B-152921, DEC. 17, 1963

B-152921: Dec 17, 1963

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JAGC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. IF WE ARE STILL OF THE OPINION THERE IS NO REGULATION OR PROVISION OF LAW AUTHORIZING PAYMENT OF YOUR CLAIM. THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION IS GOVERNED BY REGULATIONS ISSUED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 404. THESE REGULATIONS ARE PUBLISHED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4253-4 OF THOSE REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE CONTINENTAL UNITED STATES ABOARD A COMMERCIAL VESSEL EXCEPT FOR THE DAYS OF EMBARKATION OR DEBARKATION. THE NUMBER OF PIECES OF BAGGAGE HANDLED WILL BE SHOWN ON THE CLAIM.

B-152921, DEC. 17, 1963

TO COLONEL WILNER N. J. NELSON, JAGC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1963, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED AUGUST 19, 1963, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TIPS GIVEN TO PERSONNEL OF THE U.S.S. UNITED STATES WHILE TRAVELING FROM LEHARVE, FRANCE, TO NEW YORK, NEW YORK, DURING THE PERIOD MAY 24 TO 29, 1962, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY. YOU REQUEST THAT, IF WE ARE STILL OF THE OPINION THERE IS NO REGULATION OR PROVISION OF LAW AUTHORIZING PAYMENT OF YOUR CLAIM, YOU BE FURNISHED A STATEMENT TO THAT EFFECT.

THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION IS GOVERNED BY REGULATIONS ISSUED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 404, TITLE 37, UNITED STATES CODE. THESE REGULATIONS ARE PUBLISHED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4253-4 OF THOSE REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE CONTINENTAL UNITED STATES ABOARD A COMMERCIAL VESSEL EXCEPT FOR THE DAYS OF EMBARKATION OR DEBARKATION. PARAGRAPH 4402 OF THE REGULATIONS LISTS THE ALLOWABLE TIPS INCIDENT TO TRANSPORTATION EXPENSES, WHEN ITEMIZED, AS FOLLOWS:

"1. TIPS TO PULLMAN PORTERS, OR SIMILAR TRAIN ATTENDANTS OVERSEAS, NOT TO EXCEED $1.00 EACH CALENDAR DAY;

"2. CUSTOMARY TIPS FOR BAGGAGE HANDLING (EXCEPT AT HOTELS); THE NUMBER OF PIECES OF BAGGAGE HANDLED WILL BE SHOWN ON THE CLAIM;

"3. IN CONNECTION WITH REIMBURSEMENT FOR TAXICAB FARES AUTHORIZED IN PAR. 4401, TIPS TO TAXI DRIVERS OF $0.10 WHERE THE FARE IS $1.00 OR LESS, OR 10 PERCENT OF THE FARE INCREASED TO THE NEXT MULTIPLE OF $0.05 WHERE THE FARE EXCEEDS $1.00.'

THE TIPS YOU GAVE TO PERSONNEL OF THE U.S.S. UNITED STATES FOR SERVICES RENDERED IN CONNECTION WITH YOUR ROOM AND MEALS WHILE ABOARD THE SHIP ARE CONSIDERED SUBSISTENCE EXPENSES WHICH ARE INCLUDED IN THE PER DIEM ALLOWANCE YOU WERE PAID. SEE 35 COMP. GEN. 618; 3 COMP. GEN. 913. THE ALLOWABLE TIPS LISTED IN PARAGRAPH 4402) OF THE JOINT TRAVEL REGULATIONS ARE REGARDED AS TRANSPORTATION EXPENSES AND ARE REIMBURSABLE IN ADDITION TO THE PER DIEM ALLOWANCE AND ACTUAL TRANSPORTATION PROVIDED FOR MEMBERS OF THE UNIFORMED SERVICES WHEN PERFORMING OFFICIAL TRAVEL. ACCORDINGLY, THERE BEING NO AUTHORITY UNDER THE APPLICABLE STATUTE AND REGULATIONS FOR THE PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF AUGUST 19, 1963, MUST BE AND IS SUSTAINED.

IT IS YOUR CONTENTION THAT THE EXPENSES (TIPS) WERE INCURRED AS A DIRECT RESULT OF THE IMPLIED ORDER IN PARAGRAPH 23C OF DEPARTMENT OF THE ARMY PAMPHLET 608-5, TITLED "INFORMATION FOR DEPENDENTS TRAVELING TO OVERSEAS AREAS.' THE ARMY REPORTED THAT THE PAMPHLET WAS PREPARED AS A GUIDE FOR DEPENDENTS OF ARMY PERSONNEL WHO ARE AUTHORIZED TO TRAVEL OVERSEAS AND IT IS NOT AN OFFICIAL PUBLICATION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES. THE UNIFORMED SERVICES PUBLISH THE JOINT TRAVEL REGULATIONS WHICH INTERPRET THE LAWS CONCERNING TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES, INCLUDING THE TRAVEL INVOLVED IN YOUR CASE, AND SET FORTH THE MANNER IN WHICH TRANSPORTATION IS FURNISHED AND REIMBURSEMENT MADE FOR TRAVEL EXPENSES INCURRED. THESE REGULATIONS ARE ISSUED BY THE SECRETARIES OF THE SERVICES PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404-411, AND AS STATUTORY REGULATIONS THEY HAVE THE FORCE AND EFFECT OF LAW AND TAKE PRECEDENCE OVER ALL OTHER PUBLICATIONS ON THIS SUBJECT. HENCE ANY ADVICE TO DEPENDENTS IN THE ARMY PAMPHLET PROVIDES NO BASIS TO REIMBURSE YOU FOR THE TIPS INVOLVED.

REGARDING YOUR REQUEST THAT ALL THE CORRESPONDENCE AND ENCLOSURES RELATING TO YOUR CLAIM BE RETURNED TO YOU, YOU ARE ADVISED THAT IT WILL BE NECESSARY TO RETAIN THEM HERE SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENTS DISALLOWING YOUR CLAIM WERE BASED, WHICH ACTION IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. 1 GAO MANUAL 3040.10; 8 ID. 2010.10.