B-169106, APRIL 28, 1970, 49 COMP. GEN. 744

B-169106, APRIL 28, 1970, 49 COMP. GEN. 744

TRAVEL EXPENSES -- MILITARY PERSONNEL -- USE OF OTHER THAN GOVERNMENT FACILITIES -- REIMBURSEMENT BASIS AN ARMY OFFICER RETURNING TO HIS NEW PERMANENT DUTY STATION IN HAWAII FROM A TEMPORARY DUTY ASSIGNMENT IN THE UNITED STATES WHO IS ERRONEOUSLY FURNISHED TRANSPORTATION BY COMMERCIAL VESSEL TO ACCOMPANY HIS DEPENDENTS AUTHORIZED THIS MODE OF TRANSPORTATION TO TRAVEL TO THE NEW STATION PRIOR TO ISSUANCE OF THE TEMPORARY DUTY ORDERS, IS INDEBTED FOR THE COST OF THE COMMERCIAL VESSEL TRANSPORTATION, LESS THE COST OF TRANSPORTATION BY MILITARY AIR. THE TRANSPORTATION OFFICER, LIMITED UNDER THE MEMBER'S ORDERS TO AUTHORIZING TRANSPORTATION BY COMMERCIAL AIR IF MILITARY AIRCRAFT WAS NOT AVAILABLE, EXCEEDED HIS AUTHORITY AND DID NOT EXERCISE SOUND TRAFFIC JUDGMENT IN FURNISHING TRANSPORTATION BY COMMERCIAL VESSEL, AND THE MEMBER RETURNING TO HIS STATION UNDER TEMPORARY DUTY ORDERS, HIS TRAVEL IS NOT WITHIN THE SCOPE OF PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING COMMERCIAL VESSEL TRAVEL CONCURRENTLY WITH DEPENDENTS UNDER PERMANENT CHANGE OF STATION ORDERS.

TO LIEUTENANT COLONEL R. D. BRIERCHECK, DEPARTMENT OF THE ARMY, APRIL 28, 1970:

YOUR LETTER OF SEPTEMBER 8, 1969, HCFA-F, WITH TWO ENDORSEMENTS, REQUESTS A DECISION AS TO THE ENTITLEMENT OF LIEUTENANT COLONEL STEVEN S. CROWELL TO TRAVEL ALLOWANCES FOR HIS TRAVEL FROM OAKLAND ARMY BASE, CALIFORNIA, TO HONOLULU, HAWAII, DURING THE PERIOD JUNE 10 TO 16, 1969. THE REQUEST WAS ASSIGNED CONTROL NO. 70-4 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

COLONEL CROWELL WAS TRANSFERRED FROM VIETNAM TO HEADQUARTERS UNITED STATES ARMY, PACIFIC, HAWAII, AS A PERMANENT CHANGE OF STATION BY ORDERS DATED JANUARY 30, 1969, AS AMENDED BY ORDERS DATED FEBRUARY 23, 1969. LETTER ORDERS 5-124, DATED MAY 20, 1969, AS AMENDED BY LETTER ORDERS NO. 5 -133, DATED MAY 22, 1969, HE WAS DIRECTED TO PROCEED FROM HAWAII TO WASHINGTON, D. C., FOR TEMPORARY DUTY OF APPROXIMATELY THREE DAYS UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. ITEM 11 OF THE ORDERS AUTHORIZED TRANSPORTATION "AS DETERMINED BY TRANSPORTATION OFFICER." ITEM 13 OF THE ORDERS (REMARKS) PROVIDED THAT "IF MIL ACFT IS NOT AVAILABLE, COML AIR TRANS AUTH." THE ORDERS ALSO AUTHORIZED A DELAY OF 27 DAYS CHARGEABLE TO LEAVE IN RETURNING, AND THE USE OF A PRIVATELY OWNED VEHICLE IN TRAVELING FROM THE EAST COAST TO PORT OF DEPARTURE.

COLONEL CROWELL ARRIVED IN WASHINGTON, D. C., BY AIR ON MAY 23, 1969, AND UPON COMPLETION OF THE TEMPORARY DUTY HE PROCEEDED TO ANNISTON, ALABAMA, IN A LEAVE STATUS TO JOIN HIS DEPENDENTS. PRIOR TO THE ISSUANCE OF THE TEMPORARY DUTY ORDERS OF MAY 20, 1969, COLONEL CROWELL'S DEPENDENTS HAD BEEN AUTHORIZED BY A DEPENDENTS' TRAVEL AUTHORIZATION LETTER (DTAL-512 OF MAY 14, 1969), TO TRAVEL TO HIS NEW DUTY STATION IN HAWAII. THE AUTHORIZATION STATED THAT TRANSPORTATION BY COMMERCIAL VESSEL WAS DESIRED FOR THEIR OCEAN TRAVEL. THE MEMBER TRAVELED WITH HIS DEPENDENTS TO OAKLAND ARMY BASE, CALIFORNIA, BY PRIVATELY OWNED VEHICLE AND WAS FURNISHED TRANSPORTATION WITH THEM ABOARD A COMMERCIAL VESSEL TO HONOLULU.

BY LETTER OF JULY 29, 1969, YOU ADVISED THE MEMBER THAT HE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $270 REPRESENTING THE COST OF TRANSPORTATION FURNISHED HIM BY COMMERCIAL VESSEL ($315) LESS THE COST OF TRANSPORTATION BY MILITARY AIR ($45) WHICH WOULD HAVE BEEN EXPENDED FOR HIS TRAVEL BY THAT MEANS. ALSO, IT APPEARS THAT HE WAS CHARGED WITH LEAVE FOR THE ADDITIONAL DAYS OF TRAVEL. THE MEMBER CONTENDS, HOWEVER, THAT HE DID NOT REQUEST SURFACE TRANSPORTATION WITH HIS FAMILY. HE SAYS THAT ON MAY 26, 1969, HE PHONED THE TRANSPORTATION OFFICE AT OAKLAND ARMY BASE AND REQUESTED A PORT CALL FOR MILITARY AIR ON OR ABOUT JUNE 11, 1969, FOR HIS OWN TRAVEL. HE FURTHER SAYS THAT UPON HIS ARRIVAL AT OAKLAND ARMY BASE HE WAS INFORMED BY PERSONNEL IN THE TRANSPORTATION OFFICE THAT THERE WAS NO RECORD OF AN AERIAL PORT CALL FOR HIM AND THAT SINCE HE WAS TRAVELING WITH HIS FAMILY HE WAS ENTITLED TO SURFACE TRANSPORTATION TO ACCOMPANY THEM.

THE RECORD SHOWS THAT YOU WERE ADVISED BY THE JUDGE ADVOCATE GENERAL'S OFFICE, U.S. ARMY PACIFIC, THAT THE MEMBER WAS ENTITLED TO TRANSPORTATION BY COMMERCIAL VESSEL FOR THE REASON THAT UNDER ITEM 11 OF THE ORDERS OF MAY 20, 1969, THE TRANSPORTATION OFFICER AT OAKLAND ARMY BASE COULD HAVE FURNISHED TRANSPORTATION BY ANY MODE CONSIDERED APPROPRIATE. PARAGRAPH 304002, P.304-1, CHANGE 304, ARMY REGULATION 55 355, WAS CITED IN SUPPORT OF THAT VIEW. ALSO, YOU WERE ADVISED BY THAT OFFICE THAT PARAGRAPH 26, ARMY REGULATION 55-28, ALLOWS APPLICATION TO BE MADE TO THE TRANSPORTATION OFFICER FOR PORT CALL REQUESTS FOR SURFACE TRANSPORTATION IN CONNECTION WITH TEMPORARY DUTY.

THE RECORD FURTHER SHOWS THAT THE OFFICE OF THE COMPTROLLER OF THE ARMY SHARES THE VIEW THAT THE MEMBER WAS ENTITLED TO TRANSPORTATION BY COMMERCIAL VESSEL AND THEREFORE APPEARS TO BE ENTITLED TO ADDITIONAL PER DIEM FOR THE TIME REQUIRED FOR OCEAN TRAVEL AND AN ADJUSTMENT IN HIS LEAVE ACCOUNT. YOU QUESTION THE CORRECTNESS OF THE ADVICE FURNISHED YOU BY THE ARMY, HOWEVER.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM HIS POST OF DUTY UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT STATUTORY AUTHORITY AND OTHER SECTIONS OF TITLE 37, U.S. CODE, ARE SUPPLEMENTED BY REGULATIONS OF THE VARIOUS SERVICES. PART F OF THE JOINT TRAVEL REGULATIONS PROVIDES TRAVEL ALLOWANCES FOR TEMPORARY DUTY TRAVEL OUTSIDE THE UNITED STATES AND PARAGRAPHS M4253-4C AND M4253-5 PROVIDE FOR PER DIEM FOR TRAVEL ABOARD COMMERCIAL VESSELS IN PROPER CASES.

WITH RESPECT TO THE ARMY REGULATIONS CITED ABOVE, PARAGRAPH 3-4, ARMY REGULATION 55-28, PROVIDES THAT PORT CALL REQUESTS FOR TEMPORARY DUTY TRAVEL WILL BE SUBMITTED IN THE FORMAT SHOWN IN APPENDIX A. FIELD NO. 26 OF APPENDIX A PROVIDES THAT FOR UNACCOMPANIED MILITARY PERSONNEL THE DESIRED OR REQUIRED MODE OF TRANSPORTATION SHOULD BE ENTERED ON THE REQUEST BY CODE NUMBER AND LISTS VARIOUS CODED MODES INCLUDING "AIR REQUIRED" AND "COMMERCIAL SURFACE DESIRED." WHILE THAT INSTRUCTION INDICATES THAT THE MODE OF TRANSPORTATION DESIRED BY THE TRAVELER MAY BE ENTERED ON THE PORT CALL REQUEST, PARAGRAPH 1-3E OF THE SAME REGULATION SPECIFICALLY PROVIDES THAT THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) IS RESPONSIBLE FOR--

(1) DETERMINING THE MODES OF TRANSPORTATION TO BE USED BASED ON DA AND DOD POLICIES.

PARAGRAPH 304002, ARMY REGULATION 55-355, PROVIDES THAT WHEN TRAVEL ORDERS DO NOT DIRECT A SPECIFIC MODE OF COMMERCIAL TRANSPORTATION, THE PERSON ARRANGING FOR TRANSPORTATION, IN ARRIVING AT A DECISION REGARDING THE MODE OF COMMERCIAL TRANSPORTATION TO BE USED WILL BE REQUIRED TO USE PASSENGER TRANSPORTATION WHICH PROVIDES SATISFACTORY SERVICE AND MEETS THE MILITARY REQUIREMENTS, TAKING INTO CONSIDERATION OVERALL ECONOMY, AND SOUND TRAFFIC JUDGMENT.

SINCE THE LATTER REGULATION IS ALSO PUBLISHED AS PARAGRAPH 304002 OF DEFENSE SUPPLY AGENCY REGULATION 4500.3 (MILITARY TRAFFIC MANAGEMENT REGULATION), IT APPARENTLY ESTABLISHES DEPARTMENT OF DEFENSE POLICY AS WELL AS DEPARTMENT OF THE ARMY POLICY FOR FURNISHING TRANSPORTATION BY THE LEAST EXPENSIVE MEANS MEETING MILITARY REQUIREMENTS.

WHILE THE ORDERS OF MAY 20, 1969, AUTHORIZED TRANSPORTATION AS DETERMINED BY THE TRANSPORTATION OFFICER, THIS CLEARLY WAS LIMITED BY THE FURTHER PROVISION THAT TRANSPORTATION BY "COMMERCIAL AIR" WAS AUTHORIZED ONLY IF MILITARY AIR WAS NOT AVAILABLE. THUS, WE BELIEVE THE ORDERS MUST BE CONSIDERED AS CONTEMPLATING TRAVEL BY GOVERNMENT AIR IF AVAILABLE. THE DETERMINATION BY THE TRANSPORTATION OFFICER WAS LIMITED TO GOVERNMENT AIR OR COMMERCIAL AIR.

PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN MORE THAN ONE TYPE OF GOVERNMENT TRANSPORTATION IS AVAILABLE FOR OCEAN TRAVEL OF MEMBERS ON PERMANENT CHANGE OF STATION THE LOEST PRICED ONE WILL BE THE MAXIMUM ENTITLEMENT, EXCEPT WHEN THE MEMBER, ACCOMPANIED BY DEPENDENTS WHO HAVE REFUSED GOVERNMENT AIR TRANSPORTATION, PERFORMS TRAVEL BY SURFACE TRANSPORTATION, THE MEASURE OF ENTITLEMENT WILL BE GOVERNMENT SURFACE TRANSPORTATION IF AVAILABLE. IF SUCH TRANSPORTATION IS NOT AVAILABLE THEN THE MEMBER AND HIS DEPENDENTS ARE ENTITLED TO TRAVEL BY COMMERCIAL VESSEL.

APPARENTLY, WHEN THE MEMBER ARRIVED AT THE TRANSPORTATION OFFICE AT OAKLAND ARMY BASE WITH HIS DEPENDENTS IT WAS CONCLUDED THAT HE WAS ENTITLED TO ACCOMPANY THEM AND TRAVEL BY SURFACE TRANSPORTATION UNDER THAT PROVISION.

THAT PROVISION, HOWEVER, APPLIES ONLY WHEN A MEMBER IS TRAVELING TO OR FROM HIS OVERSEAS STATION UNDER PERMANENT CHANGE-OF-STATION ORDERS AND CONCURRENT TRAVEL OF DEPENDENTS (PARAGRAPH 9-42, ARMY REGULATION 37 106) HAS BEEN AUTHORIZED. SUCH WAS NOT THE CASE HERE. THE MEMBER WAS RETURNING TO HIS STATION UNDER THE TEMPORARY DUTY ORDERS OF MAY 20, 1969, AND THE FACT THAT HIS DEPENDENTS WERE TRAVELING WITH HIM DID NOT ENTITLE HIM TO TRAVEL BY COMMERCIAL VESSEL IN ORDER TO ACCOMPANY THEM.

MILITARY REQUIREMENTS FOR THE MEMBER'S TRAVEL WOULD HAVE BEEN MET BY MILITARY AIR AND FURNISHING TRANSPORTATION BY THAT MODE WOULD HAVE RESULTED IN "OVERALL ECONOMY AND SOUND TRAFFIC JUDGMENT." SINCE YOU PROPOSE TO ALLOW CREDIT FOR THE COST OF TRANSPORTATION BY MILITARY AIR, IT EVIDENTLY WAS AVAILABLE AND WOULD HAVE BEEN FURNISHED. IT LONG HAS BEEN THE VIEW THAT THE GOVERNMENT'S LIABILITY FOR TRAVEL OF MEMBERS IS LIMITED TO THE LEAST EXPENSIVE MEANS MEETING THE NEEDS OF THE SERVICE. 40 COMP. GEN. 482 (1961) AND 41 COMP. GEN. 100 (1961).

SINCE THERE WAS NO AUTHORITY FOR THE MEMBER TO BE FURNISHED TRANSPORTATION BY COMMERCIAL VESSEL IN ORDER TO ACCOMPANY HIS DEPENDENTS, HE RECEIVED THE BENEFIT OF TRANSPORTATION TO WHICH HE WAS NOT ENTITLED. WHILE IT APPEARS THAT THE TRANSPORTATION WAS FURNISHED AS A RESULT OF ERRONEOUS ADVICE BY PERSONNEL AT THE OAKLAND ARMY BASE, SUCH ADVICE DOES NOT AFFORD A BASIS FOR INCREASING THE MEMBER'S ENTITLEMENT.

ACCORDINGLY, COLONEL CROWELL IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $270 REPRESENTING THE EXCESS COST OF THE TRANSPORTATION FURNISHED FOR HIS TRAVEL WHICH AMOUNT SHOULD BE COLLECTED. IT FOLLOWS THAT HE IS NOT ENTITLED TO ADDITIONAL PER DIEM FOR OCEAN TRAVEL NOR AN ADJUSTMENT IN LEAVE CHARGED TO HIM. THE VOUCHER WILL BE RETAINED HERE.