B-173938, DEC 28, 1971

B-173938: Dec 28, 1971

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PERRY FOR PAYMENT OF TWO DAYS ACCRUED LEAVE FOR WHICH HE WAS CHARGED INCIDENT TO TRAVEL TO AND FROM A TEMPORARY DUTY ASSIGNMENT AS A MEMBER OF THE UNITED STATES ARMY. ALTHOUGH IT IS UNFORTUNATE THAT CLAIMANT WAS IMPROPERLY INFORMED. THERE IS NO LEGAL BASIS TO ALLOW SUCH CLAIM. PERRY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19. WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR TWO DAYS OF ACCRUED LEAVE FOR WHICH YOU WERE CHARGED INCIDENT TO YOUR TRAVEL TO AND FROM A TEMPORARY DUTY ASSIGNMENT AT FORT HUACHUCA. YOU WERE DIRECTED TO PROCEED FROM FORT MACARTHUR. UPON COMPLETION OF THAT ASSIGNMENT YOU WERE TO RETURN TO YOUR PROPER DUTY STATION. YOU SAY THAT PRIOR TO COMMENCING TRAVEL TO FORT HUACHUCA YOU WERE ADVISED BY YOUR COMMANDING OFFICER AND THE EXECUTIVE OFFICER OF THE FORT HUACHUCA HOSPITAL TO USE YOUR PRIVATE AUTOMOBILE FOR THE TRAVEL BETWEEN FORT HUACHUCA AND FORT MACARTHUR SINCE YOU WOULD NEED YOUR AUTOMOBILE AT FORT HUACHUCA.

B-173938, DEC 28, 1971

MILITARY PERSONNEL - TRAVEL REIMBURSEMENT - USE OF PRIVATELY-OWNED CONVEYANCE DECISION SUSTAINING THE DISALLOWANCE OF CLAIM BY CAPTAIN ANTHONY M. PERRY FOR PAYMENT OF TWO DAYS ACCRUED LEAVE FOR WHICH HE WAS CHARGED INCIDENT TO TRAVEL TO AND FROM A TEMPORARY DUTY ASSIGNMENT AS A MEMBER OF THE UNITED STATES ARMY. ALTHOUGH IT IS UNFORTUNATE THAT CLAIMANT WAS IMPROPERLY INFORMED, THERE IS NO LEGAL BASIS TO ALLOW SUCH CLAIM.

TO CAPTAIN ANTHONY M. PERRY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1970, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED SEPTEMBER 15, 1970, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR TWO DAYS OF ACCRUED LEAVE FOR WHICH YOU WERE CHARGED INCIDENT TO YOUR TRAVEL TO AND FROM A TEMPORARY DUTY ASSIGNMENT AT FORT HUACHUCA, ARIZONA, AS A MEMBER OF THE UNITED STATES ARMY.

BY WRITTEN ORDER TO 9-3, DATED SEPTEMBER 8, 1969, CONFIRMING PRIOR VERBAL ORDERS OF THE COMMANDING GENERAL, YOU WERE DIRECTED TO PROCEED FROM FORT MACARTHUR, CALIFORNIA, TO FORT HUACHUCA, ARIZONA, ON OR ABOUT AUGUST 15, 1969, FOR TEMPORARY DUTY OF APPROXIMATELY 21 DAYS TO SUPPLEMENT REDUCED STAFFING OF DOCTORS AT FORT HUACHUCA. UPON COMPLETION OF THAT ASSIGNMENT YOU WERE TO RETURN TO YOUR PROPER DUTY STATION. THOSE ORDERS AUTHORIZED TRAVEL BY COMMON CARRIER AND AIR.

YOU SAY THAT PRIOR TO COMMENCING TRAVEL TO FORT HUACHUCA YOU WERE ADVISED BY YOUR COMMANDING OFFICER AND THE EXECUTIVE OFFICER OF THE FORT HUACHUCA HOSPITAL TO USE YOUR PRIVATE AUTOMOBILE FOR THE TRAVEL BETWEEN FORT HUACHUCA AND FORT MACARTHUR SINCE YOU WOULD NEED YOUR AUTOMOBILE AT FORT HUACHUCA. YOU SAY THAT IT WOULD HAVE BEEN A PRACTICAL IMPOSSIBILITY TO PERFORM YOUR DUTIES AT FORT HUACHUCA WITHOUT AUTOMOBILE TRANSPORTATION, SINCE THE FACILITIES THERE ARE WIDESPREAD GEOGRAPHICALLY AND THERE IS NO PUBLIC TRANSPORTATION.

YOU ALSO SAY THAT YOU LEFT FORT MACARTHUR BY PRIVATE AUTOMOBILE WITHOUT WRITTEN ORDERS AFTER HAVING BEEN TOLD THAT SUCH ORDERS WOULD FOLLOW YOU BY MAIL, WHICH THEY DID. WHEN YOU RECEIVED THE WRITTEN ORDERS AND NOTED THE DISCREPANCY IN THE TRANSPORTATION AUTHORIZED, YOU SAY YOU TELEPHONED THE EXECUTIVE OFFICER AT FORT MACARTHUR, WHO TOLD YOU NOT TO BE CONCERNED, THAT IT WAS AN ADMINISTRATIVE NECESSITY AND YOUR REIMBURSEMENT WOULD BE THE SAME, WHICH YOU LATER FOUND WAS NOT TRUE.

YOU SAY FURTHER THAT YOU DID NOT LEARN UNTIL SOME SIX MONTHS LATER, AT THE TIME OF YOUR DISCHARGE, THAT YOU HAD BEEN CHARGED TWO DAYS' LEAVE AS A RESULT OF TRAVELING BY YOUR PRIVATE AUTOMOBILE. APPARENTLY, AS A RESULT OF YOUR COMPLAINT AT THAT TIME, LETTER ORDERS NUMBER 02-07 DATED FEBRUARY 17, 1970, WERE ISSUED BY THE COMMANDER, MEDICAL DEPARTMENT ACTIVITY, FORT HUACHUCA, WHICH PURPORTED TO BE IN CONFIRMATION OF VERBAL ORDERS AMENDING YOUR TRAVEL ORDERS OF SEPTEMBER 8, 1969, TO READ "TRAVEL BY PRIVATE AUTOMOBILE AUTHORIZED AT THE RATE OF 5[ PER MILE" IN PLACE OF COMMON CARRIER AND AIR.

IN DENYING YOUR CLAIM FOR REIMBURSEMENT FOR TWO DAYS' ANNUAL LEAVE OUR CLAIMS DIVISION ADVISED YOU THAT 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 LAWS AND REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL 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 COMP. GEN. 439 (1944), AND 44 COMP. GEN. 405 (1965). THE RECORD BEFORE US DOES NOT CLEARLY INDICATE SUCH AN ERROR OR INADVERTENCE.

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. WHEN 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 IN PERTINENT PART AS FOLLOWS:

"B. TRAVEL BY PRIVATELY OWNED CONVEYANCE

(1) POLICY. IT IS THE POLICY OF THE UNIFORMED SERVICES TO 'AUTHORIZE' (AS DISINGUISHED 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. *** "

PARAGRAPH M4204-5 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."

WHEN TRAVEL BY PRIVATE VEHICLE INCIDENT TO TEMPORARY 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, 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. ARMY REGULATIONS 37-106, CHANGE 24, PARAGRAPH 6-63 AND 6-67. 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.

NEITHER YOUR ORIGINAL WRITTEN ORDERS OF SEPTEMBER 8, 1969, NOR THE AMENDATORY ORDERS OF FEBRUARY 17, 1970, AUTHORIZED TRAVEL BY PRIVATE AUTOMOBILE "AS MORE ADVANTAGEOUS TO THE GOVERNMENT." THEREFORE, EVEN IF WE WERE TO ACCEPT AS VALID THE ORDER OF FEBRUARY 17, 1970, ISSUED SOME SIX MONTHS AFTER THE VERBAL ORDER IT PURPORTS TO CONFIRM, SUCH ORDER WOULD PROVIDE NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

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.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT OF SEPTEMBER 15, 1970, IS SUSTAINED.