B-163494, JUNE 14, 1968, 47 COMP. GEN. 743

B-163494, JUNE 14, 1968, 47 COMP. GEN. 743

MEDICAL TREATMENT - DEPENDENTS OF MILITARY PERSONNEL - TRANSPORTATION REIMBURSEMENT AN AIR FORCE OFFICER STATIONED OVERSEAS WHOSE WIFE UNDER ORDERS TRAVELS BY PRIVATELY OWNED AUTOMOBILE TO AND FROM A HOSPITAL FOR MEDICAL TREATMENT MAY NOT BE PAID A MILEAGE ALLOWANCE FOR THE ROUND TRIP TRANSPORTATION, REIMBURSEMENT UNDER 10 U.S.C. 1040 AND PARAGRAPH M7107, JOINT TRAVEL REGULATIONS BEING LIMITED TO ACTUAL EXPENSES, WHETHER A DEPENDENT TRAVELS ALONE OR WITH AN ATTENDANT, ABSENT SPECIFIC AUTHORIZATION FOR COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION, OR PER DIEM. A MEMBER WHO TRANSPORTS A DEPENDENT TO A MEDICAL FACILITY IN HIS PRIVATELY OWNED VEHICLE FOR WHICH HE IS ENTITLED TO A TRAVEL ALLOWANCE WOULD NOT BE ENTITLED TO AN ADDITIONAL AMOUNT ON BEHALF OF THE DEPENDENT, THE TRAVEL ALLOWANCE BEING IN LIEU OF ACTUAL EXPENSES. MEDICAL TREATMENT - DEPENDENTS OF MILITARY PERSONNEL - ESCORT DUTY - TRAVEL EXPENSES THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES WHO ACT AS ESCORTS AND ACCOMPANY DEPENDENTS TO MEDICAL FACILITIES IS REGARDED UNDER 10 U.S.C. 1040 AS TRAVEL ON PUBLIC BUSINESS IF DIRECTED BY COMPETENT ORDERS, AND THE MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES IN ACCORDANCE WITH PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS.

TO FIRST LIEUTENANT JOHN ROVEGNO, DEPARTMENT OF THE AIR FORCE, JUNE 14, 1968:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 8, 1968, AND ATTACHED LETTER, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 68-13), IN WHICH YOU REQUEST A DECISION WHETHER CAPTAIN LEO B. METZ, UNITED STATES AIR FORCE, IS ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF HIS DEPENDENT WIFE UNDER THE CIRCUMSTANCES DISCLOSED. CONSIDERATION OF A RELATED QUESTION IS ALSO REQUESTED.

BY SPECIAL ORDER T-1594, DATED DECEMBER 12, 1967, HEADQUARTERS 40TH TACTICAL GROUP (USAFE), APO NEW YORK 09293, PATRICIA C. METZ, DEPENDENT WIFE OF CAPTAIN LEO B. METZ, WAS AUTHORIZED TO PROCEED ON OR ABOUT DECEMBER 14, 1967, FROM AVIANO AIR BASE, ITALY, TO THE U.S. ARMY HOSPITAL, VICENZA, ITALY, FOR THE PURPOSE OF OBTAINING FURTHER MEDICAL TREATMENT AND/OR HOSPITALIZATION, AND TO RETURN TO AVIANO AIR BASE. THE ORDER STATES THAT TRAVEL BY GOVERNMENT TRANSPORTATION WAS CONSIDERED TO BE IMPRACTICAL AND NOT IN THE BEST INTEREST OF THE GOVERNMENT OR PATIENT.

THE VOUCHER SUBMITTED FOR PAYMENT SHOWS THAT MRS. METZ TRAVELED BY PRIVATELY OWNED VEHICLE FROM AVIANO AIR BASE, TO THE U.S. ARMY HOSPITAL, VICENZA, ITALY, AND RETURNED TO AVIANO AIR BASE IN ONE DAY, DECEMBER 14, 1967, FOR WHICH TRAVEL ALLOWANCES AT THE RATE OF 6 CENTS A MILE IS CLAIMED.

IN YOUR LETTER, YOU QUESTION WHETHER MILEAGE ALLOWANCE AT THE RATE OF 6 CENTS A MILE OR ANY OTHER ENTITLEMENT ACCRUED FOR THE TRAVEL PERFORMED BY MRS. METZ. DOUBT IS EXPRESSED SINCE PARAGRAPH M7107, JOINT TRAVEL REGULATIONS, AUTHORIZES DEPENDENTS' TRANSPORTATION TO AND FROM MEDICAL FACILITIES, BUT DOES NOT SPECIFICALLY STATE THAT MONETARY ALLOWANCES ARE PAYABLE FOR PERSONALLY PROCURED TRANSPORTATION. YOU THEREFORE REQUEST A DETERMINATION AS TO THE PAYMENT AUTHORIZED FOR THE TRAVEL PERFORMED.

IF PAYMENT ON ANY BASIS IS HELD TO BE PROPER, YOU REQUEST A DETERMINATION AS TO THE ENTITLEMENT OF A MEMBER WHO IS AUTHORIZED UNDER COMPETENT ORDERS IN ACCORDANCE WITH PARAGRAPH M6400, JOINT TRAVEL REGULATIONS, TO TRAVEL AS THE ATTENDANT FOR HIS DEPENDENT TO AND FROM THE MEDICAL FACILITY. SPECIFICALLY, IF BOTH THE MEMBER (SPONSOR) AS ATTENDANT AND THE DEPENDENT (PATIENT) TRAVEL BY PRIVATELY OWNED AUTOMOBILE OR BY PERSONALLY PROCURED COMMERCIAL TRANSPORTATION, YOU ASK WHETHER BOTH TRAVELERS WOULD BE ENTITLED TO ALLOWANCES AND IF NOT, YOU ASK WHETHER THE MEMBER WOULD HAVE THE OPTION OF ELECTING FOR WHICH OF THE TRAVELERS HE MAY SUBMIT A CLAIM FOR REIMBURSEMENT. YOU SAY THAT SUCH AN ELECTION WOULD BE OF IMPORTANCE IN CIRCUMSTANCES IN WHICH A SPONSOR (ATTENDANT) IS ATTENDING MORE THAN ONE DEPENDENT PATIENT SINCE, UNDER AN ELECTION, HE WOULD BE ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR HIS TRAVEL VERSUS THE ENTITLEMENT ESTABLISHED FOR EACH DEPENDENT TRAVELING WITH HIM.

SECTION 1040 (A), TITLE 10, U.S. CODE, AS ADDED BY PUBLIC LAW 89 140, AUGUST 28, 1965, 79 STAT. 579, PROVIDES, IN PERTINENT PART, THAT TRANSPORTATION AT THE EXPENSE OF THE UNITED STATES IS AUTHORIZED TO THE NEAREST APPROPRIATE MEDICAL FACILITY IN WHICH ADEQUATE MEDICAL CARE IS AVAILABLE FOR A DEPENDENT WHO IS WITH A MEMBER OF THE UNIFORMED SERVICES STATIONED OUTSIDE OF THE UNITED STATES ON ACTIVE DUTY FOR MORE THAN 30 DAYS, AND WHO REQUIRES MEDICAL ATTENTION WHICH IS NOT AVAILABLE IN THE LOCALITY. THE DEPENDENT MAY ALSO BE TRANSPORTED AT THE EXPENSE OF THE UNITED STATES FROM SUCH MEDICAL FACILITY BACK TO THE MEMBER'S DUTY STATION OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE APPROPRIATE UNDER THE CIRCUMSTANCES. THE LAW PROVIDES FURTHER THAT IF A DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, ROUND TRIP TRANSPORTATION AND TRAVEL EXPENSES MAY BE FURNISHED NECESSARY ATTENDANTS.

SECTION 104 (D) PROVIDES THAT THE TRANSPORTATION AND TRAVEL EXPENSES AUTHORIZED BY THAT SECTION SHALL BE FURNISHED IN ACCORDANCE WITH JOINT REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES NAMED THEREIN. PROVIDES FURTHER THAT SUCH REGULATIONS SHALL REQUIRE THE USE OF TRANSPORTATION FACILITIES OF THE UNITED STATES INSOFAR AS PRACTICAL.

PARAGRAPH M7107-1, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 1040, PROVIDES, IN PERTINENT PART THAT, WHEN DETERMINED BY COMPETENT AUTHORITY THAT A DEPENDENT ACCOMPANYING A MEMBER WHO IS ON ACTIVE DUTY FOR MORE THAN 30 DAYS AND STATIONED OUTSIDE THE UNITED STATES, REQUIRES MEDICAL CARE NOT AVAILABLE IN THE LOCALITY OF THE MEMBER'S OVERSEAS DUTY STATION, THE MEMBER'S COMMANDING OFFICER OR OTHER OFFICER DESIGNATED BY THE SERVICE CONCERNED, MAY AUTHORIZE OR APPROVE TRANSPORTATION OF THE DEPENDENT TO THE NEAREST APPROPRIATE MEDICAL FACILITY WHERE ADEQUATE MEDICAL CARE IS AVAILABLE.

UPON TERMINATION OF HOSPITALIZATION OR MEDICAL CARE, TRANSPORTATION OF THE DEPENDENT IS AUTHORIZED EITHER TO THE MEMBER'S DUTY STATION OR TO SUCH OTHER PLACE DETERMINED APPROPRIATE UNDER THE CIRCUMSTANCES BY THE ORDER- ISSUING AUTHORITY. PARAGRAPH M7107-2 PROVIDES THAT TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR THE TRAVEL OF NECESSARY ATTENDANTS WHEN PERFORMED UNDER COMPETENT ORDERS AS PROVIDED IN CHAPTER 6, PART I.

PARAGRAPH M6400, CHAPTER 6, PART I, JOINT TRAVEL REGULATIONS, PROVIDES, IN PERTINENT PART, THAT TRAVEL OF ATTENDANTS WITH DEPENDENTS UNDER AUTHORITY OF PARAGRAPH M7107 OF THE REGULATIONS WILL BE AUTHORIZED ONLY WHEN THE ORDER-ISSUING AUTHORITY HAS DETERMINED THAT TRAVEL BY THE DEPENDENTS IS NECESSARY AND THE DEPENDENTS ARE INCAPABLE OF TRAVELING ALONE. PARAGRAPH M6401 OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO ESCORT OR ATTENDANT DUTY WILL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY CHAPTER 4, JOINT TRAVEL REGULATIONS, WHILE PERFORMING SUCH TRAVEL AND TEMPORARY DUTY.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-140 (S. REPT. NO. 585, 89TH CONG; 1ST SESS; TO ACCOMPANY H.R. 7595 (ENACTED AS PUBLIC LAW 89-140) (,SHOWS THAT THE PURPOSE OF THE LEGISLATION WAS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHO ARE ACCOMPANYING MEMBERS AT POSTS OF DUTY OUTSIDE THE UNITED STATES WHERE REQUIRED MEDICAL CARE IS NOT AVAILABLE LOCALLY. LETTER FROM THE SECRETARY OF THE NAVY SUBMITTING THE DRAFT OF THE PROPOSED LEGISLATION, WAS QUOTED IN THE REPORT.

THE LETTER REFERRED TO DECISION OF OUR OFFICE, 39 COMP. GEN. 495, IN WHICH WE HELD THAT NEITHER THE DEPENDENTS' MEDICAL CARE ACT, 70 STAT. 250, 10 U.S.C. 1076, NOR THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (1952 ED.), AUTHORIZED THE TRANSPORTATION OF DEPENDENT PATIENTS AT GOVERNMENT EXPENSE. THE LETTER STATED THAT THE DEPARTMENT OF DEFENSE HAS CONSTRUED THE OPINION AS APPLYING ONLY TO THE USE OF COMMERCIAL TRANSPORTATION AND HAS CONTINUED TO MOVE DEPENDENT PATIENTS BY GOVERNMENT TRANSPORTATION WHEN SUCH TRANSPORTATION WAS AVAILABLE. IT STATED FURTHER THAT THE ENCLOSED DRAFT LAW WOULD AUTHORIZE THE TRANSPORTATION OF DEPENDENT PATIENTS AND NECESSARY ATTENDANTS AT GOVERNMENT EXPENSE.

IN 39 COMP. GEN. 495, WE STATED THAT THE RIGHT OF DEPENDENTS TO TRAVEL AT GOVERNMENT EXPENSE BETWEEN MEDICAL FACILITIES WAS NOT PROVIDED FOR IN THE DEPENDENTS MEDICAL CARE ACT, NOR WAS IT NECESSARILY IMPLIED AS ONE OF THE BENEFITS GRANTED THEREIN. WE STATED FURTHER THAT THE JOINT TRAVEL REGULATIONS LIMIT TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE TO TRAVEL INCIDENT TO A PERMANENT CHANGE OF STATION OF THE MEMBER. WE ALSO HELD THAT THE TRAVEL PERFORMED BY MEMBERS AS ATTENDANTS FOR THEIR DEPENDENTS DID NOT APPEAR TO HAVE BEEN TRAVEL ON "PUBLIC BUSINESS" BUT APPEARED TO BE PRIMARILY FOR THE CONVENIENCE AND BENEFIT OF THE MEMBER AND HIS DEPENDENT AND THEREFORE REIMBURSEMENT FOR SUCH TRAVEL WAS NOT AUTHORIZED.

SECTION 1040 OF TITLE 10, U.S.C. NOW PROVIDES AUTHORITY FOR "TRANSPORTATION OF THE DEPENDENTS AT THE EXPENSE OF THE UNITED STATES" TO THE NEAREST APPROPRIATE MEDICAL FACILITY AND RETURN AND ALSO PROVIDES AUTHORITY FOR THE ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES OF THE NECESSARY ATTENDANTS.

IT HAS BEEN WELL ESTABLISHED THAT COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION, OR PER DIEM LAWFULLY MAY BE MADE FOR AUTHORIZED TRAVEL ONLY IF BASED UPON A SPECIFIC STATUTORY AUTHORIZATION. A STATUTORY ASSUMPTION BY THE GOVERNMENT OF AN OBLIGATION TO PAY NECESSARY TRAVEL EXPENSES WITHOUT AN EXPRESS AUTHORIZATION FOR THE PAYMENT OF COMMUTED ALLOWANCES HAS CONSISTENTLY BEEN CONSTRUED AS AUTHORITY FOR REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS ONLY. 47 COMP. GEN. 405, AND DECISIONS CITED THEREIN.

IN OUR DECISION, 47 COMP. GEN. 405, CITED ABOVE, WE CONSTRUED THE PHRASE "TRANSPORTED AT THE EXPENSE OF THE UNITED STATES TO AND FROM THE PLACE" IN SECTION 703 (B) OF TITLE 10, U.S. CODE, AS NOT CONTAINING SPECIFIC AUTHORIZATION FOR THE PAYMENT OF COMMUTED TRAVEL AND TRANSPORTATION ALLOWANCE. WE CITED THE LEGISLATIVE HISTORY OF THAT ACT AS INDICATING THAT THE SOLE PURPOSE OF THAT PHRASE WAS TO PROVIDE NECESSARY TRANSPORTATION AT NO EXPENSE TO THE MEMBER INCIDENT TO THE LEAVE AUTHORIZED BY THAT ACT UPON A VOLUNTARY EXTENSION OF THE MEMBER'S TOUR OF DUTY. A SIMILAR CONSTRUCTION IS REQUIRED OF THE PHRASE "TRANSPORTED AT THE EXPENSE OF THE UNITED STATES" CONTAINED IN 10 U.S.C. 1040, IN VIEW OF THE IDENTICAL LANGUAGE AND THE FACT THAT THE LEGISLATIVE HISTORY OF THAT SECTION ALSO SHOWS ITS PURPOSE WAS TO PROVIDE TRANSPORTATION OF DEPENDENTS BETWEEN MEDICAL FACILITIES AT NO EXPENSE TO THE MEMBER OR DEPENDENT.

ACCORDINGLY, IT MUST BE HELD THAT UNDER THE PROVISIONS OF SECTION 1040 AND PARAGRAPH M7107, JOINT TRAVEL REGULATIONS, REIMBURSEMENT FOR A DEPENDENT'S TRAVEL UNDER COMPETENT ORDERS TO A MEDICAL FACILITY IS AUTHORIZED ONLY ON AN ACTUAL EXPENSE BASIS, WHETHER TRAVELING ALONE OR WITH AN ATTENDANT. SINCE THERE IS NO SHOWING OF THE ACTUAL EXPENSES INCURRED FOR MRS. METZ- TRANSPORTATION, NO PAYMENT IS AUTHORIZED ON THE VOUCHER PRESENTED WHICH WILL BE RETAINED HERE.

WITH RESPECT TO THE TRAVEL EXPENSES OF ATTENDANTS, SINCE THE CONGRESS HAS NOW AUTHORIZED THE TRANSPORTATION OF DEPENDENTS TO MEDICAL FACILITIES AT GOVERNMENT EXPENSE UNDER THE PRESCRIBED CIRCUMSTANCES AND ALSO AUTHORIZED TRANSPORTATION AND TRAVEL EXPENSES FOR NECESSARY ATTENDANTS, IT WOULD APPEAR THAT SUCH TRAVEL OF NECESSARY ATTENDANTS WHO ARE MEMBERS OF THE UNIFORMED SERVICES IS PROPERLY TO BE REGARDED AS TRAVEL ON PUBLIC BUSINESS IF DIRECTED BY COMPETENT ORDERS.

THE PROVISION IN SECTION 1040 (A) THAT TRANSPORTATION AND TRAVEL EXPENSES MAY BE FURNISHED NECESSARY ATTENDANTS DOES NOT APPEAR TO HAVE BEEN INTENDED AS A RESTRICTION ON THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED IN 37 U.S.C. 404 AND CHAPTER 4, JOINT TRAVEL REGULATIONS, FOR MEMBERS TRAVELING ON PUBLIC BUSINESS PURSUANT TO COMPENTENT ORDERS. CF. 21 COMP. GEN. 377 AND 40 ID. 226. CONSEQUENTLY SUCH MEMBER ATTENDANTS ARE ENTITLED TO REIMBURSEMENT ON THAT BASIS AS PROVIDED IN PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS.

OF COURSE, A MEMBER WHO TRANSPORTS A DEPENDENT IN HIS PRIVATELY OWNED VEHICLE FOR WHICH HE IS ENTITLED TO A TRAVEL ALLOWANCE WOULD NOT BE ENTITLED TO AN ADDITIONAL AMOUNT ON BEHALF OF THE DEPENDENT, THE TRAVEL ALLOWANCE BEING IN LIEU OF ACTUAL EXPENSES. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.