B-171996, MAY 13, 1971

B-171996: May 13, 1971

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ALTHOUGH CLAIMANT WAS NOT INFORMED THAT TRAVEL TIME IN EXCESS OF THAT REQUIRED FOR COMMON CARRIER TRANSPORTATION COULD NOT BE AUTHORIZED. SINCE THE POINTS BETWEEN WHICH THE TRAVEL WAS PERFORMED WERE ADEQUATELY SERVED BY COMMON CARRIER AND AS NO DUTY WAS DIRECTED EN ROUTE REQUIRING THE USE OF A PRIVATELY OWNED VEHICLE THERE IS NO PROPER BASIS FOR A DETERMINATION THAT THE USE OF SUCH TRANSPORTATION WOULD HAVE BEEN MORE ADVANTAGEOUS TO THE GOVERNMENT. REIMBURSEMENT OF TRAVEL EXPENSES ABOVE THE AMOUNT ALLOWED HAD MEMBER TRAVELED BY COMMON CARRIER IS NOT PERMITTED. USMC: FURTHER REFERENCE IS MADE TO YOUR CLAIM. WHICH WAS FORWARDED HERE THROUGH MILITARY CHANNELS ON JANUARY 6. YOU WERE DIRECTED TO PROCEED TO CAMP LEJEUNE.

B-171996, MAY 13, 1971

MILITARY PERSONNEL - TRAVEL ALLOWANCES - MODE OF TRANSPORTATION DENYING CLAIM OF CAPT. RALPH A. MILTON FOR CREDIT FOR ADDITIONAL TRAVEL TIME FOR TRAVEL FROM CAMP PENDLETON, CALIF., TO CAMP LEJEUNE, NORTH CAROLINA, INCIDENT TO TEMPORARY ADDITIONAL DUTY. ALTHOUGH CLAIMANT WAS NOT INFORMED THAT TRAVEL TIME IN EXCESS OF THAT REQUIRED FOR COMMON CARRIER TRANSPORTATION COULD NOT BE AUTHORIZED, ANY MISTAKE OR FAILURE OF GOVERNMENT PERSONNEL TO FURNISH PROPER INFORMATION DOES NOT FURNISH A LEGAL BASIS TO ALLOW CLAIM. SINCE THE POINTS BETWEEN WHICH THE TRAVEL WAS PERFORMED WERE ADEQUATELY SERVED BY COMMON CARRIER AND AS NO DUTY WAS DIRECTED EN ROUTE REQUIRING THE USE OF A PRIVATELY OWNED VEHICLE THERE IS NO PROPER BASIS FOR A DETERMINATION THAT THE USE OF SUCH TRANSPORTATION WOULD HAVE BEEN MORE ADVANTAGEOUS TO THE GOVERNMENT. THEREFORE, REIMBURSEMENT OF TRAVEL EXPENSES ABOVE THE AMOUNT ALLOWED HAD MEMBER TRAVELED BY COMMON CARRIER IS NOT PERMITTED.

TO CAPTAIN RALPH A. MILTON, USMC:

FURTHER REFERENCE IS MADE TO YOUR CLAIM, WHICH WAS FORWARDED HERE THROUGH MILITARY CHANNELS ON JANUARY 6, 1971, THAT YOU BE CREDITED WITH ADDITIONAL TRAVEL TIME INCIDENT TO TEMPORARY ADDITIONAL DUTY AT CAMP LEJEUNE, NORTH CAROLINA.

BY ORDERS OF THE COMMANDING GENERAL, 5TH MARINE DIVISION (REINFORCED), FLEET MARINE FORCE, CAMP PENDLETON, CALIFORNIA 92055, DATED JUNE 20, 1969, YOU WERE DIRECTED TO PROCEED TO CAMP LEJEUNE, NORTH CAROLINA, ON OR ABOUT JULY 8, 1969, AND REPORT THERE BY AUGUST 5, 1969, FOR TEMPORARY ADDITIONAL DUTY TO ATTEND THE MOTOR TRANSPORT OFFICER COURSE FOR A PERIOD OF THIRTEEN WEEKS. UPON COMPLETION OF THE COURSE YOU WERE TO RETURN TO YOUR ORIGINAL STATION. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED. ADDITION, YOU WERE AUTHORIZED 20 DAYS DELAY TO BE CHARGED AS LEAVE EN ROUTE TO CAMP LEJEUNE.

MEMORANDUM ENDORSEMENT DATED OCTOBER 15, 1969, OF THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP LEJEUNE, INDICATES THAT YOUR DUTY THERE WOULD BE COMPLETED ON NOVEMBER 5, 1969, AND YOU WERE ORDERED TO REPORT TO YOUR PARENT ORGANIZATION NO LATER THAN ON NOVEMBER 14, 1969. YOU WERE AUTHORIZED 8 DAYS' DELAY IN REPORTING, CHARGEABLE AS LEAVE, AND ONE DAY'S TRAVEL VIA PRIVATELY OWNED CONVEYANCE, WITH ALL TRAVEL TIME IN EXCESS OF THAT AUTHORIZED FOR AIR TRAVEL, TO BE CHARGED AS LEAVE.

THE RECORD BEFORE US SHOWS THAT YOU DEPARTED FROM CAMP PENDLETON ON JULY 8, 1969, AND ARRIVED AT CAMP LEJEUNE ON AUGUST 4, 1969. AFTER COMPLETION OF YOUR COURSE OF INSTRUCTION THERE, YOU LEFT CAMP LEJEUNE ON NOVEMBER 5, 1969, AND ARRIVED AT CAMP PENDLETON ON NOVEMBER 9, 1969.

AFTER YOUR RETURN TO CAMP PENDLETON, MEMORANDUM DATED NOVEMBER 20, 1969, WAS ISSUED BY THE COMMANDING GENERAL, 5TH MARINE DIVISION. IT PROVIDES THAT PARAGRAPH 4 OF YOUR ORIGINAL ORDERS WHICH AUTHORIZED TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS THEREBY DELETED AND IN LIEU THEREOF THERE WAS SUBSTITUTED THE STATEMENT THAT "TRAVEL VIA PRIVATELY OWNED CONVEYANCE IS AUTHORIZED AND SUCH MODE IS CONSIDERED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT."

TRAVEL ADVANCES TOTALING $576.15 WERE PAID TO YOU. HOWEVER, BECAUSE OF DOUBT REGARDING YOUR ENTITLEMENT TO TRAVEL ALLOWANCES, THIS AMOUNT WAS ENTERED AS A CHECK AGE IN YOUR ACCOUNT AND YOUR CLAIM WAS FORWARDED TO THIS OFFICE. TOTAL PAYMENT OF $606.30 WAS AUTHORIZED BY OUR CLAIMS DIVISION SETTLEMENT OF MAY 26, 1970, WHICH INCLUDED A MONETARY ALLOWANCE OF $0.05 PER MILE AND INCLUDED PER DIEM FOR ONE DAY'S TRAVEL FROM YOUR PERMANENT DUTY STATION TO CAMP LEJEUNE AND 3/4 DAY'S PER DIEM FOR YOUR RETURN TRAVEL. IN EXPLANATION IT WAS STATED THAT THE RETROACTIVE AMENDMENT OF THE ORIGINAL TRAVEL ORDERS COULD NOT OPERATE TO INCREASE THE MONETARY ALLOWANCE TO $0.07 PER MILE SINCE THERE WAS NO OBVIOUS ERROR EVIDENT IN THE ORIGINAL ORDERS, NOR DID IT APPEAR THAT IT WAS, IN FACT, ADVANTAGEOUS TO THE GOVERNMENT TO HAVE YOU UTILIZE A PRIVATELY OWNED VEHICLE.

BY ENDORSEMENT OF FEBRUARY 18, 1970, TO THE LETTER TRANSMITTING YOUR ORIGINAL CLAIM TO THIS OFFICE, THE COMMANDING GENERAL OF THE 5TH MARINE EXPEDITIONARY BRIGADE, FLEET MARINE FORCE, REPORTED AS FOLLOWS:

"THE TRAVEL ORDERS ORIGINALLY PREPARED AND ISSUED IN THE CASE OF CAPTAIN MILTON WERE DONE SO ERRONEOUSLY AS STATED HEREIN; IT WAS THE INTENTION OF THIS COMMAND TO AUTHORIZE TRAVEL VIA PRIVATELY OWNED CONVEYANCE SUBJECT TO REIMBURSEMENT FOR TRANSPORTATION. TRAVEL TIME NOT CHARGEABLE AS ANNUAL LEAVE, AND NO ADDITIONAL PER-DIEM EXPENSES TO THE GOVERNMENT. HOWEVER, IN ACCORDANCE WITH EXISTING INSTRUCTIONS IT IS REALIZED THAT CAPTAIN MILTON WAS ERRONEOUSLY ADVISED THAT TRAVEL TIME WOULD NOT BE CHARGEABLE AS ANNUAL LEAVE AND THEREFORE IN GOOD FAITH DID ACCEPT THE ORDERS AS ISSUED."

BY LETTER OF DECEMBER 28, 1970, ALSO FROM THE COMMANDING GENERAL OF THE 5TH MARINE EXPEDITIONARY BRIGADE, FLEET MARINE FORCE, WE WERE FURTHER ADVISED THAT WHEN YOUR ORIGINAL ORDERS WERE WRITTEN IT WAS THE INTENT OF THAT COMMAND TO AUTHORIZE EIGHT DAYS TRAVEL TO YOUR TEMPORARY DUTY STATION AND EIGHT DAYS TRAVEL IN RETURNING TO YOUR PARENT DUTY STATION.

IN YOUR STATEMENT OF OCTOBER 29, 1970, YOU SAY THAT YOU QUESTIONED THE ORDERS YOU ORIGINALLY RECEIVED AND THAT YOU WERE INFORMED BY THE ORDER- WRITING AUTHORITY THAT YOU WOULD NOT BE CHARGED LEAVE AS IT WAS MORE ADVANTAGEOUS TO THE GOVERNMENT FOR YOU TO TRAVEL BY PRIVATELY OWNED VEHICLE.

PARAGRAPH M4203-3 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 404(A), PROVIDES THAT WHEN AUTHORIZED TRAVEL IS PERFORMED AT PERSONAL EXPENSE, THE MEMBER WILL BE REIMBURSED AT THE RATE OF $0.05 PER MILE FOR THE OFFICIAL DISTANCE. WHERE THE MEMBER IS PERFORMING OFFICIAL TRAVEL, THE PRESCRIBED RATE IS $0.07 PER MILE FOR THE OFFICIAL DISTANCE, PROVIDED CERTAIN REQUIREMENTS ARE MET, INCLUDING THAT THE TRAVEL ORDERS AUTHORIZE TRAVEL BY PRIVATELY OWNED VEHICLE AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT. THE PARAGRAPH FURTHER PROVIDES AS FOLLOWS:

"B. TRAVEL BY PRIVATELY OWNED CONVEYANCE

(1) POLICY. IT IS THE POLICY OF THE UNIFORMED SERVICES TO 'AUTHORIZE' (AS DISTINGUISHED FROM 'PERMIT') MEMBERS TO TRAVEL BY PRIVATELY OWNED CONVEYANCE WHENEVER SUCH MODE OF TRANSPORTATION IS ACCEPTABLE TO THE MEMBER AND IS DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. THIS DETERMINATION SHOULD BE BASED ON THE FACTS IN EACH INDIVIDUAL CASE AND AUTHORIZATION SHOULD NOT BE GRANTED UNLESS THE ORDER-ISSUING AUTHORITY IS CONVINCED THAT SUCH MODE OF TRAVEL IS CLEARLY MORE ADVANTAGEOUS TO THE GOVERNMENT THAN TRAVEL BY GOVERNMENT CONVEYANCE OR PUBLIC CARRIER. THE ADVANTAGE GAINED BY THE GOVERNMENT MAY BE, FOR EXAMPLE, A MORE EFFICIENT, ECONOMICAL, OR EXPEDITIOUS ACCOMPLISHMENT OF GOVERNMENT BUSINESS, SHORT TRIPS OVER ROUTES WHERE COMMERCIAL TRANSPORTATION IS NONEXISTENT OR WOULD BE SO TIME-CONSUMING AS TO UNDULY DELAY PUBLIC BUSINESS." PARAGRAPH M4204 PROVIDES AS FOLLOWS:

"5. TRAVEL BY PRIVATELY OWNED CONVEYANCE. WHEN TRAVEL ORDERS SPECIFICALLY STATE THAT TRAVEL BY PRIVATELY OWNED CONVEYANCE IS MORE ADVANTAGEOUS TO THE GOVERNMENT, PER DIEM ALLOWANCES ARE PAYABLE FOR THE ACTUAL TIME NECESSARY TO PERFORM THE DIRECTED TRAVEL. WHEN TRAVEL ORDERS DO NOT CONTAIN SUCH STATEMENT, IT WILL BE CONSIDERED THAT TRAVEL BY PRIVATELY OWNED CONVEYANCE IS FOR THE CONVENIENCE OF THE MEMBER. THE RATE OF PER DIEM APPLICABLE AND THE PERIOD FOR WHICH PER DIEM IS PAYABLE FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE SHALL BE AT THE RATE APPLICABLE TO SUCH MODE FOR THE TIME ACTUALLY CONSUMED, THE TOTAL PER DIEM PAYABLE NOT TO EXCEED THAT PAYABLE FOR CONSTRUCTIVE TRAVEL OVER A USUALLY TRAVELED ROUTE BY AIR OR SURFACE COMMON CARRIER, WHICHEVER MORE NEARLY MEETS THE REQUIREMENTS OF THE ORDERS AND IS MORE ECONOMICAL TO THE GOVERNMENT."

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR WHEN THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944).

WHEN TRAVEL BY PRIVATE VEHICLE INCIDENT TO TEMPORARY ADDITIONAL DUTY IS AUTHORIZED ON THE BASIS OF A FACTUAL DETERMINATION THAT IT WILL BE MORE ADVANTAGEOUS TO THE GOVERNMENT, THE MEMBER IS REGARDED AS PERFORMING TEMPORARY DUTY FOR THE ACTUAL TIME NECESSARY TO PERFORM THE TRAVEL, AND NO LEAVE IS CHARGEABLE FOR THIS PERIOD. PER DIEM IS PAYABLE FOR THE ENTIRE TIME OF TRAVEL, AND THE MEMBER IS ENTITLED TO A TRAVEL ALLOWANCE OF $0.07 PER MILE FOR THE OFFICIAL DISTANCE. IF THE TRAVEL BY PRIVATELY OWNED CONVEYANCE IS NOT AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT, HOWEVER, TRAVEL BY THAT MODE IS CONSIDERED TO BE FOR THE CONVENIENCE OF THE MEMBER. HE IS THEN CONSIDERED TO BE IN PERFORMANCE OF DUTY ONLY FOR THE CONSTRUCTIVE TRAVEL TIME BY COMMON CARRIER, AND HE IS CHARGEABLE WITH LEAVE FOR THE REMAINDER OF THE ACTUAL TIME USED IN TRAVEL. PER DIEM IS NECESSARILY LIMITED TO THE CONSTRUCTIVE TRAVEL TIME. IN THESE CIRCUMSTANCES THE TRAVEL ALLOWANCE AUTHORIZED IS $0.05 PER MILE FOR THE OFFICIAL DISTANCE.

YOUR ORDERS AUTHORIZED THE USE OF A PRIVATELY OWNED CONVEYANCE AND PROVIDED THAT YOU WERE TO DEPART YOUR STATION ON OR ABOUT JULY 8, 1969, AND REPORT TO CAMP LEJEUNE BY AUGUST 5, 1969, 29 DAYS LATER. AS A 20 DAY DELAY EN ROUTE WAS AUTHORIZED, THE ORDERS INDICATE THE INTENTION TO ALLOW THE REMAINING 9 DAYS AS TRAVEL TIME FOR WHICH NO LEAVE WOULD BE CHARGED.

THE OFFICIAL STATEMENTS BEFORE US INDICATE THE ORIGINAL INTENTION WAS TO GRANT ONLY ADDITIONAL TRAVEL TIME FOR TRAVEL BY PRIVATE CONVEYANCE, AND NOT THE INCREASED ALLOWANCES AUTHORIZED FOR TRAVEL BY PRIVATELY OWNED VEHICLE WHICH HAS BEEN DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. THE ADMINISTRATIVE STATEMENTS DO NOT SAY THAT THERE WAS AN ADMINISTRATIVE DETERMINATION THAT TRAVEL BY PRIVATELY OWNED VEHICLE WAS MORE ADVANTAGEOUS TO THE GOVERNMENT NOR THAT A STATEMENT TO THIS EFFECT WAS ERRONEOUSLY OMITTED FROM YOUR ORDERS.

SINCE THE POINTS BETWEEN WHICH THE TRAVEL WAS PERFORMED WERE ADEQUATELY SERVED BY COMMON CARRIER AND AS NO DUTY WAS DIRECTED EN ROUTE REQUIRING THE USE OF A PRIVATELY OWNED VEHICLE, IT SEEMS CLEAR THAT THERE WOULD HAVE BEEN NO PROPER BASIS FOR A DETERMINATION THAT THE USE OF SUCH TRANSPORTATION WOULD HAVE BEEN MORE ADVANTAGEOUS TO THE GOVERNMENT.

THE ORDER-ISSUING AUTHORITY HAS SAID WITH RESPECT TO YOUR ORDER THAT IT LATER REALIZED THAT ADDITIONAL TRAVEL TIME COULD NOT BE GRANTED IN THE CIRCUMSTANCES. HOWEVER, WHILE THERE WAS AN ERRONEOUS BELIEF THAT ADDITIONAL TRAVEL TIME COULD BE GRANTED BY MEANS OF THE ORIGINAL TRAVEL ORDER AS WRITTEN, THE ORDER ITSELF APPEARS TO HAVE ACCURATELY REFLECTED THE OFFICIAL INTENTION AT THAT TIME TO AUTHORIZE TRAVEL BY PRIVATELY OWNED CONVEYANCE FOR YOUR CONVENIENCE.

AS EVIDENCE OF RECORD DOES NOT INDICATE THAT IT WAS THE INTENTION OF THE ORDER-ISSUING AUTHORITY TO CONSIDER YOUR TRAVEL BY PRIVATE VEHICLE AS MORE ADVANTAGEOUS TO THE GOVERNMENT, AND THAT A STATEMENT TO THAT EFFECT WAS OMITTED IN THE ORIGINAL TRAVEL ORDERS THROUGH INADVERTANCE OR ERROR, WE MUST CONSIDER THE MEMORANDUM ENDORSEMENT ISSUED AFTER THE COMPLETION OF TRAVEL AS AN ATTEMPT TO RETROACTIVELY MODIFY THE ORIGINAL ORDERS, AND TO BE WITHOUT EFFECT. SEE DECISION B-150276, DECEMBER 20, 1962, COPY ENCLOSED.

IT IS UNFORTUNATE THAT YOU WERE NOT INFORMED THAT TRAVEL TIME IN EXCESS OF THAT REQUIRED FOR COMMON CARRIER TRANSPORTATION COULD NOT VALIDLY BE AUTHORIZED TO YOU IN THE CIRCUMSTANCES. HOWEVER, WHERE THERE IS NO ENTITLEMENT UNDER THE LAW AND REGULATIONS, ANY MISTAKE, OR FAILURE OF GOVERNMENT PERSONNEL TO FURNISH PROPER ADVICE OR INFORMATION, DOES NOT, IN OUR OPINION, FURNISH A LEGAL BASIS TO ALLOW A CLAIM.

CONSEQUENTLY, AS YOU ARE NOT ENTITLED TO ADDITIONAL TRAVEL TIME INCIDENT TO YOUR TEMPORARY ADDITIONAL DUTY AT CAMP LEJEUNE NOR TO ADDITIONAL TRAVEL ALLOWANCE OR PER DIEM, THE SETTLEMENT OF MAY 26, 1970, IS SUSTAINED.