B-146525, AUG. 30, 1961

B-146525, AUG. 30, 1961

TO MASTER SERGEANT W. D. WYATT, RA 36 497 767:

REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1961, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 22, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL PERFORMED BY PRIVATELY OWNED AUTOMOBILE FROM DETROIT, MICHIGAN, TO GREAT LAKES, ILLINOIS, AND RETURN, DURING THE PERIOD JANUARY 24 TO MARCH 15, 1961.

BY SPECIAL ORDERS NO. 12, DATED JANUARY 18, 1961, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JANUARY 24, 1961, FROM YOUR DUTY STATION AT FORT WAYNE, DETROIT, MICHIGAN, TO THE U.S. ARMY ELEMENT, U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, ON TEMPORARY DUTY FOR MEDICAL OBSERVATION AND TREATMENT. THESE ORDERS PROVIDED THAT MODE OF TRAVEL WAS TO BE DETERMINED BY THE TRANSPORTATION OFFICER AT YOUR DUTY STATION. THE ORDERS ALSO SPECIFICALLY PROVIDED THAT A PRIVATELY OWNED VEHICLE WOULD NOT ACCOMPANY YOU. PURSUANT TO THESE ORDERS YOU WERE ISSUED TRANSPORTATION REQUEST NO. M9, 917, 546, FOR TRAVEL BY RAIL FROM DETROIT TO GREAT LAKES AND RETURN, AND YOU WERE ALSO ISSUED MEAL TICKETS NO. DA-4382246/7/8/9/50 FOR THE TRAVEL INVOLVED. YOU PERFORMED THE TRAVEL INVOLVED BY PRIVATELY OWNED AUTOMOBILE AND RETURNED THE UNUSED TRANSPORTATION REQUEST AND MEAL TICKETS TO THE TRANSPORTATION OFFICER AT FORT WAYNE, MICHIGAN, ON MARCH 22, 1961.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF JANUARY 22, 1961, BECAUSE A TRANSPORTATION REQUEST AND MEAL TICKETS WERE ISSUED FOR THE TRAVEL INVOLVED BUT YOU UTILIZED THE PRIVATELY OWNED AUTOMOBILE FOR YOUR OWN CONVENIENCE. IN YOUR REQUEST FOR REVIEW YOU ASK WHETHER OUR OFFICE WOULD OBJECT TO THE PAYMENT OF YOUR CLAIM IF YOUR ORIGINAL SPECIAL ORDER NO. 12 WAS AMENDED TO DELETE THE PROVISION "MODE OF TVL: TO BE DETM BY TO, THIS STA. POV WILL NOT ACCOMPANY EM.'

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 6150-1 OF THOSE REGULATIONS PROVIDES THAT MEMBER PATIENTS WHO ARE PHYSICALLY CAPABLE OF PERFORMING TRAVEL WITHOUT THE AID OF ATTENDANTS SHALL RECEIVE THE APPROPRIATE TRAVEL ALLOWANCES PRESCRIBED IN CHAPTER 4 FOR TRAVEL OF MEMBERS. PARAGRAPH 4203-3B (1) OF THESE REGULATIONS STATES THAT IT IS THE POLICY OF THE UNIFORMED SERVICES TO "AUTHORIZE" (AS DISTINGUISHED FROM "PERMIT") MEMBERS TO TRAVEL BY PRIVATELY OWNED CONVEYANCE WHENEVER SUCH MODE OF TRANSPORTATION IS ACCEPTABLE TO THE MEMBER AND IS DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. PARAGRAPH 4203-3D PROVIDES THAT WHEN TRAVEL ORDERS SPECIFICALLY DIRECT (AS DISTINGUISHED FROM AUTHORIZE) THE ISSUANCE OF TRANSPORTATION REQUESTS VIA SPECIFIC MODES OF TRANSPORTATION BUT THE MEMBER PERFORMS TRAVEL AT PERSONAL EXPENSE, PAYMENT OF THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION 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 SUCH REGULATORY PROVISIONS A RIGHT TO REIMBURSEMENT OF TRAVEL EXPENSES ACCRUES ONLY IN THE EVENT TRANSPORTATION REQUESTS OR THE MODE OF TRANSPORTATION DIRECTED IS NOT AVAILABLE AT THE TIME AND PLACE REQUIRED AND IT BECOMES NECESSARY FOR THE MEMBER TO TRAVEL AT PERSONAL EXPENSE.

YOU WERE NOT REQUIRED TO PERFORM THE TRAVEL FROM DETROIT, MICHIGAN, TO GREAT LAKES, ILLINOIS, AND RETURN, AT YOUR OWN EXPENSE BY PRIVATELY OWNED AUTOMOBILE BECAUSE OF ANY DENIAL OR FAILURE OF THE TRANSPORTATION OFFICER TO FURNISH YOU THE NECESSARY TRANSPORTATION. ON THE CONTRARY, THE RECORD SHOWS THAT YOU WERE FURNISHED A TRANSPORTATION REQUEST AND MEAL TICKETS FOR ROUND-TRIP FROM DETROIT TO GREAT LAKES AND IT APPEARS THAT YOU RETURNED SUCH TRANSPORTATION REQUEST AND MEAL TICKETS BECAUSE, AS INDICATED IN YOUR ORIGINAL CLAIM, YOU FOUND IT A MATTER OF PERSONAL CONVENIENCE TO UTILIZE YOUR AUTOMOBILE WHILE ASSIGNED AS A PATIENT TO THE U.S. NAVAL HOSPITAL AT GREAT LAKES, ILLINOIS. SINCE UNDER THE ORDERS OF JANUARY 18, 1961, THE TRANSPORTATION OFFICER WAS AUTHORIZED TO DETERMINE THE MODE OF TRAVEL AND SINCE HE ISSUED A TRANSPORTATION REQUEST AND MEAL TICKETS FOR RAIL TRAVEL BETWEEN THE POINTS INVOLVED WHICH YOU FAILED TO UTILIZE, THERE IS NO AUTHORITY UNDER THE REGULATIONS FOR THE PAYMENT OF YOUR CLAIM.

WITH REGARD TO YOUR QUESTION AS TO WHETHER OUR OFFICE WOULD OBJECT TO THE PAYMENT OF YOUR CLAIM IF YOU HAD SPECIAL ORDER NO. 12 AMENDED TO DELETE THE RESTRICTION AGAINST TRAVELING BY PRIVATELY OWNED VEHICLE, YOU ARE ADVISED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 CT.CL. 32; 24 COMP. GEN. 439; 34 ID. 427. SUCH ELEMENTS DO NOT APPEAR TO BE PRESENT IN YOUR CASE. YOUR ORDERS OF JANUARY 18, 1961, WERE CLEAR AND UNAMBIGUOUS. AN AMENDMENT AT THIS TIME TO DELETE THE RESTRICTION AGAINST TRAVEL BY PRIVATELY OWNED VEHICLE WOULD BE OF NO EFFECT. ACCORDINGLY, THE SETTLEMENT OF JUNE 22, 1961, IS SUSTAINED.