B-157195, SEPT. 22, 1965, 45 COMP. GEN. 151

B-157195: Sep 22, 1965

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M4203-5 AND M7000-13 OF THE JOINT TRAVEL REGULATIONS WHEN RAIL TRANSPORTATION IS MADE AVAILABLE BY A FOREIGN GOVERNMENT AT NO COST TO THE UNITED STATES OR TO THEM. " THE REGULATIONS RESPECTING THE AVAILABILITY AND UTILIZATION OF GOVERNMENT CONVEYANCES ARE FOR CONSIDERATION IN REIMBURSING THE MEMBERS UTILIZING THEIR PRIVATELY OWNED CONVEYANCES. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24. THIS REQUEST WAS ASSIGNED CONTROL NO. 65-22 BY THE PER DIEM. - EXPRESSLY PROHIBIT REIMBURSEMENT OF THE COST OF TRANSPORTATION OR THE PAYMENT OF MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION IN THOSE INSTANCES WHERE TRANSPORTATION IS AVAILABLE TO A MEMBER OR FOR HIS DEPENDENTS BY A FOREIGN GOVERNMENT.

B-157195, SEPT. 22, 1965, 45 COMP. GEN. 151

TRANSPORTATION - MILITARY PERSONNEL - FOREIGN TRANSPORTATION OPERATED AT EXPENSE OF UNITED STATES - REIMBURSEMENT BASIS ALTHOUGH MEMBERS OF THE UNIFORMED SERVICES WHO UTILIZE THEIR PRIVATELY OWNED CONVEYANCES FOR THEIR OWN AND DEPENDENTS' TRAVEL ON A PERMANENT CHANGE OF STATION TO AND FROM BERLIN, INCLUDING ALL TRAVEL IN EAST AND WEST GERMANY, MAY NOT BE REIMBURSED THE COST OF TRANSPORTATION OR PAID MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION UNDER PARAGRAPHS M4150-1, M4203-5 AND M7000-13 OF THE JOINT TRAVEL REGULATIONS WHEN RAIL TRANSPORTATION IS MADE AVAILABLE BY A FOREIGN GOVERNMENT AT NO COST TO THE UNITED STATES OR TO THEM, WHEN THE TRAVEL INVOLVED COULD BE PERFORMED ON TRAINS OF THE GERMAN FEDERAL RAILWAY OPERATED SUBSTANTIALLY AT THE EXPENSE OF THE UNITED STATES AND CONSIDERED GOVERNMENT CONVEYANCES WITHIN THE CONTEMPLATION OF M1150-6, DEFINED AS "ANY TRANSPORTATION FACILITY OWNED, LEASED, OR CHARTERED BY THE GOVERNMENT," THE REGULATIONS RESPECTING THE AVAILABILITY AND UTILIZATION OF GOVERNMENT CONVEYANCES ARE FOR CONSIDERATION IN REIMBURSING THE MEMBERS UTILIZING THEIR PRIVATELY OWNED CONVEYANCES.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 22, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24, 1965, WITH ENCLOSURES, REQUESTING A DECISION ON THE PROPRIETY OF REIMBURSEMENT OF THE COST OF TRANSPORTATION OR PAYMENT OF MONETARY ALLOWANCES TO MEMBERS ASSIGNED TO BERLIN WHO UTILIZE THEIR PRIVATELY OWNED CONVEYANCES FOR THEIR OWN AND DEPENDENTS' TRAVEL ON A PERMANENT CHANGE OF STATION TO AND FROM BERLIN, INCLUDING ALL TRAVEL IN EAST GERMANY AND WEST GERMANY, IRRESPECTIVE OF THE AVAILABILITY OF SPECIAL REGULARLY SCHEDULED UNITED STATES MILITARY FORCES PASSENGER TRAINS OPERATING BETWEEN BREMERHAVEN AND FRANKFURT, WEST GERMANY, AND BERLIN. THIS REQUEST WAS ASSIGNED CONTROL NO. 65-22 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE GOVERNING STATUTORY AUTHORITY, 37 U.S.C. 404 AND 406, PROVIDES GENERALLY THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR THEMSELVES AND THEIR DEPENDENTS FOR TRAVEL PERFORMED UNDER ORDERS. WITH REGARD TO TRAVEL IN FOREIGN COUNTRIES AND AREAS, THE REGULATIONS PROMULGATED UNDER THE ABOVE PROVISIONS OF LAW AND INCORPORATED IN THE JOINT TRAVEL REGULATIONS--- PARAGRAPH M4150-1 AS PERTAINING TO A MEMBER'S PERMANENT CHANGE-OF-STATION ALLOWANCES, PARAGRAPH M4203-5 AS PERTAINING TO A MEMBER'S TEMPORARY DUTY TRAVEL AND PARAGRAPH M7000-13 AS PERTAINING TO DEPENDENTS' TRAVEL--- EXPRESSLY PROHIBIT REIMBURSEMENT OF THE COST OF TRANSPORTATION OR THE PAYMENT OF MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION IN THOSE INSTANCES WHERE TRANSPORTATION IS AVAILABLE TO A MEMBER OR FOR HIS DEPENDENTS BY A FOREIGN GOVERNMENT, AT NO COST TO THE UNITED STATES OR THE MEMBER.

IN A LETTER DATED SEPTEMBER 19, 1963, THE ASSISTANT SECRETARY OF THE AIR FORCE (FINANCIAL MANAGEMENT) REQUESTED OUR DECISION AS TO THE LEGALITY OF PROPOSED CHANGES TO PARAGRAPHS M4203-5 AND M7000-13 OF THE JOINT TRAVEL REGULATIONS WHEREBY THE PROHIBITION AS SET FORTH THEREIN WOULD APPLY ONLY WHEN THE MEMBER UTILIZES TRANSPORTATION MADE AVAILABLE BY A FOREIGN GOVERNMENT WITHOUT CHARGE RATHER THAN BY REASON OF THE AVAILABILITY OF SUCH LIMITED TRANSPORTATION. IT WAS STATED IN THAT LETTER, AMONG OTHER THINGS, THAT THE ONLY TRANSPORTATION THEN CURRENTLY BEING FURNISHED MEMBERS AND DEPENDENTS WITHOUT CHARGE ON A REGULAR BASIS BY A FOREIGN GOVERNMENT WAS THAT FURNISHED BY THE GERMAN GOVERNMENT FOR TRAVEL BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN. BY OUR DECISION OF APRIL 10, 1964, 43 COMP. GEN. 675, WE EXPRESSED THE VIEW, BASED ON THE REPRESENTATION MADE BY THE ASSISTANT SECRETARY OF THE AIR FORCE CONCERNING THE AVAILABILITY OF FREE GERMAN GOVERNMENT RAIL TRANSPORTATION BETWEEN THE CITIES MENTIONED AND IN LINE WITH OUR PRIOR DECISIONS THERE CITED, THAT UNDER THE LAW AND REGULATIONS THERE IS NO AUTHORITY FOR THE PAYMENT OF MILEAGE WHERE IT IS SHOWN THAT NEITHER THE GOVERNMENT NOR THE MEMBER WOULD NOT HAVE BEEN REQUIRED TO PAY ANY CHARGE FOR TRAVEL WHICH THE MEMBER MIGHT HAVE PERFORMED BY RAIL IN GERMANY, AND THAT THE RECORD PRESENTED DID NOT JUSTIFY THE PROPOSED REVISION OF THE REGULATIONS.

YOU SAY IN YOUR LETTER THAT THE "BERLIN TRAINS" DO NOT CONSTITUTE AVAILABLE TRANSPORTATION FURNISHED TO THE UNITED STATES BY A FOREIGN GOVERNMENT WITHOUT CHARGE BECAUSE ALL THE COSTS OF THESE TRAINS ARE CHARGED TO DOLLAR FUNDS MADE ANNUALLY AVAILABLE BY OBLIGATIONAL AUTHORITY. IN SUPPORT THEREOF, YOU STATE, IN SUBSTANCE, (1) THAT THE PASSENGER CARS AND SLEEPERS CONSTITUTING THE SPECIAL REGULARLY SCHEDULED TRAINS OPERATED BY THE GERMAN FEDERAL RAILWAY ARE OWNED BY THE UNITED STATES AND, WHILE THE LOCOMOTIVE AND CREWS BELONG TO THE GERMAN FEDERAL RAILWAY, THE TRAIN IS MOVED OVER THE GERMAN RAILWAY SYSTEM IN ACCORDANCE WITH A CONTRACT BETWEEN THE UNITED STATES ARMY AND THE GERMAN FEDERAL RAILWAY AT AN AGREED RATE PER AXLE PER KILOMETER, THE PAYMENT BEING MADE FROM THE TOTAL DOLLAR OBLIGATIONAL AUTHORITY AUTHORIZED THE DEPARTMENT OF THE ARMY IN EUROPE; (2) THAT PAYMENT OF MAINTENANCE COSTS OF THE UNITED STATES-OWNED ROLLING STOCK USED ON THE TRAINS IS ALSO MADE FROM THAT FUND SOURCE; AND (3) THAT THE SALARIES OF THE REGULAR ASSIGNED UNITED STATES MILITARY PERSONNEL TO EACH TRAIN (AN OFFICER AS TRAIN COMMANDER, AN ENLISTED MEMBER AS CONDUCTOR, AND USUALLY 3 MILITARY POLICE) ARE CHARGED TO THE ANNUAL APPROPRIATIONS USED FOR THIS PURPOSE. ALSO, YOU HAVE FURNISHED US WITH COPIES OF 2 EXECUTED AE FORMS 39 "UNITED STATES OF AMERICA MILITARY FORCES PASSENGER TRANSPORTATION WARRANT" TO INDICATE THE FORM ISSUED TO THE GERMAN FEDERAL RAILWAY FOR THE MOVEMENT OF EACH TRAIN.

IN OUR DECISION OF APRIL 10, 1964, WE SAID THAT WE UNDERSTOOD FROM A REPORT DATED MARCH 23, 1964, TO US FROM THE OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THAT TRAVEL ON TRAINS BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN IS PAID FOR OUT OF FUNDS ALLOCATED FOR THE SUPPORT OF THE ARMY AND THAT SUCH FUNDS INCLUDE BOTH APPROPRIATED FUNDS AND IM FUNDS (DEUTSCHEMARKS) MADE AVAILABLE BY THE GERMAN GOVERNMENT. WHILE THE AMOUNT OF THE IM FUNDS MADE AVAILABLE WAS NOT DISCLOSED, WE SAID THAT PRESUMABLY THE AMOUNT WAS SUFFICIENT TO PAY FOR THE TRANSPORTATION INVOLVED ON THE GERMAN TRAINS OPERATING BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN AND THE FACT THAT SUFFICIENT IM FUNDS MAY NOT BE AVAILABLE FOR THE TOTAL EXPENSES OF THE ARMY WAS NOT A SUFFICIENT BASIS FOR US TO CONCLUDE THAT SUCH RAIL TRANSPORTATION WAS NOT IN FACT FREE AS THE ASSISTANT SECRETARY OF THE AIR FORCE HAD REPORTED.

IN CONNECTION WITH THIS MATTER, IT IS NOTED THAT IN A REPORT DATED DECEMBER 15, 1958, FROM THE FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS, BERLIN COMMAND, APO 742, IT WAS STATED WITH RESPECT TO TRAVEL BETWEEN BERLIN AND HELMSTEDT ON THE GERMAN RAILWAY SYSTEM, THAT THE TRAINS INVOLVED ARE OPERATED EXCLUSIVELY FOR BERLIN OCCUPATION STATUS OF FORCES PERSONNEL; THAT A PORTION OF THE PASSENGER CARS ON EACH TRAIN ARE OWNED BY THE UNITED STATES GOVERNMENT; THAT THE REMAINDER ARE LEASED FROM THE GERMAN RAILWAY SYSTEM; THAT THE GERMAN RAILWAY SYSTEM IS REIMBURSED FROM OCCUPATION FUNDS FOR RENTAL OF THE RAILWAY OWNED EQUIPMENT AND USE OF THE RAILS; AND THAT PASSENGER WARRANTS ARE ISSUED ONLY TO CONTROL AND ACCOUNT FOR PERSONNEL. THAT REPORT WAS CONSIDERED IN OUR DECISION OF JUNE 25, 1959, 38 COMP. GEN. 871, IN WHICH WE CONCLUDED THAT THE TRAINS WERE NOT "COMMERCIAL CARRIERS" WITHIN THE MEANING OF PARAGRAPH M6550 OF THE JOINT TRAVEL REGULATIONS. PRESUMABLY, THE FACTS SET FORTH IN THE ABOVE REPORT OF DECEMBER 15, 1958, WOULD ALSO APPLY TO THE OPERATION OF THE TRAINS HERE INVOLVED. APPARENTLY IT WAS ON THE BASIS THAT THE GERMAN RAILWAY SYSTEM IS REIMBURSED FROM OCCUPATION FUNDS PROVIDED BY THE GERMAN GOVERNMENT FOR MOVEMENT OF THE TRAINS AND USE OF ITS RAILS AND EQUIPMENT THAT THE ASSISTANT SECRETARY OF THE AIR FORCE STATED IN HIS LETTER OF SEPTEMBER 19, 1963, THAT TRANSPORTATION WAS AVAILABLE FROM A FOREIGN GOVERNMENT WITHOUT COST TO THE UNITED STATES FOR TRAVEL BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN.

WHILE THE PAYMENT FOR THE OPERATION OF THE TRAINS APPARENTLY IS MADE FROM OCCUPATION FUNDS MADE AVAILABLE BY THE GERMAN GOVERNMENT, IT NOW APPEARS THAT AT LEAST A PART OF THE PASSENGER CARS AND SLEEPERS MAKING UP THE TRAINS ARE OWNED BY THE UNITED STATES AND THAT ARMY PERSONNEL ASSIGNED TO THE TRAINS ARE PAID FROM APPROPRIATED FUNDS. HENCE, IT IS EVIDENT THAT TRANSPORTATION ON THESE TRAINS IS NOT FURNISHED ENTIRELY FREE BY THE GERMAN GOVERNMENT. ON THE CONTRARY, A SUBSTANTIAL PART OF THE EXPENSES APPEARS TO BE BORNE DIRECTLY BY THE UNITED STATES. THE RECORD DOES NOT DISCLOSE THE PORTION OF THE EXPENSES OF OPERATING THE TRAINS THAT IS PAID FROM OCCUPATION FUNDS OR WHETHER THESE FUNDS WOULD OTHERWISE BE AVAILABLE TO THE ARMY FOR OTHER PURPOSES, BUT IT SEEMS TO BE THE ADMINISTRATIVE POSITION THAT THE ENTIRE EXPENSE INCIDENT TO OPERATING THE TRAINS SHOULD BE VIEWED AS BORNE BY THE UNITED STATES SINCE PAYMENT IS SAID TO BE MADE FROM FUNDS MADE AVAILABLE AS "A PART OF THE TOTAL DOLLAR OBLIGATIONAL AUTHORITY AUTHORIZED THE DEPARTMENT OF THE ARMY IN EUROPE.'

ACCORDINGLY, IN VIEW OF THE REPRESENTATIONS MADE AND THE FACTS OTHERWISE APPEARING, WE WILL NOT HEREAFTER REGARD TRANSPORTATION ON THESE TRAINS AS TRANSPORTATION AVAILABLE TO A MEMBER OR HIS DEPENDENTS "BY A FOREIGN GOVERNMENT, AT NO COST TO THE UNITED STATES OR THE MEMBER" WITHIN THE MEANING OF PARAGRAPHS M4150-1, M4203-5, AND M7000 13 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, SINCE THE TRAINS ARE OPERATED BY THE GERMAN FEDERAL RAILWAY SYSTEM AT THE REQUEST OF THE UNITED STATES FOR THE MOVEMENT OF GOVERNMENT PERSONNEL AND SINCE ALL EXPENSES INCIDENT THERETO APPARENTLY ARE BORNE DIRECTLY BY THE UNITED STATES, EXCEPT TO THE EXTENT THAT PAYMENT IS MADE FROM FUNDS PROVIDED BY THE GERMAN GOVERNMENT, IT IS OUR VIEW THAT THESE TRAINS SHOULD BE REGARDED AS GOVERNMENT CONVEYANCES WITHIN THE CONTEMPLATION OF PARAGRAPH M1150-6 OF THE JOINT TRAVEL REGULATIONS. THAT PARAGRAPH DEFINES THE TERM "GOVERNMENT CONVEYANCE," UNLESS OTHERWISE QUALIFIED, AS "ANY TRANSPORTATION FACILITY OWNED, LEASED, OR CHARTERED BY THE GOVERNMENT.' CONSEQUENTLY, THE PROVISIONS OF THE REGULATIONS WITH RESPECT TO THE AVAILABILITY AND UTILIZATION OF GOVERNMENT CONVEYANCES WILL HEREAFTER BE FOR CONSIDERATION IN CIRCUMSTANCES WHERE THE TRAVEL INVOLVED COULD BE PERFORMED ON THESE TRAINS.