B-2780, MAY 9, 1939, 18 COMP. GEN. 830

B-2780: May 9, 1939

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AS FOLLOWS: REFERENCE IS MADE TO A NOTICE OF EXCEPTION DATED SEPTEMBER 7. BOYCE HAS APPEALED THIS SUSPENSION TO THE DEPARTMENT AS WILL BE NOTED FROM THE ENCLOSED COPY OF HIS DESPATCH DATED NOVEMBER 7. IT IS REQUESTED THAT I BE ADVISED WHETHER THE PHRASE "EMPLOYEE'S PERSONALLY OWNED AUTOMOBILE" MAY INCLUDE CARS REGISTERED IN THE NAME OF THE OFFICER'SWIFE. WHICH PERSONS ARE INCLUDED IN THE DEFINITION OF "FAMILY" CONTAINED IN THE DEPARTMENT'S SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. WHICH IS IDENTICAL TO THAT IN NOTE 34. WAS CONTAINED IN NOTE 33 OF DEPARTMENTAL ORDER NO. 737. WITH RESPECT TO WHICH THE NOTICE OF EXCEPTION ROAD AS FOLLOWS: REGISTRATION OF AN AUTOMOBILE IN THE NAME OF AN EMPLOYEE'S WIFE IS PRIMA FACIE EVIDENCE OF OWNERSHIP IN THE WIFE.

B-2780, MAY 9, 1939, 18 COMP. GEN. 830

MILEAGE - TRAVEL BY PRIVATELY OWNED AUTOMOBILE - TITLE TO AUTOMOBILE - REGISTRATION IN WIFE'S NAME - FOREIGN SERVICE OFFICERS AND DEPENDENTS TRANSPORTATION MILEAGE MAY NOT BE ALLOWED UNDER THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED, FOR OFFICIAL TRAVEL OF AN AMERICAN CONSUL ACCOMPANIED BY HIS WIFE IN AN AUTOMOBILE REGISTERED IN HIS WIFE'S NAME NOTWITHSTANDING THE APPLICABLE STATE DEPARTMENT REGULATIONS PERMIT REIMBURSEMENT FOR EXPENSE OF TRANSPORTATION OF THE FAMILY AS THEREIN OUTLINED; THE MILEAGE ACT, SUPRA, REQUIRING THE USE OF THE OFFICER'S OR EMPLOYEE'S "OWN AUTOMOBILE; " THE RIGHT TO THE REIMBURSEMENT ACCRUING NOT TO THE DEPENDENT BUT TO THE OFFICER BY REASON OF ORDERS REQUIRING TRAVEL TO HIS NEW OFFICIAL STATION; AND THE WIFE OF THE OFFICER NOT BEING A "CIVILIAN OFFICER OR EMPLOYEE" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF 1931.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF STATE, MAY 9, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 29, 1939, AS FOLLOWS:

REFERENCE IS MADE TO A NOTICE OF EXCEPTION DATED SEPTEMBER 7, 1938, SUSPENDING THE SUM OF $204.77 ON VOUCHER NO. 38 IN THE ACCOUNT OF RICHARD F. BOYCE, AMERICAN CONSUL AT YOKOHAMA, JAPAN, FOR NOVEMBER 1937, FOR THE REASON THAT HE USED HIS WIFE'S AUTOMOBILE FOR TRAVEL AUTHORIZED AT GOVERNMENT EXPENSE.

MR. BOYCE HAS APPEALED THIS SUSPENSION TO THE DEPARTMENT AS WILL BE NOTED FROM THE ENCLOSED COPY OF HIS DESPATCH DATED NOVEMBER 7, 1938, A REPLY TO EXCEPTIONS AND THE TWO AFFIDAVITS ATTACHED THERETO. IN ORDER THAT HE MAY BE APPROPRIATELY INSTRUCTED IN THE PREMISES, IT IS REQUESTED THAT I BE ADVISED WHETHER THE PHRASE "EMPLOYEE'S PERSONALLY OWNED AUTOMOBILE" MAY INCLUDE CARS REGISTERED IN THE NAME OF THE OFFICER'SWIFE, CHILD, OR STEPCHILD, WHICH PERSONS ARE INCLUDED IN THE DEFINITION OF "FAMILY" CONTAINED IN THE DEPARTMENT'S SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NOTE 34, APPROVED BY THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES UNDER DATE OF MARCH 14, 1939. THE DEFINITION OF FAMILY IN EFFECT AT THE TIME OF THE TRAVEL OF MR. BOYCE, WHICH IS IDENTICAL TO THAT IN NOTE 34, WAS CONTAINED IN NOTE 33 OF DEPARTMENTAL ORDER NO. 737, DATED OCTOBER 15, 1937.

THE SUSPENSION OF $204.77 COVERED BY THE CITED NOTICE OF EXCEPTION INVOLVES TO ITEMS, VIZ, $12.92, OVERPAYMENT OF PER DIEM AND $191.85, AS MILEAGE. THE RECORD SHOWS THAT THE PER DIEM OVERPAYMENT OF $12.92 HAS BEEN COLLECTED, THUS LEAVING IN QUESTION THE ITEM OF MILEAGE, WITH RESPECT TO WHICH THE NOTICE OF EXCEPTION ROAD AS FOLLOWS:

REGISTRATION OF AN AUTOMOBILE IN THE NAME OF AN EMPLOYEE'S WIFE IS PRIMA FACIE EVIDENCE OF OWNERSHIP IN THE WIFE. ACCORDINGLY UNDER PROVISIONS OF THE ACT OF FEBRUARY 14, 1931, THE EMPLOYEE, NOT BEING THE OWNER OF THE AUTOMOBILE, IS NOT ENTITLED TO MILEAGE FOR ITS USE ON OFFICIAL TRAVEL. THE ABSENCE OF A PROPER SHOWING OF ACTUAL EXPENSES OF OPERATION OF THE AUTOMOBILE NO PART OF THE AMOUNT CLAIMED IS ALLOWABLE.

THE TRAVEL IN THIS CASE WAS PERFORMED FROM DETROIT, MICH., TO WASHINGTON, D.C., AND RETURN, BY MR. BOYCE, ALONE, AND FROM DETROIT TO SAN FRANCISCO BY BOTH MR. AND MRS. BOYCE, IN AN AUTOMOBILE REGISTERED IN THE NAME OF MRS. BOYCE.

NOTE 34 OF THE REGULATIONS CITED IS AS FOLLOWS:

DEFINITION OF "FAMILY.'--- THOSE ENTITLED TO REIMBURSEMENT FOR EXPENSE OF TRANSPORTATION AND SUBSISTENCE AND TRANSPORTATION OF EFFECTS UNDER THESE NOTES AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS INCLUDE OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE. THE FAMILY, WHOSE EXPENSES OF TRANSPORTATION AND PER DIEM MAY BE CHARGED AGAINST THE GOVERNMENT, MAY INCLUDE A WIFE AND DEPENDENT CHILDREN (INCLUDING STEPCHILDREN) AND NO OTHERS. THE WORD "DEPENDENT" MEANS CHILDREN WHO HAVE NOT REACHED THE AGE OF 21 AND WHO ARE NOT ACCUSTOMED TO PROVIDE FOR THEIR OWN SUPPORT; BUT ANY DEPENDENT CHILD ARRIVING AT THE AGE OF 21 BETWEEN THE DATE OF DEPARTURE FROM THE OLD POST AND ARRIVAL AT THE NEW POST SHALL BE CONSIDERED AS COMING WITHIN THE REGULATIONS FOR THE WHOLE JOURNEY.

THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED (5 U.S.C. 73A), UNDER WHICH THE RIGHT TO PAYMENT OF MILEAGE ACCRUES, PROVIDES:

THAT A CIVILIAN OFFICER OR EMPLOYEE ENGAGED IN NECESSARY TRAVEL ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY MAY BE PAID, IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, NOT TO EXCEED 2 CENTS PER MILE FOR THE USE OF HIS OWN MOTORCYCLE OR 5 CENTS PER MILE FOR THE USE OF HIS OWN AUTOMOBILE FOR SUCH TRANSPORTATION, WHENEVER SUCH MODE OF TRAVEL HAS BEEN PREVIOUSLY AUTHORIZED AND PAYMENT ON SUCH MILEAGE BASIS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. * * *

IT HAS BEEN HELD REPEATEDLY THAT AN AUTOMOBILE REGISTERED IN THE NAME OF AN EMPLOYEE'S WIFE IN STATES, THE LAWS OF WHICH REQUIRE REGISTRATION IN THE NAME OF THE OWNER, COULD NOT BE CONSIDERED THE EMPLOYEE'S OWN AUTOMOBILE AND THAT THIS OFFICE COULD NOT CONSIDER EVIDENCE TENDING TO ESTABLISH EQUITABLE OWNERSHIP IN THE HUSBAND SO LONG AS THE RECORD REGISTRATION REMAINS UNCHANGED. 11 COMP. GEN. 425; 14 ID. 197; 16 ID. 23. AN AUTOMOBILE REGISTERED JOINTLY IN THE NAME OF AN EMPLOYEE AND HIS WIFE IS REGARDED AS THE EMPLOYEE'S "OWN AUTOMOBILE" WITHIN THE MEANING OF THE STATUTE. 16 COMP. GEN. 604.

THE WIFE OF A FOREIGN SERVICE OFFICER IS NOT A "CIVILIAN OFFICER OR EMPLOYEE" AND ALTHOUGH ENTITLED TO REIMBURSEMENT OF TRANSPORTATION EXPENSES UNDER THE CONDITIONS PRESCRIBED IN THE ANNUAL APPROPRIATION ACTS SHE MAY NOT BE REIMBURSED ON A MILEAGE BASIS FOR THE USE OF HER OWN AUTOMOBILE UNDER THE ACT OF FEBRUARY 14, 1931, SUPRA.

THE STATE DEPARTMENT'S SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS STATES THE EXTENT AND MANNER OF INCURRENCE OF EXPENSES OF TRANSPORTATION AND PER DIEM FOR DEPENDENTS CHARGEABLE TO THE GOVERNMENT UNDER APPROPRIATE AUTHORIZATION AND THE RIGHT TO REIMBURSEMENT FOR PERSONAL FUNDS ADVANCED UNDER SUCH REGULATIONS ACCRUES NOT TO THE DEPENDENT BUT TO THE OFFICER BY REASON OF THE ORDERS REQUIRING TRAVEL TO HIS NEW OFFICIAL STATION. NOTE 34, SUPRA, MERELY DEFINES THE CLASSES OF PERSONS ELIGIBLE AS DEPENDENTS TO BE TRANSPORTED AT GOVERNMENT EXPENSE PURSUANT TO OFFICIAL NECESSITY. NOTHING APPEARS IN THAT PARAGRAPH, OR ELSEWHERE IN THE REGULATIONS, TO JUSTIFY THE CONCLUSION THAT AN AUTOMOBILE REGISTERED IN THE NAME OF AN OFFICER'S DEPENDENT MAY BE CONSIDERED THE OFFICER'S PERSONALLY OWNED AUTOMOBILE NOR WOULD A REGULATION PURPORTING TO AUTHORIZE SUCH PRACTICE PERMIT PAYMENT OF MILEAGE FOR THE USE OF A CAR SO REGISTERED.

ACCORDINGLY, I HAVE TO ADVISE THAT THE PHRASE "HIS OWN AUTOMOBILE" APPEARING IN THE ACT OF FEBRUARY 14, 1931, SUPRA, MAY NOT INCLUDE CARS OWNED BY THE WIFE OF THE OFFICER PERFORMING THE OFFICIAL TRAVEL. THE AUDIT ACTION IN THIS CASE MUST BE, AND IS, SUSTAINED.

THIS ACTION IS WITHOUT PREJUDICE TO THE FILING OF A CLAIM FOR REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS, THAT IS, FOR EXPENDITURES FOR SUCH ITEMS AS GASOLINE, OIL, STORAGE, AND TOLLS, SUPPORTED BY RECEIPTS OR, IF NO RECEIPTS CAN BE FURNISHED, BY A SWORN STATEMENT SHOWING THE MAKE OF CAR, THE DISTANCE TRAVELED, THE AVERAGE CONSUMPTION OF GASOLINE AND OIL PER MILE, AND THE AMOUNT EXPENDED.