B-155065, DEC. 23, 1964

B-155065, DEC. 23, 1964

TO MAJOR JOHN E. MALOY, 0 960 845:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1964, REGARDING YOUR CLAIM FOR MILEAGE INCIDENT TO TRAVEL PERFORMED BY PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN TO BERLIN, GERMANY ON JULY 26, 1963.

SPECIAL ORDERS NO. 35, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED FEBRUARY 14, 1963, DIRECTED YOUR REASSIGNMENT TO UNITED STATES ARMY EUROPE (GERMANY), AND BY SPECIAL ORDERS NO. 67, HEADQUARTERS, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, DATED APRIL 3, 1963, YOU WERE ASSIGNED TO THE 279TH STATION HOSPITAL (GERMANY). YOU AND YOUR DEPENDENTS TRAVELED BY COMMERCIAL AIR LINE FROM FORT SAM HOUSTON TO BROOKLYN, NEW YORK, DURING THE PERIOD JULY 15, TO 16, 1963; BY GOVERNMENT BOAT FROM BROOKLYN TO BREMERHAVEN, GERMANY, DURING THE PERIOD JULY 16 TO 25, 1963; AND BY PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN TO BERLIN, ON JULY 26, 1963. YOU WERE PAID ON A MILEAGE BASIS, FOR THE EXPENSES INCURRED IN CONNECTION WITH THE TRAVEL FROM FORT SAM HOUSTON TO BROOKLYN, BUT NOT FOR THE TRAVEL FROM BREMERHAVEN TO BERLIN.

IN A LETTER DATED MARCH 28, 1964, YOU PRESENTED A CLAIM UNDER THE PROVISIONS OF PARAGRAPHS 4150-1, 4150-4 AND 4159, JOINT TRAVEL REGULATIONS, FOR "PCS TRAVEL ALLOWANCES" IN CONNECTION WITH THE TRAVEL FROM BREMERHAVEN TO BERLIN. YOU STATED IN THAT LETTER, AMONG OTHER THINGS, THAT THE FINANCE AND ACCOUNTING OFFICER DENIED PAYMENT OF THE EXPENSES FOR THE JOURNEY FROM BREMERHAVEN TO BERLIN BECAUSE "GOVERNMENT RAIL (DUTY TRAIN) WAS AVAILABLE," AND FURTHER THAT UPON DEPARTING BREMERHAVEN YOU WERE GIVEN NO INSTRUCTIONS, EITHER WRITTEN OR ORAL, CONCERNING TRAVEL BY THAT MEANS. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 21, 1964, FOR THE REASON THAT TRANSPORTATION BETWEEN BREMERHAVEN AND BERLIN WAS AVAILABLE WITHOUT COST TO YOU OR THE UNITED STATES AND, THEREFORE, THE PROVISIONS OF PARAGRAPH 4203-5, JOINT TRAVEL REGULATIONS, PRECLUDE BOTH REIMBURSEMENT OF THE COST OF TRANSPORTATION AND PAYMENT OF MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN SUCH INSTANCE.

YOU SAY IN YOUR LETTER OF AUGUST 10, 1964, THAT PARAGRAPH 4203-5, JOINT TRAVEL REGULATIONS, IS EMBODIED UNDER "PART E: TEMPORARY DUTY ALLOWANCE IN THE UNITED STATES" BUT IS NOT MENTIONED IN PARAGRAPHS 4150-4, 4159, OR ANY OTHER PARAGRAPH OF "PART D: PERMANENT CHANGE OF STATION OWANCES.' ACCORDINGLY, YOU SUGGEST THAT IF THE DENIAL OF THE CLAIM IS VALID, BASED ON THE LAW AND INTERPRETATION THEREOF OR THE CONTENTION THAT THE PROVISIONS OF PARAGRAPH 4203-5, JOINT TRAVEL REGULATIONS, APPLY WITHOUT DISTINCTION BETWEEN PERMANENT CHANGE OF STATION AND TEMPORARY DUTY TRAVEL IN THE UNITED STATES, WE SHOULD INSTIGATE ACTION TO EFFECT THE PUBLICATION OF A CHANGE TO PARAGRAPHS 4150 OR 4159, OR ELSEWHERE UNDER PART D, CHAPTER 4, JOINT TRAVEL REGULATIONS.

IT WAS HELD IN DECISION OF JULY 15, 1948, B-77941, THAT AN ARMY OFFICER WHO PERFORMED TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM FRANKFURT, GERMANY, TO SPECIFIED LOCALITIES WAS NOT ENTITLED TO REIMBURSEMENT OF THE EXPENSES INCURRED SINCE THE TRAVEL IN GERMANY COULD HAVE BEEN PERFORMED BY RAIL AT NO EXPENSE TO THE GOVERNMENT OR THE TRAVELER. WE HAVE CONSISTENTLY ADHERED TO THE HOLDING IN THAT DECISION IN ALL CASES INVOLVING MILITARY PERSONNEL WHERE IT WAS SHOWN THAT THEIR TRAVEL IN GERMANY BY PERSONALLY OWNED CONVEYANCE WAS NOT SPECIFICALLY AUTHORIZED IN ACCORDANCE WITH PARAGRAPH 4203-3, JOINT TRAVEL REGULATIONS, AND THAT SUCH TRAVEL COULD HAVE BEEN PERFORMED BY RAIL. SEE B-121043, DATED OCTOBER 5, 1954, COPY ENCLOSED, AND CF. 30 COMP. GEN. 11. BY CHANGE 22, DATED APRIL 1, 1954, PARAGRAPH 2100, JOINT TRAVEL REGULATIONS, REGULATIONS WERE PLACED INTO EFFECT BARRING THE PAYMENT OF TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED IN OCCUPIED AREAS WHERE TRAVEL COULD BE PERFORMED AT NO COST TO THE GOVERNMENT OR THE TRAVELER UNLESS THE MODE OF TRANSPORTATION WAS SPECIFICALLY DIRECTED AS MORE ADVANTAGEOUS TO THE GOVERNMENT. THAT REGULATION WAS REMOVED BY CHANGE 44, DATED MARCH 1, 1956, AND PARAGRAPHS 4203-5, TEMPORARY DUTY TRAVEL, AND 7000-14 (RENUMBERED 7000 13 BY CHANGE 136 DATED APRIL 1, 1964), DEPENDENTS' TRAVEL, WERE PROMULGATED TO PROHIBIT REIMBURSEMENT OF THE COST OF TRANSPORTATION AND THE PAYMENT OF MILEAGE WHERE TRANSPORTATION UNDER THE TERMS OF A CONTRACT OR AGREEMENT WITH THE UNITED STATES, OR ON A COMPLIMENTARY BASIS, IS AVAILABLE TO A MEMBER BY A FOREIGN GOVERNMENT AT NO COST TO THE UNITED STATES OR THE MEMBER.

IN A RECENT DECISION, B-152608, DATED APRIL 10, 1964, 43 COMP. GEN. 675, ADDRESSED TO THE SECRETARY OF THE AIR FORCE, COPY ENCLOSED, WE CONSIDERED A PROPOSAL BY THE ASSISTANT SECRETARY OF THE AIR FORCE FOR A CHANGE IN THE JOINT TRAVEL REGULATIONS (PARAGRAPHS 4203-5 AND 7000 13) TO DENY REIMBURSEMENT OF TRANSPORTATION COSTS AND PAYMENT OF MILEAGE TO A MEMBER UPON A SHOWING THAT HE UTILIZED THE TRANSPORTATION MADE AVAILABLE BY A FOREIGN GOVERNMENT RATHER THAN ON THE BASIS THAT SUCH TRANSPORTATION WAS AVAILABLE TO HIM. WE SAID IN THAT DECISION THAT CASES INVOLVING TRAVEL WHICH IS WITHOUT COST TO THE UNITED STATES WOULD SEEM TO BE CLEARLY OUTSIDE THE REIMBURSEMENT CONCEPT OF THE STATUTES, AND FOR THAT AND OTHER VALID REASONS WE CONCLUDED THAT THERE WAS NO PROPER BASIS FOR THE PROPOSED REVISION OF THE REGULATIONS. WE ALSO SAID IN THAT DECISION THAT IN INSTANCES WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT A SUFFICIENT ELEMENT OF GOVERNMENT INTEREST MAY EXIST TO WARRANT THE ACCOMPLISHMENT OF TRAVEL BY PRIVATELY OWNED CONVEYANCE BECAUSE IT IS IMPRACTICABLE TO USE THE FREE RAIL TRANSPORTATION OR FOR OTHER REASONS, IT APPEARS THAT SUCH TRAVEL MAY BE AUTHORIZED UNDER ORDERS AUTHORIZING SUCH MODE OF TRANSPORTATION AS MORE ADVANTAGEOUS TO THE GOVERNMENT. SINCE YOUR ORDERS DO NOT INDICATE THAT THE USE OF YOUR PRIVATELY OWNED AUTOMOBILE FOR THE TRAVEL FROM BREMERHAVEN TO BERLIN HAD BEEN ADMINISTRATIVELY DETERMINED AS MORE ADVANTAGEOUS TO THE GOVERNMENT, THERE IS NO BASIS FOR PAYMENT OF THE AMOUNT CLAIMED BY YOU. ACCORDINGLY, THE SETTLEMENT OF JULY 21, 1964, IS SUSTAINED.

WHILE PARAGRAPH 4203-5, IS LISTED IN THE JOINT TRAVEL REGULATIONS UNDER "CHAPTER 4, PART E: TEMPORARY DUTY ALLOWANCES IN THE UNITED STATES" THAT PARAGRAPH HAS BEEN VIEWED AS HAVING GENERAL APPLICATION TO TRANSPORTATION ALLOWANCES. IN THIS CONNECTION, PARAGRAPH 4251, WHICH IS LISTED UNDER "PART F: TEMPORARY DUTY ALLOWANCES OUTSIDE THE UNITED STATES" OF THE SAME CHAPTER AND WHICH PROVIDES FOR TEMPORARY DUTY TRANSPORTATION ALLOWANCES FOR LAND TRAVEL, HAS A CROSS-REFERENCE TO PARAGRAPH 4203. AS TO YOUR SUGGESTION, BY CHANGE 140, DATED SEPTEMBER 1, 1964, PARAGRAPH 4150 UNDER "PART D: PERMANENT CHANGE-OF STATION ALLOWANCES" WAS AMENDED TO INCLUDE A PROVISION SIMILAR TO THAT EMBODIED IN PARAGRAPH 4203-5, FOR THE PROHIBITION AGAINST REIMBURSEMENT OF TRANSPORTATION COSTS OR PAYMENT OF MILEAGE WHEN TRANSPORTATION UNDER THE TERMS OF A CONTRACT OR AGREEMENT WITH THE UNITED STATES, OR ON A COMPLIMENTARY BASIS, IS AVAILABLE TO A MEMBER BY A FOREIGN GOVERNMENT.