B-172721, JUL 19, 1971

MILITARY PERSONNEL - AUTO RENTAL - EXTRA COLLISION INSURANCE DECISION ALLOWING CLAIM OF SERGEANT FIRST CLASS JOHN GARNER FOR SUPPLEMENTAL TRAVEL EXPENSE INCURRED IN THE PURCHASE OF EXTRA COLLISION INSURANCE FOR A RENTAL AUTOMOBILE USED IN CONNECTION WITH TEMPORARY DUTY TO WHICH HE HAD BEEN ASSIGNED UNDER ORDERS AUTHORIZING RENTAL FROM OCTOBER 27, 1970 TO DECEMBER 22, 1970. AS ENTITLEMENT TO REIMBURSEMENT FOR MISCELLANEOUS EXPENSES FOR TRAVEL AND TEMPORARY DUTY PERFORMED IS FIXED UNDER APPLICABLE ORDERS AND REGULATIONS IN EFFECT AT THE TIME DUTY WAS PERFORMED, CHANGE IN REGULATIONS MADE NOVEMBER 17, 1970, DISSEMINATED DECEMBER 4, 1970, DISALLOWING REIMBURSEMENT FOR THIS EXPENSE MAY NOT BE GIVEN EFFECT.

TO LIEUTENANT COLONEL G. B. ADAMS, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1971 (PDTATAC CONTROL NO. 71-18), REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT TO SERGEANT FIRST CLASS JOHN GARNER OF A SUPPLEMENTAL TRAVEL CLAIM FOR REIMBURSEMENT OF COSTS INCURRED FOR THE PURCHASE OF EXTRA COLLISION INSURANCE FOR A RENTAL AUTOMOBILE IN CONNECTION WITH TEMPORARY DUTY.

PURSUANT TO ORDERS DATED OCTOBER 27, 1970, SERGEANT GARNER PROCEEDED ON OR ABOUT NOVEMBER 11, 1970, ON TEMPORARY DUTY FROM SUITLAND, MARYLAND, TO CHICAGO, ILLINOIS, AND RETURNED TO HIS PERMANENT DUTY STATION ON DECEMBER 22, 1970. YOU SAY THAT THE ORDERS AUTHORIZED THE RENTAL OF AN AUTOMOBILE DUE TO THE MISSION LOCATION AND REQUIREMENTS.

HE RENTED AN AUTOMOBILE ON NOVEMBER 11, 1970, AT HIS TEMPORARY DUTY STATION AS AUTHORIZED IN HIS ORDERS, WHICH HE UTILIZED THROUGH DECEMBER 22, 1970. HE PURCHASED EXTRA COLLISION INSURANCE (COLLISION DAMAGE WAIVER) THE COST OF WHICH WAS REIMBURSABLE UNDER PARAGRAPH M4405-1 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME. THE REGULATION WAS CHANGED EFFECTIVE NOVEMBER 17, 1970, TO PROHIBIT REIMBURSEMENT FOR COST OF PURCHASING EXTRA COLLISION INSURANCE IN CONNECTION WITH RENTED AUTOMOBILES. NOTICE OF THE CHANGE, HOWEVER, WAS NOT SENT TO THE MAJOR MILITARY COMMANDS UNTIL DECEMBER 4, 1970, STATING THAT THE CHANGE WAS EFFECTIVE NOVEMBER 17, 1970. IN OUR OPINION THE NET RESULT OF THIS PROCEDURE WAS THE PROMULGATION OF A REGULATION ON DECEMBER 4, 1970, RETROACTIVELY EFFECTIVE TO NOVEMBER 17, 1970.

IN YOUR LETTER YOU SAY THAT THE MEMBER ENTERED INTO A CAR RENTAL CONTRACT, WHICH INCLUDED THE COLLISION DAMAGE WAIVER PROVISIONS, ON NOVEMBER 11, 1970, PRIOR TO APPROVAL OF THE CHANGE TO THE JOINT TRAVEL REGULATIONS AND THAT HE WAS NOT ADVISED AND WAS NOT AWARE OF SAID CHANGE IN TIME TO ATTEMPT TO MODIFY THE CONTRACT TO DELETE THE COVERAGES. VIEW OF THIS YOU ASK WHETHER HE MAY BE REIMBURSED FOR THE EXPENSES INCURRED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY, NOVEMBER 11 TO DECEMBER 22, 1970, OR FOR THE PERIOD NOVEMBER 11 TO DECEMBER 3, 1970, THE DATE PRIOR TO OFFICIAL DISSEMINATION OF THE CHANGE BY THE DEPARTMENT OF THE ARMY.

IT HAS LONG BEEN THE VIEW OF THIS OFFICE THAT IN THE CASE OF MEMBERS ENTITLED TO PER DIEM AND MISCELLANEOUS REIMBURSABLE EXPENSES FOR TRAVEL AND TEMPORARY DUTY PERFORMED, THE RIGHTS OF THE MEMBER AND THE GOVERNMENT BECOME FIXED UNDER THE APPLICABLE ORDERS AND REGULATIONS IN EFFECT AT THE TIME SUCH DUTY IS PERFORMED AND THAT SUCH RIGHTS MAY NOT BE CHANGED BY ADMINISTRATIVE ACTION WHICH WOULD RETROACTIVELY AMEND THE MEMBER'S ORDERS OR CHANGE THE APPLICABLE REGULATIONS. 23 COMP. GEN. 713 (1944); 24 COMP. GEN. 362 (1944); 32 COMP. GEN. 315 (1953); 33 COMP. GEN. 505 (1954) AND B- 157955, DECEMBER 10, 1965. UNDER THESE RULES, THE CHANGE IN THE REGULATIONS COULD NOT BE GIVEN EFFECT IN SERGEANT GARNER'S CASE WITH RESPECT TO ANY PERIOD PRIOR TO DECEMBER 4, 1970, IN ANY EVENT.

WHILE THE SUBMITTED MEMORANDUM COPIES OF THE RENTAL AGREEMENT ARE FOR THE MOST PART ILLEGIBLE, THEY INDICATE THAT SERGEANT GARNER ENTERED INTO TWO CAR RENTAL AGREEMENTS, ONE FOR ONE WEEK AND THE OTHER FOR FIVE WEEKS. THE DATES OF THE AGREEMENTS ARE NOT READABLE. IN VIEW OF YOUR STATEMENT, HOWEVER, WE ASSUME THAT EACH AGREEMENT WAS ENTERED INTO PRIOR TO NOVEMBER 17, 1970. EVEN IF SUCH IS NOT THE CASE IT IS REASONABLY CLEAR THAT EACH WAS ENTERED INTO PRIOR TO DECEMBER 4, 1970.

EACH OF THE AGREEMENTS PROVIDES WITH RESPECT TO THE COLLISION DAMAGE WAIVER THAT:

"IN CONSIDERATION OF THE COLLISION DAMAGE WAIVER RATE (C.D.W.) AGREED UPON HEREIN, LESSOR AGREES TO RELIEVE CUSTOMER OF LIABILITY FOR DAMAGES CAUSED BY COLLISION ***

"CUSTOMER ACCEPTS OR DECLINES PURCHASE OF C.D.W. AT RATE SPECIFIED. CDW IS APPLICABLE ONLY IF ACCEPTED."

COLLISION DAMAGE WAIVER WAS ACCEPTED IN EACH CASE. THUS, SERGEANT GARNER BECAME CONTRACTUALLY LIABLE FOR COLLISION DAMAGE WAIVER CHARGES PRIOR TO THE EFFECTIVE DATE OF THE REGULATION CHANGE IN HIS CASE. IF HE HAD BEEN GIVEN TIMELY NOTICE OF THE CHANGE HE COULD AND SHOULD HAVE RETURNED THE RENTAL CAR AND ENTERED INTO A NEW CAR RENTAL AGREEMENT WITHOUT THE COLLISION DAMAGE WAIVER PROVISION. HOWEVER, HE WAS GIVEN NO NOTICE OF THE CHANGE; AND, AS STATED ABOVE, UNDER THE REGULATIONS IN EFFECT AT THE TIME HE ENTERED INTO THE CONTRACTS, A MEMBER WHO CONTRACTED FOR SUCH EXTRA INSURANCE WHEN USING A RENTED CAR ON OFFICIAL BUSINESS WAS ENTITLED TO REIMBURSEMENT FOR ITS COST. 35 COMP. GEN. 553 (1956) AND 47 COMP. GEN. 145 (1967).

IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE CHANGE IN THE REGULATIONS MAY NOT BE APPLIED TO DEPRIVE SERGEANT GARNER OF REIMBURSEMENT FOR THE FULL CHARGES WHICH HE AGREED TO PAY UNDER THE CAR RENTAL AGREEMENT SINCE HE WAS NOT MADE AWARE OF THE CHANGE IN THE REGULATIONS IN TIME TO HAVE AVOIDED LIABILITY FOR THE EXTRA CHARGES WITH RESPECT TO ANY PART OF THE PERIOD OF HIS TEMPORARY DUTY.

ACCORDINGLY, SERGEANT GARNER IS ENTITLED TO REIMBURSEMENT FOR COSTS OF ADDITIONAL INSURANCE COVERING THE ENTIRE RENTAL PERIOD (NOVEMBER 11 TO DECEMBER 22, 1970) AND PAYMENT ON THE VOUCHER RETURNED HEREWITH, IS AUTHORIZED.