B-179981, SEP 17, 1974

B-179981, SEP 17, 1974

WHERE ARMY OFFICER, RELIEVED FROM ACTIVE DUTY IN THAILAND, WAS ISSUED TRANSPORTATION REQUEST TO TRAVEL BY GOVERNMENT TRANSPORTATION TO HOME OF RECORD OR CHOICE IN UNITED STATES BUT INSTEAD PERFORMED TRANSOCEANIC TRAVEL ON FOREIGN REGISTERED AIRCRAFT TO NEW YORK CITY AT PERSONAL EXPENSE TO ACCOMPANY FAMILY, SINCE SUBPARAGRAPH M4159-4(C) OF THE JOINT TRAVEL REGULATIONS PROHIBITS REIMBURSEMENT FOR TRAVEL ON VESSELS OR AIRCRAFT OF FOREIGN REGISTRY EXCEPT WHEN CARRIERS OF UNITED STATES REGISTRY ARE UNAVAILABLE OR THEIR USE IMPRACTICAL AND SINCE THERE IS NO SHOWING THAT THE MEMBER CAME WITHIN THE PERMITTED EXCEPTIONS, REIMBURSEMENT IS NOT AUTHORIZED.

TRAVEL ALLOWANCE FOR TRAVEL FROM THAILAND TO THE UNITED STATES - CAPTAIN FRED B. GRETSCH, XXX-XX-XXXX:

THIS ACTION IS IN RESPONSE TO A LETTER FROM MR. FRED B. GRETSCH CONCERNING HIS CLAIM FOR REIMBURSEMENT OF THE COST FOR TRANSOCEANIC AIR TRANSPORTATION INCIDENT TO HIS RELEASE FROM ACTIVE DUTY WHEREIN HE REQUESTS RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED AUGUST 16, 1973, WHICH DISALLOWED HIS CLAIM FOR THE REASON THAT ALL OF HIS PERSONALLY PROCURED TRAVEL WAS PERFORMED ON FOREIGN FLAG CARRIERS.

THE CLAIMANT INDICATES THAT HE AGREES WITH THAT PORTON OF THE SETTLEMENT WHICH DISALLOWED REIMBURSEMENT OF TRAVEL ALLOWANCE FOR HIS WIFE AS SHE WAS NOT COMMAND SPONSORED AND HE DID TAKE HER TO THAILAND AT HIS OWN EXPENSE, BUT CONTENDS THAT AS A TAXPAYER HE SAVED HIMSELF AND THE GOVERNMENT MONEY BY TRAVELLING THE CHEAPER WAY (NOW-U.S. CARRIER) RATHER THAN USING THE TRANSPORTATION REQUEST ISSUED TO HIM. FURTHER, THAT SINCE THERE WAS A LACK OF SPACE ON MILITARY FLIGHTS BACK TO THE UNITED STATES DUE TO THE PHASE-DOWN IN VIETNAM AND THAILAND, PRESSURE WAS BROUGHT UPON THE VARIOUS COMMANDS IN THAT AREA TO ACHIEVE THIS PHASE-DOWN IN A SHORT PERIOD OF TIME. IN THIS CONNECTION, HE STATES THAT MEMBERS WERE NOT DISCOURAGED IN FINDING OTHER MEANS OF LEAVING THAILAND CONSISTENT WITH THAILAND IMMIGRATION LAWS AS INDICATED BY THE FACT THAT HE WAS ISSUED A TRANSPORTATION REQUEST THEREBY ALLOWING HIM TO LEAVE THE COMMAND AND ACTIVE DUTY IN COMPLIANCE WITH HIS ORDERS AND THE MARCH 13, 1973 RELEASE DATE.

THE FILE IN THIS CASE SHOWS THAT BY SPECIAL ORDERS NO. 63, DATED MARCH 3, 1972, ISSUED BY HEADQUARTERS, UNITED STATES ARMY SUPPORT, THAILAND, THE CLAIMANT WAS RELEASED FROM ACTIVE DUTY EFFECTIVE MARCH 13, 1972. HIS DEPENDENTS WHO WERE RESIDING IN THAILAND WITH HIM WERE NOT COMMAND SPONSORED AND THEREFORE COULD NOT TRAVEL UNDER MILITARY ORDERS. HE CHOSE TO ACCOMPANY HIS DEPENDENTS TO THE UNITED STATES ON A COMMERCIAL AIR LINE AT PERSONAL EXPENSE, RATHER THAN TRAVEL BY MILITARY AIRCRAFT OR USE THE TRANSPORTATION REQUEST WHICH HAD BEEN ISSUED FOR HIS PERSONAL TRAVEL. THE RECORD SHOWS THAT THEY FLEW FROM BANGKOK, THAILAND, TO FRANKFURT, GERMANY, ON CONDOR AIRLINES, AND FROM FRANKFURT TO NEW YORK CITY ON ATLANTIS AIRLINES, BOTH OF WHICH ARE FOREIGN FLAG CARRIERS OF GERMAN REGISTRY. MR. GRETSCH OBTAINED HIS TICKETS ON THOSE FLIGHTS, WHICH WERE APPARENTLY CHARTER FLIGHTS, THROUGH THE UNITED SERVICE CLUB.

SECTION 404(A) OF TITLE 37, U.S. CODE, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A NUMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS UPON SEPARATION FROM SERVICE OR RELEASE FROM ACTIVE DUTY FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY WHETHER OR NOT HE IS A MEMBER OF A UNIFORMED SERVICE AT THE TIME THE TRAVEL IS PERFORMED.

IN ACCORD WITH 37 U.S.C. 404(A), PARAGRAPH M4157-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE OR RELEASED FROM ACTIVE DUTY OUTSIDE THE UNITED STATES WILL BE ENTITLED TO TRAVEL ALLOWANCES AS PROVIDED IN PARAGRAPH M4159.

PARAGRAPH M4159-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER TRAVELLING UNDER PERMANENT CHANGE OF STATION ORDERS (INCLUDING SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY) TO, FROM OR BETWEEN POINTS OUTSIDE THE UNITED STATES WHICH ORDERS DID NOT SPECIFY GROUP TRAVEL OR DIRECT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION WILL BE ENTITLED TO:

"1. THE ALLOWANCES PRESCRIBED IN PAR. M4150 OR M4154, AS APPLICABLE, FOR THE OFFICIAL DISTANCE BETWEEN THE OLD PERMANENT STATION AND THE APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING THE OLD DUTY STATION;

"2. TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE, OTHERWISE GOVERNMENT PROCURED TRANSPORTATION OR REIMBURSEMENT FOR TRANSPORTATION PROCURED AT PERSONAL EXPENSE FOR THE TRANSOCEANIC TRAVEL INVOLVED (SEE SUBPAR. 4). *** AND

"3. THE ALLOWANCES PRESCRIBED IN PARAGRAPH M4150 OR M4154, AS APPLICABLE, FOR THE OFFICIAL DISTANCE BETWEEN THE APPROPRIATE AERIAL OR WATER PORT OF DEBARKATION SERVING THE NEW STATION AND THE NEW PERMANENT STATION."

PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS WHICH WERE IN EFFECT DURING THE PERIOD OF THE MEMBER'S TRAVEL (PRESENTLY PARAGRAPH M4159-5 OF TH JTR'S), GOVERNS REIMBURSEMENT ENTITLEMENTS TO MEMBERS FOR TRANSOCEANIC TRANSPORTATION IN ALL SITUATIONS AND PROVIDES THAT WHEN TRAVEL BY GOVERNMENT TRANSPORTATION IS AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE TRANSPORTATION UTILIZED NOT TO EXCEED THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION. HOWEVER, SUBPARAGRAPH M4159-4C ENTITLED "TRAVEL BY VESSELS OR AIRCRAFT OF FOREIGN REGISTRY", PROVIDES AS FOLLOWS:

"REIMBURSEMENT MAY NOT BE AUTHORIZED FOR TRAVEL AT PERSONAL EXPENSE ON VESSELS OR AIRCRAFT OF FOREIGN REGISTRY EXCEPT WHEN THE USE OF CARRIERS OF UNITED STATES REGISTRY IS IMPARTICAL OR CARRIERS OF UNITED STATES REGISTRY ARE NOT AVAILABEL (SEE PAR. M2150)."

PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT SUBJECT TO CERTAIN EXCEPTIONS, VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED. THE ONLY PERMISSIBLE EXCEPTIONS ARE IN CASES WHERE THE ORDER-ISSUING AUTHORITY DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAW OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF THE OFFICIAL BUSINESS OR WHERE THE TRANSPORTATION OR OTHER OFFICER DETERMINES THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES ARE NOT AVAILABLE. IN THESE LIMITED SITUATIONS THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY MAY BE AUTHORIZED. HOWEVER, THAT PARAGRAPH REQUIRES THAT A STATEMENT OF THE FACTS MUST BE CONTAINED IN OR ATTACHED TO THE TRANSPORTATION REQUEST OR OTHER TRANSPORTATION PROCUREMENT DOCUMENT OR APPENDED TO THE MEMBER'S VOUCHER FOR REIMBURSEMENT. THE PARAGRAPH FURTHER PROVIDES THAT DETERMINATIONS OF IMPRACTICABILITY OR NONAVAILABILITY.

"*** MAY NOT BE BASED UPON MERE INCONVENIENCE IN SECURING TRANSPORTATION IN VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY, SHORT DELAYS IN AWAITING SUCH TRANSPORTATION, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR ANY SIMILAR REASONS. ISSUING AUTHORITIES AND TRANSPORTATION OFFICERS WILL BE PREPARED TO JUSTIFY BY ADEQUATE EVIDENCE DETERMINATIONS MADE BY THEM ***."

THE DIRECTORATE OF ARMY TRANSPORTATION IN A LETTER DATED MAY 25, 1972, ADDRESSED TO THE ARMY FINANCE CENTER (NOW THE U.S. ARMY FINANCE SUPPORT AGENCY), ADVISED THAT GOVERNMENT TRANSPORTATION FROM BANGKOK, THAILAND, TO CONUS DURING THE PERIOD IN QUESTION WAS AVAILABLE TO THE MEMBER AND WOULD HAVE BEEN PROVIDED HAD HE REQUESTED IT. IN THIS REGARD, IT IS UNFORTUNATE THAT HE MAY NOT HAVE BEEN INFORMED BEFORE COMMENCING HIS TRIP REGARDING THE PROHIBITIONS ON THE USE OF FOREIGN CARRIERS. SUCH CIRCUMSTANCES, HOWEVER, PROVIDE NO LEGAL AUTHORITY TO SET ASIDE THE REGULATIONS IN ORDER TO REIMBURSE THE MEMBER FOR EXPENSES INCURRED BY HIS TRANSOCEANIC TRANSPORTATION VIA FOREIGN REGISTERED CARRIERS. FURTHER, THE FACT THAT HE OBTAINED HIS TICKETS THROUGH THE UNITED SERVICE CLUB RATHER THAN DIRECTLY FROM THE FOREIGN CARRIERS DOES NOT RELIEVE HIM OF THE RESPONSIBILITY FOR COMPLIANCE WITH THE CITED REGULATION. THEREFORE, IN VIEW OF THE LIMITATIONS CONTAINED IN PARAGRAPHS M2150 AND M4159 OF THE JOINT TRAVEL REGULATIONS, REIMBURSEMENT TO THE MEMBER FOR TRAVEL PERFORMED BY HIM VIA THE FOREIGN REGISTERED CARRIERS FROM THAILAND TO NEW YORK IS NOT AUTHORIZED.

ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.