B-181523, AUG 21, 1974

B-181523, AUG 21, 1974

NAVY MEMBER WHO PAID OWN TRAVEL EXPENSES FROM NEW YORK TO GERMANY VIA AIRCRAFT OF FOREIGN REGISTRY INCIDENT TO A PERMANENT CHANGE OF STATION, WHEN GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE BUT WHEN A GOVERNMENT TRANSPORTATION REQUEST WAS MADE AVAILABLE, MAY NOT BE REIMBURSED FOR TRAVEL EXPENSES INCURRED BECAUSE USE OF CARRIERS OF UNITED STATES REGISTRY WAS NOT SHOWN TO BE IMPRACTICAL NOR WERE THEY SHOWN TO BE UNAVAILABLE, AS REQUIRED BY JOINT TRAVEL REGULATIONS, PARAGRAPHS M4159 4C AND M2150.

RM1 NORBERT WINKLER, USN, CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES INCURRED VIA AIRCRAFT OF FOREIGN REGISTRY:

RM1 NORBERT WINKLER, USN, RESUBMITS A CLAIM FOR TRAVEL EXPENSES INCURRED UPON A PERMANENT CHANGE OF STATION DURING AUGUST 1972. THE TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, IN A SETTLEMENT DATED JANUARY 4, 1974 (CLAIM NO. Z-2505580), DISALLOWED RM1 WINKLER'S INITIAL CLAIM FOR REIMBURSEMENT OF THE COSTS OF FOREIGN COMMERCIAL AIR FARE AND EXCESS BAGGAGE CHARGES INCIDENT TO TRAVEL PERFORMED FROM NEW YORK, NEW YORK, TO HAMBURG, GERMANY. HE NOW CLAIMS REIMBURSEMENT OF THE DIFFERENCE BETWEEN THOSE CHARGES AND THOSE WHICH WOULD HAVE ACCRUED HAD HE FLOWN VIA AN AMERICAN FLAG CARRIER UTILIZING A CATEGORY Z FARE OBTAINABLE WITH A GOVERNMENT TRANSPORTATION REQUEST (GTR)

THE RECORD INDICATES THAT PURSUANT TO ORDERS DATED MARCH 27, 1972, RM1 NORBERT WINKLER WAS PERFORMING TEMPORARY DUTY IN WASHINGTON, D.C., WITH HIS PERMANENT DUTY STATION TO BE IN MOROCCO, WHEN HE WAS REASSIGNED BY A NAVAL MESSAGE IN JULY 1972 TO REPORT NOT LATER THAN SEPTEMBER 10, 1972, TO KIEL HOLTENAU, GERMANY. WHILE ON LEAVE HE RECEIVED A MAIL GRAM DATED AUGUST 11, 1972, DIRECTING HIM TO PRESENT THE MAIL GRAM AND HIS STANDARD TRAVEL ORDERS TO THE NAVAL ACTIVITY NEAREST TO HIM AND TO OBTAIN A GTR FOR COMMERCIAL AIR TRAVEL, CATEGORY "Z" FROM NEW YORK, NEW YORK, TO HAMBURG, GERMANY, VIA PAN AMERICAN AIRLINES, SINCE NO GOVERNMENT AIR TRANSPORTATION WAS AVAILABLE. HE DID NOT COMPLY WITH THIS MESSAGE SINCE PURPORTEDLY HE HAD ALREADY MADE RESERVATIONS FROM HIS LEAVE RESIDENCE TO GERMANY AND THERE WAS NO NAVAL ACTIVITY "CLOSE BY TO DRAW A GTR." RM1 WINKLER PROCEEDED FROM JOPLIN, MISSOURI, TO NEW YORK, NEW YORK, VIA OZARK AIR LINES AND FROM NEW YORK, NEW YORK, TO COLOGNE, GERMANY, VIA LUFTHANSA ON AUGUST 15, 1972. THE FARE FROM NEW YORK TO GERMANY WAS $339 AND THE EXCESS BAGGAGE CHARGE WAS $37.20. IT IS FOR THESE EXPENSES THAT THE MEMBER HAD ORIGINALLY SUBMITTED THE CLAIM WHICH WAS DISALLOWED BY THE TRANSPORTATION AND CLAIMS DIVISION IN THE SETTLEMENT HERE UNDER REVIEW.

THE MEMBER RESUBMITS HIS CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FROM NEW YORK TO GERMANY ON THE BASIS OF JOINT TRAVEL REGULATIONS (JTR) PARAGRAPH M4159-5B, FORMERLY M4159-4B. HE STATES THAT THAT SECTION HOLDS THAT "IF GOVERNMENT TRANSPORTATION OR TRANSPORTATION ARRANGEMENTS WERE AVAILABLE TO MEMBER AND HE ELECTED TO TRAVEL VIA HIS OWN ARRANGEMENTS, HE IS TO BE REIMBURSED AT THE OFFICIAL RATE COMPUTED FOR CAT. Z COSTS."

37 U.S.C. 404 ALLOWS THE PAYMENT TO A MEMBER OF THE UNIFORMED SERVICES OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION. PURSUANT TO THIS STATUTE THE SECRETARIES OF THE UNIFORMED SERVICES HAVE PROMULGATED THE JOINT TRAVEL REGULATIONS.

UNDER THE PROVISIONS OF PARAGRAPH M4159 OF THE JTR IN EFFECT ON THE DATE OF THE MEMBER'S FLIGHT FROM NEW YORK TO GERMANY, WHEN TRANSPORTATION IN GOVERNMENT AIRCRAFT OR VESSEL IS NOT AVAILABLE AND WHEN GOVERNMENT TRANSPORTATION REQUESTS WERE AVAILABLE TO THE MEMBER, THE MEMBER WILL BE ENTITLED TO TRANSOCEANIC TRAVEL PERFORMED AT PERSONAL EXPENSE IN AN AMOUNT NOT EXCEEDING THE COST WHICH WOULD HAVE BEEN INCURRED HAD THE GOVERNMENT FURNISHED THE TRANSPORTATION. JTR PARAGRAPH M4159-4B. HOWEVER, PARAGRAPH M4159-4C SEVERELY LIMITS THE POSSIBILITY OF A MEMBER'S REIMBURSEMENT FOR TRANSOCEANIC TRAVEL PERFORMED AT PERSONAL EXPENSE. THE ENTITLEMENT TO REIMBURSEMENT IS CONDITIONED ON THE FACT THAT NO PART OF THE TRAVEL FOR WHICH REIMBURSEMENT IS SOUGHT IS PERFORMED ON VESSELS OR AIRCRAFT OF FOREIGN REGISTRY IN THE ABSENCE OF A DETERMINATION THAT UNITED STATES VESSELS OR AIRCRAFT ARE UNAVAILABLE OR THEIR USE IN IMPRACTICAL.

THIS PROHIBITION ON THE USE OF FOREIGN FLAG AIRCRAFT IS FURTHER AMPLIFIED BY JTR PARAGRAPH M2150, WHICH ALSO REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE. PARAGRAPH M2150 SPECIFIES THAT WHEN THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. SUCH DETERMINATION MAY NOT BE BASED UPON MERE INCOVENIENCE IN SECURING TRANSPORTATION OR SHORT DELAYS IN AWAITING TRANSPORTATION ON VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR FOR ANY OTHER SIMILAR REASONS.

THE RECORD REVEALS THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE TO THE MEMBER BUT THAT A GOVERNMENT TRANSPORTATION REQUEST HAD BEEN MADE AVAILABLE TO HIM. RM1 WINKLER CHOSE TO TRAVEL BETWEEN NEW YORK AND GERMANY VIA LUFTHANSA, A CARRIER OF FOREIGN REGISTRY. NO EVIDENCE IS PRESENTED THAT AIRCRAFT OF UNITED STATES REGISTRY WAS UNAVAILABLE NOR THAT THEIR USE WAS IMPRACTICAL.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 4, 1974, WHICH DISALLOWED THE CLAIM OF RM1 NORBERT WINKLER IS SUSTAINED, AND HIS RESUBMITTED CLAIM MAY NOT BE ALLOWED.