITLED TO THE COMMERCIAL AIR TRANSPORTATION.

TO MR. BERNARD J. LEVY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24, 1970, REQUESTING RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $494.75, THE AMOUNT OF THE DEDUCTIONS FROM YOUR PAY AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, REPRESENTING OVERPAYMENTS FOR TRANSPORTATION BETWEEN SAIGON, VIETNAM, AND THE UNITED STATES IN 1966 AND 1967.

THE RECORD INDICATES THAT BY LETTER ORDER DATED AUGUST 23, 1966, YOU WERE AUTHORIZED TO VISIT THE CONTINENTAL UNITED STATES ON ORDINARY ANNUAL LEAVE (REEMPLOYMENT) AND TRAVEL WAS AUTHORIZED ON MILITARY AIRCRAFT ON A SPACE AVAILABLE BASIS. YOU PERFORMED THE TRAVEL BY A CIRCUITOUS ROUTE BY COMMERCIAL AIR. AFTER THE TRAVEL WAS PERFORMED YOUR ORDER WAS AMENDED ON JANUARY 24, 1967, TO AUTHORIZE TRAVEL ON A SPACE REQUIRED BASIS. YOU WERE INADVERTENTLY REIMBURSED FOR THE COST OF COMMERCIAL TRANSPORTATION. SUBSEQUENTLY $207, THE DIFFERENCE IN COST BETWEEN COMMERCIAL AND GOVERNMENT TRANSPORTATION, WAS DEDUCTED FROM YOUR PAY. YOU REQUEST A REFUND ON THE GROUND THAT THE TRAVEL ORDER AMENDMENT IS INAPPLICABLE.

BY LETTER ORDER DATED JUNE 6, 1967, YOU WERE TRANSFERRED FROM VIETNAM TO WASHINGTON, D.C., AND AUTHORIZED TRAVEL TO INCLUDE TRANSPORTATION BY GOVERNMENT OR COMMERCIAL AIR. YOU TRAVELED TO YOUR NEW STATION BY A CIRCUITOUS ROUTE BY COMMERCIAL AIR. AFTER YOU HAD BEEN REIMBURSED THE COST OF COMMERCIAL AIR THE AMOUNT OF $287.75, THE DIFFERENCE IN COST BETWEEN COMMERCIAL AND GOVERNMENT AIR, WAS DEDUCTED FROM YOUR PAY. YOU STATE YOU WERE FURNISHED A STATEMENT THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE AND RECLAIM THE AMOUNT OF $287.75 DEDUCTED.

SUBPARAGRAPH C 6001-4B, JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, PROVIDES, IN PART, THAT OVERSEAS TRAVEL MAY BE REQUIRED BY MILITARY AIRLIFT COMMAND (MAC) AIRCRAFT INCLUDING CHARTER OR INDIVIDUALLY TICKETED COMMERCIAL SERVICE MADE AVAILABLE BY THAT COMMAND, UNLESS MEDICALLY CONTRAINDICATED, FOR EMPLOYEES SIGNING WRITTEN AGREEMENTS FOR OVERSEAS EMPLOYMENT WHICH CONTAIN REQUIREMENTS TO UTILIZE GOVERNMENT AIRCRAFT FOR NECESSARY TRAVEL TO AND FROM THEIR OVERSEAS DUTY STATION. WE NOTE THAT DA FORM 1321 (TRANSPORTATION AGREEMENT) SIGNED BY YOU INCLUDES A STATEMENT THAT GOVERNMENT AIRCRAFT WOULD BE UTILIZED FOR TRAVEL TO AND FROM YOUR OVERSEAS DUTY STATION. SUBPARAGRAPH C 6001-3A, JTR, VOLUME 2, PROVIDES THAT DETERMINATION OF THE MODE OF TRANSPORTATION TO BE USED FOR OVERSEAS TRAVEL SHALL BE MADE BY THE RESPONSIBLE TRANSPORTATION OFFICER UNLESS THE OFFICIAL DIRECTING THE TRAVEL HAS SPECIFIED A PARTICULAR MODE IN ACCORDANCE WITH THE REGULATIONS. SUBPARAGRAPH C 6001-3B, JTR, VOLUME 2, PROVIDES THAT WHEN AN EMPLOYEE WHO IS AUTHORIZED TO UTILIZE AVAILABLE MAC FACILITIES IN CONNECTION WITH PERMANENT DUTY TRAVEL ELECTS TO UTILIZE COMMERCIAL AIR AT HIS OWN EXPENSE, REIMBURSEMENT WILL BE LIMITED TO THE CONSTRUCTIVE COST OF MAC FACILITIES.

WITH RESPECT TO TRAVEL UNDER LETTER ORDER OF AUGUST 23, 1966, THERE IS NOTHING IN THE RECORD TO INDICATE THAT MAC FACILITIES WERE NOT AVAILABLE AT THE TIME YOU TRAVELED AND YOUR ITINERARY SHOWS YOU TRAVELED BY AN INDIRECT ROUTE. SINCE THAT ORDER MADE NO MENTION OF COMMERCIAL AIR IT APPEARS THAT YOU ELECTED TO TRAVEL BY THAT MEANS FOR PERSONAL REASONS AND REIMBURSEMENT FOR TRAVEL IS LIMITED TO THE CONSTRUCTIVE COST OF TRAVEL BY MAC FACILITIES. THE PROPRIETY OF THE AMENDMENT OF JANUARY 24, 1967, TO THE ORDER OF AUGUST 23, 1966, WHICH MERELY STATED THAT TRAVEL BY MILITARY AIRCRAFT WOULD BE ON A "SPACE REQUIRED" INSTEAD OF A "SPACE AVAILABLE" BASIS IS NOT MATERIAL. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF THE DEDUCTION OF THE OVERPAYMENT OF $207 IS SUSTAINED.

CONCERNING TRAVEL UNDER LETTER ORDER OF JUNE 6, 1967, INCIDENT TO TRANSFER TO WASHINGTON, D.C., WE NOTE THAT SUCH ORDER DID NOT RESTRICT YOUR TRAVEL TO MILITARY AIRCRAFT BUT AUTHORIZED UTILIZATION OF COMMERCIAL TRANSPORTATION AS AN ALTERNATIVE. IN VIEW THEREOF AS WELL AS THE FACT THAT YOU WERE ISSUED A CERTIFICATE OF NONAVAILABILITY OF MILITARY TRANSPORTATION WE HAVE DETERMINED TO RECOGNIZE YOUR ENTITLEMENT TO COMMERCIAL AIR TRANSPORTATION FROM SAIGON, VIETNAM, DIRECT TO WASHINGTON, D.C., IN SEPTEMBER 1967. TO ARRIVE AT THE AMOUNT DUE ON THAT BASIS A RECOMPUTATION OF YOUR TRAVEL VOUCHER IS REQUIRED (TRAVEL WAS ACTUALLY PERFORMED BY A CIRCUITOUS ROUTE). UPON COMPLETION THEREOF A CHECK WILL ISSUE TO YOU FOR THE AMOUNT FOUND DUE.

WITH REGARD TO YOUR QUESTION AS TO THE PROCEDURES APPLICABLE TO YOUR CASE, YOU ARE ADVISED THAT THIS DECISION COMPLETES ACTION BY OUR OFFICE. REGARDING FURTHER APPEAL OF YOUR CLAIM WE POINT OUT DECISIONS OF OUR OFFICE ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. AS TO MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS, SEE 28 U.S.C. 1346 AND 1491.