B-173860, FEB 11, 1972

B-173860: Feb 11, 1972

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CLAIMANT'S ORDERS WERE ISSUED UNDER BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2B AND. THE PRIOR DENIAL OF THE CLAIM IS SUSTAINED. WE ALSO HAVE YOUR LETTER DATED DECEMBER 3. WERE ISSUED PURSUANT TO BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2B DETACHING YOU FROM YOUR DUTY ASSIGNMENT WITH U.S. YOU INDICATED ON THE CLAIM FORM THAT YOU WERE NOT PAID MILEAGE NOR PER DIEM IN CONNECTION WITH THE ABOVE TRAVEL. THE CLAIM WAS FORWARDED ON MAY 11. IT WAS DISALLOWED FOR THE REASON THAT SINCE YOUR ORDERS EXPRESSLY STATED THAT TRAVEL WOULD BE AT YOUR OWN EXPENSE. THE TRAVEL WAS AUTHORIZED FOR YOUR CONVENIENCE AND. YOU WERE NOT IN A "TRAVEL STATUS" WITHIN THE MEANING OF CITED GOVERNING REGULATIONS. YOU SAY THAT YOU HAD SUBMITTED YOUR CLAIM FOLLOWING ADVICE GIVEN TO YOU BY A SERVICE MEMBER WHO WAS PAID UNDER THE SAME SITUATION AND THAT ON THE BASIS OF YOUR ADVICE ANOTHER SERVICE MEMBER WAS PAID IN AN IDENTICAL SITUATION.

B-173860, FEB 11, 1972

MILITARY PERSONNEL - MILEAGE AND PER DIEM - ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF PABLO M. MISTAL FOR MILEAGE AND PER DIEM INCIDENT TO TRAVEL TO AN INTERMEDIATE STATION PURSUANT TO A TRANSFER OF OFFICIAL DUTY ASSIGNMENT. CLAIMANT'S ORDERS WERE ISSUED UNDER BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2B AND, IN COMPLIANCE WITH ITS PROVISIONS, EXPRESSLY STATED THAT TRAVEL WOULD NOT BE SUBJECT TO REIMBURSEMENT. ACCORDINGLY, THE PRIOR DENIAL OF THE CLAIM IS SUSTAINED.

TO DKCS PABLO M. MISTAL:

THIS REFERS TO YOUR LETTER OF JULY 1, 1971, IN EFFECT PROTESTING THE SETTLEMENT DATED APRIL 23, 1971, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO TRAVEL PERFORMED FROM NEW LONDON, CONNECTICUT, TO SANGLEY POINT, REPUBLIC OF THE PHILIPPINES, DURING THE PERIOD AUGUST 31 TO OCTOBER 9, 1959. WE ALSO HAVE YOUR LETTER DATED DECEMBER 3, 1971, FORWARDING A SUPPLEMENTAL TRAVEL VOUCHER WITH THE REQUEST THAT THE APPLICABLE SUCCESSOR APPROPRIATION BE ENTERED THEREON.

THE RECORD SHOWS THAT AFTER YOUR DISCHARGE AND REENLISTMENT, ORDERS DATED AUGUST 26, 1959, WERE ISSUED PURSUANT TO BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2B DETACHING YOU FROM YOUR DUTY ASSIGNMENT WITH U.S. NAVAL SUBMARINE BASE, NEW LONDON, CONNECTICUT, AND TRANSFERRING YOU TO COMMANDER NAVAL FORCE, PHILIPPINES, FOR REASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. THOSE ORDERS DIRECTED THAT YOU REPORT NOT LATER THAN SEPTEMBER 14, 1959, TO AN INTERMEDIATE STATION, U.S. NAVAL RECEIVING STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, FOR FURTHER TRANSPORTATION. ALSO, THOSE ORDERS CONTAINED INSTRUCTIONS TO THE EFFECT THAT LEAVE WOULD BE AUTHORIZED BY THE COMMANDER NAVAL FORCE, PHILIPPINES AND THAT TRAVEL IN CONNECTION THEREWITH WOULD BE AT OWN EXPENSE "NOT SUBJECT TO REIMBURSEMENT."

ON APRIL 13, 1970, YOU PRESENTED A CLAIM TO THE NAVY FINANCE CENTER, CLEVELAND, OHIO. IN THE ITINERARY ON THE SUPPORTING TRAVEL VOUCHER YOU SHOWED THAT YOU TRAVELED BY PRIVATELY OWNED AUTOMOBILE FROM NEW LONDON TO TREASURE ISLAND DURING THE PERIOD AUGUST 31 TO SEPTEMBER 14, 1959, AND BY GOVERNMENT VESSEL FROM THE LATTER PLACE TO SANGLEY POINT DURING THE PERIOD SEPTEMBER 18 TO OCTOBER 9, 1959. YOU INDICATED ON THE CLAIM FORM THAT YOU WERE NOT PAID MILEAGE NOR PER DIEM IN CONNECTION WITH THE ABOVE TRAVEL.

THE CLAIM WAS FORWARDED ON MAY 11, 1970, TO OUR CLAIMS DIVISION FOR CONSIDERATION AND BY SETTLEMENT DATED APRIL 23, 1971, IT WAS DISALLOWED FOR THE REASON THAT SINCE YOUR ORDERS EXPRESSLY STATED THAT TRAVEL WOULD BE AT YOUR OWN EXPENSE, THE TRAVEL WAS AUTHORIZED FOR YOUR CONVENIENCE AND, THEREFORE, YOU WERE NOT IN A "TRAVEL STATUS" WITHIN THE MEANING OF CITED GOVERNING REGULATIONS.

IN YOUR LETTER OF JULY 1, 1971, YOU SAY THAT YOU HAD SUBMITTED YOUR CLAIM FOLLOWING ADVICE GIVEN TO YOU BY A SERVICE MEMBER WHO WAS PAID UNDER THE SAME SITUATION AND THAT ON THE BASIS OF YOUR ADVICE ANOTHER SERVICE MEMBER WAS PAID IN AN IDENTICAL SITUATION. YOU ALSO SAY THAT THE SUPPLEMENTAL INSTRUCTION OF "OWN EXPENSE" IN THE ORDERS WAS INSERTED ERRONEOUSLY BECAUSE YOU WERE UNDER OFFICIAL ORDERS TO REPORT FOR DUTY TO COMMANDER NAVAL FORCE, PHILIPPINES AND NO LEAVE EN ROUTE WAS AUTHORIZED IN THE ORDERS. ACCORDINGLY, YOU CONTEND THAT YOU ARE ENTITLED TO THE MILEAGE AND PER DIEM LIKE THE OTHER SERVICE MEMBERS MENTIONED ABOVE.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253(A) (1958 ED.) IN EFFECT AT THE TIME OF YOUR TRAVEL PROVIDED THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, WHICH PRESUPPOSES TRAVEL ON PUBLIC BUSINESS.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THOSE PROVISIONS, PROVIDED AND STILL 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 PROVIDED THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.

AS INDICATED ABOVE, THE ORDERS OF AUGUST 26, 1959, WERE ISSUED PURSUANT TO BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2B. THAT INSTRUCTION, WHICH WAS PUBLISHED ON SEPTEMBER 4, 1957, AND IN EFFECT DURING THE PERIOD INVOLVED, WAS ISSUED FOR THE PURPOSE OF PROVIDING INFORMATION CONCERNING THE CONDITIONS UNDER WHICH ENLISTED PERSONNEL OF PHILIPPINE OR GUAMANIAN EXTRACTION MIGHT BE TRANSFERRED TO GUAM OR THE PHILIPPINES FOR REASSIGNMENT OR VISIT THOSE AREAS IN A LEAVE STATUS. PERTINENT PART OF THAT INSTRUCTION IS AS FOLLOWS:

"3. TRANSFER FOR REASSIGNMENT

A. UPON REENLISTMENT

(1) WHEN SUBJECT PERSONNEL REENLIST ON BOARD IMMEDIATELY UPON EXPIRATION OF ENLISTMENT, COMMANDING OFFICERS ARE AUTHORIZED TO TRANSFER THEM TO THEIR HOME ISLANDS AT THAT TIME OR AS SOON THEREAFTER DURING THE ENSUING 12 MONTHS AS IS CONSISTENT WITH SERVICE REQUIREMENTS. THESE PERSONNEL MAY BE TRANSFERRED AT NO EXPENSE TO THE GOVERNMENT TO COMNAVPHIL OR COMNAVMARIANAS, AS APPROPRIATE, FOR FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL.

(2) TRANSFERS SHALL BE MADE WITHOUT REFERENCE TO THE CHIEF OF NAVAL PERSONNEL AND SHALL CITE THIS INSTRUCTION AS AUTHORITY. THE PERSONNEL CONCERNED SHALL BE RETAINED ON BOARD THE PHILIPPINES OR GUAM PENDING ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. COMNAVPHIL OR COMNAVMARIANAS SHALL GRANT THEM LEAVE TO WHICH ENTITLED WHILE IN THIS STATUS. ***

(3) TRAVEL ORDERS WILL PROVIDE THAT TRANSPORTATION TO THE HOME ISLAND WILL BE AT NO EXPENSE TO THE GOVERNMENT AND MAY BE VIA GOVERNMENT CONVEYANCE WHEN AVAILABLE. *** THE STANDARD TRANSFER ORDER WILL SHOW NATURE OF DUTY AS REASSIGNMENT BY CHIEF OF NAVAL PERSONNEL AND WILL INDICATE IN THE SUPPLEMENTAL INSTRUCTION BLOCK THAT LEAVE WILL BE AUTHORIZED BY COMNAVPHIL OR COMNAVMARIANAS AS APPLICABLE."

IN OUR DECISION OF MARCH 6, 1962, B-147911, COPY ENCLOSED, WE CONSIDERED THE CLAIM OF A NAVY MEMBER WHO LIKE YOURSELF TRAVELED IN THE YEAR 1957 TO THE PHILIPPINES UNDER ORDERS WHICH TRANSFERRED HIM TO COMMANDER NAVAL FORCE, PHILIPPINES, FOR REENLISTMENT LEAVE AND FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. THE ORDERS IN THAT CASE WERE ISSUED PURSUANT TO A PREDECESSOR REGULATION, BUREAU OF NAVAL PERSONNEL INSTRUCTION 1050.2A, DATED SEPTEMBER 14, 1954.

NOTWITHSTANDING THAT THE 1954 REGULATION DID NOT SPECIFY THAT THE TRANSPORTATION TO THE HOME ISLAND WOULD BE AT THE MEMBER'S EXPENSE, WE HELD FOR REASONS GIVEN AND CITING 9 COMP. GEN. 414 (1930) AND 30 COMP. GEN. 19 (1950) THAT SINCE THE ORDERS WERE ISSUED FOR THE PURPOSE OF ASSIGNING HIM TO SANGLEY POINT ONLY AS AN INTERMEDIATE STATION FOR RECORD PURPOSES WHILE TAKING REENLISTMENT LEAVE UPON THE COMPLETION OF WHICH HE WAS TO BE ASSIGNED TO HIS NEXT DUTY STATION, HIS TRAVEL WAS PERFORMED INCIDENT TO REENLISTMENT LEAVE AND NOT TO MEET THE NEEDS OF THE SERVICE. ACCORDINGLY, WE CONCLUDED THAT HE IMPROPERLY HAD BEEN PAID MILEAGE IN CONNECTION WITH RETURN TRAVEL PERFORMED FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO WASHINGTON, D.C.

THE ORDERS OF AUGUST 26, 1959, TRANSFERRING YOU TO SANGLEY POINT WERE PREPARED IN ACCORDANCE WITH THE ABOVE-QUOTED NAVY REGULATION WHICH EXPRESSLY PROHIBITED THE PAYMENT OF TRAVEL ALLOWANCES TO NAVY ENLISTED MEMBERS OF PHILIPPINE OR GUAMANIAN EXTRACTION WHO AFTER REENLISTMENT WERE PERMITTED TO RETURN TO THEIR HOME ISLANDS IN ORDER TO TAKE LEAVE PRIOR TO REASSIGNMENT. SINCE UNDER THOSE ORDERS YOU WERE AUTHORIZED TO BE IN A LEAVE STATUS AFTER ARRIVAL AT SANGLEY POINT AND PRIOR TO REASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL AND SINCE THEY SPECIFICALLY STIPULATED THAT TRAVEL WOULD BE AT YOUR OWN EXPENSE "NOT SUBJECT TO REIMBURSEMENT" NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF MILEAGE OR PER DIEM IN LIEU OF SUBSISTENCE IN CONNECTION WITH YOUR TRAVEL TO SANGLEY POINT.

YOUR CONTENTION THAT THE "ULTIMATE DUTY STATION" UNDER THE ORDERS WAS COMMANDER NAVAL FORCE, PHILIPPINES (SANGLEY POINT) APPEARS TO BE WITHOUT FOUNDATION. THOSE ORDERS SHOW YOUR ULTIMATE STATION FOR THE AUTHORIZATION OF LEAVE AS COMMANDER NAVAL FORCE, PHILIPPINES, BUT SPECIFY THAT REASSIGNMENT TO A DUTY STATION THEREAFTER WOULD BE MADE BY THE CHIEF OF NAVAL PERSONNEL. ALSO, THE FACT THAT YOU DID NOT TAKE ANY LEAVE EN ROUTE TO SANGLEY POINT IS IMMATERIAL INASMUCH AS YOUR TRAVEL WAS NOT BECAUSE OF THE NEEDS OF THE SERVICE, BUT FOR YOUR CONVENIENCE IN ORDER TO BE GRANTED REENLISTMENT LEAVE IN THE PHILIPPINES. IN THESE CIRCUMSTANCES THE ORDERS PROPERLY PROVIDED THAT YOU WOULD NOT BE ENTITLED TO REIMBURSEMENT FOR THE TRAVEL INVOLVED.

ACCORDINGLY, THE SETTLEMENT OF APRIL 23, 1971, IS SUSTAINED.

IN YOUR LETTER OF OCTOBER 9, 1970, TO THIS OFFICE, YOU STATED THAT A SIMILAR CLAIM HAD BEEN SUBMITTED BY A "CO-EMPLOYEE" ON JUNE 11, 1970, AND THAT HE RECEIVED THE SETTLEMENT CHECK ON SEPTEMBER 2, 1970. ALSO, AS STATED ABOVE, YOU MENTIONED IN YOUR LETTER OF JULY 1, 1971, THAT TWO OTHER SERVICE MEMBERS WERE PAID MILEAGE AND PER DIEM IN SIMILAR CIRCUMSTANCES. IF THE FACTS AND CIRCUMSTANCES IN EACH OF THE ABOVE CASES ARE IDENTICAL TO THOSE IN YOUR CASE, THEN THE PAYMENTS WERE IMPROPER AND WILL BE FOR CONSIDERATION IN THE AUDIT OF THE DISBURSING OFFICERS' ACCOUNTS. CLEARLY, SUCH ERRONEOUS PAYMENTS DO NOT AFFORD A BASIS FOR A LIKE PAYMENT TO YOU.

THE ORIGINAL TRAVEL ORDERS OF AUGUST 26, 1959, ARE RETURNED.