B-193923, JAN 3, 1980

B-193923: Jan 3, 1980

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WHO INTERRUPTS TRAVEL OR DEVIATES FROM THE DIRECT ROUTE DUE TO THE PREEXISTING MEDICAL CONDITION OF HIS WIFE DOES SO AS A MATTER OF CONVENIENCE AND NOT OF OFFICIAL NECESSITY AND MAY BE PAID ONLY THE TRANSPORTATION CHARGES AND PER DIEM ALLOWED WHICH WOULD HAVE BEEN INCURRED ON UNINTERRUPTED TRAVEL BY A USUALLY TRAVELED ROUTE. THE DENIAL IS SUSTAINED. WAS ORDERED ON MAY 11. HIS TRAVEL ORDERS WERE SUBSEQUENTLY AMENDED AT HIS NEW DUTY STATION PURPORTING TO AUTHORIZE REIMBURSEMENT FOR THE SPECIAL ROUTING TO KOREA BY HAWAII AND JAPAN AT MILITARY AIRLIFT COMMAND (MAC) RATES. REIMBURSEMENT OF TRAVEL EXPENSES WAS LIMITED TO THE AMOUNT OF AIR FARE AND PER DIEM WHICH WOULD HAVE BEEN PAYABLE HAD HE TRAVELED DIRECTLY FROM SAN ANTONIO TO SEOUL USING GOVERNMENT TRANSPORTATION BY THE NORMAL ROUTE.

B-193923, JAN 3, 1980

DIGEST: AN EMPLOYEE TRANSFERRING FROM SAN ANTONIO, TEXAS, TO SEOUL, KOREA, WHO INTERRUPTS TRAVEL OR DEVIATES FROM THE DIRECT ROUTE DUE TO THE PREEXISTING MEDICAL CONDITION OF HIS WIFE DOES SO AS A MATTER OF CONVENIENCE AND NOT OF OFFICIAL NECESSITY AND MAY BE PAID ONLY THE TRANSPORTATION CHARGES AND PER DIEM ALLOWED WHICH WOULD HAVE BEEN INCURRED ON UNINTERRUPTED TRAVEL BY A USUALLY TRAVELED ROUTE.

SYDNEY SMITH:

MR. SYDNEY SMITH REQUESTS RECONSIDERATION OF OUR CLAIMS DIVISION'S MAY 17, 1978 DENIAL OF HIS CLAIM FOR ADDITIONAL TRAVEL EXPENSES INCURRED THROUGH INDIRECT ROUTING AND DELAY EN ROUTE WHILE TRANSFERRING FROM TEXAS TO KOREA. THE DENIAL IS SUSTAINED.

THE RECORD SHOWS THAT MR. SMITH, AN ARMY CIVILIAN EMPLOYEE, WAS ORDERED ON MAY 11, 1976, TO MAKE A PERMANENT CHANGE OF STATION FROM SAN ANTONIO, TEXAS, TO SEOUL, KOREA, WITH DELAY EN ROUTE AT PERSONAL EXPENSE FOR 2 DAYS EACH IN HAWAII AND JAPAN AND USING TRAVEL BY GOVERNMENT TRANSPORTATION WHEN AVAILABLE. HE THEREAFTER TRAVELED BY COMMERCIAL AIR TRANSPORTATION WITH STAYS OF 4 DAYS IN HONOLULU, HAWAII, AND 3 DAYS IN TOKYO, JAPAN. HIS TRAVEL ORDERS WERE SUBSEQUENTLY AMENDED AT HIS NEW DUTY STATION PURPORTING TO AUTHORIZE REIMBURSEMENT FOR THE SPECIAL ROUTING TO KOREA BY HAWAII AND JAPAN AT MILITARY AIRLIFT COMMAND (MAC) RATES, DUE TO THE MEDICAL CONDITION OF HIS WIFE. REIMBURSEMENT OF TRAVEL EXPENSES WAS LIMITED TO THE AMOUNT OF AIR FARE AND PER DIEM WHICH WOULD HAVE BEEN PAYABLE HAD HE TRAVELED DIRECTLY FROM SAN ANTONIO TO SEOUL USING GOVERNMENT TRANSPORTATION BY THE NORMAL ROUTE, SINCE SUCH TRAVEL WAS NOT JUSTIFIED AS OFFICIALLY NECESSARY.

MR. SMITH CONTENDS THAT HE WOULD NOT HAVE ACCEPTED THE TRANSFER NOR WOULD HE HAVE TRAVELED BY DIRECT ROUTE WITH THE HARDSHIP TO HIMSELF AND HIS WIFE, BUT THAT HE WAS ADVISED BY GOVERNMENT EMPLOYEES THAT HE WOULD BE REIMBURSED FOR THE TRAVEL PLAN USED. HOWEVER, HE ALSO ACKNOWLEDGES THAT THE TRAVEL SECTION AT FORT HOOD, TEXAS, WHICH WAS TO ARRANGE HIS ITINERARY ADVISED HIM THAT THE INDIRECT ROUTING AND DELAYS HE DESIRED COULD NOT BE HONORED.

TRAVEL PERFORMED OTHER THAN BY THE USUALLY TRAVELED ROUTE MUST BE JUSTIFIED AS OFFICIALLY NECESSARY. WHEN, FOR HIS OWN CONVENIENCE, A PERSON TRAVELS BY AN INDIRECT ROUTE OR INTERRUPTS TRAVEL BY A DIRECT ROUTE, THE EXTRA EXPENSE WILL BE BORNE BY HIM, WITH REIMBURSEMENT BASED ONLY ON SUCH CHARGES AS WOULD HAVE BEEN INCURRED BY A USUALLY TRAVELED ROUTE. EXCESS TRAVEL TIME NOT JUSTIFIED AS OFFICIALLY NECESSARY IS TO BE CHARGED TO LEAVE. PARAGRAPH C6000, 2 JOINT TRAVEL REGULATIONS (2 JTR), CH. 118, AUG. 1, 1975.

ALTHOUGH THERE IS EVIDENCE THAT MR. SMITH'S WIFE WAS UNDER TREATMENT AT A GOVERNMENT HOSPITAL PRIOR TO HIS TRANSFER AND HER DOCTORS HAD INDICATED THAT THE TRIP FROM SAN ANTONIO TO KOREA WOULD BE LESS DIFFICULT FOR HER IF ALLOWED PERIODIC REST TIME DURING THE TRIP, STOPOVERS IN HAWAII AND JAPAN WHICH MAY HAVE LESSENED THE BURDEN OF TRAVEL WERE A MATTER OF CONVENIENCE AND NOT OF OFFICIAL NECESSITY. B-178608, JUNE 6, 1973. THE FACT THAT MR. SMITH'S ORDERS WERE AMENDED AFTER THE TRAVEL WAS COMPLETED TO AUTHORIZE REIMBURSEMENT FOR THE INTERRUPTED TRAVEL IS NOT CONTROLLING IN THE ABSENCE OF AN AGENCY DETERMINATION OF OFFICIAL NECESSITY. FURTHER, IF THE AMENDMENT OF THE ORDERS WAS CONSIDERED TO BE THE RESULT OF ADMINISTRATIVE ERROR IN PREPARING THE ORDERS, IT WOULD NOT ESTABLISH A BASIS FOR MAKING PAYMENT OF THE ADDITIONAL EXPENSES IN THE ABSENCE OF THE REQUIRED DETERMINATION OF OFFICIAL NECESSITY. B-147614, DECEMBER 28, 1961; B-178875, AUGUST 27, 1973.

WHILE IT IS UNFORTUNATE THAT A MISUNDERSTANDING MAY HAVE DEVELOPED AS TO MR. SMITH'S TRAVEL ENTITLEMENT INCIDENT TO HIS TRANSFER, THE RECEIPT OF ERRONEOUS INFORMATION, BY ONE DEALING WITH A GOVERNMENT OFFICIAL WHICH WAS RELIED UPON BY THE RECIPIENT TO HIS DETRIMENT DOES NOT AFFORD A LEGAL BASIS FOR A PAYMENT FROM APPROPRIATED FUNDS. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 56 COMP.GEN. 943 (1977).

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION DENYING PAYMENT OF ADDITIONAL TRAVEL EXPENSES IS SUSTAINED.

CONCERNING MR. SMITH'S INQUIRY AS TO AVENUES OF APPEAL, OUR DECISIONS ARE BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THERE IS NO FURTHER ADMINISTRATIVE APPEAL. HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT. 28 U.S.C. SECS. 1346, 1491 (1976).