B-153347, FEB. 20, 1964

B-153347: Feb 20, 1964

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WRITTEN CONFIRMATION OF THE ORDER WAS MADE ON NOVEMBER 23. YOU PERFORMED THE TRAVEL BY PRIVATELY- OWNED VEHICLE BUT WERE REIMBURSED ON THE BASIS OF FIRST CLASS TRAVEL BY RAIL AS SPECIFIED IN THE CONFIRMATORY TRAVEL ORDER. THIS TRAVEL WAS COVERED BY ORDER DATED AUGUST 8. "MILEAGE REIMBURSEMENT FOR TRAVEL BY POV WILL BE COMPUTED UNDER THE PROVISIONS OF CPR T3 AND WILL NOT EXCEED 12 CENTS PER MILE.'. YOU NOW SAY THAT THE ORDER COVERING TRAVEL TO OKINAWA CONTAINED CONFLICTING STATEMENTS IN THAT THE ORDER AUTHORIZES $0.12 PER MILE WHILE THE REGULATION AUTHORIZES PAYMENT TO YOU OF FIRST CLASS RAIL FARE AND THAT "IT IS JUST A SIMPLE RULE OF LAW THAT WHEN A CONTRACT HAS TWO CONFLICTING STATEMENTS (YOU) AUTOMATICALLY GET (YOUR) CHOICE.'.

B-153347, FEB. 20, 1964

TO MR. RICHARD G. BUTTON:

ON JANUARY 13, 1964, YOU REQUESTED A REVIEW OF OUR SETTLEMENT OF NOVEMBER 4, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY.

IT APPEARS THAT PURSUANT TO VERBAL ORDERS YOU PERFORMED TRAVEL FROM CHARLESTON, SOUTH CAROLINA, TO ATLANTA, GEORGIA, ON OCTOBER 23, 1962, FOR THE PURPOSE OF ATTENDING A COURSE IN PERSONNEL MANAGEMENT FOR EXECUTIVES AND RETURNED TO CHARLESTON ON NOVEMBER 2, 1962. WRITTEN CONFIRMATION OF THE ORDER WAS MADE ON NOVEMBER 23. YOU PERFORMED THE TRAVEL BY PRIVATELY- OWNED VEHICLE BUT WERE REIMBURSED ON THE BASIS OF FIRST CLASS TRAVEL BY RAIL AS SPECIFIED IN THE CONFIRMATORY TRAVEL ORDER.

THEREAFTER, EN ROUTE TO OKINAWA YOU PERFORMED TRAVEL BY PRIVATELY OWNED VEHICLE FROM CHARLESTON, SOUTH CAROLINA, TO SAN FRANCISCO, CALIFORNIA, BEGINNING NOVEMBER 4, 1962. THIS TRAVEL WAS COVERED BY ORDER DATED AUGUST 8, 1962, WHICH AUTHORIZED TRAVEL IN CONTINENTAL UNITED STATES BY FIRST CLASS AIR, AIR TOURIST (IF AVAILABLE), RAIL, OR PRIVATELY-OWNED VEHICLE "AT 12 CENTS PER MILE.' WHILE THE ORDER AFFORDED YOU A CHOICE OF THE MEANS OF TRAVEL IT ALSO PROVIDED, "MILEAGE REIMBURSEMENT FOR TRAVEL BY POV WILL BE COMPUTED UNDER THE PROVISIONS OF CPR T3 AND WILL NOT EXCEED 12 CENTS PER MILE.'

YOU NOW SAY THAT THE ORDER COVERING TRAVEL TO OKINAWA CONTAINED CONFLICTING STATEMENTS IN THAT THE ORDER AUTHORIZES $0.12 PER MILE WHILE THE REGULATION AUTHORIZES PAYMENT TO YOU OF FIRST CLASS RAIL FARE AND THAT "IT IS JUST A SIMPLE RULE OF LAW THAT WHEN A CONTRACT HAS TWO CONFLICTING STATEMENTS (YOU) AUTOMATICALLY GET (YOUR) CHOICE.' YOU ALSO SAY THAT PRIOR TO LEAVING SOUTH CAROLINA YOU WERE DIRECTED BY TELEGRAM TO TURN IN YOUR CAR AT THE PORT TERMINAL COMMAND AT OAKLAND, CALIFORNIA, AND POINT OUT THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR YOU TO TRAVEL BY RAIL AND DRIVE YOUR CAR AT THE SAME TIME.

THE TRAVEL OF EMPLOYEES AT GOVERNMENT EXPENSE IS GOVERNED BY LAW AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW. SECTION 3.5B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS READS, IN PERTINENT PART, AS FOLLOWS:

"CIVILIAN OFFICERS OR EMPLOYEES OF DEPARTMENTS AND ESTABLISHMENTS OR OTHERS RENDERING SERVICE TO THE GOVERNMENT, REGARDLESS OF SUBSISTENCE STATUS AND HOURS OF TRAVEL, SHALL, WHENEVER SUCH MODE OF TRANSPORTATION IS AUTHORIZED OR APPROVED AS MORE ADVANTAGEOUS TO THE GOVERNMENT (EXCEPT THAT NO DETERMINATION OF ADVANTAGE IS REQUIRED WHERE PAYMENT ON A MILEAGE BASIS IS LIMITED TO COST OF TRAVEL BY COMMON CARRIER, INCLUDING PER DIEM IN EACH CASE) BE PAID IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION NOT TO EXCEED 8 CENTS PER MILE FOR USE OF PRIVATELY OWNED MOTORCYCLES, OR 12 CENTS PER MILE FOR THE USE OF PRIVATELY OWNED AUTOMOBILES OR AIRPLANES, WHEN ENGAGED ON OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR DESIGNATED POSTS OF DUTY OR PLACES OF SERVICE * * *"

UNDER THE PROVISIONS OF THIS SECTION TRAVEL BY PRIVATELY-OWNED VEHICLE MAY BE AUTHORIZED BUT UNLESS THERE IS A DETERMINATION THAT TRAVEL BY THIS MEANS IS MORE ADVANTAGEOUS TO THE GOVERNMENT, REIMBURSEMENT TO THE EMPLOYEE IS LIMITED TO THE COST OF TRAVEL BY COMMON CARRIER INCLUDING PROPER PER DIEM. AN OFFICER IS NOT EMPOWERED TO AUTHORIZE RATES WHICH UNDER THE CIRCUMSTANCES IN THE PARTICULAR CASE EXCEED THE RATES ESTABLISHED BY THE REGULATIONS AND SHOULD HE DO SO THROUGH INADVERTENCE OR OTHERWISE, IT WOULD BE OF NO EFFECT. UNDER SUCH CIRCUMSTANCES THE TRAVELER WOULD NOT HAVE HIS CHOICE OF RATES AS YOU HAVE STATED BUT THE PAYMENT WOULD BE GOVERNED BY THE REGULATIONS.

THE TRAVEL BY PRIVATELY-OWNED CONVEYANCE UNDER THE TEMPORARY DUTY ASSIGNMENT IN GEORGIA AS WELL AS UNDER THE ASSIGNMENT TO OKINAWA WAS NOT DETERMINED TO BE TO THE ADVANTAGE OF THE GOVERNMENT PRESUMABLY ON THE BASIS OF THE EXCESS COST OF TRAVEL BY AUTOMOBILE COMPARED WITH THE COSTS OF TRAVEL BY COMMON CARRIER PLUS PER DIEM. WE DO NOT AGREE THAT THERE IS ANY CONFLICT BETWEEN THE REGULATIONS AND THE TERMS OF THE TRAVEL ORDER COVERING THE TRAVEL TO OKINAWA. THE $0.12 PER MILE STATED IN THE ORDER WAS SUBJECT TO THE CONDITIONS ALSO CONTAINED THEREIN WHICH SET FORTH THAT MILEAGE REIMBURSEMENT FOR TRAVEL BY PRIVATELY OWNED VEHICLE WOULD BE COMPUTED UNDER THE PROVISIONS OF CPR T3 AND WOULD NOT EXCEED $0.12 PER MILE. CPR T3 IS AN AGENCY REGULATION WHICH INDICATES THAT MILEAGE WILL BE COMPUTED AT THE AUTHORIZED RATE ($0.12 PER MILE) PLUS FERRY FARES, TOLL CHARGES, OR PARKING FEES, IF ANY, TO WHICH IS ADDED THE PER DIEM FOR ACTUAL TRAVEL TIME NOT IN EXCESS OF A REASONABLE TRAVEL TIME OF 300 MILES PER DAY. THAT REGULATION ALSO INDICATES THAT IN ORDER FOR MILEAGE TO BE PAID FOR USE OF AN AUTOMOBILE WITHOUT REGARD TO COMMON CARRIER COSTS THERE MUST BE A DETERMINATION THAT THE TRAVEL BY AUTOMOBILE IS MORE ADVANTAGEOUS TO THE UNITED STATES. UNLESS THERE HAS BEEN SUCH A DETERMINATION THE REGULATION REQUIRES A COMPARISON BETWEEN THE COSTS BY AUTOMOBILE AND THE COSTS BY COMMON CARRIER, AND THE EMPLOYEE IS ONLY ENTITLED TO THE LESSER THEREOF.

CONCERNING THE DIRECTION TO TURN IN YOUR CAR AT PORT TERMINAL, OAKLAND, WHICH YOU SAY YOU RECEIVED PRIOR TO DEPARTING CHARLESTON--- IT IS NOT DISPUTED THAT YOU TRAVELED BY CAR OR THAT YOU HAD BEEN AUTHORIZED TO SHIP AN AUTOMOBILE AT GOVERNMENT EXPENSE FROM PORT TO PORT. HOWEVER, YOUR RIGHT TO REIMBURSEMENT FOR TRAVEL IN CONTINENTAL UNITED STATES WAS LIMITED BY THE ORDER AND THE REGULATIONS TO THE COSTS OF YOUR OWN TRANSPORTATION BY COMMON CARRIER. THE ADDITIONAL EXPENSE, IF ANY, WHICH YOU INCURRED IN DRIVING FROM CHARLESTON TO THE PORT OF EMBARKATION WAS FOR YOUR OWN ACCOUNT.

YOU WERE REIMBURSED BY THE AGENCY IN ACCORDANCE WITH THE GOVERNING REGULATIONS. THEREFORE, THE SETTLEMENT OF NOVEMBER 4, 1963, WHICH DENIED YOUR CLAIM FOR AN ADDITIONAL AMOUNT, IS SUSTAINED.