B-163954, FEB. 26, 1970

B-163954, FEB. 26, 1970

MILITARY--TRAVEL AND TRANSPORTATION--ESCORTS FOR DEPENDENTS--ERRONEOUS PAYMENTS DECISION TO SECRETARY OF AIR FORCE CONCERNING ERRONEOUS TRAVEL ALLOWANCES TO PERSONS WHO SERVED AS ESCORTS FOR DEPENDENTS OF MEMBERS TO OR FROM A MEDICAL FACILITY. PAYMENTS OF PER DIEM ALLOWANCE ON COMMUTED PAYMENTS TO PERSONS SERVING AS ESCORTS AND ATTENDANTS FOR DEPENDENTS OF MILITARY MEMBERS TO AND FROM A MEDICAL FACILITY WERE CLEARLY ERRONEOUS AND NOTWITHSTANDING VAGUENESS OF REGULATIONS AND COLLECTION DIFFICULTIES THERE IS NO AUTHORITY FOR REMOVAL OF THE EXCEPTIONS NOR FOR REFUND OF PAYMENTS COLLECTION. HOWEVER IN VIEW OF THE ADMINISTRATIVE PROBLEMS OF IDENTIFICATION OF THE ERRONEOUS PAYMENTS, INSISTANCE UPON AN ADMINISTRATIVE SEARCH TO UNCOVER OTHER ERRONEOUS PAYMENTS WILL NOT BE MADE. BUT IF SUCH PAYMENTS ARE FOUND IN EXAMINATION OF ACCOUNTS, COLLECTION ACTION SHOULD BE TAKEN. OVERPAYMENTS MAY BE REDUCED BY ITEMIZATION OF EXPENSES SUPPORTED BY CERTIFICATES OF PAYEE THAT HE BELIEVES HE ACTUALLY EXPENDED AMOUNTS ITEMIZED.

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 3, 1969, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION CONCERNING ERRONEOUS PAYMENTS OF TRAVEL AND TRANSPORTATION ALLOWANCES TO PERSONS WHO SERVED AS ESCORTS AND ATTENDANTS FOR DEPENDENTS OF MEMBERS TO OR FROM A MEDICAL FACILITY. THE REQUEST WAS ASSIGNED CONTROL NO. 69-42 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE PERTINENT STATUTE, 10 U.S.C. 1040 (A) AS ADDED BY PUBLIC LAW89 140, AUGUST 28, 1965, 79 STAT. 579, PROVIDES FOR TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES TO AND FROM MEDICAL FACILITIES FOR REQUIRED MEDICAL CARE UNDER THE CIRCUMSTANCES THERE SPECIFIED. IT FURTHER PROVIDES "IF A DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES MAY BE FURNISHED NECESSARY ATTENDANTS."

IN OUR DECISION 47 COMP. GEN. 743 (1968) WE CONSIDERED THE QUESTION WHETHER AUTHORIZED TRAVEL OF A DEPENDENT OVERSEAS TO AND FROM MEDICAL FACILITIES ENTITLED THE MEMBER TO REIMBURSEMENT ON A MILEAGE BASIS. HELD THAT UNDER THE PROVISIONS OF 10 U.S.C. 1040 (A) AUTHORIZING "TRANSPORTATION OF THE DEPENDENTS AT THE EXPENSE OF THE UNITED STATES" AND PARAGRAPH M7107, JOINT TRAVEL REGULATIONS, REIMBURSEMENT FOR A DEPENDENT'S TRAVEL UNDER COMPETENT ORDERS TO A MEDICAL FACILITY IS AUTHORIZED ONLY ON AN ACTUAL EXPENSE BASIS, WHETHER TRAVELING ALONE OR WITH AN ATTENDANT, AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION, THERE WAS NO AUTHORITY FOR COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION OR PER DIEM.

CONCERNING THE TRAVEL EXPENSES OF NON-MEMBER ATTENDANTS WHO ACCOMPANY THE DEPENDENT, IN OUR DECISION OF JULY 24, 1968, B-163954, WE POINTED OUT THAT THE LANGUAGE USED IN THE STATUTE FOR THE TRANSPORTATION OF ATTENDANTS IS SUBSTANTIALLY SIMILAR TO THAT USED IN THE STATUTE FOR THE TRANSPORTATION OF DEPENDENTS, MAKING NO PROVISION FOR PAYMENT OF TRAVEL ALLOWANCES IN LIEU OF THE ACTUAL TRANSPORTATION AND TRAVEL EXPENSES THAT MAY BE INVOLVED. IN VIEW OF THIS, AND FOR THE REASONS STATED IN 47 COMP. GEN. 743 (1968), WE HELD THAT NON MEMBER ATTENDANTS, SIMILAR TO THE DEPENDENTS, MAY BE REIMBURSED FOR TRAVEL AND TRANSPORTATION EXPENSES ONLY ON AN ACTUAL EXPENSE BASIS AS AUTHORIZED BY APPROPRIATE REGULATIONS AND THE ORDERS UNDER WHICH THE TRAVEL IS PERFORMED.

THE ASSISTANT SECRETARY SAYS THAT WHILE THERE APPEARS TO HAVE BEEN NO QUESTION AS TO THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES OR CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE, THERE APPARENTLY WAS CONSIDERABLE CONFUSION AS TO THE PAYMENT OF ATTENDANTS WHO WERE NEITHER MEMBERS NOR EMPLOYEES BUT WERE USUALLY OTHER DEPENDENTS SUCH AS A MOTHER ACCOMPANYING A CHILD. FURTHER, HE SAYS THAT PRIOR TO CHANGE 202, EFFECTIVE NOVEMBER 1, 1969, PARAGRAPH M6403 OF THE JOINT TRAVEL REGULATIONS INDICATED THAT TRAVEL AND TRANSPORTATION ALLOWANCES WOULD BE AS PRESCRIBED IN INVITATIONAL TRAVEL ORDERS FOR PERSONS OTHER THAN MEMBERS OR CIVILIAN EMPLOYEES WHO SERVED AS ATTENDANTS FOR DEPENDENTS OF MEMBERS.

ALSO HE STATES THAT THE RELATED ADMINISTRATIVE REGULATIONS (PARAGRAPH 10, AIR FORCE REGULATIONS 168-4) WHICH PROVIDE THAT ONE NON MEDICAL ATTENDANT MAY BE AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE WITH A PATIENT INCAPABLE OF TRAVELING ALONE, FAILS TO IDENTIFY THE TYPE OF "ROUND TRIP TRANSPORTATION AND TRAVEL EXPENSES" WHICH MAY BE FURNISHED. AND THE ASSISTANT SECRETARY INDICATES THAT VOLUME 2 OF THE JOINT TRAVEL REGULATIONS, RELATING TO CIVILIANS, WHILE DEALING WITH THE GENERAL SUBJECT OF INVITATIONAL TRAVEL ORDERS, IS NOT DESIGNED TO GIVE ANY GUIDANCE IN THIS AREA. HE SAYS FURTHER THAT THE CONTINUED REFERENCES TO INVITATIONAL TRAVEL ORDERS AND THE FACT THAT EITHER PER DIEM OR ACTUAL EXPENSES ARE GENERALLY PERMISSIBLE IF PRESCRIBED IN SUCH ORDERS LENT CREDENCE TO THE PRESCRIPTION OF PER DIEM IN SUCH CASES.

WITH THE ISSUANCE OF OUR DECISION OF JULY 24, 1968, THE ASSISTANT SECRETARY SAYS THAT NOTICES OF EXCEPTION BEGAN TO ISSUE ON PAYMENTS PREVIOUSLY MADE AND COLLECTIONS OF THE PAYMENTS MADE WERE EFFECTED IN THOSE CASES AND IN ADDITIONAL CASES WHICH WERE READILY IDENTIFIABLE. STATES, HOWEVER, THAT ALL SUCH PAYMENTS ARE NOT EASILY IDENTIFIED AND THE AMOUNTS ARE NOT SIGNIFICANT ENOUGH TO JUSTIFY THE ADMINISTRATIVE COSTS OF IDENTIFICATION AND COLLECTION. IN THIS CONNECTION HE SAYS THAT ACTUAL EXPENSES, IF DOCUMENTED, ARE PAYABLE IN SUCH CASES BUT THAT IT WOULD BE DIFFICULT FOR THE TRAVELER TO SUBSTANTIATE THE AMOUNTS ACTUALLY PAID FOR MEALS, LODGINGS, AND INCIDENTAL EXPENSES FOR TRAVEL PERFORMED LONG AGO. THE ASSISTANT SECRETARY STATES THAT ACTION IS BEING TAKEN TO AMEND THE REGULATIONS CONCERNED TO CLARIFY ENTITLEMENTS IN THIS AREA AND TO PRECLUDE FURTHER ERRONEOUS PAYMENTS.

WITH RESPECT TO THE ERRONEOUS PAYMENTS, HE SAYS THAT SUCH PAYMENTS AROSE AS THE RESULT OF THE INADVERTENT VAGUENESS OF THE REGULATIONS. ALSO HE SAYS THAT SINCE THE PER DIEM ALLOWANCE IS A REASONABLE ESTIMATE OF ACTUAL EXPENSES IN SUCH CASES, HE REQUESTS OUR PERMISSION TO ALLOW THE PAYMENTS STILL IN THE ACCOUNTS TO STAND AND TO PERMIT THE REFUND OF PAYMENTS ALREADY COLLECTED. IF SUCH PERMISSION IS NOT GRANTED, HE ASKS WHETHER THE CLAIMANT'S GENERAL ITEMIZATION OF ACTUAL EXPENSES MAY BE ACCEPTED IN OFFSETTING AN EQUIVALENT AMOUNT OF THE PER DIEM PAID.

IT HAS LONG BEEN ESTABLISHED THAT COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION, OR PER DIEM LAWFULLY MAY BE MADE FOR AUTHORIZED TRAVEL ONLY IF BASED UPON SPECIFIC STATUTORY AUTHORIZATION. A STATUTORY ASSUMPTION BY THE GOVERNMENT OF AN OBLIGATION TO PAY NECESSARY TRAVEL EXPENSES WITHOUT AN EXPRESS AUTHORIZATION FOR THE PAYMENT OF COMMUTED ALLOWANCES HAS CONSISTENTLY BEEN CONSTRUED AS AUTHORITY FOR REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS ONLY. 47 COMP. GEN. 405 (1968) AND DECISIONS CITED THEREIN.

THE VIEWS EXPRESSED BY THE ASSISTANT SECRETARY HAVE BEEN CAREFULLY CONSIDERED BUT IN VIEW OF THE LONG ESTABLISHED RULES CITED ABOVE REGARDING AUTHORITY FOR THE PAYMENT OF PER DIEM, THE NOTICES OF EXCEPTION WERE CORRECT AND PROPERLY MAY NOT BE REMOVED. NEITHER IS THERE ANY AUTHORITY TO PERMIT THE REFUND OF PAYMENTS ALREADY COLLECTED.

MOREOVER, A SAMPLE EXAMINATION MADE BY OUR DEFENSE DIVISION DISCLOSED ONLY A RELATIVELY SMALL NUMBER OF VOUCHERS INVOLVING ERRONEOUS PAYMENTS FOR TRAVEL OF CIVILIAN ATTENDANTS ACCOMPANYING DEPENDENTS OF MILITARY MEMBERS REQUIRING MEDICAL TREATMENT. THUS, THE PAYMENTS DO NOT APPEAR TO HAVE BEEN IN LARGE NUMBERS. IN VIEW OF THE APPARENT ADMINISTRATIVE PROBLEMS OF IDENTIFICATION, WE WILL NOT INSIST UPON AN ADMINISTRATIVE SEARCH TO UNCOVER OTHER SIMILAR ERRONEOUS PAYMENTS, BUT IF SUCH PAYMENTS ARE FOUND IN THE NORMAL COURSE OF EXAMINING THE DISBURSING OFFICER'S ACCOUNTS, COLLECTION ACTION SHOULD BE TAKEN.

WITH RESPECT TO THE ASSISTANT SECRETARY'S ALTERNATIVE REQUEST THAT THE CLAIMANT'S GENERAL ITEMIZATION OF ACTUAL EXPENSES BE ACCEPTABLE IN OFFSETTING AN EQUIVALENT AMOUNT OF THE PER DIEM PAID, IN EACH OF THE CASES EXAMINED BY OUR OFFICE, THE TRANSPORTATION WAS FURNISHED BY THE GOVERNMENT AND GOVERNMENT QUARTERS WERE USED. THE ONLY EXPENSES INCURRED APPEARED TO BE FOR TAXI FARES, SERVICE CHARGES FOR QUARTERS AND MEAL COSTS. WE WOULD NOT OBJECT TO REDUCTION OF THE OVERPAYMENTS BASED ON AN ITEMIZATION OF EXPENSES INCURRED, OTHER THAN THOSE ALREADY REIMBURSED ON THE VOUCHERS, SUPPORTED BY RECEIPTS, IF AVAILABLE, OR A CERTIFICATE BY THE PAYEE TO THE EFFECT THAT ON THE BASIS OF HIS BEST RECOLLECTION HE BELIEVES HE ACTUALLY EXPENDED THE AMOUNTS SHOWN IN SUCH ITEMIZATION.