B-169072, APR. 27, 1970

B-169072, APR. 27, 1970

MILEAGE--MILITARY PERSONNEL--TRAVEL BY PRIVATELY OWNED AUTOMOBILE- COMMUTATION OF ALL EXPENSES--FERRY AND TAXI FARES, PER DIEM, ETC. SINCE TRANSOCEANIC AUTO FERRY FARES INCIDENT TO TEMPORARY DUTY (TD), AS OPPOSED TO PERMANENT STATION CHANGE, ARE REIMBURSABLE UNDER JTR, M4407, ONLY WHEN TRAVEL IS PERFORMED BY GOVT. VEHICLE OR SPECIAL CONVEYANCE OFFICIALLY AUTHORIZED OR APPROVED, AND INDIVIDUAL TRANSOCEANIC TRAVE IS REIMBURSABLE UNDER M4159-4 ON TD ONLY IF PERFORMED ON AMERICAN SHIP WHEN GOVT. TRANSPORTATION OR TRANSPORTATION REQUEST IS NOT AVAILABLE, OFFICER AUTHORIZED TO USE PRIVATELY OWNED VEHICLE INCIDENT TO TD WAS PROPERLY REIMBURSED ON MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION BASIS OF 5 CENTS PER MILE, UNDER PERTINENT REGULATIONS, FOR OFFICIAL DISTANCE BETWEEN ATHENS AND LONDON. GENERAL ACCOUNTING OFFICE--JURISDICTION--CLAIMS-- SETTLEMENTS--FINALITY ALTHOUGH DECISIONS OF COMPTROLLER GENERAL ON CLAIMS SETTLED BY GAO ARE CONCLUSIVE UPON EXECUTIVE BRANCH, OFFICER WHO WAS DENIED CLAIM FOR OVERSEAS FERRY FARES INCIDENT TO TEMPORARY DUTY WHERE USE OF PRIVATELY OWNED VEHICLE WAS AUTHORIZED, WHICH SETTLEMENT IS SUSTAINED ON REVIEW, HAS RECOURSE TO COURT OF CLAIMS OR DISTRICT COURTS, BOTH OF WHICH HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST GOVT. IF SUIT IS FILED WITHIN 6 YEARS AFTER CLAIM FIRST ACCRUED.

TO MR. PETER C. BARGELIOTES:

IN VIEW OF THE REMARKS CONTAINED IN YOUR LETTER OF FEBRUARY 3, 1970, WE HAVE REVIEWED THE SETTLEMENT DATED JANUARY 19, 1970, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF AUTOMOBILE FERRY FARES INCURRED FOR TRANSPORTATION FROM CALAIS, FRANCE, TO DOVER, ENGLAND, AND RETURN, AND FROM BRINDISI, ITALY, TO PATRAS, GREECE, IN MAY 1968.

BY TEMPORARY ADDITIONAL DUTY ORDER NO. T-479-68, DATED APRIL 23, 1968, OF THE U.S. NAVAL COMMUNICATION STATION, GREECE, YOU WERE DIRECTED TO PROCEED ON MAY 13, 1968, TO THE EUROPEAN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, LONDON, ENGLAND, FOR A PERIOD OF 6 DAYS. THE ORDERS AUTHORIZED TRAVEL BY PRIVATELY OWNED CONVEYANCE WITH ENTITLEMENT TO REIMBURSEMENT AT THE RATE OF $0.05 PER MILE. PURSUANT TO THOSE ORDERS, YOU TRAVELED TO LONDON BY PRIVATELY OWNED CONVEYANCE VIA THE CALAIS-DOVER FERRY. RETURNING TO YOUR DUTY STATION, YOU USED THAT FERRY AND THE FERRY BETWEEN BRINDISI, ITALY, AND PATRAS, GREECE.

YOU WERE ADVANCED $452 AS THE ESTIMATED COST OF THE TRAVEL. WHEN YOU SUBMITTED A VOUCHER COVERING THE TRAVEL EXPENSES INVOLVED, YOU WERE ALLOWED $305.10 ($144 FOR PER DIEM, $146.10 FOR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, AND $15 FOR MISCELLANEOUS REIMBURSABLE EXPENSES), WHICH WAS CREDITED AGAINST THE TRAVEL ADVANCE OF $452. THE DIFFERENCE OF $146.90 WAS CHARGED TO YOUR MILITARY PAY ACCOUNT AND REPRESENTS THE COST OF FERRY FARES BETWEEN CALAIS AND DOVER ($33 EACH WAY), THE FERRY FARE FROM BRINDISI TO PATRAS ($77) AND CERTAIN MISCELLANEOUS TRAVEL EXPENSES NOT HERE INVOLVED.

YOUR CLAIM FOR THE DISALLOWED TRAVEL COSTS WAS FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT. BY SETTLEMENT DATED JANUARY 19, 1970, THE CLAIM WAS DISALLOWED FOR THE REASON THAT UNDER GOVERNING REGULATIONS YOU WERE ENTITLED ONLY TO AN ALLOWANCE IN LIEU OF TRANSPORTATION OF FIVE CENTS PER MILE FOR THE OFFICIAL MILEAGE INVOLVED IN PERFORMING THE TRAVEL. ALSO, YOU WERE ADVISED IN THE SETTLEMENT THAT WHEN TRANSOCEANIC TRAVEL IS INVOLVED, SUCH TRAVEL MUST BE PERFORMED BY VESSEL REGISTERED UNDER THE LAWS OF THE UNITED STATES, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION AUTHORIZING THE USE OF VESSELS OF FOREIGN REGISTRY.

IN YOUR LETTER OF FEBRUARY 3, 1970, YOU CONTEND THAT YOU WERE IN FACT ORDERED TO INCUR THE INVOLVED TRANSOCEANIC FERRY FARES THE MOMENT THE ORDERS WERE ISSUED TO YOU SINCE THE ORDERS AUTHORIZED YOU TO TRAVEL FROM ATHENS, GREECE, TO LONDON, ENGLAND, AND RETURN, BY PRIVATELY OWNED VEHICLE. YOU EXPRSS THE BELIEF THAT NEITHER THE COMMANDING OFFICER NOR THE PERSONNEL OFFICER OF YOUR FORMER DUTY STATION KNEW OF UNITED STATES FLAG FERRIES OPERATING IN THE ENGLISH CHANNEL OR THE ADRIATIC SEA, AND THAT THEY PROBABLY WERE UNAWARE THAT PASSAGE ON A VESSEL OF FOREIGN REGISTRY WOULD FORFEIT ENTITLEMENT TO REIMBURSEMENT. YOU ALSO SAY THAT WHILE YOU TRAVELED APPROXIMATELY 900 MILES THROUGH YUGOSLAVIA EN ROUTE TO ENGLAND YOU WERE NOT REIMBURSED FOR THE DISTANCES BETWEEN THE PORTS SERVED BY THE FERRIES INASMUCH AS THE OFFICIAL TABLE OF DISTANCES - FOREIGN TRAVEL, DOES NOT INCLUDE DISTANCES COVERED BY THE FERRIES MENTIONED.

YOU FORWARDED A COPY OF YOUR LETTER OF FEBRUARY 3, 1970, TO THE COMMANDING OFFICER, U.S. NAVAL COMMUNICATION STATION, GREECE, WITH A REQUEST THAT HE SUBMIT TO THIS OFFICE THE DESIRED ADMINISTRATIVE DETERMINATION AUTHORIZING THE USE OF A VESSEL OF FOREIGN REGISTRY IN CONNECTION WITH YOUR ORDERS. FOR THE REASONS HEREINAFTER STATED SUCH A DETERMINATION, IF MADE, WILL SERVE NO USEFUL PURPOSE.

THE PERTINENT STATUTE, 37 U.S.C. 404 (A), AUTHORIZES THE PAYMENT OF PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM HIS POST OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. SUBPARAGRAPH (D) OF THAT SECTION IN PERTINENT PART PROVIDES THAT THE TRAVEL AND TRANSPORTATION ALLOWANCES WHICH SHALL BE AUTHORIZED MAY INCLUDE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF THE COST OF TRANSPORTATION, WHEN NOT FURNISHED IN KIND, "AT A RATE THAT IS NOT MORE THAN 7 CENTS A MILE BASED ON DISTANCES ESTABLISHED, OVER THE SHORTEST USUALLY TRAVELED ROUTE, UNDER MILEAGE TABLES PREPARED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY."

PARAGRAPH M4251 OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THAT STATUTORY AUTHORITY PROVIDES THAT TEMPORARY DUTY TRANSPORTATION ALLOWANCES FOR LAND TRAVEL OUTSIDE THE UNITED STATES WILL BE AS PRESCRIBED IN PARAGRAPH M4203 OF THE REGULATIONS. SUBPARAGRAPH M4203 3B (2) PROVIDES, AMONG OTHER THINGS, THAT FOR ALL CASES OF TRAVEL BY PRIVATELY OWNED CONVEYANCE IN WHICH THE CONDITIONS IN ITEMS 1 AND 2 OF THAT SUBPARAGRAPH ARE NOT MET REIMBURSEMENT FOR TRAVEL WILL BE MADE ON A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION BASIS FOR THE OFFICIAL DISTANCE OF THE ORDERED TRAVEL AT THE RATE OF $0.05 PER MILE.

ITEMS 1 AND 2 OF THE REGULATIONS RELATE TO TRAVEL ORDERS IN WHICH TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT AND THE MEMBER'S CLAIM IS SUPPORTED BY A STATEMENT TO THE EFFECT THAT HE IS THE OPERATOR OF THE CONVEYANCE USED AND IS PRIMARILY RESPONSIBLE FOR PAYING THE OPERATING EXPENSES THEREOF. YOUR ORDERS DO NOT MEET THOSE REQUIREMENTS. IN FACT, SINCE YOU PERFORMED THE TRAVEL IN A LEAVE STATUS, THE USE OF YOUR PRIVATELY OWNED CONVEYANCE APPEARS TO HAVE BEEN AUTHORIZED FOR YOUR OWN CONVENIENCE.

IN CONSONANCE WITH THE LAW, PARAGRAPH M4155 OF THE REGULATIONS PROVIDES THAT "OFFICIAL DISTANCES" ARE ESTABLISHED UNDER DIRECTION OF THE SECRETARY OF THE ARMY AND EXPLAINS THAT COMMONLY USED OFFICIAL DISTANCES AND INSTRUCTIONS ON THE PROCEDURE TO BE USED IN SECURING OTHER DISTANCES ARE PUBLISHED IN THE "OFFICIAL TABLES OF DISTANCES." PARAGRAPH 5 OF THE OFFICIAL TABLE OF DISTANCES - FOREIGN TRAVEL (NAVSO P-2472), EFFECTIVE DECEMBER 1, 1967, IN MATERIAL PART, READS AS FOLLOWS:

"B. HIGHWAY DISTANCES. THE HIGHWAY DISTANCE ESTABLISHED BY THESE TABLES ARE IN MILES AND HAVE BEEN COMPUTED ON THE BASIS OF THE SHORTEST, USUALLY TRAVELED, HIGHWAY ROUTE. THE LATEST AVAILABLE HIGHWAY MAPS OF THE FOREIGN COUNTRIES HAVE BEEN USED. ***

"C. RESTRICTIONS ON ROUTING. ALL COMPUTATION BETWEEN POINTS IN THE EUROPEAN LAND AREA AND GREECE AND TURKEY ARE BASED ON ROUTINGS THROUGH BRINDISI, ITALY VIA PATRAS OR IGOUMENITSA, GREECE. COMMON CARRIER DISTANCES BETWEEN THE UNITED KINGDOM AND THE CONTINENT ARE BASED ON THE AVAILABLE RAIL FERRY SERVICE OPERATING FROM DOVER, ENGLAND TO CALAIS, FRANCE; OR ***. THE DISTANCES COVERED BY THESE FERRIES ARE NOT INCLUDED IN THE PUBLISHED OFFICIAL DISTANCES. WHERE ENTITLEMENT EXISTS REIMBURSEMENT FOR THE COST OF THE TRANSOCEANIC FERRY SERVICE IS FOR SETTLEMENT IN ACCORDANCE WITH THE APPROPRIATE PROVISIONS OF THE JOINT TRAVEL REGULATIONS."

UNDER THE GOVERNING LAW AND REGULATIONS YOU WERE ENTITLED TO REIMBURSEMENT OF THE TRAVEL EXPENSES INCURRED BY THE USE OF YOUR PRIVATELY OWNED AUTOMOBILE ON THE BASIS OF $0.05 PER MILE FOR THE "OFFICIAL DISTANCE" OVER THE SHORTEST USUALLY TRAVELED ROUTE BETWEEN ATHENS AND LONDON. THE "OFFICIAL DISTANCE" BETWEEN THOSE PLACES IS SHOWN IN THE ABOVE MENTIONED TABLE OF DISTANCES AS 1,461 MILES. AS INDICATED ABOVE, YOUR MILITARY PAY ACCOUNT WAS CREDITED WITH THE SUM OF $146.10, AS THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION (1,461 MILES X 2 X $0.05). IT IS EVIDENT THEREFORE THAT THIS CREDIT PLUS ALLOWABLE PER DIEM, CONSTITUTES THE FULL AMOUNT TO WHICH YOU ARE ENTITLED UNDER THE LAW AND REGULATIONS, IRRESPECTIVE OF THE FERRY FARES PAID BY YOU FOR YOUR TRANSPORTATION AND THE TRANSPORTATION OF YOUR PRIVATELY OWNED CONVEYANCE.

WE FIND NOTHING IN THE LAW OR THE JOINT TRAVEL REGULATIONS WHICH MAY BE CONSIDERED AS AUTHORITY FOR REIMBURSEMENT OF THE TRANSOCEANIC FERRY FARES PAID BY YOU. TO THE EXTENT THAT THE FERRY CHARGES INVOLVED COST OF TRANSPORTATION OF YOUR PRIVATELY OWNED VEHICLE, THE CHARGES ARE NOT AUTHORIZED BY LAW. UNDER THE PROVISIONS OF 10 U.S.C. 2634 THE TRANSOCEANIC TRANSPORTATION OF A PRIVATELY OWNED MOTOR VEHICLE IS AUTHORIZED ONLY ON AN ORDERED CHANGE OF PERMANENT STATION. PARAGRAPH M4159.4 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR REIMBURSEMENT OF THE COST OF INDIVIDUAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL UNDER CERTAIN CIRCUMSTANCES. HOWEVER, THAT PARAGRAPH COULD BE REGARDED AS AUTHORITY FOR REIMBURSEMENT OF THE COST OF YOUR OVER WATER TRAVEL ONLY IF THE GOVERNMENT COULD NOT HAVE PROVIDED YOU WITH TRANSPORTATION OR A TRANSPORTATION REQUEST AND YOU HAD PERFORMED THE TRAVEL ON AN AMERICAN FLAG CARRIER OVER THE MOST DIRECT ROUTE.

REIMBURSEMENT FOR FERRY FARES INCIDENT TO TEMPORARY DUTY TRAVEL IS AUTHORIZED BY PARAGRAPH M4407 OF THE JOINT TRAVEL REGULATIONS WHEN THE TRAVEL IS PERFORMED BY GOVERNMENT CONVEYANCE OR SPECIAL CONVEYANCE (RENTED OR HIRED AUTOMOBILES, ETC; AS AUTHORIZED OR APPROVED BY THE OFFICIAL DIRECTING THE TRAVEL), BUT THAT AUTHORITY DOES NOT EXTEND TO THE USE OF A PRIVATELY OWNED VEHICLE FOR THE PERFORMANCE OF SUCH TRAVEL.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 19, 1970, MUST BE AND IS SUSTAINED.

CONCERNING YOUR REQUEST FOR RECOMMENDATION OF ANOTHER GOVERNMENT AGENCY TO EXAMINE YOUR CASE, DECISIONS OF THE COMPTROLLER GENERAL RENDERED ON CLAIMS SETTLED BY THE GENERAL ACCOUNTING OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.