B-144345, MAR. 16, 1961

B-144345: Mar 16, 1961

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REIMBURSEMENT FOR THAT TRAVEL WAS LIMITED TO THE CONSTRUCTIVE COST OF SUCH TRAVEL BY COMMON CARRIER. IN EFFECT AT THE TIME YOUR TRAVEL WAS PERFORMED. HAD MADE A GENERAL DETERMINATION THAT TRAVEL BY PRIVATELY OWNED AUTOMOBILE IN CIRCUMSTANCES SUCH AS THOSE HERE IN QUESTION WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT. YOU CONCLUDE THAT MILEAGE AND PER DIEM PAYABLE FOR SUCH TRAVEL WAS NOT TO BE LIMITED TO THE COST BY COMMON CARRIER. IS AUTHORIZED ON A MILEAGE BASIS IN ACCORDANCE WITH THE PROVISIONS OF. IT IS HEREBY DETERMINED THAT TRAVEL BY PRIVATELY-OWNED CONVEYANCE IN CONNECTION WITH THE EMPLOYEE'S OFFICIAL TRAVEL IS MORE ADVANTAGEOUS TO THE GOVERNMENT. WHEN AN EMPLOYEE IS AUTHORIZED TO TRANSPORT EFFECTS.

B-144345, MAR. 16, 1961

TO MR. JACK C. MIKLOS:

ON FEBRUARY 28, 1961, YOU AGAIN REQUESTED REVIEW OF OUR DECISION OF JANUARY 18, 1961, AFFIRMED FEBRUARY 8, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR MILEAGE AND PER DIEM INCIDENT TO YOUR TRAVEL BY PRIVATELY OWNED AUTOMOBILE IN JUNE 1960 FROM STANFORD, CALIFORNIA, TO WASHINGTON, D.C., PURSUANT TO YOUR PERMANENT CHANGE OF STATION AS A FOREIGN SERVICE OFFICER, DEPARTMENT OF STATE.

REIMBURSEMENT FOR THAT TRAVEL WAS LIMITED TO THE CONSTRUCTIVE COST OF SUCH TRAVEL BY COMMON CARRIER. YOU SAY, IN EFFECT, THAT THE SECRETARY OF STATE, BY SECTION 4.32C OF THE FOREIGN SERVICE TRAVEL REGULATIONS, IN EFFECT AT THE TIME YOUR TRAVEL WAS PERFORMED, HAD MADE A GENERAL DETERMINATION THAT TRAVEL BY PRIVATELY OWNED AUTOMOBILE IN CIRCUMSTANCES SUCH AS THOSE HERE IN QUESTION WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT. THEREFORE, YOU CONCLUDE THAT MILEAGE AND PER DIEM PAYABLE FOR SUCH TRAVEL WAS NOT TO BE LIMITED TO THE COST BY COMMON CARRIER. YOU CONTEND THAT THE SECRETARY HAD AUTHORITY TO MAKE SUCH DETERMINATION BY VIRTUE OF THE BROAD AUTHORITY GRANTED HIM BY SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026, 22 U.S.C. 1136, TO MAKE REGULATIONS GOVERNING THE TRAVEL OF FOREIGN SERVICE OFFICERS AND EMPLOYEES.

SECTION 4.31 OF THE FOREIGN SERVICE TRAVEL REGULATIONS PROVIDES:

"PAYMENT OF TRAVEL EXPENSES INVOLVED IN THE USE OF PRIVATELY OWNED CONVEYANCES, FOR THE CONVENIENCE OF THE TRAVELER, IS AUTHORIZED ON A MILEAGE BASIS IN ACCORDANCE WITH THE PROVISIONS OF, AND AT THE MAXIMUM RATES SPECIFIED IN SGTR 3.5B, PROVIDED THAT, WHEN A TRAVEL AUTHORIZATION SPECIFIES A LOWER MILEAGE RATE THAN THAT AUTHORIZED HEREIN, THE PROVISIONS OF THE TRAVEL AUTHORIZATION SHALL GOVERN.'

SECTION 4.32 OF THOSE REGULATIONS PROVIDES IN PERTINENT PART:

"IN THE APPLICATION OF FSTR 4.31, IT IS HEREBY DETERMINED THAT TRAVEL BY PRIVATELY-OWNED CONVEYANCE IN CONNECTION WITH THE EMPLOYEE'S OFFICIAL TRAVEL IS MORE ADVANTAGEOUS TO THE GOVERNMENT, WITHIN THE MEANING OF SGTR 3.5B (1), IN ANY OF THE FOLLOWING CASES:

"C. WHEN AN EMPLOYEE IS AUTHORIZED TO TRANSPORT EFFECTS, BUT NO DETERMINATION HAS BEEN MADE UNDER FSTR 5.21 THAT THE SHIPMENT OF A PRIVATELY-OWNED CONVEYANCE IS NECESSARY OR EXPEDIENT, AND THE EMPLOYEE OR A MEMBER OF HIS FAMILY WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE, EVEN THOUGH UNACCOMPANIED, DRIVES SUCH CONVEYANCE ON A MILEAGE BASIS BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION.'

SECTION 9 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, ENACTED SOME THREE YEARS LATER THAN THE FOREIGN SERVICE ACT OF 1946, PROVIDES, IN PART, AS FOLLOWS:

"THE SUBSISTENCE EXPENSE ACT OF 1926 AND THE AUTO MILEAGE ACT OF FEBRUARY 14, 1931, ARE REPEALED. ALL ACTS * * * APPLICABLE TO CIVILIAN OFFICERS OR EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS, PROVIDING FOR REIMBURSEMENT OF ACTUAL TRAVEL AND TRANSPORTATION EXPENSE, AND ALL OTHER ACTS, GENERAL OR SPECIAL, WHICH ARE INCONSISTENT WITH OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT * * * ARE HEREBY MODIFIED, BUT ONLY TO THE EXTENT OF INCONSISTENCY OR CONFLICT WITH THE PROVISIONS OF THIS ACT.'

IT IS CLEAR THAT SECTION 9 DID NOT REPEAL SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, GRANTING THE SECRETARY OF STATE AUTHORITY TO PROMULGATE TRAVEL REGULATIONS COVERING TRAVEL OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE. HOWEVER, THE SECRETARY OF STATE WAS PRECLUDED BY SECTION 9 FROM THEREAFTER PROMULGATING OR CONTINUING REGULATIONS TO THE EXTENT THEY WERE IN IRRECONCILABLE CONFLICT WITH THE PROVISIONS OF THE TRAVEL EXPENSE ACT OF 1949. THUS, SECTION 4.31 OF THE FOREIGN SERVICE TRAVEL REGULATIONS LIMITS A TRAVELER TO THE COST OF TRAVEL BY COMMON CARRIER UNLESS A DETERMINATION IS MADE UNDER SECTION 3.5B (1) OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THAT TRAVEL BY PRIVATELY OWNED VEHICLE IS MORE ADVANTAGEOUS TO THE GOVERNMENT.

WE CONCUR IN YOUR VIEW THAT THERE ARE MANY ASPECTS INVOLVED IN THE DETERMINATION OF ADVANTAGE TO THE GOVERNMENT, INCLUDING ECONOMY AND MORALE FACTORS. FROM A READING OF SECTION 4.32 OF THE FOREIGN SERVICE TRAVEL REGULATIONS, HOWEVER, IT WAS EVIDENT TO US THAT THE GENERAL DETERMINATION OF ADVANTAGE THEREUNDER, INCLUDING SUBSECTION (C), WAS PREDICATED UPON ECONOMY FACTORS. WE VIEWED AS IMPROPER THE DETERMINATION OF ADVANTAGE THEREUNDER, INCLUDING SUBSECTION (C), WAS PREDICATED UPON ECONOMY FACTORS. WE VIEWED AS IMPROPER THE DETERMINATION OF ADVANTAGE TO THE GOVERNMENT, FOR THE USE OF A PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS, BASED ON AN ECONOMIC FACTOR INVOLVING PROBABLE COST OF AN UNAUTHORIZED SHIPMENT OF AN AUTOMOBILE. THIS MATTER WAS DISCUSSED WITH OFFICIALS OF THE DEPARTMENT OF STATE, AND COMPLETE AGREEMENT WITH OUR VIEW WAS EXPRESSED. THUS, SECTION 4.32 (C) WAS DETERMINED TO BE INVALID. FOLLOWS IN YOUR CASE THAT SUBSECTION (C) OF THE REGULATIONS PROPERLY COULD NOT BE USED AS A BASIS FOR PAYMENT. IN THE ABSENCE OF A VALID DETERMINATION THAT MILEAGE AT THE RATE SPECIFIED IN YOUR TRAVEL ORDER WAS MORE ADVANTAGEOUS TO THE GOVERNMENT, NO BASIS WAS OR IS NOW PRESENT UPON WHICH YOU COULD BE ALLOWED IN EXCESS OF THE COST OF TRAVEL BY COMMON CARRIER.

THEREFORE, OUR DECISIONS OF JANUARY 18 AND FEBRUARY 8, 1961, DISALLOWING YOUR CLAIM, ARE SUSTAINED.

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