B-170827, OCT. 12, 1970

B-170827, OCT. 12, 1970

MILITARY - TRAVEL ALLOWANCE AWARD TO MEMBER OF U.S. NAVAL RESERVE FOR EXPENSES INCURRED IN TRAVELING FROM ORANGE, TEXAS, TO HIS COURT-MARTIAL AT CORPUS CHRISTI, TEXAS. TRAVEL ALLOWANCE AND PER DIEM FOR A MEMBER OF A UNIFORMED SERVICE INCURRED IN ORDER TO APPEAR AT HIS COURT-MARTIAL MAY BE PAID ON THE SAME BASIS AS IF HE WERE A PRISONER UNDER GUARD BUT NOT ON THE BASIS OF HIS BEING A SERVICEMAN ON OFFICIAL BUSINESS, WHO MUST TRAVEL TO PERFORM A MILITARY DUTY.

TO STOREKEEPER SEAMAN DENNIS G. SHARP:

ON AUGUST 20, 1970, THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., FORWARDED TO THIS OFFICE FOR APPROPRIATE ACTION YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO TRAVEL PERFORMED BY YOU ON JANUARY 8 AND 9, 1970, FROM ORANGE, TEXAS, TO CORPUS CHRISTI, TEXAS, AND FOR PER DIEM WHILE AT CORPUS CHRISTI DURING THE PERIOD JANUARY 9 TO APRIL 23, 1970, AS A MEMBER OF THE UNITED STATES NAVAL RESERVE.

BY STANDARD TRANSFER ORDER NO. 3-70, DATED JANUARY 7, 1970, OF THE U.S.S. INDRA (ARL-37) AT ORANGE, TEXAS, YOU AND ANOTHER ENLISTED MAN WERE DIRECTED TO REPORT ON JANUARY 9, 1970, TO THE COMMANDING OFFICER, LAW CENTER, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, FOR TEMPORARY ADDITIONAL DUTY FOR DISCIPLINARY ACTION. WHILE YOU WERE AT CORPUS CHRISTI YOU WERE TRIED BEFORE A GENERAL COURT-MARTIAL ON CHARGES OF VIOLATING ARTICLES 81 AND 121 OF THE UNIFORM CODE OF MILITARY JUSTICE. YOU WERE FOUND GUILTY AS CHARGED AND SENTENCED TO BE REDUCED FROM PAY GRADE E-5 (STOREKEEPER SECOND CLASS) TO PAY GRADE E-1, BUT THE CONVENING AUTHORITY IN APPROVING THE SENTENCE ON MARCH 27, 1970, MODIFIED THE REDUCTION IN GRADE TO E-3 (STOREKEEPER SEAMAN). EFFECTIVE MAY 1, 1970, YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO INACTIVE DUTY, UNITED STATES NAVAL RESERVE.

ON APRIL 10, 1970, YOU EXECUTED A CLAIM VOUCHER FOR THE COST OF TRAVEL FROM ORANGE TO CORPUS CHRISTI, SHOWING THAT SUCH TRAVEL WAS ACCOMPLISHED BY COMMERCIAL BUS ON JANUARY 8 AND 9, 1970, AND FOR PER DIEM FOR THE PERIOD YOU WERE AT CORPUS CHRISTI AWAITING PROCEEDINGS IN YOUR CASE. THE RECORD SHOWS THAT YOU WERE FURNISHED GOVERNMENT MEALS AND QUARTERS DURING THAT PERIOD.

SECTION 404(A)(1) OF TITLE 37 OF THE U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS, UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS IMPLEMENTING THAT LAW 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. PARAGRAPH M6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.

UNDER THE ABOVE LAW AND REGULATIONS A MEMBER'S ENTITLEMENT TO TRAVEL AND PER DIEM FOR A PERIOD HE IS AWAY FROM HIS PERMANENT DUTY STATION IS DEPENDENT UPON A DETERMINATION THAT DURING SUCH PERIOD HE WAS PERFORMING PUBLIC BUSINESS PURSUANT TO COMPETENT ORDERS. IN OTHER WORDS, THE TRAVEL AND DUTY PERFORMED BY THE MEMBER MUST BE ON PUBLIC BUSINESS SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. PERRIMOND V UNITED STATES, 19 CT. CL. 509 (1884); DAY V UNITED STATES, 123 CT. CL. 10 (1952); AND 30 COMP. GEN. 226 (1950).

IN CONSTRUING THE TERM "PUBLIC BUSINESS" WE HAVE HELD THAT IT RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 33 COMP. GEN. 196 (1953); B-147040, OCTOBER 10, 1961; AND B 149746, OCTOBER 12, 1962.

UNDER THE PROVISIONS OF PARAGRAPH M3002-2A TEMPORARY DUTY IS DEFINED AS "DUTY" AT ONE OR MORE LOCATIONS, OTHER THAN THE PERMANENT STATION, AT WHICH A MEMBER "PERFORMS DUTY" UNDER ORDERS IN CERTAIN SITUATIONS. IF THE ORDERS DO NOT REQUIRE THE PERFORMANCE OF DUTY THEY ARE NOT ORDERS WHICH REQUIRE THE CONDUCT OF OFFICIAL BUSINESS AND AFFORD NO ENTITLEMENT TO TRAVEL ALLOWANCES PRESCRIBED FOR TRAVEL AND TEMPORARY DUTY. THE ORDERS OF JANUARY 7, 1970, DID NOT DIRECT OR CONTEMPLATE THE PERFORMANCE OF MILITARY DUTY AT CORPUS CHRISTI BUT WERE ISSUED FOR THE PURPOSE OF YOUR APPEARANCE IN COURT-MARTIAL PROCEEDINGS AGAINST YOU. THEREFORE, THERE IS NO LEGAL BASIS FOR PAYMENT TO YOU OF TEMPORARY DUTY TRAVEL ALLOWANCES FOR TRAVEL FROM ORANGE TO CORPUS CHRISTI OR PER DIEM WHILE AT CORPUS CHRISTI.

PARAGRAPH M5100 OF THE JOINT TRAVEL REGULATIONS PROVIDES, HOWEVER, THAT WHEN IT IS NECESSARY TO MOVE PRISONERS UNDER GUARD OVER PUBLIC TRANSPORTATION, TRANSPORTATION REQUESTS WILL BE ISSUED AND IF COOKED MEALS AND/OR BOX LUNCHES ARE NOT PROVIDED, MEAL TICKETS IN SUFFICIENT QUANTITY WILL BE ISSUED TO COVER THE TRAVEL. PARAGRAPH 5100 OF NAVY TRAVEL INSTRUCTIONS PROVIDES THAT COMMERCIAL BUS MAY BE USED FOR SUCH TRAVEL.

SINCE YOU DID NOT TRAVEL TO CORPUS CHRISTI UNDER GUARD, IT IS NOT CLEAR THAT YOU WERE A PRISONER FOR THE PURPOSE OF PARAGRAPH M5100 OF THE REGULATIONS. SINCE, HOWEVER, YOU WERE DIRECTED TO PERFORM THE TRAVEL FOR THE PURPOSE OF TRIAL BY COURT-MARTIAL WE SEE NO REASON WHY THE FACT THAT YOU WERE NOT MOVED UNDER GUARD SHOULD OPERATE TO DENY YOU THE ALLOWANCE WHICH WOULD HAVE BEEN AUTHORIZED BUT FOR THAT FACT. ACCORDINGLY, IT IS CONCLUDED THAT YOU ARE ENTITLED TO BE REIMBURSED FOR THE COST OF NECESSARY TRANSPORTATION AND MEAL TICKETS. 44 COMP. GEN. 80 (1964).

OFFICIAL SCHEDULES ON FILE IN THIS OFFICE SHOW THAT THE BUS FARE FROM ORANGE TO CORPUS CHRISTI IS $14.20, AND THAT A BUS DEPARTING ORANGE AT 7:05 A.M., ON JANUARY 8, 1970, WOULD HAVE REACHED CORPUS CHRISTI AT 4:50 P.M., THE SAME DAY. SINCE YOU TRAVELED BY BUS YOU ARE ENTITLED TO REIMBURSEMENT IN THAT AMOUNT. ALSO, SINCE UNDER PARAGRAPH M2052-3 OF THE JOINT TRAVEL REGULATIONS, THE VALUE OF MEAL TICKETS FOR TRAVEL BY BUS IS $2.00 FOR THE MORNING MEAL AND $2.50 FOR THE NOON MEAL YOU ARE ENTITLED TO THE ADDITIONAL AMOUNT OF $4.50 FOR MEALS OR A TOTAL OF $18.70. SETTLEMENT IN THAT AMOUNT WILL ISSUE IN YOUR FAVOR IN DUE COURSE.

COPIES OF THIS DECISION ARE BEING FURNISHED TO THE HONORABLE MARK O. HATFIELD AND THE HONORABLE ROBERT W. PACKWOOD, UNITED STATES SENATE, WHO HAVE INQUIRED RELATIVE TO THIS MATTER.