B-168947, MAY 19, 1970

B-168947: May 19, 1970

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IS NOT AUTHORIZED EVEN HAD MEMBER NOT BEEN IN LEAVE STATUS AND COMPETENT ORDERS TO APPEAR HAD BEEN ISSUED UNDER M3000-1. SUCH EXPENSES ARE PAID FROM APPROPRIATION FOR TRAVEL EXPENSES OF DEPT. MILLER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 30. PRESUMABLY THE CLAIM IS FOR TEMPORARY DUTY ALLOWANCES AS PRESCRIBED IN VOLUME I. THE MEMBER WAS DETACHED FROM HIS DUTY STATION AT CHERRY POINT. HE WAS AUTHORIZED FOUR DAYS PROCEED TIME. THE MEMBER STATES HE WAS SCHEDULED TO APPEAR IN CHICAGO IN NOVEMBER 1967. THE RECORD SHOWS IT WAS THE CASE OF U.S. STATES THAT THE TRIAL WAS POSTPONED UNTIL JANUARY 8. SINCE HE WAS IN RECEIPT OF HIS ORDERS OF NOVEMBER 14. HE WAS ADVISED AT HIS DUTY STATION TO TAKE LEAVE AS SCHEDULED AND MAKE THE TRIP TO CHICAGO WHILE ON LEAVE.

B-168947, MAY 19, 1970

WITNESSES--MILITARY PERSONNEL--STATUS PAYMENT OF TEMPORARY DUTY ALLOWANCE UNDER CHAPTER 4, JTR, TO NAVY MEMBER APPEARING AS WITNESS FOR U. S; BUT NOT FOR UNIFORMED SERVICES, IS NOT AUTHORIZED EVEN HAD MEMBER NOT BEEN IN LEAVE STATUS AND COMPETENT ORDERS TO APPEAR HAD BEEN ISSUED UNDER M3000-1, JTR, SINCE M6300-2, JTR, PROVIDES THAT MEMBER APPEARING AS WITNESS ON BEHALF OF U. S; IN ANY CASE NOT INVOLVING UNIFORMED SERVICES, SHALL RECEIVE SUCH ALLOWANCES AS PRESCRIBED BY ATTORNEY GENERAL, AND UNDER STATUTORY AUTHORITY IN 28 U.S.C. 1823 (A), SUCH EXPENSES ARE PAID FROM APPROPRIATION FOR TRAVEL EXPENSES OF DEPT. OR AGENCY CONCERNED IN COURT PROCEEDING. SEE 46 COMP. GEN. 613 (1967).

TO LIEUTENANT I. MILLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 30, 1970 (CODE T IM:DM:SS 7240/J), WITH ENCLOSURES, CONCERNING THE ENTITLEMENT OF SERGEANT CEDRIC A. JORDAN, USMC, 1566943, TO TEMPORARY DUTY ALLOWANCES INCIDENT TO TRAVEL PERFORMED FROM JACKSONVILLE, FLORIDA, TO CHICAGO, ILLINOIS, AND RETURN DURING THE PERIOD JANUARY 5, TO 11, 1968. PRESUMABLY THE CLAIM IS FOR TEMPORARY DUTY ALLOWANCES AS PRESCRIBED IN VOLUME I, CHAPTER 4, JOINT TRAVEL REGULATIONS.

BY ORDERS DATED NOVEMBER 14, 1967, AND FIRST ENDORSEMENT DATED DECEMBER 15, 1967, THE MEMBER WAS DETACHED FROM HIS DUTY STATION AT CHERRY POINT, NORTH CAROLINA, AND DIRECTED TO PROCEED TO SAN FRANCISCO, CALIFORNIA, BY FEBRUARY 1, 1968, FOR FURTHER TRANSPORTATION TO HIS DUTY STATION IN WEST PACIFIC. HE WAS AUTHORIZED FOUR DAYS PROCEED TIME, 20 DAYS DELAY CHARGEABLE TO LEAVE AND NINE DAYS TRAVEL IN EXECUTION OF THE ORDER.

THE MEMBER STATES HE WAS SCHEDULED TO APPEAR IN CHICAGO IN NOVEMBER 1967, IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AS A WITNESS ON BEHALF OF THE UNITED STATES. THE RECORD SHOWS IT WAS THE CASE OF U.S. V. MANTAEIS ET AL, 66 CR 565, AND IT HAS BEEN INFORMALLY ASCERTAINED THAT THE CASE DID NOT INVOLVE THE UNIFORMED SERVICES. STATES THAT THE TRIAL WAS POSTPONED UNTIL JANUARY 8, 1968, AND SINCE HE WAS IN RECEIPT OF HIS ORDERS OF NOVEMBER 14, 1967, HE WAS ADVISED AT HIS DUTY STATION TO TAKE LEAVE AS SCHEDULED AND MAKE THE TRIP TO CHICAGO WHILE ON LEAVE. HE SAYS HE WAS ADVISED TO INCLUDE THE TRIP ON HIS TRAVEL CLAIM WHEN HE ARRIVED IN VIETNAM.

THE MEMBER'S ITINERARY SHOWS HE DEPARTED FROM HIS DUTY STATION ON DECEMBER 29, 1967, AND ARRIVED AT HIS LEAVE ADDRESS AT JACKSONVILLE, FLORIDA, ON DECEMBER 30, 1967. ON JANUARY 5, 1968, HE TRAVELED TO CHICAGO AND ARRIVED THERE ON JANUARY 7, 1968. WHEN HE WAS TOLD THE TRIAL WAS POSTPONED UNTIL MARCH 1968, HE RETURNED TO JACKSONVILLE, ON JANUARY 11, 1968.

BY SECOND ENDORSEMENT DATED JANUARY 22, 1968, HE WAS ORDERED TO TEMPORARY DUTY AND ASSIGNED TO NAVAL AIR STATION, GLENVIEW, ILLINOIS, FOR A PERIOD OF ABOUT 3 MONTHS IN CONNECTION WITH THE SAME CASE. THE TRIAL WAS OVER IN MARCH 1968 AND BY TELEGRAM DATED MARCH 26, 1968, THE MEMBER WAS DIRECTED TO REPORT TO NORTON AIR FORCE BASE, CALIFORNIA, FOR TRANSPORTATION TO HIS DUTY STATION OVERSEAS.

THE MEMBER'S CLAIM FOR PER DIEM ALLOWANCE FOR THE TRAVEL PERFORMED FROM JACKSONVILLE TO CHICAGO AND RETURN, DURING THE PERIOD JANUARY 5 TO 11, 1968, WAS DENIED BY THE ADMINISTRATIVE OFFICE BECAUSE OF LACK OF COMPETENT ORDERS (PARAGRAPH M3000-1, JOINT TRAVEL REGULATIONS).

SECTION 1823 (A) OF TITLE 28, U.S.C. PROVIDES THAT ANY OFFICER OR EMPLOYEE OF THE UNITED STATES (WHICH INCLUDES A MEMBER OF THE UNIFORMED SERVICES) APPEARING AS A WITNESS ON BEHALF OF THE UNITED STATES SHALL BE PAID HIS NECESSARY EXPENSES UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL. SUCH EXPENSES FOR APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED IS PAYABLE UNDER PROPER CERTIFICATION OF THE DEPARTMENT OR AGENCY CONCERNED FROM ITS APPROPRIATION FOR PAYMENT OF TRAVEL EXPENSES.

CONSISTENT WITH THESE PROVISIONS PARAGRAPH M6300-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER ON ACTIVE DUTY IS REQUIRED TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE NOT INVOLVING THE UNIFORMED SERVICES, THE MEMBER SHALL RECEIVE SUCH TRANSPORTATION OR TRANSPORTATION ALLOWANCES AND PER DIEM AS PRESCRIBED BY THE ATTORNEY GENERAL. IT PROVIDES FURTHER THAT IF TRANSPORTATION REQUESTS ARE ISSUED, THE TRANSPORTATION REQUESTS SHALL BE ANNOTATED TO BE BILLED TO THE DEPARTMENT OF JUSTICE.

SINCE THE MEMBER WAS TRAVELING ON LEAVE AND NOT UNDER COMPETENT ORDERS AS REQUIRED BY 37 U.S.C. 404, PAYMENT ON THE VOUCHER PRESENTED IS NOT AUTHORIZED. HOWEVER, EVEN IF THE MEMBER HAD BEEN ISSUED ORDERS BY HIS MILITARY COMMANDER DIRECTING HIS APPEARANCE AS A WITNESS IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, THERE WOULD BE NO AUTHORITY TO AUTHORIZE HIM PAYMENT OF TEMPORARY DUTY ALLOWANCE AS PRESCRIBED IN CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS SINCE, AS FAR AS THE RECORD SHOWS, HIS APPEARANCE WAS NOT IN CONNECTION WITH ANY ACTIVITY OF THE UNIFORMED SERVICES. SEE 46 COMP. GEN. 613 (1967), COPY ENCLOSED.

WHILE THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER, WE SUGGEST THAT THE MEMBER PRESENT HIS CLAIM FOR REIMBURSEMENT FOR THE EXPENSES OF HIS TRAVEL FROM JACKSONVILLE TO CHICAGO AND RETURN UNDER THE PROVISIONS OF 28 U.S.C. 1823 (A) TO THE UNITED STATES ATTORNEY, NORTHERN DISTRICT OF ILLINOIS, 1500 NEW U.S. COURT HOUSE, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS. FOR THIS PURPOSE, WE HAVE ENCLOSED A COPY OF THIS LETTER TOGETHER WITH THE MEMBER'S ORIGINAL ORDERS AND ENDORSEMENTS AND PAPERS PERTINENT TO HIS CLAIM.