B-161834, JULY 27, 1967, 47 COMP. GEN. 77

B-161834: Jul 27, 1967

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MILEAGE - MILITARY PERSONNEL - RELEASE FROM ACTIVE DUTY - LAST DUTY STATION OUTSIDE UNITED STATES - CONSTRUCTIVE COSTS A MEMBER OF THE UNIFORMED SERVICES SEPARATED OVERSEAS FOR HIS OWN CONVENIENCE WHO RETURNS TO THE UNITED STATES WITHIN 1 YEAR BY WAY OF A DIFFERENT PORT OF DEBARKATION THAN THE ONE FROM WHICH HE ELECTED TO RECEIVE THE TRAVEL ALLOWANCES PRESCRIBED BY PARAGRAPH M4159-5B OF JOINT TRAVEL REGULATIONS WHEN "NO TRAVEL" IS PERFORMED INCIDENT TO A SEPARATION IS NOT ENTITLED TO ADDITIONAL MILEAGE. IS NOT ENTITLED TO A MILEAGE ADJUSTMENT ON THE BASIS HE TRAVELED A GREATER DISTANCE FROM THE PORT OF DEBARKATION USED THAN THE DISTANCE FOR WHICH HE WAS PAID MILEAGE. 1967: FURTHER REFERENCE IS MADE TO LETTER OF JUNE 3.

B-161834, JULY 27, 1967, 47 COMP. GEN. 77

MILEAGE - MILITARY PERSONNEL - RELEASE FROM ACTIVE DUTY - LAST DUTY STATION OUTSIDE UNITED STATES - CONSTRUCTIVE COSTS A MEMBER OF THE UNIFORMED SERVICES SEPARATED OVERSEAS FOR HIS OWN CONVENIENCE WHO RETURNS TO THE UNITED STATES WITHIN 1 YEAR BY WAY OF A DIFFERENT PORT OF DEBARKATION THAN THE ONE FROM WHICH HE ELECTED TO RECEIVE THE TRAVEL ALLOWANCES PRESCRIBED BY PARAGRAPH M4159-5B OF JOINT TRAVEL REGULATIONS WHEN "NO TRAVEL" IS PERFORMED INCIDENT TO A SEPARATION IS NOT ENTITLED TO ADDITIONAL MILEAGE, THE TRAVEL ALLOWANCE HAVING BEEN FIXED UPON THE MEMBER'S ELECTION OF CONSTRUCTIVE COSTS. THEREFORE, THE MEMBER HAVING BEEN PAID MILEAGE FROM HIS LAST OVERSEAS DUTY STATION TO THE NEAREST PORT OF EMBARKATION AND FROM THE NEAREST PORT OF DEBARKATION TO THE PLACE TO WHICH HE ELECTED TO RECEIVE TRAVEL ALLOWANCES, IS NOT ENTITLED TO A MILEAGE ADJUSTMENT ON THE BASIS HE TRAVELED A GREATER DISTANCE FROM THE PORT OF DEBARKATION USED THAN THE DISTANCE FOR WHICH HE WAS PAID MILEAGE.

TO THE SECRETARY OF THE NAVY, JULY 27, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 3, 1967, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION AS TO THE MILEAGE ENTITLEMENT OF A MEMBER OF THE UNIFORMED SERVICES WHO IS SEPARATED OVERSEAS AND IS PAID MILEAGE FROM THE APPROPRIATE PORT OF DEBARKATION IN THE UNITED STATES TO WHICH HE ELECTS TO RECEIVE TRAVEL ALLOWANCES UNDER THE PROVISIONS OF PARAGRAPH M4159-5B OF THE JOINT TRAVEL REGULATIONS ON THE BASIS THAT NO TRAVEL WILL BE PERFORMED, AND WHO WITHIN ONE YEAR ACTUALLY TRAVELS TO SUCH PLACE IN THE UNITED STATES BY WAY OF A DIFFERENT PORT OF DEBARKATION. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 67-16 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY SAYS IT HAS BEEN THE PRACTICE OF THE UNIFORMED SERVICES TO ADJUST THE MILEAGE PAYMENT MADE UNDER PARAGRAPH M4159-5B OF THE JOINT TRAVEL REGULATIONS TO CONFORM WITH ALLOWANCES PROVIDED BY PARAGRAPH M4159-1 OF THOSE REGULATIONS WHEN ACTUAL TRAVEL IS PERFORMED BY THE MEMBER WITHIN THE ONE-YEAR LIMITATION PRESCRIBED IN PARAGRAPH M4157- 6.

AS AN EXAMPLE OF THE PROBLEM THE UNDER SECRETARY REFERS TO A MEMBER DISCHARGED OVERSEAS WHO WAS PAID MILEAGE FOR THE DISTANCE FROM BAD AIBLING, GERMANY, TO MUNICH, GERMANY, AND FROM NEW ORLEANS, LOUISIANA, APPROPRIATE PORT OF DEBARKATION, TO LOS ANGELES, CALIFORNIA, HOME OF RECORD. IT IS STATED THAT LESS THAN A YEAR LATER THE MEMBER SAILED ABOARD A MSTS VESSEL AND LANDED IN NEW YORK, NEW YORK, AND THAT IN SUCH CIRCUMSTANCES THE SERVICES WOULD ADJUST THE MILEAGE PREVIOUSLY PAID BY PAYMENT OF MILEAGE FOR THE DISTANCE FROM NEW YORK, NEW YORK, TO LOS ANGELES, CALIFORNIA, LESS THE AMOUNT PREVIOUSLY PAID FOR THE DISTANCE FROM NEW ORLEANS TO LOS ANGELES.

THE UNDER SECRETARY STATES, HOWEVER, THAT SOME DOUBT EXISTS AS TO WHETHER THIS PRACTICE OF THE UNIFORMED SERVICES IS VALID IN VIEW OF OUR RULING IN DECISION OF FEBRUARY 18, 1966, B-158279, IN WHICH, UNDER CIRCUMSTANCES SIMILAR TO THOSE IN THE EXAMPLE, WE HELD THAT THE MEMBER WAS NOT ENTITLED TO ADDITIONAL TRAVEL ALLOWANCES.

THE UNDER SECRETARY EXPRESSES THE VIEW THAT PARAGRAPH M4159-5B OF THE JOINT TRAVEL REGULATIONS, WHICH PROVIDES A MEANS OF MEASURING ENTITLEMENT TO TRAVEL ALLOWANCE WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL, WAS NOT INTENDED TO DEPRIVE A MEMBER OF THE ALLOWANCES TO WHICH HE IS ENTITLED UNDER PARAGRAPH M4159-1 OF THE REGULATIONS WHEN TRAVEL IS ACTUALLY PERFORMED WITHIN THE ONE-YEAR LIMITATION, AND THAT THE ENTITLEMENTS PROVIDED IN PARAGRAPHS M4159-1 AND M4159-5B OF THE REGULATIONS ARE INDEPENDENT OF EACH OTHER, THE LATTER MERELY BEING A COMMUTATION OF TRAVEL ALLOWANCE UPON SEPARATION FROM THE SERVICE WITHOUT REGARD TO PERFORMANCE OF TRAVEL. HE SUGGESTS THAT IF THE GOVERNMENT, WITHIN THE ONE-YEAR LIMITATION, IS UNABLE TO PROVIDE THE MEMBER WITH TRANSOCEANIC TRAVEL TO THE PORT OF DEBARKATION IN THE UNITED STATES FROM WHICH MILEAGE WAS PREVIOUSLY PAID, IT SHOULD IN EQUITY AND GOOD CONSCIENCE PAY THE MEMBER MILEAGE FOR THE DIFFERENCE IN DISTANCE CAUSED BY LANDING HIM AT A PORT OF DEBARKATION FURTHER DISTANT FROM HIS HOME OF RECORD THAN THE DISTANCE FOR WHICH MILEAGE WAS PREVIOUSLY PAID.

SECTION 404 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS INCLUDING, UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY, TRAVEL FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY. SUBSECTION (F) PROVIDES THAT THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED UNDER THAT SECTION MAY BE PAID ON THE MEMBER'S SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY, WHETHER OR NOT HE PERFORMS THE TRAVEL INVOLVED.

IN CONFORMITY WITH THOSE PROVISIONS, PARAGRAPH M4159-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER PERFORMING TRAVEL UNDER PERMANENT CHANGE OF STATION ORDERS (INCLUDING TRAVEL UPON SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY) TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES WILL BE ENTITLED TO (1) TRAVEL ALLOWANCES FOR THE DISTANCE BETWEEN THE OLD PERMANENT STATION AND THE APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING THE OLD DUTY STATION; (2) TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE, OTHERWISE GOVERNMENT PROCURED TRANSPORTATION OR REIMBURSEMENT FOR TRANSPORTATION PROCURED AT PERSONAL EXPENSE FOR THE TRANSOCEANIC TRAVEL, AND (3) TRAVEL ALLOWANCES FROM THE APPROPRIATE AERIAL OR WATER PORT OF DEBARKATION TO THE NEW PERMANENT STATION.

UNDER THOSE PROVISIONS, WHEN A MEMBER SERVING OVERSEAS IS RETURNED TO THE UNITED STATES AND SEPARATED FROM THE SERVICE OR RELEASED FROM ACTIVE DUTY, TRANSPORTATION AND TRAVEL ALLOWANCES ARE PROVIDED FROM THE OVERSEAS STATION TO THE HOME OF RECORD OR PLACE OF ENTRY ON ACTIVE DUTY AS THE MEMBER ELECTS. ACTUAL TRAVEL TO THE PLACE OF SEPARATION IN THE UNITED STATES FROM THE OVERSEAS STATION IS CONTEMPLATED BY SUCH PROVISIONS AND THE MEMBER IS PAID MILEAGE FROM THE SEPARATION POINT TO HOME OF RECORD OR PLACE OF ENTRY ON ACTIVE DUTY WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL BETWEEN THOSE PLACES.

PARAGRAPH M4159-5B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN MEMBERS ARE SEPARATED FROM THE SERVICE OR RELEASED FROM ACTIVE DUTY OVERSEAS AND NO TRAVEL IS TO BE PERFORMED INCIDENT TO SEPARATION FROM THE SERVICE, MILEAGE IS PAYABLE FROM THE LAST STATION OVERSEAS TO THE NEAREST PORT OF EMBARKATION FROM WHICH TRANSPORTATION COULD HAVE BEEN FURNISHED TO THE UNITED STATES AND FROM THE APPROPRIATE PORT OF DEBARKATION IN THE UNITED STATES TO THE PLACE TO WHICH THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCES. A METHOD FOR DETERMINING THE APPROPRIATE PORT OF DEBARKATION IS SET FORTH IN THAT PARAGRAPH. IN THOSE CASES, THE MEMBER AT TIME OF SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY OVERSEAS VOLUNTARILY ELECTS TO BE PAID MILEAGE ON A CONSTRUCTIVE BASIS FOR LAND TRAVEL TO HIS HOME OF RECORD OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY.

IN THE DECISION OF FEBRUARY 18, 1966, CITED BY THE UNDER SECRETARY, THE MEMBER REQUESTED SEPARATION OVERSEAS AND SINCE NO TRAVEL WAS TO BE PERFORMED HE WAS PAID MILEAGE FROM HIS OVERSEAS STATION, BAD AIBLING, GERMANY, TO NEAREST PORT OF EMBARKATION, MUNICH, GERMANY, AND FROM THE APPROPRIATE PORT OF DEBARKATION, NEW ORLEANS, LOUISIANA, TO LOS ANGELES, CALIFORNIA, HIS HOME OF RECORD AND PLACE OF ENTRY ON ACTIVE DUTY, IN ACCORDANCE WITH PARAGRAPH M4159-5 OF THE REGULATIONS. WITHIN ONE YEAR, HOWEVER, HE ACTUALLY TRAVELED TO THE UNITED STATES AND WAS FURNISHED TRANSPORTATION ABOARD AN MSTS VESSEL FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK. MILEAGE FOR THE ADDITIONAL DISTANCE FROM THAT PORT TO LOS ANGELES WAS NOT PAID BY THE DEPARTMENT OF THE ARMY. ON THE CONTRARY, ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, RECOMMENDED AGAINST PAYMENT IN VIEW OF THE PROVISIONS OF PARAGRAPH M4159-5 OF THE JOINT TRAVEL REGULATIONS. THUS, THE ADJUSTMENT PRACTICE REFERRED TO BY THE UNDER SECRETARY WAS NOT FOLLOWED IN THAT CASE. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE AND UPON REVIEW SUCH ACTION WAS SUSTAINED BY THE DECISION OF FEBRUARY 18, 1966.

IN CASES SUCH AS THIS, WHERE THE MEMBER AT HIS REQUEST AND FOR HIS OWN CONVENIENCE IS DISCHARGED OVERSEAS AND ELECTS TO BE PAID TRAVEL ALLOWANCE ON THE BASIS THAT NO TRAVEL IS TO BE PERFORMED, WE BELIEVE THAT THE AMOUNT OF THE TRAVEL ALLOWANCE IS FIXED BY THE REGULATIONS AT THE TIME OF DISCHARGE AND ELECTION AND THAT THEY DO NOT CONTEMPLATE OR AUTHORIZE FURTHER TRANSPORTATION AT GOVERNMENT EXPENSE OR AN ADJUSTMENT WHICH WOULD EXCEED THE CONSTRUCTIVE COST OF TRAVEL UNDER PARAGRAPH M4159-5B IN THE EVENT SUBSEQUENT TRAVEL IS PERFORMED. THEREFORE, IF WITHIN ONE YEAR FROM DISCHARGE AND ELECTION TO RECEIVE MILEAGE FOR CONSTRUCTIVE TRAVEL OCEAN TRANSPORTATION SHOULD BE FURNISHED THE FORMER MEMBER TO A PORT OF DEBARKATION WITHIN THE UNITED STATES MORE DISTANT THAN THE ONE FROM WHICH THE MILEAGE WAS PAID, WE ARE OF THE OPINION THAT THE REGULATIONS DO NOT AUTHORIZE ADDITIONAL MILEAGE FOR THE LAND TRAVEL FROM THAT PORT. COMPARE 37 COMP. GEN. 230.