B-219958, SEP 26, 1986, 65 COMP.GEN. 884

B-219958: Sep 26, 1986

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THE MEMBERS ARE UNABLE TO OBTAIN TRI'S AND INSTEAD PERSONALLY PAY FOR THEIR COMMERCIAL FLIGHTS. THEY MAY BE REIMBURSED IF AN APPROPRIATE OFFICIAL CERTIFIES THAT TR'S WERE NOT AVAILABLE TO THEM. SUCH CERTIFICATION DOES NOT ENTAIL A RETROACTIVE MODIFICATION OF THE TRAVEL ORDERS AND IS INSTEAD SIMPLY A FACTUAL DETERMINATION CONCERNING THE CONDITIONS THAT EXISTED AT THE TIME THE TRAVEL WAS PERFORMED. MILITARY TRAVEL ORDERS MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED UNDER STATUTE AND REGULATION AFTER THE TRAVEL HAS BEEN PERFORMED. RETROACTIVE MODIFICATION OF A MARINE CORPS SERGEANT'S ORDERS TO DELETE A PROVISION REQUIRING GROUP TRAVEL IS APPROPRIATE UNDER THIS RULE TO CORRECT A PLAIN ERROR.

B-219958, SEP 26, 1986, 65 COMP.GEN. 884

TRAVEL EXPENSES - AIR TRAVEL - REIMBURSEMENT BASIS 1. WHEN TRAVEL ORDERS GIVEN TO MILITARY MEMBERS SPECIFY TRAVEL BY COMMERCIAL AIRLINE WITH GOVERNMENT TRANSPORTATION REQUESTS (TR'S) TO BE USED, AND THE MEMBERS ARE UNABLE TO OBTAIN TRI'S AND INSTEAD PERSONALLY PAY FOR THEIR COMMERCIAL FLIGHTS, THEY MAY BE REIMBURSED IF AN APPROPRIATE OFFICIAL CERTIFIES THAT TR'S WERE NOT AVAILABLE TO THEM. SUCH CERTIFICATION DOES NOT ENTAIL A RETROACTIVE MODIFICATION OF THE TRAVEL ORDERS AND IS INSTEAD SIMPLY A FACTUAL DETERMINATION CONCERNING THE CONDITIONS THAT EXISTED AT THE TIME THE TRAVEL WAS PERFORMED. ORDERS - AMENDMENT - RETROACTIVE 2. MILITARY TRAVEL ORDERS MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED UNDER STATUTE AND REGULATION AFTER THE TRAVEL HAS BEEN PERFORMED, EXCEPT TO CORRECT PLAIN ERRORS. RETROACTIVE MODIFICATION OF A MARINE CORPS SERGEANT'S ORDERS TO DELETE A PROVISION REQUIRING GROUP TRAVEL IS APPROPRIATE UNDER THIS RULE TO CORRECT A PLAIN ERROR, WHERE IT WAS DEMONSTRATED THAT NO GROUP EXISTED WITH WHICH HE COULD TRAVEL AND THAT THE ORDER-ISSUING AUTHORITY HAD NOT INTENDED TO SPECIFY GROUP TRAVEL AT THE TIME THE ORDERS WERE PUBLISHED. ORDERS - AMENDMENT - RETROACTIVE 3. THE TRAVEL AND TRANSPORTATION ENTITLEMENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE FOR COMPUTATION UNDER THE STATUTES AND REGULATIONS IN EFFECT AT THE TIME THE TRAVEL IS PERFORMED. GENERALLY, IF THE APPLICABLE STATUTES AND REGULATIONS ARE AMENDED AFTER THE ISSUANCE OF ORDERS BUT BEFORE THE COMPLETION OF TRAVEL, NO RETROACTIVE MODIFICATION OF THE TRAVEL ORDERS WOULD BE INVOLVED, AND INSTEAD THE ORDERS WOULD BE AUTOMATICALLY BROUGHT INTO CONFORMITY WITH THE STATUTES AND REGULATIONS AT THE TIME OF THEIR AMENDMENT.

MATTER OF: SERGEANT PAUL D. WILSON, USMC, AND OTHERS, SEPTEMBER 26, 1986:

MAJOR W. J. BYRNE, JR., A DISBURSING OFFICER OF THE MARINE CORPS AT CAMP LEJEUNE, NORTH CAROLINA, HAS REQUESTED AN ADVANCE DECISION REGARDING WHETHER TWO INDIVIDUALS' TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY TO AUTHORIZE THEM TO TRAVEL BY COMMERCIAL AIRLINES AT PERSONAL EXPENSE, INSTEAD OF USING A GOVERNMENT TRANSPORTATION REQUEST AS INITIALLY SPECIFIED IN THEIR ORDERS. FIRST LIEUTENANT D. B. JENNINGS OF THE DISBURSING OFFICE, MARINE CORPS AIR STATION NEW RIVER, JACKSONVILLE, FLORIDA, QUESTIONS WHETHER ANOTHER INDIVIDUAL'S TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY TO CHANGE THE ORDERS TO READ "INDIVIDUAL" RATHER THAN "GROUP" TRAVEL. IN FORWARDING THESE CASES, THE MARINE CORPS FINANCE CENTER APPENDED TWO MORE GENERAL QUESTIONS REGARDING RETROACTIVE AMENDMENTS OF TRAVEL ORDERS. THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE APPROVED THE SUBMISSION AND ASSIGNED IT CONTROL NUMBER 85-29.

INITIALLY, WE NOTE THAT TRAVEL ALLOWANCES ARE AUTHORIZED UNDER STATUTE AND REGULATION FOR SERVICE MEMBERS FOR THEIR EXPENSES IN COMPLYING WITH TRAVEL REQUIREMENTS IMPOSED ON THEM BY COMPETENT ORDERS ISSUED BY THE SERVICES. SEE PRIVATE VINCENT A. MANAOIS, 63 COMP.GEN. 621, 623 (1984). IF THE TRAVEL IS FOR THE BENEFIT OF THE SERVICE AND THE SERVICE MEMBER IS DIRECTED BY COMPETENT ORDERS ISSUED IN ADVANCE TO PERFORM THE TRAVEL, THE MEMBER IS ENTITLED TO BE REIMBURSED IN ACCORDANCE WITH THE APPLICABLE STATUTES AND REGULATIONS IN EFFECT AT THE TIME THE TRAVEL IS PERFORMED. SEE ENSIGN CHERYL R. DALLMAN, USNR, 64 COMP.GEN. 489, 491 (1985). THE GENERAL RULE IS THAT LEGAL RIGHTS AND LIABILITIES WITH REGARD TO TRAVEL ALLOWANCES VEST UNDER THE STATUTES AND REGULATIONS WHEN TRAVEL IS PERFORMED IN COMPLIANCE WITH COMPETENT ORDERS. AS A RESULT, SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER STATUTE AND REGULATION AFTER THE TRAVEL HAS BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED IN CASES INVOLVING ERRORS WHICH ARE APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR WHERE ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE ORIGINAL ORDERS CLEARLY DEMONSTRATE THAT SAME PROVISION WHICH WAS PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN INADVERTENTLY OMITTED IN THEIR PREPARATION. SEE WARRANT OFFICER JOHN W. SNAPP, USMC, 63 COMP.GEN. 4, 8 (1983), AND DECISIONS THEREIN CITED.

ORDERS DIRECTING THE USE OF TRANSPORTATION REQUESTS

MAJOR BYRNE OF CAMP LEJEUNE HAS PRESENTED TWO CASES INVOLVING PURPORTED RETROACTIVE MODIFICATIONS OF TRAVEL ORDERS TO APPROVE REIMBURSEMENT OF A MEMBER'S TRAVEL BY COMMERCIAL AIRLINES AT THE MEMBER'S EXPENSE. THE TWO CASES INVOLVE SERGEANT PAUL D. WILSON AND WARRANT OFFICER RONALD W. BENTLEY.

ON JUNE 18, 1984, SERGEANT WILSON WAS ISSUED TEMPORARY ADDITIONAL DUTY ORDERS SPECIFYING HE WAS TO REPORT ON JUNE 21, 1984, TO FIELD ARTILLERY SCHOOL AT FORT SILL, OKLAHOMA. THE SPECIFIED MODE OF TRAVEL WAS COMMERCIAL AIR PROCURED BY GOVERNMENT TRANSPORTATION REQUEST, BUT HE PURCHASED AN AIRLINE TICKET AT HIS OWN EXPENSE INSTEAD. SUBSEQUENTLY, THE COMMANDING GENERAL OF SERGEANT WILSON'S DIVISION DETERMINED THAT HE HAD BEEN UNABLE TO OBTAIN A GOVERNMENT TRANSPORTATION REQUEST IN TIME TO REPORT TO FORT SILL BY JUNE 21, 1984, AND ISSUED AN ORDER RETROACTIVELY AUTHORIZING HIS TRAVEL BY COMMERCIAL AIR WITHOUT A GOVERNMENT TRANSPORTATION REQUEST.

IN THE SECOND CASE, ON FEBRUARY 5, 1985, WARRANT OFFICER BENTLEY WAS ISSUED TRAVEL ORDERS DIRECTING HIM TO PERFORM TEMPORARY DUTY AT BARDUFOSS, NORWAY, BUT THE ORDERS AUTHORIZED "VARIATION OF ITINERARY." HIS ORDERS DIRECTED HIM TO USE GOVERNMENT TRANSPORTATION IF AVAILABLE. OTHERWISE HE WAS TO OBTAIN A GOVERNMENT TRANSPORTATION REQUEST. UPON LEAVING CAMP LEJEUNE, WARRANT OFFICER BENTLEY WAS GIVEN TRANSPORTATION REQUESTS ENABLING HIM TO TRAVEL FROM CAMP LEJEUNE TO BARDUFOSS, NORWAY, AND BACK TO CAMP LEJEUNE. WHILE IN BARDUFOSS, THE MEMBER PERFORMED TEMPORARY DUTY AT OSLO, NORWAY, FOR WHICH TRAVEL HE PURCHASED COMMERCIAL AIRLINE TICKETS WITH HIS PERSONAL FUNDS. UPON RETURN TO CAMP LEJEUNE, WARRANT OFFICER BENTLEY'S TRAVEL ORDERS WERE RETROACTIVELY AMENDED TO AUTHORIZE THE USE OF COMMERCIAL TRANSPORTATION AT PERSONAL EXPENSE SO AS TO ENABLE HIM TO BE REIMBURSED THE COST OF HIS TRAVEL BETWEEN BARDUFOSS AND OSLO FOR WHICH TRAVEL HE COULD NOT USE A GOVERNMENT TRANSPORTATION REQUEST.

IN SITUATIONS SUCH AS THOSE INVOLVING THE TWO MILITARY MEMBERS DISCUSSED ABOVE, THERE IS A REGULATION IN VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR) WHICH IS APPLICABLE. THIS PROVISION, 1 JTR, PARA. M4203-3E, STATES:

"E. ORDERS DIRECT UTILIZATION OF TRANSPORTATION REQUESTS. WHEN TRAVEL ORDERS SPECIFICALLY DIRECT (AS DISTINGUISHED FROM AUTHORIZE) THE ISSUANCE OF TRANSPORTATION REQUESTS VIA SPECIFIC MODES OF TRANSPORTATION BUT THE MEMBER TRAVELS BY COMMON CARRIER AT PERSONAL EXPENSE, REIMBURSEMENT IS PROHIBITED UNLESS THE APPROPRIATE AUTHORITY RESPONSIBLE FOR FURNISHING SUCH TRANSPORTATION REQUESTS CERTIFIES THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE OR THE MODE OF TRANSPORTATION DIRECTED WAS NOT AVAILABLE AT THE TIME AND PLACE REQUIRED IN TIME TO COMPLY WITH THE ORDERS. ***"

UNDER THE REGULATION, THE TWO MEMBERS MAY BE REIMBURSED SINCE THE APPROPRIATE AUTHORITY HAS MADE THE CERTIFICATION REQUIRED BY THIS PROVISION THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE. GUNNERY SERGEANT MICHAEL M. MCCLURE, 64 COMP.GEN. 234 (1985). ALTHOUGH THE CERTIFICATIONS WERE MADE IN THE FORM OF PURPORTED RETROACTIVE MODIFICATIONS TO THE MEMBERS' TRAVEL ORDERS, OUR VIEW IS THAT NO MODIFICATION OF THE ORDERS WAS ACTUALLY INVOLVED. THAT IS, THE CERTIFICATIONS WERE SIMPLY FACTUAL DETERMINATIONS THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE AND NO CORRECTIONS OF ERROR IN THE ORIGINAL ORDERS WERE INVOLVED. SEE B-170423, FEBRUARY 18, 1972. SEE ALSO GUNNERY SERGEANT MICHAEL M. MCCLURE, 64 COMP.GEN. 234, SUPRA.

ORDERS DESIGNATING GROUP TRAVEL

FIRST LIEUTENANT JENNINGS OF MARINE CORPS AIR STATION NEW RIVER PRESENTS A QUESTION IN REGARD TO A CHANGE IN A TRAVEL ORDER DESIGNATION FROM GROUP TRAVEL TO INDIVIDUAL TRAVEL. SINCE MEMBERS IN A GROUP TRAVEL STATUS NORMALLY DO NOT RECEIVE PER DIEM (SEE 1 JTR, PARA. M4101 2), A CHANGE FROM GROUP TRAVEL TO INDIVIDUAL TRAVEL GENERALLY WILL RESULT IN AN INCREASE IN TRAVEL ENTITLEMENTS BRINGING INTO EFFECT THE RULE AGAINST RETROACTIVE MODIFICATIONS OF TRAVEL ORDERS.

THE FACTS ARE THAT ON JULY 13, 1984, MASTER GUNNERY SERGEANT RAY F. GARRETT WAS ISSUED TRAVEL ORDERS DIRECTING HIM TO REPORT FOR TEMPORARY DUTY AT CECIL FIELD, FLORIDA. GROUP TRAVEL WAS DESIGNATED. SUBSEQUENTLY, ACCORDING TO THE ADMINISTRATIVE OFFICER AT THE MEMBER'S DUTY STATION, HIS TRAVEL ORDERS WERE MODIFIED TO AUTHORIZE INDIVIDUAL TRAVEL INSTEAD OF GROUP TRAVEL BECAUSE "HE WAS ERRONEOUSLY PLACED ON GROUP ORDERS AFTER THE ORIGINAL ORDERS HAD BEEN EXECUTED AND THE PERSONNEL HAD ALREADY ARRIVED AT CECIL FIELD, FLORIDA."

THE REGULATIONS REGARDING GROUP TRAVEL ARE FOUND IN 1 JTR, PARAGRAPHS M4100-M4104. AS THE REGULATIONS POINT OUT, AMONG OTHER THINGS, GROUP TRAVEL SHOULD BE USED WHEN SEVERAL MEMBERS ARE TO TRAVEL FROM THE SAME POINT OF ORIGIN TO THE SAME DESTINATION. IN THIS SITUATION, OUR VIEW IS THAT SINCE THERE WERE NOT SEVERAL MEMBERS TRAVELING FROM THE SAME POINT-- THE OTHER MEMBERS HAVING DEPARTED PRIOR TO THE ISSUANCE OF SERGEANT GARRETT'S ORDERS-- THE ORDERS WERE NOT CONSISTENT WITH THE REGULATIONS AND WERE RETROACTIVELY MODIFIED PROPERLY ON THE BASIS OF PLAIN ERROR. COMPARE 44 COMP.GEN. 405, 407 408 (1965).

GENERAL QUESTIONS FROM THE MARINE CORPS FINANCE CENTER

THE FIRST QUESTION IS "WOULD INCREASED AMOUNTS FOR TRANSPORTATION OR PER DIEM, BECAUSE OF COMPUTATIONS MADE UNDER APPROPRIATE REGULATIONS BE CONSIDERED RETROACTIVE MODIFICATION?"

AS INDICATED, TRAVEL AND TRANSPORTATION ALLOWANCES ARE FOR COMPUTATION UNDER THE STATUTES AND REGULATIONS IN EFFECT AT THE TIME THE TRAVEL IS PERFORMED. GENERALLY, IF THE APPLICABLE STATUTES OR REGULATIONS ARE AMENDED AFTER THE ISSUANCE OF ORDERS BUT BEFORE THE COMPLETION OF TRAVEL, NO RETROACTIVE MODIFICATION OF THE ORDERS WOULD BE REQUIRED. INSTEAD, THE AMENDMENT OF THE STATUTE OR REGULATION WOULD OPERATE SIMULTANEOUSLY AND AUTOMATICALLY TO AMEND THE ORDERS PROSPECTIVELY, SINCE TRAVEL ORDERS MUST CONFORM TO THE GOVERNING PROVISIONS OF STATUTE AND REGULATION IN EFFECT AT THE TIME THE TRAVEL IS PERFORMED. SEE WARRANT OFFICER JOHN W. SNAPP, USMC, SUPRA, 63 COMP.GEN. AT PAGE 7.

THE FINANCE CENTER'S SECOND QUESTION IS:

"WOULD THE INCREASED COSTS OF A GOVERNMENT PROCURED AIRLINE TICKET, BORN BY THE TRAVELER, WHICH IS CAUSED BY DEREGULATION OR CHANGE IN AIR CARRIER BE CONSIDERED A RETROACTIVE MODIFICATION? THE ENTITLEMENT TO TRANSPORTATION HAS BEEN VESTED IN THE BASIC ORDER BUT THE AMOUNT HAS BEEN INCREASED."

GENERALLY, AN INCREASE IN THE COST OF TRANSPORTATION UNDER THE SITUATION DESCRIBED WOULD NOT APPEAR TO REQUIRE A RETROACTIVE MODIFICATION, SINCE TRAVEL WOULD BE ACCOMPLISHED IN THE MANNER SPECIFIED IN THE TRAVEL ORDERS.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY. THE VOUCHERS PRESENTED FOR DECISION ARE RETURNED FOR PAYMENT, IF OTHERWISE CORRECT.