B-174852, MAR 14, 1972

B-174852, MAR 14, 1972

MILITARY PERSONNEL - PERMANENT CHANGE-OF-STATION - UNAUTHORIZED ADDITIONAL TRAVEL - REIMBURSEMENT OF EXPENSES AND LEAVE - MERITORIOUS CLAIMS ACT DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF CAPTAIN LLOYD D. PIPES, USAF, FOR TRAVEL EXPENSES AND TWO DAYS' LEAVE INCIDENT TO PERMANENT CHANGE -OF-STATION TRAVEL WITH DEPENDENTS. IN THE ALTERNATIVE, CAPTAIN PIPES REQUESTS THAT HIS CLAIM BE CONSIDERED FOR SUBMISSION TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236. IN THE ABSENCE OF AN AUTHORIZED DETERMINATION THAT CLAIMANT'S WIFE REQUIRED MEDICAL CARE NOT AVAILABLE AT THE OVERSEAS DUTY STATION, CAPTAIN PIPES IS NOT ENTITLED TO REIMBURSEMENT UNDER THE PROVISIONS OF 10 U.S.C. 1040 AND IMPLEMENTING REGULATIONS. ALTHOUGH SUCH TRAVEL MAY BE DIRECTLY CONCERNED WITH THE MOVEMENT OF DEPENDENTS AT GOVERNMENT EXPENSE, IT MUST BE CONSIDERED AS ADDITIONAL TRAVEL FOR PERSONAL REASONS. B-156275, APRIL 28, 1965. FURTHER, IT SHOULD BE NOTED THAT TRAVEL FOR PERSONAL REASONS IS PROPERLY CHARGED AGAINST AUTHORIZED LEAVE OF ABSENCE. 38 COMP. GEN. 513. WITH REGARD TO CAPTAIN PIPES' ALTERNATIVE REQUEST, SINCE USE OF THE MERITORIOUS CLAIMS ACT IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES, THE COMP. GEN. WOULD NOT BE JUSTIFIED IN RECOMMENDING RELIEF ON THE SUBJECT CLAIM. ACCORDINGLY, THE PRIOR DENIAL IS SUSTAINED.

TO CAPTAIN LLOYD D. PIPES:

YOUR LETTER DATED JUNE 7, 1971, WITH ATTACHMENTS, REQUESTS REVIEW BY OUR OFFICE OF THE DENIAL OF YOUR CLAIM FOR TRAVEL EXPENSES INCURRED JANUARY 7 TO 9, 1971, WHILE ON PERMANENT CHANGE-OF-STATION TRAVEL WITH YOUR DEPENDENTS. YOU ALSO REQUEST THAT THE TWO DAYS' LEAVE CHARGED FOR THE TRAVEL TIME BE REMOVED. YOU REQUEST FURTHER THAT, IF YOUR APPEAL IS DENIED, YOUR CLAIM BE CONSIDERED FOR SUBMISSION TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

BY PERMANENT CHANGE-OF-STATION ORDERS DATED NOVEMBER 2, 1970, YOU WERE ASSIGNED TO TUSLOG DETACHMENT 193 (USAFE), APO NEW YORK 09289, WITH TRANSFER EFFECTIVE DATE OF JANUARY 15, 1971. CONCURRENT TRAVEL OF YOUR DEPENDENT (WIFE) WAS AUTHORIZED. AIR MOVEMENT BY CATEGORY "Z" TRANSPORTATION WAS AUTHORIZED AND YOU WERE DIRECTED TO REPORT AT J. F. KENNEDY INTERNATIONAL AIRPORT, NEW YORK CITY ON JANUARY 6, 1971, FOR TRANSOCEANIC TRAVEL.

THE TRAVEL VOUCHER SUBMITTED BY YOU SHOWS YOU DEPARTED YOUR OLD DUTY STATION WITH YOUR WIFE ON DECEMBER 14, 1970, AND ARRIVED IN NEW YORK ON JANUARY 4, 1971. YOU DEPARTED BY CATEGORY Z AIRCRAFT ON JANUARY 6, 1971, EN ROUTE TO YOUR DUTY STATION AT INCIRLIK CDI, TURKEY, AND WHILE EN ROUTE YOUR WIFE BECAME SICK AND HAD TO LEAVE THE AIRCRAFT ON JANUARY 7, 1971, AT ROME FOR HOSPITAL TREATMENT IN THAT CITY. YOU AND YOUR WIFE REMAINED IN ROME UNTIL JANUARY 9, 1971, AT WHICH TIME YOU ACCOMPANIED HER FROM THE HOSPITAL TO THE ROME INTERNATIONAL AIRPORT AND SUBSEQUENTLY CONTINUED YOUR AIR TRAVEL TO YOUR DUTY STATION, ARRIVING AT 2330 ON JANUARY 9, 1971.

IN YOUR LETTER ACCOMPANYING YOUR CLAIM YOU SAID THAT YOUR WIFE WAS FOUR MONTHS PREGNANT AT THE TIME YOU TRAVELED CONCURRENTLY AND ALTHOUGH SHE WAS FEELING WELL AT DEPARTURE, SHE HAD TO BE TAKEN TO A LOCAL HOSPITAL UPON ARRIVAL IN ROME, ITALY. SINCE YOU WERE TRAVELING ON A CATEGORY Z FLIGHT, YOU SAID YOU HAD TO WAIT UNTIL JANUARY 9, FOR THE NEXT SCHEDULED PLANE TO TAKE YOU BOTH TO YOUR DESTINATION. YOU HAVE LISTED EXPENSES IN THE AMOUNT OF $58.20 INCURRED WHILE AT ROME FOR WHICH YOU CLAIM REIMBURSEMENT. APPEARS FURTHER THAT YOU WERE ALSO CHARGED TWO DAYS' LEAVE FOR THE PERIOD YOU STAYED AT ROME.

YOUR CLAIM WAS ADMINISTRATIVELY DENIED AND BY LETTER DATED JUNE 7, 1971, YOU REQUESTED OUR OFFICE TO REVIEW THE DENIAL. YOU CONTEND THAT THE TWO DAYS' DELAY AND ATTENDANT EXPENSES WERE INCURRED PURSUANT TO TRAVEL ON PUBLIC BUSINESS, AND SINCE YOU WERE IN A TRAVEL STATUS DURING THE ENTIRE STAY IN ROME, YOU ARE ENTITLED TO BE REIMBURSED FOR THE EXPENSES INCURRED AND SHOULD NOT BE CHARGED LEAVE FOR THE TWO DAYS' STAY IN ROME. SUPPORT OF YOUR CONTENTION, YOU CITE 47 COMP. GEN. 743; B-165886, MARCH 24, 1969, AND 38 COMP. GEN. 513. YOU REQUEST FURTHER THAT IN THE EVENT YOUR APPEAL IS DENIED, THE CLAIM BE SUBMITTED TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

SECTION 1040(A), TITLE 10, U.S.C. PROVIDES THAT TRANSPORTATION OF A DEPENDENT AT THE EXPENSE OF THE UNITED STATES IS AUTHORIZED TO THE NEAREST APPROPRIATE MEDICAL FACILITY IN WHICH ADEQUATE MEDICAL CARE IS AVAILABLE FOR THAT DEPENDENT WHO IS WITH A MEMBER OF THE UNIFORMED SERVICES STATIONED OUTSIDE THE UNITED STATES ON ACTIVE DUTY FOR MORE THAN 30 DAYS AND WHO REQUIRES MEDICAL ATTENTION WHICH IS NOT AVAILABLE IN THAT LOCALITY. THE DEPENDENT MAY ALSO BE TRANSPORTED AT THE EXPENSE OF THE UNITED STATES FROM SUCH MEDICAL FACILITY BACK TO THE MEMBER'S DUTY STATION OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE APPROPRIATE UNDER THE CIRCUMSTANCES. THE LAW PROVIDES FURTHER THAT IF A DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES MAY BE FURNISHED NECESSARY ATTENDANTS.

SECTION 1040(D) OF TITLE 10 PROVIDES THAT THE TRANSPORTATION AND TRAVEL EXPENSES AUTHORIZED BY THAT SECTION SHALL BE FURNISHED IN ACCORDANCE WITH JOINT REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES NAMED THEREIN. PROVIDES FURTHER THAT SUCH REGULATIONS SHALL REQUIRE THE USE OF TRANSPORTATION FACILITIES OF THE UNITED STATES INSOFAR AS PRACTICAL.

PARAGRAPH M7107-2, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 10 U.S.C. 1040(D), PROVIDES THAT WHEN DETERMINED BY COMPETENT AUTHORITY THAT A DEPENDENT ACCOMPANYING A MEMBER WHO IS ON ACTIVE DUTY FOR MORE THAN 30 DAYS AND STATIONED OUTSIDE THE UNITED STATES REQUIRES MEDICAL CARE NOT AVAILABLE IN THE LOCALITY OF THE MEMBER'S OVERSEAS DUTY STATION, THE MEMBER'S COMMANDING OFFICER, OR OTHER OFFICER DESIGNATED BY THE SERVICE CONCERNED, MAY AUTHORIZE OR APPROVE TRANSPORTATION OF THE DEPENDENT TO THE NEAREST APPROPRIATE MEDICAL FACILITY WHERE ADEQUATE MEDICAL CARE IS AVAILABLE. SUBPARAGRAPH 4 PROVIDES THAT IF A DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES ARE AUTHORIZED FOR TRAVEL OF NECESSARY ATTENDANTS AS PROVIDED IN CHAPTER 6, PART I OF THE REGULATIONS.

PARAGRAPH M6400, INCLUDED IN CHAPTER 6, PART I OF THE REGULATIONS, PROVIDES THAT TRAVEL OF ATTENDANTS FOR DEPENDENTS WHO ARE AUTHORIZED TRANSPORTATION TO OR FROM A MEDICAL FACILITY UNDER AUTHORITY OF 10 U.S.C. 1040 WILL BE AUTHORIZED ONLY WHEN THE ORDER-ISSUING AUTHORITY HAS DETERMINED THAT TRAVEL BY THE DEPENDENT IS NECESSARY AND THAT THE DEPENDENT IS INCAPABLE OF TRAVELING ALONE. IT FURTHER PROVIDES THAT WHEN THE NEED FOR THE ATTENDANT HAS BEEN ESTABLISHED, ORDERS DIRECTING THE ATTENDANT TO PERFORM THE NECESSARY TRAVEL WILL CITE THAT PART AS AUTHORITY.

PARAGRAPH M6401, PART I OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO ESCORT OR ATTENDANT DUTY WILL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY CHAPTER 4, WHILE PERFORMING SUCH TRAVEL AND TEMPORARY DUTY.

SINCE YOU HAD NOT ARRIVED AT YOUR DUTY STATION IN TURKEY WHEN YOUR WIFE BECAME ILL, NO DETERMINATION WAS MADE AS PROVIDED BY THE REGULATIONS THAT SHE REQUIRED MEDICAL CARE NOT AVAILABLE IN THE LOCALITY OF YOUR OVERSEAS DUTY STATION AND NO AUTHORIZATION WAS ISSUED FOR HER TRANSPORTATION TO AN APPROPRIATE MEDICAL FACILITY. LIKEWISE, NO ORDERS WERE ISSUED AUTHORIZING YOU TO TRAVEL AS HER ATTENDANT SINCE SHE WAS NOT AUTHORIZED TO TRAVEL TO OR FROM A MEDICAL FACILITY. CONSEQUENTLY, YOU ARE NOT ENTITLED TO REIMBURSEMENT UNDER THE PROVISIONS OF 10 U.S.C. 1040 AND THE IMPLEMENTING REGULATIONS.

WHILE STATUTORY AUTHORITY IS PROVIDED GENERALLY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS TO THE NEW DUTY STATION OR ELSEWHERE AT GOVERNMENT EXPENSE IN CONNECTION WITH A DIRECTED PERMANENT CHANGE OF STATION, THAT AUTHORITY DOES NOT RELATE TO THE MEMBER'S TRAVEL AND HAS NOT BEEN RECOGNIZED AS PROVIDING ANY BASIS FOR THE VIEW THAT PUBLIC BUSINESS IS INVOLVED IN A MEMBER'S TRAVEL WHICH EXCEEDED THAT REQUIRED TO ACCOMPLISH THE REQUIREMENTS OF HIS TRAVEL ORDERS IN ORDER TO FACILITATE THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS. SUCH ADDITIONAL TRAVEL UNIFORMLY HAS BEEN CONSIDERED AS TRAVEL FOR PERSONAL REASONS NOT INVOLVING PUBLIC BUSINESS EVEN THOUGH DIRECTLY CONCERNED WITH MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE AS AN INCIDENT TO THE MEMBER'S CHANGE OF STATION. B-156275, APRIL 28, 1965 (COPY ENCLOSED).

IN B-165886, DATED MARCH 24, 1969, WE HELD THAT TRAVEL ALLOWANCES ARE NOT PAYABLE FOR TRAVEL PERFORMED SOLELY FOR LEAVE PURPOSES AND SINCE THE MEMBER WAS TRAVELING FROM THE UNITED STATES TO AN OVERSEAS DESTINATION TO BE WITH HIS BROTHER WHO WAS ILL, SUCH TRAVEL WAS PERFORMED FOR PERSONAL REASONS AND HE WAS NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE. IN 38 COMP. GEN. 513 (1959) WE STATED, QUOTING FROM THE SYLABUS:

"ANY TRAVEL TIME ON PERMANENT CHANGE OF STATION OF MEMBERS OF THE UNIFORMED SERVICES WHICH MAY BE CONSIDERED INCIDENT TO THE PERSONAL CONVENIENCE OF THE TRAVELER, TO THE EXTENT THAT IT EXCEEDS THE TRAVEL TIME NECESSARY TO ACCOMPLISH THE TRAVEL REQUIRED, SHOULD NOT BE CONSIDERED AS AUTHORIZED TRAVEL TIME BUT SHOULD BE CHARGED AGAINST AUTHORIZED LEAVE OF ABSENCE. *** ."

NONE OF THESE DECISIONS SUPPORTS YOUR VIEW THAT THE TIME YOU SPENT IN ROME WHILE YOUR WIFE WAS IN A HOSPITAL WAS SPENT ON "PUBLIC BUSINESS." ACCORDINGLY, SINCE THE EXPENSES YOU LISTED IN YOUR CLAIM WERE NOT INCURRED IN COMPLYING WITH THE TRAVEL REQUIREMENTS INCIDENT TO YOUR CHANGE OF STATION, THERE IS NO BASIS UPON WHICH PAYMENT OF SUCH EXPENSES MAY BE MADE FROM APPROPRIATED FUNDS.

WITH RESPECT TO THE CHARGING OF LEAVE FOR THE PERIOD YOU STAYED IN ROME WITH YOUR WIFE, WE HAVE HELD, AS INDICATED IN THE DECISION, 38 COMP. GEN. 513 CITED ABOVE, THAT ANY TIME FOR TRAVEL ARISING FROM PERSONAL REASONS, TO THE EXTENT THAT IT EXCEEDS THE TRAVEL TIME NECESSARY TO MEET THE BASIC TRAVEL REQUIREMENTS IN A MANNER AND BY A MEANS IN WHICH IT CAN BE SAID THAT THE GOVERNMENT'S INTEREST IS INVOLVED SHOULD NOT BE CONSIDERED AS AUTHORIZED TRAVEL TIME, BUT PROPERLY SHOULD BE CHARGED AGAINST AUTHORIZED LEAVE OF ABSENCE.

THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE BUT WHICH CLAIM, IN OUR JUDGMENT, CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATION THEREON. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

IN OUR OPINION, WE WOULD NOT BE JUSTIFIED IN RECOMMENDING TO THE CONGRESS THAT IT ENACT SPECIAL STATUTORY PROVISIONS TO AUTHORIZE AND APPROPRIATE FUNDS FOR REIMBURSEMENT OF THE EXPENSES YOU INCURRED BY REASON OF THE DELAY IN ROME INCIDENT TO THE ILLNESS OF MRS. PIPES. ACCORDINGLY, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.