B-170774, DEC. 7, 1970

B-170774: Dec 7, 1970

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OF DEFENSE JOINT TRAVEL REGULATIONS WHICH STATES THAT AN EMPLOYEE'S CHILD WHO HAS REACHED AGE 21 AND IS PHYSICALLY AND MENTALLY CAPABLE OF SELF SUPPORT IS NOT A DEPENDENT FOR PURPOSES OF TRANSPORTATION AT GOVERNMENT EXPENSE AND THE ADMINISTRATIVE ERROR IN THE TRAVEL ORDER AND THE EXCESS OF ADVANCE OF TRAVEL FUNDS DO NOT FALL UNDER THE WAIVER AUTHORITY OF PUBLIC LAW 90-616 AND THEREFORE THE PRIOR DECISION DISALLOWING THE EXPENSES MUST BE SUSTAINED. THE DISALLOWANCE WAS PREDICATED ON THE FACT THAT TWO OF YOUR SONS WERE OVER 21 YEARS OF AGE AT THE TIME YOU REPORTED FOR DUTY AT THE NEW STATION. YOU POINT OUT THAT YOUR CHANGE OF STATION TRAVEL ORDER AS ISSUED BY ADMINISTRATIVE OFFICIALS INCLUDED THE NAMES AND BIRTH DATES OF YOUR THREE SONS AS DEPENDENTS ALTHOUGH TWO OF THEM WERE MORE THAN 21 YEARS OF AGE AT THAT TIME.

B-170774, DEC. 7, 1970

TRANSFERS - CHANGE OF STATION - TRAVEL EXPENSES SUSTAINING PRIOR DECISION DISALLOWING TRAVEL EXPENSES FOR TWO OF CLAIMANT'S SONS OVER 21 YEARS OF AGE IN CONNECTION WITH A CHANGE OF STATION FROM WATERVLIET, N.Y., TO ROCK ISLAND, ILL. ALTHOUGH CLAIMANT'S CHANGE OF STATION TRAVEL ORDERS INCLUDED THE NAMES AND BIRTH DATES OF TWO SONS OVER 21 YEARS, HE MUST BE CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF THE PROVISIONS OF THE DEPT. OF DEFENSE JOINT TRAVEL REGULATIONS WHICH STATES THAT AN EMPLOYEE'S CHILD WHO HAS REACHED AGE 21 AND IS PHYSICALLY AND MENTALLY CAPABLE OF SELF SUPPORT IS NOT A DEPENDENT FOR PURPOSES OF TRANSPORTATION AT GOVERNMENT EXPENSE AND THE ADMINISTRATIVE ERROR IN THE TRAVEL ORDER AND THE EXCESS OF ADVANCE OF TRAVEL FUNDS DO NOT FALL UNDER THE WAIVER AUTHORITY OF PUBLIC LAW 90-616 AND THEREFORE THE PRIOR DECISION DISALLOWING THE EXPENSES MUST BE SUSTAINED.

TO MR. ROBERT A. PETELL:

YOUR LETTER OF AUGUST 10, 1970, REQUESTS REVIEW OF THAT PORTION OF OUR SETTLEMENT DATED JULY 30, 1970, WHICH DISALLOWED YOUR CLAIM FOR TRAVELING EXPENSES OF TWO OF YOUR SONS IN CONNECTION WITH YOUR CHANGE OF STATION FROM WATERVLIET, NEW YORK, TO ROCK ISLAND, ILLINOIS, UNDER TRAVEL ORDER NO. 6706 DATED NOVEMBER 26, 1968. THE DISALLOWANCE WAS PREDICATED ON THE FACT THAT TWO OF YOUR SONS WERE OVER 21 YEARS OF AGE AT THE TIME YOU REPORTED FOR DUTY AT THE NEW STATION.

YOU POINT OUT THAT YOUR CHANGE OF STATION TRAVEL ORDER AS ISSUED BY ADMINISTRATIVE OFFICIALS INCLUDED THE NAMES AND BIRTH DATES OF YOUR THREE SONS AS DEPENDENTS ALTHOUGH TWO OF THEM WERE MORE THAN 21 YEARS OF AGE AT THAT TIME. THEREFORE, YOU BELIEVE YOU SHOULD NOT BE HELD LIABLE FOR THE ERROR IN THE ORDER AUTHORIZING THEIR TRAVEL AT GOVERNMENT EXPENSE.

WE HAVE CAREFULLY CONSIDERED THE OPINION EXPRESSED BY YOU CONCERNING THE ADMINISTRATIVE ERROR IN THE TRAVEL ORDER AND THE EXCESSIVE ADVANCE OF TRAVEL FUNDS. HOWEVER, NEITHER OF SUCH ADMINISTRATIVE ERRORS FALLS UNDER THE WAIVER AUTHORITY CONTAINED IN PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584.

THE ADVANCES OF TRAVEL FUNDS RECEIVED BY YOU UNDER 5 U.S.C. 5705, 5724(F) DO NOT COME WITHIN THE DEFINITION OF "PAY" AS CONTAINED IN SECTION 91.2(B) OF THE STANDARDS IMPLEMENTING PUBLIC LAW 90-616, PUBLISHED IN TITLE 4, CHAPTER I OF THE CODE OF FEDERAL REGULATIONS, REVISED JANUARY 1, 1970. THAT RESPECT, SEE THE ENCLOSED COPY OF OUR DECISION OF MAY 27, 1970, B- 168655.

WITH RESPECT TO YOUR STATEMENT THAT YOU HAD NO PRIOR KNOWLEDGE, GUIDANCE, OR AWARENESS OF THE AGE RESTRICTION, YOUR TRAVEL ORDER CONTAINED REFERENCES TO "JTR", THAT IS THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS. VOLUME 2 THEREOF APPLIES TO CIVILIAN EMPLOYEES. SECTION C 1100 EXPLAINS THE MEANING OF THE TERM "DEPENDENT" AS MEMBERS OF AN EMPLOYEE'S IMMEDIATE FAMILY AS DEFINED IN SECTION 1.2D, BUREAU OF THE GOVERNMENT EXPENSE. BUDGET CIRCULAR NO. A-56, REVISED (1966). BOTH OF THOSE SECTIONS SPECIFY THAT AN EMPLOYEE'S CHILD WHO HAS REACHED AGE 21 AND IS PHYSICALLY AND MENTALLY CAPABLE OF SELF-SUPPORT ON OR BEFORE THE DATE THAT OTHERWISE AUTHORIZED TRAVEL BEGINS IS NOT A DEPENDENT FOR PURPOSES OF TRANSPORTATION AT GOVERNMENT EXPENSE.

WE RECOGNIZE THAT ITEMS SPECIFIED IN TRAVEL ORDERS GENERALLY MAY BE CONSIDERED TO HAVE BEEN AUTHORIZED BY COMPETENT AUTHORITY; NEVERTHELESS, AN EMPLOYEE INCURRING EXPENSES OF TRAVEL FOR PURPOSES OF THE GOVERNMENT IS CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF THE APPLICABLE LAW AND REGULATIONS REGARDLESS OF HIS LACK OF ACTUAL KNOWLEDGE THEREOF. IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT BOUND BY UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. FEDERAL CROP INSURANCE CORP. V MERRILL, ET AL., 332 U.S. 380, 385 (1947); IN RE HOOPER'S ESTATE, 359 F. 2D 569, 577 (1966).

THEREFORE, THE SETTLEMENT ACTION OF JULY 30, 1970, DISALLOWING THE EXPENSES IN QUESTION IS SUSTAINED.