B-158945, JUN. 9, 1966

B-158945, JUN. 9, 1966

TO DAVID W. SINCE BAUGH, HM2, USN:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL ALLOWANCES FOR TEMPORARY DUTY DURING THE PERIOD SEPTEMBER 13 TO 21, 1965, THE SUBJECT OF SETTLEMENT DATED JANUARY 17, 1966.

BY ORDERS TANGO NO. 950-66 ISSUED ON SEPTEMBER 8, 1965, BY U.S. NAVY RECRUITING STATION, RALEIGH, NORTH CAROLINA, YOU WERE DIRECTED TO PROCEED TO THE UNIVERSITY OF NORTH CAROLINA, CHAPEL HILL, NORTH CAROLINA, FOR TEMPORARY DUTY OF APPROXIMATELY 4 DAYS AND THENCE TO DUKE UNIVERSITY, DURHAM, NORTH CAROLINA, FOR TEMPORARY DUTY OF APPROXIMATELY 5 DAYS, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PERMANENT STATION AT RALEIGH. PARAGRAPH 2 OF THE ORDERS GRANTED PERMISSION TO COMMUTE ON A DAILY BASIS BY PRIVATELY OWNED VEHICLE AND AUTHORIZED REIMBURSEMENT FOR TRAVEL AND ONE MEAL PER DAY. ENDORSEMENTS DATED SEPTEMBER 16 AND 21, 1965, STATE THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE AT THE TEMPORARY STATIONS. YOUR ITINERARY SHOWS THAT YOU COMMUTED DAILY BETWEEN YOUR HOME NEAR YOUR PERMANENT STATION AND THE TEMPORARY STATIONS.

UPON COMPLETION OF THE TRAVEL YOU WERE PAID FOR 8 MEALS AND MILEAGE FROM PERMANENT STATION TO TEMPORARY STATIONS AND RETURN AT 5 CENTS PER MILE. SUBSEQUENTLY, BY THIRD ENDORSEMENT DATED OCTOBER 28, 1965, PARAGRAPH 2 OF YOUR ORDERS WAS AMENDED TO AUTHORIZE TRAVEL BY PRIVATELY OWNED VEHICLE AS MORE ADVANTAGEOUS TO THE GOVERNMENT AND PAYMENT THEREFOR AT THE RATE OF 7 CENTS PER MILE. YOUR CLAIM IS BASED ON DAILY COMMUTING TRAVEL AT THE RATE OF 7 CENTS PER MILE.

IN THE SETTLEMENT MENTIONED ABOVE YOU WERE ALLOWED $26.97 FOR MILEAGE AT THE RATE OF 7 CENTS PER MILE FROM PERMANENT STATION TO TEMPORARY STATION AND RETURN AND FOR 9 MEALS LESS THE SUM OF $22.75 PREVIOUSLY PAID OR $4.22. PAYMENT FOR THE ADDITIONAL MILEAGE INVOLVED IN COMMUTING WAS DISALLOWED FOR THE STATED REASON THAT YOUR ORDERS DID NOT DIRECT YOU TO RETURN TO YOUR PERMANENT STATION EACH DAY AND THAT YOUR RETURN TRAVEL WAS FOR PERSONAL REASONS. IN RESUBMITTING YOUR CLAIM YOU HAVE FURNISHED AN ENDORSEMENT TO YOUR ORDERS, DATED FEBRUARY 11, 1966, WHICH MODIFIED PARAGRAPH 2 OF YOUR ORDERS TO "DIRECT" YOU TO COMMUTE ON A DAILY BASIS FROM YOUR HOME TO PLACE OF TEMPORARY DUTY BY PRIVATELY OWNED VEHICLE.

IT LONG HAS BEEN THE RULE THAT EXCEPT TO CORRECT OR COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO EITHER INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. 23 COMP. GEN. 713. EXCEPT WHERE TRAVEL ORDERS ON THEIR FACE ARE INCOMPLETE OR AMBIGUOUS, OR WHERE ALL THE FACTS AND CIRCUMSTANCES WOULD CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDERS, THEY MAY NOT BE AMENDED RETROACTIVELY. COMP. GEN. 439.

SINCE YOUR ORDERS WERE CLEAR AND UNAMBIGUOUS ON THEIR FACE AND PROVIDED THAT YOU COULD COMMUTE DAILY BY PRIVATELY OWNED VEHICLE ON A PERMISSIVE BASIS, THE RETROACTIVE AMENDMENTS REPRESENTED BY THE ENDORSEMENTS OCTOBER 28, 1965, AND FEBRUARY 11, 1966, MAY NOT BE ACCEPTED AS INCREASING YOUR ENTITLEMENT TO TRAVEL ALLOWANCES FOR THE TRAVEL PERFORMED.

HOWEVER, PARAGRAPH M4212 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDES THAT WHEN A MEMBER RETURNS TO HIS PERMANENT DUTY STATION (INCLUDING HOME FROM WHICH HE USUALLY COMMUTES TO HIS PERMANENT DUTY STATION DAILY) FOR "PERSONAL REASONS" DURING A PERIOD OF TEMPORARY DUTY HE SHALL BE ENTITLED TO TRAVEL ALLOWANCES FOR TEMPORARY DUTY TRAVEL FROM TEMPORARY TO PERMANENT DUTY STATION AND RETURN, PROVIDED THAT IN NO INSTANCE WILL REIMBURSEMENT FOR SUCH TRAVEL EXCEED THE AMOUNT HE WOULD HAVE RECEIVED HAD HE REMAINED AT HIS TEMPORARY DUTY STATION. SEE 39 COMP. GEN. 322.

SINCE THE RECORD SHOWS THAT YOU WERE PERMITTED TO COMMUTE DAILY BETWEEN YOUR HOME NEAR THE PERMANENT STATION AND YOUR TEMPORARY STATION AND YOU DID SO AS A MATTER OF PERSONAL CONVENIENCE AND THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE AT THE TEMPORARY STATIONS, YOU ARE ENTITLED TO PAYMENT FOR COMMUTING MILEAGE WITHIN THE LIMITATION IMPOSED BY PARAGRAPH M4212 OF THE REGULATIONS. HOWEVER, SINCE YOUR ORDERS DID NOT DIRECT TRAVEL BY PRIVATELY OWNED CONVEYANCE AS MORE ADVANTAGEOUS TO THE GOVERNMENT BUT MERELY PERMITTED YOU TO TRAVEL BY THE MEANS AS A MATTER OF CONVENIENCE, MILEAGE WILL BE COMPUTED AT THE 5-CENT RATE PURSUANT TO PARAGRAPH M4202-3 (2) OF THE JOINT TRAVEL REGULATIONS.

A SETTLEMENT FOR THE ADDITIONAL AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE WILL ISSUE IN DUE COURSE. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.