B-165886, MAR. 24, 1969

B-165886: Mar 24, 1969

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TO TECHNICAL SERGEANT HANS GALL: REFERENCE IS MADE TO YOUR CLAIM FOR $238 REPRESENTING REIMBURSEMENT FOR COMMERCIAL AIR TRAVEL PERFORMED IN AN EMERGENCY LEAVE STATUS ON LUFTHANSA GERMAN AIR LINES FROM JOHN F. YOU WERE AUTHORIZED EMERGENCY LEAVE FROM YOUR DUTY STATION AT DULUTH. TO TRAVEL TO GERMANY TO SEE YOUR TWIN BROTHER WHO WAS CRITICALLY ILL. THE FOLLOWING DAY YOU WERE DENIED PRIORITY TRAVEL VIA MILITARY AIR TRANSPORT SERVICE AND SINCE YOU COULD NOT WAIT FOR SPACE-AVAILABLE TRAVEL BY THAT MEANS YOU PURCHASED YOUR OWN TRANSPORTATION ON LUFTHANSA GERMAN AIR LINES FROM NEW YORK. YOUR CLAIM WAS FORWARDED TO OUR OFFICE BY HEADQUARTERS. PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC BUSINESS.

B-165886, MAR. 24, 1969

TO TECHNICAL SERGEANT HANS GALL:

REFERENCE IS MADE TO YOUR CLAIM FOR $238 REPRESENTING REIMBURSEMENT FOR COMMERCIAL AIR TRAVEL PERFORMED IN AN EMERGENCY LEAVE STATUS ON LUFTHANSA GERMAN AIR LINES FROM JOHN F. KENNEDY INTERNATIONAL AIRPORT, NEW YORK, TO FRANKFURT, GERMANY, DURING MAY 1967.

IT APPEARS FROM THE RECORD THAT ON MAY 4, 1967, YOU WERE AUTHORIZED EMERGENCY LEAVE FROM YOUR DUTY STATION AT DULUTH, MINNESOTA, TO TRAVEL TO GERMANY TO SEE YOUR TWIN BROTHER WHO WAS CRITICALLY ILL. FURTHER, IT APPEARS THAT ON THAT DATE YOU PROCEEDED TO MCGUIRE AIR FORCE BASE, NEW JERSEY, EXPECTING THAT YOU WOULD BE FURNISHED GOVERNMENT AIR TRANSPORTATION FROM THERE TO GERMANY. THE FOLLOWING DAY YOU WERE DENIED PRIORITY TRAVEL VIA MILITARY AIR TRANSPORT SERVICE AND SINCE YOU COULD NOT WAIT FOR SPACE-AVAILABLE TRAVEL BY THAT MEANS YOU PURCHASED YOUR OWN TRANSPORTATION ON LUFTHANSA GERMAN AIR LINES FROM NEW YORK, NEW YORK, TO FRANKFURT, GERMANY.

YOUR CLAIM WAS FORWARDED TO OUR OFFICE BY HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, UNITED STATES AIR FORCE, DENVER, COLORADO, WITH THE REQUEST THAT WE CONSIDER IT AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236.

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, UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, WHICH PRESUPPOSES TRAVEL ON PUBLIC BUSINESS. PARAGRAPH M3050-1, JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THAT ACT, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS.

THE TRAVEL ALLOWANCES AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES ARE FOR THE PURPOSE OF REIMBURSING THE MEMBERS FOR THE EXPENSES INCURRED IN COMPLYING WITH THE TRAVEL REQUIREMENTS IMPOSED UPON THEM BY THE NEEDS OF THE SERVICES OVER WHICH THEY HAVE NO CONTROL, NOT FOR EXPENSES OF TRAVEL INDUCED BY PERSONAL REASONS. IN THIS CONNECTION, PARAGRAPH M6454 OF THE JOINT TRAVEL REGULATIONS PROVIDES EXPRESSLY THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.

ALSO, IT HAS BEEN HELD THAT ALLOWANCES ARE NOT PAYABLE FOR TRAVEL PERFORMED SOLELY FOR LEAVE PURPOSES, THE TRAVEL BEING CONSIDERED AS MADE FOR PERSONAL REASONS AND NOT AS HAVING BEEN PERFORMED ON PUBLIC BUSINESS. PERRIMOND V UNITED STATES, 19 CT.CL. 509; DAY V UNITED STATES, 123 CT.CL. 10, 18. THUS, IT IS WELL SETTLED THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO PAYMENT OF HIS TRAVEL EXPENSES ONLY IN THOSE SITUATIONS WHERE THE TRAVEL MAY BE REGARDED AS HAVING BEEN INDUCED BY MILITARY CONSIDERATIONS OVER WHICH HE HAS NO CONTROL AND NOT FOR THE EXPENSES OF TRAVEL INCURRED FOR PERSONAL REASONS. 42 COMP. GEN. 27, AND 36 COMP. GEN. 257.

SINCE YOUR TRAVEL TO FRANKFURT WAS FOR PERSONAL REASONS, SUCH TRAVEL COULD NOT BE REGARDED AS TRAVEL PERFORMED ON PUBLIC BUSINESS ENTITLING YOU TO REIMBURSEMENT FOR TRAVEL BY COMMERCIAL MEANS. CONSEQUENTLY, IN ORDER TO PERFORM THE OVERSEAS PORTION OF TRAVEL WITHOUT PERSONAL EXPENSE, YOU NECESSARILY WOULD HAVE HAD TO TRAVEL BY GOVERNMENT TRANSPORTATION IN ACCORDANCE WITH THE APPROPRIATE REGULATIONS.

THE GRANTING OF LEAVE OF MEMBERS OF THE UNIFORMED SERVICES IS A MATTER FOR ADMINISTRATIVE DETERMINATION BY THE SERVICES INVOLVED. ALSO, THE DRAFTING OF REGULATIONS IS STRICTLY AN ADMINISTRATIVE FUNCTION. 34 COMP. GEN. 497, 498.

REGULATIONS CONCERNING THE GRANTING OF LEAVE TO AIR FORCE MILITARY PERSONNEL ARE CONTAINED IN AIR FORCE MANUAL 35-22. PARAGRAPH 31 OF THE REGULATIONS INDICATES THAT EMERGENCY LEAVE MAY BE GRANTED UPON THE REQUEST OF THE SERVICE MEMBER WHEN IT IS ESTABLISHED THAT AN UNEXPECTED PERSONAL EMERGENCY EXISTS AND PRIORITY TRAVEL BETWEEN CERTAIN SPECIFIED AREAS IS REQUIRED. THE REGULATIONS PROVIDE THAT TRAVEL IN RETURNING TO THE CONTINENTAL UNITED STATES FROM OVERSEAS AREAS WILL BE PERFORMED BY MILITARY AIR TRANSPORT SERVICE.

RULE 4, TABLE 4, AIR FORCE MANUAL 35-22, COVERS THE SITUATION OF A MEMBER WHO IS GRANTED EMERGENCY LEAVE FROM THE UNITED STATES. HOWEVER, NO PROVISION IS MADE FOR TRAVEL ON A SPACE-REQUIRED BASIS. PARAGRAPH 38 (A) 7, OF AFM 35-22 PROVIDES THAT SPACE-REQUIRED TRAVEL IS AUTHORIZED ONLY BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA, HAWAII, A TERRITORY OR POSSESSION OF THE UNITED STATES.

WITH RESPECT TO YOUR CONTENTION THAT YOU BELIEVE YOUR LEAVE AUTHORIZATION SHOULD HAVE INCLUDED A CUSTOMER IDENTIFICATION CODE (CIC) WHICH WOULD HAVE AUTHORIZED GOVERNMENT TRANSPORTATION TO EUROPE ON A SPACE-REQUIRED BASIS, SINCE THE REGULATIONS PROVIDE THAT TRAVEL ON A SPACE-REQUIRED BASIS WILL BE AUTHORIZED ONLY AS PROVIDED FOR IN PARAGRAPH 38 (A) 7 MENTIONED ABOVE, IT APPEARS THAT YOUR ORDERS WERE PREPARED IN ACCORDANCE WITH THE REGULATIONS. WE SEE NO LEGAL BASIS TO QUESTION THE REGULATIONS ON THE GROUND THAT YOU WERE DENIED THE RIGHT TO GOVERNMENT TRANSPORTATION TO EUROPE ON A SPACE-REQUIRED BASIS. AS STATED ABOVE, SINCE THE TRAVEL WAS PERFORMED FOR PERSONAL REASONS, NO SUCH RIGHT OR ENTITLEMENT TO TRANSPORTATION ACCRUED. 38 COMP. GEN. 28.

MOREOVER, SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A) AND PARAGRAPH M2150-1 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY BAR THE PAYMENT OF ANY ALLOWANCES FOR TRAVEL EXPENSES INCURRED ON A SHIP OR AIRPLANE OF FOREIGN REGISTRY IN THE ABSENCE OF PROOF OF THE NECESSITY FOR ITS USE. AMERICAN FLAG CARRIERS ARE GENERALLY AVAILABLE FOR TRAVEL FROM THE UNITED STATES TO GERMANY, AND THE RECORD DOES NOT INDICATE THEY WERE NOT AVAILABLE IN THE PRESENT CASE. THUS, EVEN IF YOUR TRAVEL TO FRANKFURT CONSTITUTED OFFICIAL TRAVEL UNDER COMPETENT ORDERS WITHIN THE CONTEMPLATION OF 37 U.S.C. 404, SINCE YOU DID NOT USE AMERICAN FLAG AIRCRAFT REIMBURSEMENT FOR TRAVEL PERFORMED ON LUFTHANSA GERMAN AIR LINES IS PRECLUDED BY LAW.

WITH REGARD TO THE RECOMMENDATION OF THE AIR FORCE THAT YOUR CLAIM BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, THE CASES WE HAVE REPORTED TO THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

WHILE WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES OF YOUR TRAVEL, THERE ARE NUMEROUS CASES WHERE MEMBERS TRAVEL AT PERSONAL EXPENSES FOR COMPELLING PERSONAL REASONS, INCLUDING TRAVEL ON FOREIGN FLAG CARRIERS. THEREFORE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE.

SINCE WE ARE OF THE OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.