B-172848, JUL 27, 1971

B-172848: Jul 27, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SINCE THE TRAVEL WAS PERFORMED FOR THE CONVENIENCE OF THE MEMBER. THERE IS NO AUTHORITY FOR THE PAYMENT OF SUCH TRAVEL EXPENSES. ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24. YOU WERE REASSIGNED ON PERMANENT CHANGE OF STATION FROM FORT ORD. YOU WERE DETAILED TO THE JUDGE ADVOCATE GENERAL'S CORPS AT THAT HEADQUARTERS EFFECTIVE AUGUST 26. THEY PROVIDED FURTHER THAT EXCEPT WHEN YOU WERE PERFORMING DUTY PURSUANT TO PARAGRAPH 6A OF THE REGULATION CITED. YOU WERE GRANTED EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR A PERIOD OF APPROXIMATELY 3-1/2 YEARS FOR THE PURPOSE OF OBTAINING A DEGREE IN LAW AT EMORY UNIVERSITY LAW SCHOOL. THE ORDERS DIRECTED FURTHER THAT WHEN THE SCHOOL WAS NOT IN SESSION.

B-172848, JUL 27, 1971

TRAVEL ALLOWANCE - PERMISSIVE ASSIGNMENT REAFFIRMING DISALLOWANCE BY CLAIMS DIVISION OF CLAIM BY JAMES D. HARMON, JR., FOR TRAVEL FOR HIMSELF AND DEPENDENTS, REIMBURSEMENT OF EXPENSES INCURRED IN SHIPPING HOUSEHOLD GOODS, AND A DISLOCATION ALLOWANCE IN CONNECTION WITH A TRANSFER FROM FORT MCPHERSON, GEORGIA, TO CARLISLE BARRACKS, PENNSYLVANIA PURSUANT TO MEMBER'S REQUEST. SINCE THE TRAVEL WAS PERFORMED FOR THE CONVENIENCE OF THE MEMBER, RATHER THAN ON PUBLIC BUSINESS, THERE IS NO AUTHORITY FOR THE PAYMENT OF SUCH TRAVEL EXPENSES. FURTHER, A DISLOCATION ALLOWANCE MAY NOT BE PAID SINCE THE ORDERS DID NOT AUTHORIZE THE MOVEMENT OF DEPENDENTS.

TO CAPTAIN JAMES D. HARMON, JR., U.S. ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1971, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION, DATED AUGUST 21, 1970, WHICH DISALLOWED YOUR CLAIM FOR MONETARY ALLOWANCE FOR YOUR TRAVEL AND THAT OF YOUR DEPENDENTS, REIMBURSEMENT OF EXPENSES INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS AND A DISLOCATION ALLOWANCE IN CONNECTION WITH YOUR TRANSFER FROM FORT MCPHERSON, GEORGIA, TO CARLISLE BARRACKS, PENNSYLVANIA, IN AUGUST 1969.

BY PARAGRAPH 121, SPECIAL ORDER NO. 152, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED AUGUST 5, 1968, YOU WERE REASSIGNED ON PERMANENT CHANGE OF STATION FROM FORT ORD, CALIFORNIA, TO HEADQUARTERS, 3D UNITED STATES ARMY, FORT MCPHERSON, GEORGIA. SPECIAL INSTRUCTIONS PROVIDED THAT UNDER THE PROVISIONS OF ARMY REGULATION 601-114, YOU WERE DETAILED TO THE JUDGE ADVOCATE GENERAL'S CORPS AT THAT HEADQUARTERS EFFECTIVE AUGUST 26, 1968. THEY PROVIDED FURTHER THAT EXCEPT WHEN YOU WERE PERFORMING DUTY PURSUANT TO PARAGRAPH 6A OF THE REGULATION CITED, YOU WERE GRANTED EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR A PERIOD OF APPROXIMATELY 3-1/2 YEARS FOR THE PURPOSE OF OBTAINING A DEGREE IN LAW AT EMORY UNIVERSITY LAW SCHOOL, ATLANTA, GEORGIA, AND ADMISSION TO THE BAR.

THE ORDERS AUTHORIZED TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS TO THE ASSIGNED STATION AT GOVERNMENT EXPENSE BUT PROVIDED THAT ALL TRAVEL, SCHOOL EXPENSE AND SHIPMENT OF HOUSEHOLD GOODS RELATED TO THAT COURSE WOULD BE AT NO EXPENSE TO THE GOVERNMENT. THE ORDERS DIRECTED FURTHER THAT WHEN THE SCHOOL WAS NOT IN SESSION, YOU WERE TO REPORT TO YOUR ASSIGNED DUTY STATION FOR DUTY WITH FULL PAY AND ALLOWANCES IN CONNECTION WITH JUDGE ADVOCATE GENERAL ACTIVITIES.

ON JULY 24, 1969, YOUR ORDERS DATED AUGUST 5, 1968, WERE AMENDED BY THE DEPARTMENT OF THE ARMY, TO CHANGE YOUR ASSIGNMENT TO OFFICER STUDENT DETACHMENT, HEADQUARTERS, FIRST UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, WITH STATION AT HEADQUARTERS, UNITED STATES ARMY GARRISON, CARLISLE BARRACKS, PENNSYLVANIA. THE LAW SCHOOL YOU WERE TO ATTEND WAS CHANGED FROM EMORY LAW SCHOOL, ATLANTA, TO DICKINSON SCHOOL OF LAW, CARLISLE, PENNSYLVANIA. THE EFFECTIVE DATE OF STRENGTH ACCOUNTABILITY WAS SHOWN TO BE AUGUST 24, 1969, AND SPECIAL INSTRUCTIONS STATED THAT THE MOVEMENT TO THE NEW ON-THE-JOB TRAINING SITE AND LAW SCHOOL WAS TO BE AT NO EXPENSE TO THE GOVERNMENT.

YOUR CLAIM DATED SEPTEMBER 2, 1969, FOR MONETARY ALLOWANCE FOR YOUR TRAVEL AND THAT OF YOUR DEPENDENTS, REIMBURSEMENT OF EXPENSES INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD GOODS AND A DISLOCATION ALLOWANCE INCIDENT TO YOUR TRANSFER TO CARLISLE BARRACKS, PENNSYLVANIA, IN AUGUST 1969 WAS ADMINISTRATIVELY DENIED.

ON APRIL 23, 1970, YOU SUBMITTED A CLAIM TO OUR CLAIMS DIVISION FOR THE ITEMS PREVIOUSLY CLAIMED. YOU SAID THAT AFTER YOU HAD COMPLETED ONE YEAR OF STUDY AT EMORY LAW SCHOOL YOU REQUESTED THE ARMY TO REASSIGN YOU TO CARLISLE BARRACKS BECAUSE YOU WANTED TO TRANSFER TO DICKINSON LAW SCHOOL FOR FINANCIAL REASONS. THIS RESULTED IN THE ORDERS DATED JULY 24, 1969. YOU SAID THAT ON AUGUST 24, 1969, WHEN YOU MOVED YOUR HOUSEHOLD YOU TRANSFERRED FROM A DUTY STATUS AT FORT MCPHERSON TO A SIMILAR STATUS AT CARLISLE BARRACKS AND YOU DID NOT SIGN OUT FOR EXCESS LEAVE UNTIL SEPTEMBER 3, 1969. IT WAS YOUR CONTENTION THAT THE PERMANENT CHANGE-OF- STATION MOVE WAS NOT CONSIDERED PERMISSIVE IN NATURE BY THE ARMY, SINCE THE ORDERS DID NOT DESIGNATE THE MOVE AS PERMISSIVE.

BY SETTLEMENT DATED AUGUST 21, 1970, YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASONS THEREIN STATED. IN YOUR LETTER DATED FEBRUARY 24, 1971, YOU ADMIT THAT YOUR REQUEST FOR TRANSFER TO CARLISLE BARRACKS WAS A REQUEST FOR A PERMISSIVE REASSIGNMENT. HOWEVER, YOU CONTEND THAT YOU ARE ENTITLED TO PAYMENT BECAUSE THERE IS NO AUTHORITY UNDER PERTINENT STATUTES AND REGULATIONS FOR THE ISSUANCE OF PERMISSIVE PERMANENT CHANGE-OF-STATION REASSIGNMENT ORDERS TO AN ARMY OFFICER.

SECTIONS 404 AND 406 OF TITLE 37, U.S.C. PROVIDE IN PERTINENT PART THAT IN CONNECTION WITH A CHANGE IN PERMANENT STATION, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AND TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 407 OF THAT TITLE PROVIDES FOR PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN HIS DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION.

REGULATIONS PRESCRIBED PURSUANT TO THE STATUTORY PROVISIONS CITED ARE CONTAINED IN THE JOINT TRAVEL REGULATION. PARAGRAPH M3050-1 THEREOF PROVIDES IN PERTINENT PART THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS ONLY WHILE ACTUALLY IN A "TRAVEL STATUS". IT PROVIDES FURTHER THAT SUCH MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS.

PARAGRAPH M6453 OF THE REGULATIONS PROVIDES THAT AN ORDER PERMITTING A MEMBER TO TRAVEL, AS DISTINGUISHED FROM DIRECTING A MEMBER TO TRAVEL, DOES NOT ENTITLE HIM TO EXPENSES OF TRAVEL. PARAGRAPH M6454 PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.

REGULATIONS PERTAINING TO THE JUDGE ADVOCATE GENERAL'S EXCESS LEAVE PROGRAM DURING THE PERIOD UNDER CONSIDERATION ARE CONTAINED IN ARMY REGULATION 601-114, DATED FEBRUARY 16, 1966. THE STATED PURPOSE OF THAT REGULATION IS TO PERMIT A LIMITED NUMBER OF COMMISSIONED OFFICERS OF THE REGULAR ARMY AND DISTINGUISHED MILITARY GRADUATES OF THE ROTC TO ENTER ON EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR A PERIOD OF APPROXIMATELY 3- 1/2 YEARS, FOR THE PURPOSE OF OBTAINING LEGAL EDUCATION WITH A VIEW TO APPOINTMENT IN THE JUDGE ADVOCATE GENERAL'S CORPS (JAGC), REGULAR ARMY, UPON ATTAINMENT OF A LAW DEGREE AND ADMISSION TO THE BAR. DURING THE PERIOD OF LEGAL EDUCATION, THE OFFICERS ARE TO BE DETAILED TO THE JAGC.

THE REGULATION PROVIDES FURTHER THAT REGULAR ARMY COMMISSIONED OFFICERS DESIRING CONSIDERATION UNDER THAT PROGRAM, WILL INITIATE A REQUEST FOR EXCESS LEAVE, WITH DETAIL TO JAGC. ASSIGNMENT WILL BE AS DIRECTED BY HEADQUARTERS, DEPARTMENT OF THE ARMY. THE PERSONNEL WILL PERFORM ON-THE- JOB TRAINING WITH JAGC ACTIVITIES WHEN SCHOOL IS NOT IN SESSION AND THEY WILL BE ASSIGNED TO THE STUDENT DETACHMENT OF A MAJOR COMMAND HEADQUARTERS WITH STATION AT AN ARMY INSTALLATION WITHIN THAT COMMAND THAT IS AS NEAR AS POSSIBLE TO THE LAW SCHOOL OF ATTENDANCE. ALL ASSIGNMENT ORDERS WILL STATE SPECIFICALLY THE PURPOSE OF THE ASSIGNMENT. ALSO, UPON NOTIFICATION THAT THE APPLICANT HAS BEEN TENTATIVELY SELECTED FOR APPOINTMENT IN THE JAGC AND HAS BEEN GRANTED EXCESS LEAVE TO ATTEND LAW SCHOOL, THE MAJOR COMMANDER HAVING JURISDICTION OVER THE APPLICANT WILL ISSUE ASSIGNMENT ORDERS AS DIRECTED BY HEADQUARTERS, DEPARTMENT OF THE ARMY.

IT LONG HAS BEEN THE ESTABLISHED RULE THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL EXPENSES FOR TRAVEL PERFORMED UNDER ORDERS, IF SUCH TRAVEL IS ON PUBLIC BUSINESS. THE CHARACTER OF THE SERVICE PERFORMED IS TO BE DETERMINED FROM THE FACTS IN EACH CASE AND IF FROM THE FACTS OF RECORD IT APPEARS THAT THE TRAVEL WAS PERFORMED FOR THE CONVENIENCE OF THE MEMBER, RATHER THAN ON PUBLIC BUSINESS, THERE IS NO AUTHORITY FOR THE PAYMENT OF SUCH TRAVEL EXPENSES, SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. SEE 9 COMP. GEN. 414; 42 ID. 27; PERRIMOND V UNITED STATES, 19 CT. CL. 509; AND DAY V UNITED STATES, 123 CT. CL. 10, 18.

THE GRANTING OF YOUR REQUEST FOR PERMISSION TO CHANGE YOUR STATION ASSIGNMENT FOR THE PURPOSE OF CHANGING TO ANOTHER LAW SCHOOL UNDER THE EXCESS LEAVE PROGRAM WAS AT THE DISCRETION OF HEADQUARTERS, DEPARTMENT OF THE ARMY, AND WAS FOR YOUR CONVENIENCE AND NOT BECAUSE OF THE NEEDS OF THE ARMY. THE FACT THAT SUCH TRANSFER WAS GRANTED WHILE YOU WERE PERFORMING ON-THE-JOB TRAINING AT FORT MCPHERSON, YOUR ASSIGNED STATION WHEN THE LAW SCHOOL WAS NOT IN SESSION, OR THAT THE TRANSFER EFFECTED A CHANGE IN YOUR ASSIGNED STATION, DOES NOT CHANGE THE CHARACTER OF THE REASSIGNMENT WHICH WAS MADE FOR YOUR CONVENIENCE BECAUSE OF YOUR REQUEST AND NOT FOR THE CONVENIENCE OF THE GOVERNMENT. SEE 43 COMP. GEN. 584, COPY ENCLOSED.

THEREFORE, SINCE THE TRAVEL PERFORMED WAS NOT ON PUBLIC BUSINESS, REIMBURSEMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES YOU INCURRED INCIDENT TO SUCH REASSIGNMENT MAY NOT BE MADE AT GOVERNMENT EXPENSE. FURTHERMORE, A DISLOCATION ALLOWANCE IS NOT PAYABLE SINCE NO MOVE OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE WAS AUTHORIZED IN CONNECTION WITH THE REASSIGNMENT.

ACCORDINGLY, THE DISALLOWANCE DATED AUGUST 21, 1970, WAS CORRECT AND IS SUSTAINED.