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B-175929, OCT 4, 1972

B-175929 Oct 04, 1972
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THE INSTALLATION COMMANDER DETERMINES THAT BOTH PLACES ARE WITHIN REASONABLE COMMUTING DISTANCE. NO PER DIEM ALLOWANCES OR REIMBURSEMENT FOR TRAVEL WILL BE ALLOWED. ZWERDLING: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29. YOU WERE DIRECTED TO REPORT TO THE COMMANDANT. YOU WERE TO RETURN TO THE PLACE WHERE YOU ENTERED ACTIVE DUTY FOR TRAINING. WHICH IN YOUR CASE WAS YOUR HOME IN RICHMOND. GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE TO YOU AT FORT LEE AND YOU COMMUTED FROM YOUR HOME IN RICHMOND TO FORT LEE ON A DAILY BASIS. IT WAS ADMINISTRATIVELY DETERMINED THAT YOU WERE INELIGIBLE TO RECEIVE PER DIEM AND TRAVEL EXPENSES SINCE YOU LIVED WITHIN THE STIPULATED COMMUTING DISTANCE OF THE TRAINING SITE AT FORT LEE.

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B-175929, OCT 4, 1972

MILITARY PERSONNEL - RESERVISTS - ACTIVE DUTY TRAINING - COMMUTING EXPENSES - PER DIEM DECISION AFFIRMING THE DISALLOWANCE OF THE CLAIM OF 1ST LT. JEFFREY M. ZWERDLING FOR PER DIEM AND COMMUTING EXPENSES WHILE PERFORMING ACTIVE DUTY FOR TRAINING (ADT) AT FORT LEE, VA., AS A MEMBER OF THE U.S. ARMY RESERVE. WHERE A MEMBER OF A RESERVE COMPONENT COMMUTES DAILY FROM HIS HOME TO HIS ADT STATION, AND THE INSTALLATION COMMANDER DETERMINES THAT BOTH PLACES ARE WITHIN REASONABLE COMMUTING DISTANCE, NO PER DIEM ALLOWANCES OR REIMBURSEMENT FOR TRAVEL WILL BE ALLOWED, JTR, PARAGRAPH M6001-1. ALSO, THERE CAN BE NO REIMBURSEMENT FOR TRAVEL UNDER JTR, PART K OF CHAPTER 4 FOR SUCH TRAVEL SINCE THESE REGULATIONS RELATE ONLY TO TRAVEL WHILE CONDUCTING OFFICIAL BUSINESS.

TO 1ST. LT. JEFFREY M. ZWERDLING:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29, 1972, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT BY OUR CLAIMS DIVISION DATED MARCH 23, 1972, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM AND COMMUTING EXPENSES WHILE PERFORMING ACTIVE DUTY FOR TRAINING AT FORT LEE, VIRGINIA, DURING THE PERIOD OF APRIL 26, TO JULY 26, 1971.

THE FILE SHOWS THAT BY LETTER ORDERS NO. T-03-313, DATED MARCH 16, 1971, ISSUED BY THE OFFICE OF PERSONNEL OPERATIONS, FORT BENJAMIN HARRISON, INDIANA, YOU WERE DIRECTED TO REPORT TO THE COMMANDANT, U.S. ARMY QUARTERMASTER SCHOOL, FORT LEE, VIRGINIA, ON APRIL 25, 1971, FOR ACTIVE DUTY FOR TRAINING (ADT) AS A MEMBER OF THE UNITED STATES ARMY RESERVE, TO ATTEND THE QUARTERMASTER OFFICER BASIC COURSE, CLASS NUMBER 9, FOR A PERIOD OF NOT LESS THAN 3 MONTHS. THOSE ORDERS FURTHER PROVIDE THAT UPON COMPLETION OF THAT ACTIVE DUTY TRAINING, UNLESS SOONER RELIEVED OR EXTENDED BY PROPER AUTHORITY, YOU WERE TO RETURN TO THE PLACE WHERE YOU ENTERED ACTIVE DUTY FOR TRAINING, WHICH IN YOUR CASE WAS YOUR HOME IN RICHMOND, VIRGINIA.

ACCORDING TO THE FILE, GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE TO YOU AT FORT LEE AND YOU COMMUTED FROM YOUR HOME IN RICHMOND TO FORT LEE ON A DAILY BASIS. IN YOUR LETTER OF JUNE 7, 1971, YOU SAY THAT BASED UPON A DETERMINATION LETTER DATED JULY 12, 1968, BY THE THEN INSTALLATION COMMANDER OF FORT LEE REGARDING THE QUESTION OF PAYMENT OF PER DIEM AND TRAVEL TO MEMBERS OF A RESERVE COMPONENT ON ACTIVE DUTY TRAINING, IT WAS ADMINISTRATIVELY DETERMINED THAT YOU WERE INELIGIBLE TO RECEIVE PER DIEM AND TRAVEL EXPENSES SINCE YOU LIVED WITHIN THE STIPULATED COMMUTING DISTANCE OF THE TRAINING SITE AT FORT LEE, VIRGINIA.

IN THAT SAME LETTER YOU SAY THAT THE DISTANCE FROM YOUR HOME IN RICHMOND TO FORT LEE AND RETURN IS APPROXIMATELY 76 MILES; THAT THERE ARE 6 TOLLS WHICH YOU HAD TO PAY DAILY TO AND FROM THE POST AND THAT THERE IS NO PRACTICAL PUBLIC TRANSPORTATION NEAR YOUR HOME TO FORT LEE. AS A RESULT, YOU CONTEND THAT THE ADMINISTRATIVE DETERMINATION HAS CAUSED YOU SEVERE FINANCIAL HARDSHIP AND FEEL THAT YOU SHOULD NOT BE BOUND BY THAT RULING. IN SUPPORT OF YOUR CONTENTIONS, YOU NOW CITE 49 COMP. GEN. 709 (1970), AS HAVING APPLICATION TO YOUR SITUATION.

THE ENTITLEMENT OF A MEMBER OF THE ARMED FORCES TO TRAVEL AND TRANSPORTATION ALLOWANCES IS SPECIFICALLY GOVERNED BY THE LAWS WHICH AUTHORIZE SUCH ALLOWANCES AND THE REGULATIONS PROMULGATED PURSUANT THERETO.

OUR DECISION OF APRIL 21, 1970, 49 COMP. GEN. 709, INVOLVED THE QUESTION OF TRAVEL, SUBSISTENCE AND PER DIEM ENTITLEMENTS OF A MEMBER OF THE MARINE CORPS SERVING ON EXTENDED ACTIVE DUTY AND QUARTERED AT HIS PERMANENT DUTY STATION, QUANTICO, VIRGINIA, WHO WAS REQUIRED BY COMPETENT ORDERS TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE ON A DAILY BASIS TO HIS TEMPORARY DUTY STATION, MARINE CORPS HEADQUARTERS, WASHINGTON, D.C. INSOFAR AS A TRAVEL ENTITLEMENT WAS CONCERNED, WE HELD IN THAT CASE THAT UNDER THE TERMS OF THE MEMBER'S ORDERS AND PARAGRAPH M4201-14, JOINT TRAVEL REGULATIONS, HE WAS NOT ENTITLED TO PER DIEM. HOWEVER, SINCE THE TRAVEL WAS REQUIRED FOR THE PERFORMANCE OF TEMPORARY DUTY AWAY FROM A PERMANENT DUTY STATION, THE MEMBER WAS ENTITLED TO BE REIMBURSED FOR SUCH TRAVEL ON A MILEAGE BASIS UNDER THE PROVISIONS OF PARAGRAPH M4203-3 OF THE JOINT TRAVEL REGULATIONS.

THAT DECISION, HOWEVER, HAS NO APPLICATION TO YOUR SITUATION. DURING THE PERIOD OF YOUR CLAIM, YOU WERE SERVING AS A MEMBER OF A RESERVE COMPONENT CALLED TO ACTIVE DUTY FOR TRAINING TO ATTEND A COURSE OF INSTRUCTION SCHEDULED FOR A PERIOD OF LESS THAN 20 WEEKS. WHILE YOU EXPRESS THE BELIEF THAT YOU WERE SERVING ON TEMPORARY DUTY AT FORT LEE, VIRGINIA, AS THE BASIS FOR YOUR ENTITLEMENT, PARAGRAPH 4-LB OF AR 37 106 PROVIDES THAT THE DUTY STATIONS FOR MEMBERS CALLED OR ORDERED TO ACTIVE DUTY FOR TRAINING (ADT) "AT WHICH SHORT PERIODS OF ACTIVE DUTY ARE PERFORMED, ARE IN FACT THE PERMANENT STATIONS, REGARDLESS OF WHETHER THE DUTY IS LESS THAN 20 WEEKS OR MORE THAN 20 WEEKS". THUS, FORT LEE, VIRGINIA, WAS NOT A TEMPORARY DUTY STATION FOR YOU, BUT RATHER, WAS YOUR PERMANENT DUTY STATION.

YOUR ENTITLEMENT TO TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH ACTIVE DUTY FOR TRAINING IS GOVERNED BY SECTION 404(A) OF TITLE 37, U.S.C. WHICH WAS AMENDED BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT OF SUCH ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED:

"WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE."

PARAGRAPH M6001-1 OF THE JOINT TRAVEL REGULATIONS (CHANGE 200, SEPTEMBER 1, 1969) PROVIDES IN PERTINENT PART:

"A. GENERAL. THE PROVISIONS OF THIS SUBPARAGRAPH *** ARE APPLICABLE TO MEMBERS OF THE RESERVE COMPONENTS WHO ARE CALLED (OR ORDERED) TO ACTIVE DUTY FOR ANY REASON WITH PAY UNDER ORDERS WHICH PROVIDE FOR RETURN TO HOME OR PLACE FROM WHICH CALLED (OR ORDERED) TO ACTIVE DUTY. NO PER DIEM ALLOWANCES UNDER SUBPAR. C NOR ALLOWANCES UNDER CHAPTER 4, PART K, ARE PAYABLE FOR TRAVEL BETWEEN THE HOME OR PLACE FROM WHICH THE MEMBER IS CALLED (OR ORDERED) TO ACTIVE DUTY AND THE PERMANENT DUTY STATION IN CASES WHERE:

"2. THE MEMBER COMMUTES DAILY BETWEEN HOME OR PLACE FROM WHICH CALLED (OR ORDERED) TO ACTIVE DUTY AND THE PERMANENT DUTY STATION,

"3. THE ORDER-ISSUING AUTHORITY OR THE INSTALLATION COMMANDER DETERMINES THAT BOTH ARE LOCATED WITHIN REASONABLE COMMUTING DISTANCE OF EACH OTHER AND THAT THE NATURE OF THE DUTY INVOLVED DOES NOT PREVENT THE MEMBER FROM SO COMMUTING."

PART K OF CHAPTER 4 OF THE REGULATIONS, ISSUED UNDER THE AUTHORITY OF 37 U.S.C. 408, RELATES TO REIMBURSEMENT FOR TRAVEL WITHIN AND ADJACENT TO PERMANENT AND TEMPORARY DUTY STATIONS, WHILE CONDUCTING OFFICIAL BUSINESS. SINCE RESERVISTS' ACTIVE TRAINING DUTY STATIONS ARE IN FACT THEIR PERMANENT DUTY STATIONS, PAYMENT OF ALLOWANCES AS PRESCRIBED BY PART K, CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS MAY BE AUTHORIZED IN THE CIRCUMSTANCES INDICATED TO THE EXTENT THAT THEY PROVIDE REIMBURSEMENT FOR TRANSPORTATION EXPENSES NECESSARILY INCURRED IN CONDUCTING OFFICIAL BUSINESS WITHIN THE LIMITS OF THE PERMANENT STATION AND IN AREAS ADJACENT THERETO. THE EXPENSES OF COMMUTING FROM HOME TO SUCH DUTY STATION, HOWEVER, ARE NOT REGARDED AS TRANSPORTATION EXPENSES INCURRED IN CONDUCTING OFFICIAL BUSINESS. AND, A RESERVIST WHO COMMUTES DAILY FROM HIS HOME TO HIS TRAINING DUTY STATION MAY NOT BE CONSIDERED "AWAY FROM HOME" FOR THE PURPOSES OF 37 U.S.C. 404(A)(4). SEE IN THIS CONNECTION, 48 COMP. GEN. 517 (1969).

THE 1968 DETERMINATION BY THE THEN INSTALLATION COMMANDER AT FORT LEE, VIRGINIA, MENTIONED BY YOU AS THE BASIS UPON WHICH YOU WERE NOT PERMITTED TO RECEIVE EITHER PER DIEM OR TRAVEL EXPENSES, WAS AUTHORIZED BY 1ST U.S. ARMY MESSAGE 20633, DATED MAY 31, 1968, DIRECTING INSTALLATION COMMANDERS OF POSTS CONTAINING TRAINING SITES TO DETERMINE WHETHER OR NOT MEMBERS OF RESERVE COMPONENTS SERVING ON ACTIVE DUTY FOR TRAINING RESIDE WITHIN COMMUTING DISTANCE FROM THE STATION WHERE SUCH TRAINING DUTY IS BEING PERFORMED.

PURSUANT TO THAT AUTHORITY, THE THEN INSTALLATION COMMANDER AT FORT LEE, VIRGINIA, DETERMINED THAT ANY MEMBER OF A RESERVE COMPONENT PERFORMING ACTIVE DUTY FOR TRAINING AT FORT LEE, CAMP PICKETT AND CAMP A. P. HILL, WHOSE HOME IS WITHIN A 50-MILE RADIUS OF THOSE SITES WOULD BE CONSIDERED AS LIVING WITHIN COMMUTING DISTANCE OF THOSE SITES.

THE OFFICIAL TABLE OF DISTANCES SHOWS THAT THE HIGHWAY DISTANCE FROM RICHMOND, VIRGINIA TO FORT LEE, VIRGINIA IS 26 MILES, WHICH DISTANCE IS WELL WITHIN THE INDICATED COMMUTING RADIUS LIMITATION, AS IS THE DISTANCE YOU CONTEND THAT YOU WERE ACTUALLY REQUIRED TO TRAVEL ONE-WAY FROM YOUR HOME TO THE POST.

ACCORDINGLY, FOR THE FOREGOING REASONS, YOU ARE NOT ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES OR PAYMENT OF TRAVEL ALLOWANCE INCIDENT TO COMMUTING FROM YOUR HOME TO YOUR TRAINING DUTY STATION AND THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.

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