B-158178, DEC. 30, 1965

B-158178: Dec 30, 1965

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BECKENSTEIN: REFERENCE IS MADE TO YOUR FATHER'S LETTER OF NOVEMBER 30. YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO XX US ARMY CORPS (REINF) FORT HAYES. YOU WERE PAID MILEAGE FOR LAND TRAVEL FROM NEW YORK. YOU WERE ADMINISTRATIVELY DENIED REIMBURSEMENT FOR OVERSEAS TRANSPORTATION FROM LUXEMBOURG. FOR THE REASON THAT THE AIR TRAVEL WAS PERFORMED BY A FOREIGN FLAG CARRIER. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 15. IT IS STATED THAT YOU USED THE LOFTLEIDIR ICELANDIC AIRLINES BECAUSE THE FARE WAS LESS THAN THE FARE CHARGED ON AN AMERICAN AIRLINE. THAT IF THE ARMY HAD NOT "FOULED UP" YOUR ORDERS THIS DIFFICULTY WOULD HAVE BEEN AVOIDED. PROVIDES AS FOLLOWS: "ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED.

B-158178, DEC. 30, 1965

TO MR. MYRON B. BECKENSTEIN:

REFERENCE IS MADE TO YOUR FATHER'S LETTER OF NOVEMBER 30, 1965, WRITTEN IN YOUR BEHALF, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 15, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU ON LOFTLEIDIR ICELANDIC AIRLINES FROM LUXEMBOURG, LUXEMBOURG, TO NEW YORK, NEW YORK, DURING THE PERIOD AUGUST 8 TO 9, 1964.

BY ORDERS DATED MARCH 31, 1964, HEADQUARTERS, 69TH ARTILLERY GROUP, APO 800, U.S. FORCES, YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO XX US ARMY CORPS (REINF) FORT HAYES, COLUMBUS, OHIO, EFFECTIVE MAY 1, 1964. YOU WERE PAID MILEAGE FOR LAND TRAVEL FROM NEW YORK, NEW YORK, TO YOUR HOME, SOUTH EUCLID, OHIO. HOWEVER, YOU WERE ADMINISTRATIVELY DENIED REIMBURSEMENT FOR OVERSEAS TRANSPORTATION FROM LUXEMBOURG, LUXEMBOURG, TO NEW YORK, NEW YORK, FOR THE REASON THAT THE AIR TRAVEL WAS PERFORMED BY A FOREIGN FLAG CARRIER. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 15, 1965, FOR THE REASONS STATED THEREIN.

IN THE PRESENT LETTER FROM YOUR FATHER, IT IS STATED THAT YOU USED THE LOFTLEIDIR ICELANDIC AIRLINES BECAUSE THE FARE WAS LESS THAN THE FARE CHARGED ON AN AMERICAN AIRLINE, AND THAT IF THE ARMY HAD NOT "FOULED UP" YOUR ORDERS THIS DIFFICULTY WOULD HAVE BEEN AVOIDED.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 124 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY REFOR.'

THE PERTINENT STATUTE WITH RESPECT TO TRAVEL ALLOWANCES, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS, INCLUDING TRAVEL FROM THE MEMBER'S LAST DUTY STATION TO HOME. PARAGRAPH M3003 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT CHANGE OF STATION" TO INCLUDE THE CHANGE FROM LAST DUTY STATION TO HOME UPON RELEASE FROM ACTIVE DUTY. THEREFORE, THE TRAVEL FROM YOUR LAST DUTY STATION TO HOME CONSTITUTED OFFICIAL TRAVEL UNDER COMPETENT ORDERS WITHIN THE CONTEMPLATION OF 37 U.S.C. 404 AND SECTION 901 OF THE MERCHANT MARINE ACT OF 1936.

PARAGRAPH M2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT EXCEPT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, OR THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER DETERMINES THAT SUCH CARRIERS ARE NOT AVAILABLE, VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE CONTINENTAL UNITED STATES. IF AUTHORIZATION IS TO BE MADE FOR THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY ON THE BASIS OF SUCH DETERMINATIONS, A STATEMENT OF THE DETERMINATION MADE MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE, AND THE RECORD SHOWS THAT GOVERNMENT AIR AND SURFACE TRANSPORTATION FACILITIES WERE AVAILABLE FOR YOUR USE AT THE TIME OF YOUR TRAVEL. SINCE THE REGULATIONS SPECIFICALLY BAR THE PAYMENT OF ANY ALLOWANCE FOR TRAVEL EXPENSES INCURRED ON AN AIRPLANE OF FOREIGN REGISTRY IN THE ABSENCE OF PROOF OF THE NECESSITY FOR ITS USE, THERE IS NO AUTHORITY TO ALLOW YOUR CLAIM.

ALL MEMBERS OF THE UNIFORMED SERVICES ARE CHARGEABLE WITH THE KNOWLEDGE OF THE LAW AND REGULATIONS ISSUED PURSUANT THERETO AFFECTING THEIR RIGHTS. THUS YOU ARE CHARGED WITH THE KNOWLEDGE THAT YOU ARE REQUIRED TO USE AMERICAN FLAG AIRCRAFT IF AVAILABLE AND YOU CANNOT SHIFT THE PENALTY FOR YOUR FAILURE TO USE SUCH AIRCRAFT TO THE GOVERNMENT ON THE BASIS THAT YOU WERE NOT PROPERLY INFORMED OF THE LAW AND THE REGULATIONS. IN ANY EVENT EVEN IF IT HAD BEEN THE RESPONSIBILITY OF AIR FORCE HEADQUARTERS PERSONNEL TO SPECIFICALLY INFORM YOU OF THE PERTINENT LAW AND REGULATIONS, AND IF THEY HAD FAILED TO GIVE YOU THE PROPER INFORMATION, THE UNITED STATES WOULD NOT BE LIABLE FOR SUCH MISFEASANCE OR NEGLIGENCE. AS YOU WERE ADVISED IN THE SETTLEMENT OF NOVEMBER 15, 1965, THE UNITED STATES IS NOT LIABLE, IN THE ABSENCE OF A STATUTE SO PROVIDING, FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; AND 22 COMP. GEN. 221.

ALSO, IT SHOULD BE NOTED THAT THE REQUIREMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES ON VESSELS OR AIRCRAFT OR AMERICAN REGISTRY WAS ENDORSED BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1, 1962. THIS RESOLUTION PROVIDES THAT IT IS THE SENSE OF THE CONGRESS THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, THAT SAID TRAVEL BE PERFORMED BY THEM ON UNITED STATES FLAG AIR CARRIERS, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE.

ACCORDINGLY, SINCE THE RECORD PRESENTS NO LEGAL BASIS TO ALLOW YOUR CLAIM THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER. THE SETTLEMENT OF NOVEMBER 15, 1965, IS SUSTAINED.