B-164801, AUG. 30, 1968

B-164801, AUG. 30, 1968

TO MR. N. DELOZIER:

THERE HAS BEEN RECEIVED BY 3RD IND. DATED JULY 5, 1968, YOUR LETTER OF MAY 21, 1968, 1320, CT03-420, WITH ENCLOSURES, REQUESTING A DECISION WHETHER ADJC "J" "R" COCHRAN 269 12 22, USN, AND ATN2 J. D. RONNBERG, 457 40 23, USN, MAY BE PAID PER DIEM, TRANSPORTATION COST AND REIMBURSABLE EXPENSES FOR TRAVEL PERFORMED UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 68 26 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED MARCH 28, 1968, ADJC COCHRAN WAS ORDERED TO PROCEED FROM NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, TO ALAMEDA, CALIFORNIA, FOR TEMPORARY DUTY FOR APPROXIMATELY 10 DAYS UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. BY ORDERS DATED MARCH 7, 1968, ATN2 RONNBERG WAS ORDERED TO PROCEED FROM THE SAME STATION TO NORFOLK, VIRGINIA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR APPROXIMATELY 5 DAYS UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. BOTH ORDERS AUTHORIZED ADVANCE PER DIEM AND CONTAINED AN ESTIMATE OF TRANSPORTATION AND PER DIEM COSTS. BOTH MEMBERS PERFORMED THE ORDERED TRAVEL AND TEMPORARY DUTY. COCHRAN WAS FURNISHED AND USED A GOVERNMENT TRANSPORTATION REQUEST FOR TRAVEL FROM WASHINGTON, D.C., TO OAKLAND, CALIFORNIA, AND RETURN.

YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT OF THE TRAVEL CLAIMS SUBMITTED BY THESE MEMBERS ARISES FROM THE FACT THAT BOTH ORDERS CONTAINED A PROVISION AS FOLLOWS:

"IF TAD IS PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES YOU ARE DIRECTED TO UTILIZE GOVERNMENT QUARTERS AND MESSING FACILITIES IF AVAILABLE. IF YOU DO NOT AGREE TO USE SUCH FACILITIES, YOU WILL CONSIDER THESE ORDERS CANCELLED.'

YOU SAY THAT WHILE THIS PROVISION APPEARS TO MAKE THESE PERMISSIVE ORDERS, THE INTENT WAS TO HAVE THE TRAVELERS UTILIZE GOVERNMENT QUARTERS WHENEVER POSSIBLE, THEREBY CONSERVING TRAVEL FUNDS, AND NOT TO MAKE THE ORDERS PERMISSIVE. THE COMMANDER, NAVAL AIR TEST CENTER, PATUXENT RIVER, IN FORWARDING YOUR REQUEST STATED THAT THE PROVISION IN QUESTION HAS BEEN DELETED FROM ALL CURRENT TRAVEL ORDERS.

AS TO UTILIZATION OF GOVERNMENT QUARTERS AND MESS, COCHRAN'S CLAIM IS SUPPORTED BY A CERTIFICATE FROM THE COMMANDING OFFICER, NAVAL AIR STATION, ALAMEDA, STATING THAT ADEQUATE GOVERNMENT QUARTERS AS DESIGNATED BY THE SERVICES WERE NOT AVAILABLE. THE CERTIFICATE ALSO BEARS A NOTATION "NA" (MEANING NOT APPLICABLE) AS TO THE AVAILABILITY OF GOVERNMENT MESS. AS TO THIS, THE COMPTROLLER OF THE NAVY HAS ADVISED US THAT SINCE INADEQUATE QUARTERS WERE AVAILABLE FOR COCHRAN THE NOTATION "NA" WITH RESPECT TO A GOVERNMENT MESS IS IN ERROR FOR THE REASON THAT THE BUREAU OF NAVAL PERSONNEL HAS ISSUED INSTRUCTIONS WHICH REQUIRE THE UTILIZATION OF AN AVAILABLE GOVERNMENT MESS WHEN INADEQUATE QUARTERS ONLY ARE AVAILABLE AND THE MEMBER ELECTS NOT TO UTILIZE SUCH QUARTERS, AND THAT ALTHOUGH COCHRAN DID NOT UTILIZE AVAILABLE INADEQUATE QUARTERS, A GOVERNMENT MESS WAS AVAILABLE. AN ENDORSEMENT ON RONNBERG'S ORDERS SHOW THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE. HIS CLAIM SHOWS THAT SUCH QUARTERS WERE UTILIZED.

THE STATUTORY AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES GENERALLY IS CONTAINED IN 37 U.S.C. 404, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED "UNDER ORDERS.' PARAGRAPH M3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR, WHILE PARAGRAPH M3001 OF THE SAME REGULATIONS DEFINES COMPETENT TRAVEL ORDERS AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING A MEMBER OR GROUP OF MEMBERS TO TRAVEL BETWEEN DESIGNATED POINTS.

THE REGULATIONS FURTHER PROVIDE, HOWEVER (PARAGRAPH M6453), THAT AN ORDER PERMITTING A MEMBER TO TRAVEL AS DISTINGUISHED FROM DIRECTING A MEMBER TO TRAVEL DOES NOT ENTITLE HIM TO EXPENSES OF TRAVEL. PARAGRAPH M4451 OF THE REGULATIONS PROVIDES THAT A MEMBER IN A TRAVEL STATUS WILL NOT BE REQUIRED TO USE GOVERNMENT QUARTERS DESIGNATED AS INADEQUATE BY THE SERVICE CONCERNED. IT FURTHER PROVIDES THAT AVAILABLE GOVERNMENT QUARTERS, DESIGNATED AS ADEQUATE BY THE SERVICE CONCERNED, AND MESS WILL BE USED BY MEMBERS IN A TRAVEL STATUS TO THE EXTENT PRACTICABLE.

THE COMPETENT ORDER CONTEMPLATED BY LAW HAS LONG BEEN CONSIDERED TO BE AN ORDER WHICH INVOLVES PUBLIC BUSINESS AND IS REQUIRED TO BE OBEYED STRICTLY AND EXECUTED PROMPTLY. 2 COMP. GEN. 625, 626; 8 ID. 327, 330; PERRIMOND V UNITED STATES, 19 CT. CL. 509. THUS, TRAVEL DIRECTED BY COMPETENT AUTHORITY PERFORMED IN THE GOVERNMENT SERVICE IS TRAVEL ON PUBLIC BUSINESS FOR WHICH REIMBURSEMENT IS AUTHORIZED, AND THIS IS TRUE EVEN THOUGH IT IS KNOWN TO THE ORDER-ISSUING AUTHORITY THAT THE TRAVEL DIRECTED INVOLVES AN ASSIGNMENT WHICH IS PREFERRED BY THE MEMBER TO WHOM THE ORDER IS ADDRESSED. THE SITUATION, HOWEVER, IS DIFFERENT WHERE THE CHOICE OF COMPLYING WITH THE ORDER AND PERFORMING THE ATTENDANT TRAVEL LIES WITH THE ADDRESSEE. IN SUCH CASES THE PERMISSIVE CHARACTER OF THE TRAVEL OR SERVICE PERFORMED GENERALLY PRECLUDES PAYMENT OF TRAVEL ALLOWANCES. SEE 42 COMP. GEN. 187, IN WHICH WE SAID THAT THE ORDERS THERE INVOLVED WERE NOT ORDERS THAT THE MEMBER WAS REQUIRED TO OBEY, BUT RATHER THEY WERE ORDERS SUCH AS COULD HAVE BEEN REJECTED BY HIM WITH IMPUNITY.

THE COMPTROLLER OF THE NAVY IN URGING THAT THE ORDERS TO COCHRAN AND RONNBERG WERE DIRECTIVE STATES THAT THE ORDERS WERE IN NO WAY BASED ON ANY CONSIDERATION TO THE MEMBERS WITH RESPECT TO PERSONAL CONVENIENCE OR GAIN. HE SAYS THAT, ON THE CONTRARY, THE REQUIREMENT THAT ANY GOVERNMENT QUARTERS AVAILABLE BE USED CREATED AN INCONVENIENCE SINCE IF INADEQUATE QUARTERS WERE OCCUPIED THE QUARTERS PORTION OF THE PER DIEM WOULD BE LOST. HE SAYS THAT THE ORDERS COVERED TEMPORARY ADDITIONAL DUTY WHICH WAS NECESSARY INCIDENT TO THE PROPER AND EFFICIENT ACCOMPLISHMENT OF THE COMMAND'S FUNCTION AND IN THIS SITUATION THE POSSIBILITY EXISTS THAT REJECTION OF THE ORDERS BY THE MEMBERS BECAUSE OF PERSONAL INCONVENIENCE COULD ADVERSELY AFFECT THEIR PERFORMANCE RATINGS AND SUBSEQUENT ADVANCEMENT. ALSO, HE CONTENDS THAT THE PROVISION IN THE ORDERS IS OF QUESTIONABLE LEGALITY SINCE IT APPEARS TO HAVE THE EFFECT OF REQUIRING THE USE OF INADEQUATE QUARTERS CONTRARY TO THE PROVISIONS OF PARAGRAPH M4451 OF THE REGULATIONS MENTIONED ABOVE. SINCE COCHRAN DID NOT OCCUPY INADEQUATE QUARTERS AS APPARENTLY IS REQUIRED BY THE ORDERS, THE COMPTROLLER OF THE NAVY SUGGESTS THAT IF IT IS DETERMINED THAT THE ORDERS ARE DIRECTIVE COCHRAN SHOULD BE PAID THE QUARTERS PORTION OF THE APPLICABLE PER DIEM.

ALTHOUGH THE ORDERS ON THEIR FACE APPEAR TO HAVE AN ELEMENT OF PERMISSIVENESS IN THAT THEY COULD HAVE BEEN REJECTED, THE RECORD ESTABLISHES THAT THE DUTY ENJOINED BY THE ORDERS WAS NOT REQUESTED BY THE MEMBERS FOR PERSONAL REASONS OR THEIR OWN CONVENIENCE BUT WAS DUTY REQUIRED BY THE COMMAND. BOTH ORDERS INCLUDED A COST ESTIMATE SHOWING AN INTENT TO PAY FOR THE TRAVEL, A TRANSPORTATION REQUEST WAS FURNISHED ONE OF THE MEMBERS CONSISTENT WITH DIRECTED TRAVEL, AND IT IS ADMINISTRATIVELY STATED THAT THE INTENT OF THE PROVISION WAS TO CONSERVE TRAVEL FUNDS AND NOT TO MAKE THE ORDERS PERMISSIVE.

THE MATTER IS NOT ENTIRELY FREE FROM DOUBT IN THAT THE MEMBERS APPARENTLY COULD HAVE REJECTED THE ORDERS. IT SEEMS CLEAR, HOWEVER, THAT IT WAS INTENDED THAT THE TRAVEL BE PERFORMED IN THE GOVERNMENT'S INTEREST AND SINCE THE PRACTICE OF INCLUDING THE QUESTIONED PROVISION IN TRAVEL ORDERS HAS BEEN DISCONTINUED, PAYMENT MAY BE MADE FOR TRANSPORTATION, PER DIEM AND REIMBURSABLE EXPENSES AS PROVIDED IN THE JOINT TRAVEL REGULATIONS FOR TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE ORDERS.

THE TRAVEL VOUCHERS ARE RETURNED, PAYMENT THEREON BEING AUTHORIZED AS INDICATED ABOVE.