B-150571, APR. 22, 1963

B-150571, APR. 22, 1963

TO ARTHUR H. HEFLIN, TMC 725 30 98, USN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1962, TO THE U.S. NAVY REGIONAL ACCOUNTS OFFICE, WASHINGTON 25, D.C., WHICH WAS FORWARDED HERE FOR OUR CONSIDERATION, AND TO YOUR LETTER OF DECEMBER 28, 1962, REQUESTING REVIEW OF THE SETTLEMENT DATED DECEMBER 17, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRIPS BY YOUR PRIVATE AUTOMOBILE FROM YOUR RESIDENCE TO DUTY STATION AND RETURN (A DISTANCE OF 30 MILES) DURING THE PERIOD JULY 6, 1961, TO APRIL 23, 1962.

BY STANDARD TRANSFER ORDER NO. 109-61, DATED JUNE 23, 1961, YOU WERE ASSIGNED TEMPORARY ADDITIONAL DUTY TO COMMANDER DESTROYER FLOTILLA FIVE, AT PEARL HARBOR, HAWAII, EFFECTIVE JUNE 24, 1961, FROM THE U.S.S. JENKINS (DDE 447) AT PEARL HARBOR. THESE ORDERS PROVIDED THAT "THERE IS NO COST TO THE GOVERNMENT INVOLVED IN THE EXECUTION OF THESE ORDERS AND NONE IS AUTHORIZED.' THESE ORDERS WERE MODIFIED BY ENDORSEMENT OF COMMANDER DESTROYER FLOTILLA FIVE, DATED JUNE 24, 1961, IN THAT YOU WERE TO REPORT TO THE COMMANDING OFFICER, NAVAL AMMUNITION DEPOT, WEST LOCH, PEARL HARBOR, FOR TEMPORARY ADDITIONAL DUTY AND UPON COMPLETION OF THIS DUTY AND WHEN DIRECTED BY PROPER AUTHORITY, TO RETURN TO COMMANDER DESTROYER FLOTILLA FIVE.

IN YOUR CLAIM AND IN YOUR REQUEST FOR REVIEW, YOU HAVE AVERRED THAT YOU TRIED TO GET GOVERNMENT TRANSPORTATION FROM YOUR RESIDENCE AT 328 8TH STREET, HALE MAKU, TO YOUR PLACE OF TEMPORARY ADDITIONAL DUTY AT WEST LOCH, PEARL HARBOR, AND YOU WERE INFORMED THAT YOU WOULD HAVE TO FURNISH YOUR OWN TRANSPORTATION AS NO GOVERNMENT TRANSPORTATION WAS AVAILABLE. FOR THIS REASON, YOU CONTEND YOU SHOULD BE PAID FOR COMMUTING BY PRIVATE AUTOMOBILE FROM YOUR RESIDENCE TO YOUR DUTY STATION (APPROXIMATELY A 30- MILE ROUND TRIP) DURING THE PERIOD JULY 6, 1961, TO APRIL 23, 1962.

THE CONTROLLING STATUTE, 37 U.S.C. 404, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS, WHICH PRESUPPOSES TRAVEL ON PUBLIC BUSINESS. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050-1 OF THOSE REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES THAT MEMBERS ARE ENTITLED TO AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT MEMBERS ARE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS, INCLUDING PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. HOWEVER, PARAGRAPH 6450 OF THESE REGULATIONS PROVIDES THAT EXPENSES INCURRED INCIDENT TO TRAVEL TO AND FROM HOME AND PLACE OF DUTY OR TO SHORT TRIPS WITHIN THE IMMEDIATE VICINITY OF THE DUTY STATION ARE NOT PAYABLE. IN THIS RESPECT, WE HAVE HELD THAT A MEMBER'S DESIGNATED POST OF DUTY INCLUDES THE PLACE FROM WHICH THE MEMBER COMMUTES. SEE 34 COMP. GEN. 549, AND ID. 597. ALSO, PARAGRAPH 4253-3 (2) OF THE U.S. NAVY TRAVEL INSTRUCTIONS PRECLUDES REIMBURSEMENT FOR EXPENSES OF TRANSPORTATION BETWEEN THE PLACE OF LODGING AND PLACE OF TEMPORARY DUTY EXCEPT WHEN NECESSARY TO TRANSPORT SPECIAL EQUIPMENT OR "WHEN THE LOCATION OF THE TEMPORARY DUTY STATION IS SO REMOTE FROM SUITABLE LODGINGS THAT TRAVEL REQUIRED IN CONNECTION WITH SUCH LODGINGS REQUIRES EXCESSIVE EXPENDITURE OF PERSONAL FUNDS AND SUCH TRANSPORTATION EXPENSE IS SPECIFICALLY APPROVED BY THE APPROPRIATE OFFICIAL.' IN SUCH A CASE, A STATEMENT WILL BE INCLUDED IN THE MEMBER'S CLAIM EXPLAINING THE NECESSITY FOR TRANSPORTATION BETWEEN LODGINGS AND THE TEMPORARY DUTY STATION. YOUR CLAIM HAS NOT BEEN APPROVED ON SUCH BASIS.

IN A REPORT ON YOUR CLAIM, THE COMMANDER DESTROYER FLOTILLA FIVE, REPORTED THAT:

"FURTHER, IT WAS ASCERTAINED BY THIS COMMAND BEFORE MODIFYING HEFLIN'S TAD ORDERS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE UPON INITIAL REPORTING TO CO, NAD, WEST LOCH AND IT WAS THE INTENT OF THIS COMMAND THAT HEFLIN UTILIZE GOVERNMENT TRANSPORTATION IN THE EXECUTION OF THESE ORDERS. ALTHOUGH HEFLIN WAS INFORMED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE TO HIM, HE CHOSE TO UTILIZE HIS OWN PRIVATELY OWNED VEHICLE. COMDESFLOT FIVE DID NOT INTEND THAT HEFLIN COMMUTE TO AND FROM HIS PLACE OF RESIDENCE DAILY AS INDICATED BY HIS CLAIM FOR REIMBURSEMENT FOR TRAVEL. GOVERNMENT MESSING AND BERTHING FACILITIES WERE AVAILABLE FOR HIS USE AT NAD WEST LOCH. IF HEFLIN DESIRED TO COMMUTE TO AND FROM NAD WEST LOCH IT IS CONSIDERED THAT HE IS NOT ENTITLED TO REIMBURSEMENT FOR TRAVEL PERFORMED AS INDICATED IN REFERENCE (B).'

WITH RESPECT TO THE ABOVE ADMINISTRATIVE REPORT ON YOUR CLAIM, IT APPEARS THAT YOU ARE UNDER A MISAPPREHENSION AS TO YOUR RIGHTS TO GOVERNMENT TRANSPORTATION TO YOUR DUTY STATION AT THE NAVAL AMMUNITION DEPOT AT WEST LOCH. WHILE YOU MAY NOT HAVE BEEN ABLE TO SECURE GOVERNMENT HOUSING FOR YOUR DEPENDENTS AT WEST LOCH, SINCE YOU WERE ASSIGNED THERE ON TEMPORARY ADDITIONAL DUTY ORDERS, IT IS DEFINITELY STATED THAT GOVERNMENT MESSING AND BERTHING FACILITIES WERE AVAILABLE FOR YOUR USE AT NAD, WEST LOCH. THIS BEING THE CASE, THE AVAILABLE GOVERNMENT TRANSPORTATION IN ISSUE REFERRED TO THE SOLE TRIP NECESSARY TO TRANSPORT YOU TO THE NAVAL AMMUNITION DEPOT AT WEST LOCH, AND NOT THE DAILY COMMUTING FOR A ROUND TRIP OF 30 MILES, NECESSITATED BY YOUR PERSONAL CHOICE TO STAY WITH YOUR FAMILY AT THEIR RESIDENCE AT 328 8TH STREET, HALE MAKU, DURING THE PERIOD JULY 6, 1961, TO APRIL 23, 1962. SINCE GOVERNMENT QUARTERS AND SUBSISTENCE WERE AVAILABLE FOR YOUR USE AT WEST LOCH, THERE WAS NO NECESSITY FOR YOU TO COMMUTE DAILY FROM YOUR RESIDENCE. CONSEQUENTLY, THE EXPENSES WHICH YOU INCURRED BY YOUR PERSONAL CHOICE TO COMMUTE FROM YOUR FAMILY'S RESIDENCE TO WEST LOCH DURING THE PERIOD INVOLVED IN YOUR CLAIM MUST BE CONSIDERED A PERSONAL OBLIGATION NOT CHARGEABLE TO THE GOVERNMENT.

OUR OFFICE MUST NECESSARILY RELY ON THE WRITTEN RECORD IN THE SETTLEMENT OF CLAIMS, SINCE, GENERALLY, WE HAVE NO KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES INVOLVED OTHER THAN THOSE FURNISHED BY THE CLAIMANTS AND THE ADMINISTRATIVE OFFICE. THE QUESTION AS TO THE AVAILABILITY OF GOVERNMENT TRANSPORTATION SO AS TO ENABLE YOU TO REPORT TO THE NAVAL AMMUNITION DEPOT AT WEST LOCH, PEARL HARBOR, FOR TEMPORARY ADDITIONAL DUTY IS A QUESTION OF FACT. IT IS THE UNBROKEN RULE OF THIS OFFICE, WHEN THERE IS A DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT IN THE ABSENCE OF EVIDENCE SUBMITTED BY THE CLAIMANT LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AND SUPPORTED BY THE OFFICIAL RECORDS AS CONTROLLING THE DISPOSITION OF THE CLAIM. SEE 14 COMP. GEN. 927, 929; 16 ID. 325, 329; 18 ID. 799; 19 ID. 88, 90; 31 ID. 288; 37 ID. 568, AND 38 ID. 527, 530. THEREFORE, BASED ON THE FOREGOING AND ON THE RECORD BEFORE US, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 17, 1962, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR RETURN OF THE PAPERS RELATING TO YOUR CLAIM, YOU ARE ADVISED THAT THE PAPERS HAVE BECOME A PART OF THE PERMANENT RECORDS OF THIS OFFICE AND ARE REQUIRED TO BE RETAINED HERE.