B-173064, JUN 30, 1971

B-173064, JUN 30, 1971

MILITARY PERSONNEL - TRAVEL ALLOWANCE - RETROACTIVE AUTHORIZATION SUSTAINING THE DISALLOWANCE OF A CLAIM FOR TRAVEL ALLOWANCE FOR TRAVEL BY PRIVATELY OWNED VEHICLE FROM INDIANTOWN GAP MILITARY RESERVATION, PA., TO FORT CAMPBELL, KENTUCKY, ON AUG. 15-17, 1968, PURSUANT TO LETTER ORDERS DATED JUNE 25, 1968 AS AMENDED, SEPT. 6, 1968. FOR RETROACTIVE ORDERS TO BE EFFECTIVE IN MODIFYING THE ACCRUED RIGHTS OF CLAIMANT, ONCE TRAVEL HAS BEEN PERFORMED, THE AMENDMENT MUST BE BASED ON AN ERROR IN THE ORIGINAL ORDERS, OR VERBAL ORDERS GIVEN PRIOR TO THE TRAVEL AND CONFIRMED BY COMPETENT AUTHORITY. PARAGRAPH M 3002-2, JTR. THE RECORD DOES NOT SUPPORT THE CONCLUSION THAT THE AMENDMENT WAS ISSUED TO CORRECT AN ERROR, BUT DOES INDICATE THAT IT MAY HAVE BEEN ISSUED PURSUANT TO VERBAL ORDERS. SINCE THE ORDER OF SEPT. 6 DOES NOT STATE THAT SUCH VERBAL ORDERS WERE GIVEN, THE AMENDMENT IS WITHOUT LEGAL EFFECT.

TO MR. GREGORY J. FOREMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 22, 1970, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED SEPTEMBER 1, 1970, WHICH DISALLOWED YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR YOUR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA, TO FORT CAMPBELL, KENTUCKY, AUGUST 15 TO 17, 1968, PURSUANT TO LETTER ORDERS NO. 6-182, DATED JUNE 25, 1968, AS AMENDED BY LETTER ORDERS NO. 9-29, DATED SEPTEMBER 6, 1968, WHILE ON ACTIVE DUTY AS SPECIALIST 4TH CLASS, U.S. ARMY. WE ARE ALSO IN RECEIPT OF A LETTER DATED MAY 13, 1971, FROM THE HONORABLE DONALD D. CLANCY, HOUSE OF REPRESENTATIVES, INQUIRING AS TO THE CURRENT STATUS OF YOUR CLAIM.

UNDER ORDERS DATED JUNE 25, 1968, THE 5TH BATTALION, 3RD INFANTRY, 6TH INFANTRY DIVISION, OF WHICH YOU WERE A MEMBER, WAS TO MOVE AS A UNIT FROM ITS DUTY STATION AT FORT CAMPBELL, KENTUCKY, TO INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA, ON OR ABOUT JUNE 2, 1968, FOR TEMPORARY DUTY OF APPROXIMATELY 90 DAYS AND UPON COMPLETION, TO RETURN TO ITS DUTY STATION. THE MAIN BODY WAS DIRECTED TO TRAVEL BY COMMERCIAL AIR. A LISTING OF THE MEMBERS OF THAT BATTALION WAS ATTACHED AND SELECTED PERSONNEL DESIGNATED ON THE LISTING BY AN ASTERISK WERE AUTHORIZED TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE, AT A COST NOT TO EXCEED 5 CENTS PER MILE.

YOUR NAME WAS NOT ON THE LISTING AS SELECTED TO TRAVEL BY PRIVATELY OWNED VEHICLE. HOWEVER, BY LETTER ORDER NO. 9-29, DATED SEPTEMBER 6, 1968, HEADQUARTERS, FORT CAMPBELL, AMENDED THE ORIGINAL ORDERS BY ADDING YOUR NAME TO THE GROUP AUTHORIZED TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE.

YOUR TRAVEL VOUCHER SHOWS THAT YOU ARE CLAIMING TRAVEL ALLOWANCES FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FOR YOUR RETURN TRIP TO FORT CAMPBELL, KENTUCKY. YOUR ITINERARY SHOWS THAT YOU DEPARTED YOUR TEMPORARY DUTY STATION AT 1000 ON AUGUST 15 AND ARRIVED AT YOUR DUTY STATION AT 1400 ON AUGUST 17, 1968. BY SETTLEMENT DATED SEPTEMBER 1, 1968, YOUR CLAIM FOR TRANSPORTATION ALLOWANCE WAS DISALLOWED FOR THE REASONS STATED THEREIN.

IN A LETTER DATED DECEMBER 22, 1970, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM, AND IN SUPPORT OF YOUR CLAIM YOU TRANSMITTED A LETTER FROM THE ADJUTANT GENERAL'S OFFICE AT FORT CAMPBELL, DATED DECEMBER 4, 1970, WHICH STATED IN PART THAT LETTER ORDER NO. 9-29 WAS INTENDED TO BE EFFECTIVE AS OF JUNE 25, 1968, THE DATE OF THE ORIGINAL ORDERS. IT STATED FURTHER THAT IF YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM PROVES UNSUCCESSFUL, YOU WERE TO SEND TO THAT HEADQUARTERS THE NAME OF THE COMMANDING OFFICER WHO AUTHORIZED YOU TO USE YOUR PERSONAL CAR FOR TRAVEL, SO THAT HE MAY BE LOCATED.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES GENERALLY IS CONTAINED IN 37 U.S.C. 404, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS SHALL BE ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS. PARAGRAPH M3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR. PARAGRAPH M3001 OF THE REGULATIONS DEFINES A COMPETENT TRAVEL ORDER AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING A MEMBER OR A GROUP OF MEMBERS TO TRAVEL BETWEEN DESIGNATED POINTS. PARAGRAPH M3002-2 PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF THE VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENTS FOR WRITTEN ORDERS.

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 ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); 44 ID. 405 (1965), AND 45 ID. 599 (1966).

WITH RESPECT TO WRITTEN ORDERS CONFIRMING VERBAL ORDERS, WE HAVE ACCEPTED SUCH ORDERS IF THEY ARE ISSUED WITHIN A REASONABLE TIME AFTER THE VERBAL ORDERS WERE GIVEN AND ARE SUBSTANTIATED BY EVIDENCE THAT AN EMERGENCY PREVENTED THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE. B 171827, MAY 13, 1971, 50 COMP. GEN. .

THE LETTER FROM THE OFFICE OF THE ADJUTANT GENERAL, FORT CAMPBELL, DATED DECEMBER 4, 1970, WHICH STATES THAT LETTER ORDERS NO. 9-29, DATED SEPTEMBER 6, 1968, AMENDING THE ORIGINAL ORDERS NO. 6-182, WERE INTENDED TO BE EFFECTIVE AS OF JUNE 25, 1968, THE DATE OF THE ORIGINAL ORDERS, DOES NOT ESTABLISH THAT A PREVIOUSLY DETERMINED AND DEFINITELY INTENDED PROVISION HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS OF JUNE 25, 1968. ON THE CONTRARY, IT APPEARS FROM THAT LETTER AND OTHER INFORMATION IN THE CASE THAT THE AMENDMENT MAY HAVE BEEN BASED ON VERBAL ORDERS AUTHORIZING YOU TO RETURN BY PRIVATELY OWNED AUTOMOBILE FROM YOUR TEMPORARY DUTY STATION TO YOUR DUTY STATION. HOWEVER, NEITHER THE AMENDMENT DATED SEPTEMBER 6, 1968, NOR THE LETTER DATED DECEMBER 4, 1970, INDICATES THAT SUCH ORDERS WERE ISSUED TO CONFIRM VERBAL ORDERS, NOR DO THEY OTHERWISE MEET THE REQUIREMENTS OF PARAGRAPH M3002-2, JOINT TRAVEL REGULATIONS.

UNDER THE PROVISIONS OF PARAGRAPH M4203-3D OF THE REGULATIONS IN EFFECT AT THE TIME INVOLVED, A MEMBER WHO WAS SPECIFICALLY DIRECTED TO UTILIZE A SPECIFIC MODE OF COMMERCIAL TRANSPORTATION INCIDENT TO TEMPORARY DUTY BUT WHO ELECTED TO TRAVEL BY SOME OTHER MODE AT PERSONAL EXPENSE IS NOT ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN THE ABSENCE OF PROPER CERTIFICATION THAT THE DIRECTED MODE OF TRANSPORTATION WAS NOT AVAILABLE.

ACCORDINGLY, SINCE YOUR ORDERS OF JUNE 25, 1968, SPECIFICALLY DIRECTED TRAVEL BY COMMERCIAL AIRCRAFT AND SINCE THE PURPORTED AMENDMENT OF SEPTEMBER 6, 1968, IS WITHOUT LEGAL EFFECT, WE MUST SUSTAIN THE DISALLOWANCE OF SEPTEMBER 1, 1970.

BY LETTER OF THIS DATE, B-173064, WE ARE ADVISING CONGRESSMAN DONALD D. CLANCY OF THE ACTION TAKEN IN THE MATTER.