B-189776, NOV 23, 1977

B-189776: Nov 23, 1977

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THE PROPER APPLICATION OF THE LEAVE LAWS FOR MEMBERS OF THE ARMED FORCES WITH REGARD TO THE ACCOUNTING FOR LEAVE IS CONSIDERED A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WE WILL NOT QUESTION SUCH ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR. 2. IT IS WITHIN THE DISCRETION VESTED IN THE SECRETARIES CONCERNED TO PROVIDE REGULATIONS FOR CHARGING LEAVE TO A MEMBER OF THE ARMED FORCES WHEN DELAYS IN TRAVEL DUE TO STOPOVERS. LEAVE CHARGE MUST BE BASED UPON THE CONSTRUCTIVE TRAVEL ITINERARY WHICH COULD HAVE BEEN USED BUT FOR THE TAKING OF LEAVE. 3. IF LEAVE IS AUTHORIZED A MEMBER OF THE ARMED FORCES AFTER COMPLETION OF TDY AND BEFORE RETURNING TO HIS PERMANENT STATION HE MAY NOT BE PENALIZED BY DENYING HIM TRAVEL AND TRANSPORTATION BENEFITS TO WHICH HE WOULD OTHERWISE BE ENTITLED SIMPLY BECAUSE THOSE TRAVEL EXPENSES WERE INCURRED ON DAYS CHARGED AS LEAVE UNDER THE CONSTRUCTIVE TRAVEL ITINERARY.

B-189776, NOV 23, 1977

1. THE PROPER APPLICATION OF THE LEAVE LAWS FOR MEMBERS OF THE ARMED FORCES WITH REGARD TO THE ACCOUNTING FOR LEAVE IS CONSIDERED A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WE WILL NOT QUESTION SUCH ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR. 2. IT IS WITHIN THE DISCRETION VESTED IN THE SECRETARIES CONCERNED TO PROVIDE REGULATIONS FOR CHARGING LEAVE TO A MEMBER OF THE ARMED FORCES WHEN DELAYS IN TRAVEL DUE TO STOPOVERS, CIRCUITOUS TRAVEL, ETC., RESULT FROM ACTIONS BY THE MEMBER, BUT LEAVE CHARGE MUST BE BASED UPON THE CONSTRUCTIVE TRAVEL ITINERARY WHICH COULD HAVE BEEN USED BUT FOR THE TAKING OF LEAVE. 3. IF LEAVE IS AUTHORIZED A MEMBER OF THE ARMED FORCES AFTER COMPLETION OF TDY AND BEFORE RETURNING TO HIS PERMANENT STATION HE MAY NOT BE PENALIZED BY DENYING HIM TRAVEL AND TRANSPORTATION BENEFITS TO WHICH HE WOULD OTHERWISE BE ENTITLED SIMPLY BECAUSE THOSE TRAVEL EXPENSES WERE INCURRED ON DAYS CHARGED AS LEAVE UNDER THE CONSTRUCTIVE TRAVEL ITINERARY.

LIEUTENANT COLONEL WESLEY B. COLLINS, USAF:

THIS ACTION IS IN RESPONSE TO LETTER DATED JUNE 29, 1977 (ACFP), WITH ENCLOSURES, FROM THE ASSISTANT DEPUTY CHIEF OF STAFF, COMPTROLLER, HEADQUARTERS TACTICAL AIR COMMAND, DEPARTMENT OF THE AIR FORCE, LANGLEY AIR FORCE BASE, VIRGINIA 23665, REQUESTING AN ADVANCE DECISION ON TEMPORARY DUTY ALLOWANCES IN THE CASE OF LIEUTENANT COLONEL WESLEY B. COLLINS, USAF, IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS FORWARDED HERE BY ENDORSEMENT DATED AUGUST 1, 1977, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 77-25.

THE QUESTIONS PRESENTED ARE (1) WHETHER LEAVE WAS PROPERLY CHARGED AND (2) WHETHER PER DIEM AND TRANSPORTATION CHARGES WERE PROPERLY DISALLOWED FOR DAYS WHEN THE MEMBER WAS ON LEAVE UPON COMPLETION OF TEMPORARY DUTY (TDY) BEFORE RETURNING TO HIS PERMANENT DUTY STATION.

THE RECORD SHOWS THAT THE MEMBER WAS ORDERED TO TDY AT KWANG JU AIR BASE (AB), KOREA, IN JULY 1976, THE TDY WAS COMPLETED ON JULY 18, 1976, AND AT 9 A.M., ON JULY 19, THE MEMBER DEPARTED KWANG JU AB BY COMMERCIAL BUS TO SEOUL, KOREA, ARRIVING AT 2:45 P.M. THE MEMBER REMAINED IN SEOUL ON LEAVE UNTIL HIS DEPARTURE FROM KIMBO INTERNATIONAL AIRPORT, SEOUL, KOREA, AT 2:30 P.M., ON JULY 23, 1976. HE TRAVELED FROM SEOUL TO TOKYO, JAPAN, BY COMMERCIAL AIRLINES USING A GOVERNMENT TRANSPORTATION REQUEST (TR), ARRIVING AT HANEDA INTERNATIONAL AIRPORT, TOKYO, JAPAN, THE SAME DAY AT 4:30 P.M. HE DEPARTED TOKYO AT 10:15 A.M., ON JULY 28, 1976, TRAVELED TO THE YOKOTA AB, JAPAN, AND FROM THERE TO HIS PERMANENT STATION AT MYRTLE BEACH, SOUTH CAROLINA, VIA HONOLULU, HAWAII, ARRIVING AT HIS DESTINATION AT 2:30 P.M., ON JULY 31, 1976.

THE MEMBER HAS BEEN CHARGED LEAVE FOR THE PERIOD JULY 19 THROUGH 27, WHICH PERIOD INCLUDED JULY 19, 1976, THE DAY OF TRAVEL FROM KWANG JU AB TO SEOUL, KOREA, AND JULY 23, 1976, THE DAY OF TRAVEL FROM SEOUL, KOREA, TO TOKYO, JAPAN. HE WAS DENIED PER DIEM FOR THESE 2 DAYS AND, IN ADDITION, HIS CLAIM FOR REIMBURSEMENT OF CERTAIN TRAVEL EXPENSES INCURRED ON THOSE DAYS WAS DENIED. HE HAS ALSO BEEN PLACED IN DEBT FOR THE COST OF COMMERCIAL TRAVEL FROM SEOUL TO TOKYO WHICH HE PERFORMED ON JULY 23.

THE APPLICABLE STATUTORY AUTHORITY FOR ENTITLEMENT, ACCUMULATION AND USE OF LEAVE FOR MEMBERS OF THE ARMED FORCES IS FOUND IN 10 U.S.C. 701 AND 704. IMPLEMENTING REGULATIONS ARE FOUND IN AIR FORCE MANUAL (AFM) 177- 373, VOLUME III, CHAPTER 11. PARAGRAPH 11-3G PROVIDES THAT DELAYS DUE TO STOPOVERS, CIRCUITOUS TRAVEL, ETC., RESULTING FROM ACTIONS BY THE TRAVELER SHALL BE CHARGED AS LEAVE AND PARAGRAPH 11-30 PROVIDES THAT INCREMENTS OF LEAVE SHALL BE CHARGED ONLY IN FULL CALENDAR DAYS. ALSO, TABLE 11-1 OF AFM 177-373, VOLUME III, INDICATES THAT IF TDY TRAVEL IS PERFORMED BY COMMON CARRIER AT MEMBER'S EXPENSE AND THE TRAVEL IS NOT DIRECTED IN THE ORDERS, THE MEMBER IS TO BE CHARGED FOR ANY DAY, FROM DAY OF DEPARTURE TO DAY OF ARRIVAL, THAT IS NOT INVOLVED IN CONSTRUCTIVE TRAVEL.

THE SUBMISSION DOES NOT INCLUDE A CLEAR STATEMENT CONCERNING THE TRAVEL WHICH WOULD HAVE BEEN NECESSARY HAD THE MEMBER RETURNED DIRECTLY FROM THE TDY LOCATION IN KOREA TO MYRTLE BEACH WITHOUT TAKING LEAVE. THE MEMBER CONTENDS THAT HE WOULD HAVE TRAVELED VIA SEOUL, TOKYO, AND HONOLULU AND USED COMMERCIAL AIR FOR ALL OF THIS TRAVEL EVEN THOUGH HE HAD NOT TAKEN LEAVE. ALTHOUGH LEAVE WAS CHARGED, APPARENTLY ON THE BASIS THAT THE MEMBER COULD HAVE RETURNED TO HIS PERMANENT STATION 9 DAYS EARLIER HAD HE TAKEN NO LEAVE, NO ITINERARY FOR SUCH CONSTRUCTIVE TRAVEL WAS FURNISHED.

THE QUESTION OF THE PROPER APPLICATION OF THE LEAVE LAWS WITH REGARD TO THE ACCOUNTING FOR LEAVE IS CONSIDERED A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. IN THAT CONNECTION, WE HAVE RULED CONSISTENTLY WITH REGARD TO CIVIL SERVICE EMPLOYEES THAT THE PLACING OF AN EMPLOYEE IN A LEAVE STATUS IS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY. SEE 54 COMP.GEN. 503 (1974), AND CASES CITED THEREIN. THE LEAVE PROVISIONS OF 10 U.S.C. 701 AND 704 GIVE BROAD DISCRETIONARY POWERS TO THE SECRETARY TO PRESCRIBE IMPLEMENTING REGULATIONS. THEREFORE, WE WILL NOT ORDINARILY QUESTION AN ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR.

IN THIS CASE THE MEMBER WAS ALLOWED 5 DAYS FOR TRAVEL TIME IN ADDITION TO THE LEAVE CHARGED. THAT IS, FOR THE PERIOD JULY 19-31, WHICH INCLUDED 1 ADDITIONAL DAY FOR CROSSING THE INTERNATIONAL DATE LINE, OR A TOTAL OF 14 DAYS, THE MEMBER WAS CHARGED 9 DAYS' LEAVE, LEAVING 5 DAYS FOR TRAVEL. ITS FACE THIS COMPUTATION DOES NOT SEEM UNREASONABLE AND IN THE ABSENCE OF EVIDENCE AS TO THE ACTUAL TRAVEL WHICH WOULD HAVE BEEN PERFORMED HAD THE MEMBER RETURNED DIRECTLY TO HIS PERMANENT DUTY STATION WE SEE NO BASIS TO QUESTION THE LEAVE CHARGED. THUS, IT APPEARS THAT THE MEMBER HAS BEEN ALLOWED PER DIEM FOR 5 DAYS' TRAVEL AND THAT THE CHARGE OF LEAVE ATTRIBUTED TO JULY 19 AND 23, WOULD PROPERLY RESULT IN A LOSS OF PER DIEM ON THOSE DAYS UNDER THE APPLICABLE REGULATIONS.

REGARDING TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES 37 U.S.C. 404 AS IMPLEMENTED BY REGULATIONS FOUND IN CHAPTER 4, VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR) ARE APPLICABLE. THE REGULATIONS GOVERNING TDY ALLOWANCES OUTSIDE THE UNITED STATES ARE SET FORTH IN PART F, CHAPTER 4, 1 JTR. PARAGRAPH M4251 OF 1 JTR PROVIDES THAT TDY TRANSPORTATION ALLOWANCES FOR TRANSOCEANIC TRAVEL PERFORMED AT MEMBER'S EXPENSE WILL BE AS PRESCRIBED IN PARAGRAPH M4159 4, 1 JTR. THAT PARAGRAPH PROVIDES IN PART:

"*** WHEN TRAVEL BY GOVERNMENT TRANSPORTATION IS AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE TRANSPORTATION UTILIZED NOT TO EXCEED THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION.

THERE IS NO PROHIBITION IN THE LAW OR REGULATIONS AGAINST TAKING LEAVE IN CONJUNCTION WITH TEMPORARY ADDITIONAL DUTY (TAD) OR TDY. IN FACT DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 1327.5, JUNE 29, 1974, THE PURPOSE OF WHICH WAS TO ESTABLISH POLICIES FOR LEAVE, LIBERTY (PASS) AND ADMINISTRATIVE ABSENCES, WHICH WILL BE CONSISTENT WITH THE UNIFORMITY REQUIRED OF THE SEVERAL ARMED FORCES PURSUANT TO 10 U.S.C. 704, SPECIFICALLY REFERS TO LEAVE IN CONJUNCTION WITH TDY IN PARAGRAPH VIII IN THE FOLLOWING LANGUAGE:

"LEAVE SHALL BE GRANTED IN CONJUNCTION WITH TEMPORARY ADDITIONAL DUTY (TAD) AND TEMPORARY DUTY (TDY) WHENEVER REQUESTED AND OPERATIONALLY FEASIBLE. ***"

THEREFORE, IT WOULD APPEAR THAT IF THE LEAVE TAKEN BY THE MEMBER AFTER COMPLETION OF TDY AND BEFORE RETURNING TO HIS PERMANENT STATION DID NOT INTERFERE WITH HIS NORMAL DUTIES AND HE OTHERWISE WAS ENTITLED TO TAKE LEAVE, HE SHOULD NOT BE PENALIZED BY DENYING HIM CERTAIN TRAVEL AND TRANSPORTATION BENEFITS TO WHICH HE WOULD OTHERWISE BE ENTITLED. SUCH TRAVEL AND TRANSPORTATION BENEFITS MAY BE ALLOWED EVEN THOUGH THEY MAY HAVE BEEN INCURRED ON DAYS CHARGED AS LEAVE IN THE CONSTRUCTIVE COMPUTATION OF ALLOWABLE TRAVEL TIME. SEE 51 COMP.GEN. 548 (1972).

THE MEMBER, THEREFORE, SHOULD ONLY BE REQUIRED TO BEAR THE COST OF ADDITIONAL OR EXCESS CHARGES TO THE GOVERNMENT FOR TRANSPORTATION WHICH RESULT FROM THE TAKING OF LEAVE OR PERFORMANCE OF CIRCUITOUS TRAVEL. STATED ANOTHER WAY, IF THE REIMBURSEMENT WHICH THE MEMBER IS REQUESTING IS FOR EXPENSES FOR TRANSPORTATION WHICH THE GOVERNMENT WOULD HAVE BEEN REQUIRED TO PAY IF HE HAD NOT TAKEN LEAVE, THEN THE MEMBER SHOULD BE REIMBURSED THOSE SUMS.

AS INDICATED ABOVE WE DO NOT QUESTION LEAVE CHARGES IN THIS CASE ALTHOUGH A SPECIFIC CONSTRUCTIVE TRAVEL ITINERARY SHOULD BE MADE, IF THIS HAS NOT ALREADY BEEN DONE, TO JUSTIFY SUCH CHARGES. IF THE SPECIFIC CONSTRUCTIVE TRAVEL ITINERARY WOULD RESULT IN A CHANGE IN LEAVE CHARGES WE WOULD NOT QUESTION A CHANGE IN THE LEAVE CHARGED THE MEMBER OR A CORRESPONDING ADJUSTMENT IN THE PER DIEM ALLOWED. HOWEVER, THE MEMBER, IF OTHERWISE ELIGIBLE, IS ENTITLED TO BE REIMBURSED FOR HIS TRAVEL EXPENSES IN AN AMOUNT NOT TO EXCEED THE COST TO THE GOVERNMENT IF THE DELAYED TRAVEL FOR LEAVE PURPOSES HAD NOT OCCURRED. REIMBURSEMENT SHOULD NOT EXCEED THE APPLICABLE TARIFF CHARGE WHICH THE AIR FORCE WOULD HAVE BEEN REQUIRED TO PAY FOR AVAILABLE GOVERNMENT TRANSPORTATION IF SUCH TRAVEL WOULD HAVE BEEN USED BUT FOR THE TAKING OF LEAVE. INCIDENTAL CHARGES MAY ALSO BE ALLOWED BASED ON THE TRAVEL WHICH WOULD HAVE BEEN PERFORMED BUT FOR THE CHARGE OF LEAVE.

THE VOUCHER MAY BE PAID ONLY TO THE EXTENT ALLOWABLE AS DISCUSSED IN THIS DECISION.

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