B-163954, JUL. 24, 1968

B-163954, JUL. 24, 1968

TO MRS. BARBARA J. WILLIAMS:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER AND ENCLOSURES REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 1, 1967, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 23 TO 31, 1967, AS A NON- MEDICAL ATTENDANT FOR YOUR MINOR DAUGHTER INCIDENT TO THE SERVICE OF YOUR HUSBAND, AF TSGT FOREST R. WILLIAMS.

THE RECORD SHOWS THAT PURSUANT TO ORDERS DATED MARCH 23, 1967, YOU TRAVELED FROM MISAWA AIR BASE, JAPAN, TO TACHIKAWA AIR BASE, JAPAN, WHERE YOUR DAUGHTER WAS HOSPITALIZED, FOR THE PURPOSE OF ESCORTING HER BACK TO MISAWA. HOWEVER, IT SUBSEQUENTLY DEVELOPED THAT YOU REMAINED THERE UNTIL MARCH 28, 1967, WHEN YOU WERE AUTHORIZED TO ACCOMPANY HER TO VALLEY FORGE GENERAL HOSPITAL, PHOENIXVILLE, PENNSYLVANIA. ALL TRAVEL WAS PERFORMED BY GOVERNMENT AIRCRAFT AND GOVERNMENT BUS.

YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 23 TO 31, 1967, WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 1, 1967, FOR THE REASON THAT PARAGRAPH M6403 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT TRAVEL AND TRANSPORTATION ALLOWANCES FOR ESCORTS OR ATTENDANTS OF DEPENDENTS WILL BE AS PRESCRIBED IN THE ORDERS AND YOUR TRAVEL ORDERS DID NOT PRESCRIBE PER DIEM.

WITH YOUR PRESENT LETTER, YOU ENCLOSED A COPY OF ORDERS DATED MARCH 5, 1968, WHICH PURPORT TO AMEND THE ORDERS OF MARCH 23, 1967, BY INCLUDING A PROVISION FOR PAYMENT OF $18 PER DAY, SUBJECT TO APPLICABLE DEDUCTIONS.

SECTION 1040 (A) OF TITLE 10, U.S.C. PROVIDES AUTHORITY IN THE CASE OF DEPENDENTS ACCOMPANYING MEMBERS STATIONED OVERSEAS, FOR TRANSPORTATION OF THE DEPENDENTS AT THE EXPENSE OF THE UNITED STATES TO THE NEAREST APPROPRIATE MEDICAL FACILITY FOR NECESSARY TREATMENT, AND RETURN, AND ALSO PROVIDES AUTHORITY FOR THE ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES OF THE NECESSARY ATTENDANTS.

PARAGRAPH M7107-1, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 1040 (A), PROVIDES, IN PERTINENT PART THAT, WHEN DETERMINED BY COMPETENT AUTHORITY THAT A DEPENDENT ACCOMPANYING A MEMBER WHO IS ON ACTIVE DUTY FOR MORE THAN 30 DAYS AND STATIONED OUTSIDE THE UNITED STATES, REQUIRES MEDICAL CARE NOT AVAILABLE IN THE LOCALITY OF THE MEMBER'S OVERSEAS DUTY STATION, THE MEMBER'S COMMANDING OFFICER DESIGNATED BY THE SERVICE CONCERNED, MAY AUTHORIZE OR APPROVE TRANSPORTATION OF THE DEPENDENT TO THE NEAREST APPROPRIATE MEDICAL FACILITY WHERE ADEQUATE MEDICAL CARE IS AVAILABLE.

PARAGRAPH M7107-2 PROVIDES THAT TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR THE TRAVEL OF NECESSARY ATTENDANTS WHEN PERFORMED UNDER COMPETENT ORDERS AS PROVIDED IN CHAPTER 6, PART I.

PARAGRAPH M6400, CHAPTER 6, PART I, JOINT TRAVEL REGULATIONS, PROVIDES, IN PERTINENT PART, THAT TRAVEL OF ATTENDANTS WITH DEPENDENTS UNDER AUTHORITY OF PARAGRAPH M7107 OF THE REGULATIONS WILL BE AUTHORIZED ONLY WHEN THE ORDER-ISSUING AUTHORITY HAS DETERMINED THAT TRAVEL BY THE DEPENDENTS IS NECESSARY AND THE DEPENDENTS ARE INCAPABLE OF TRAVELING ALONE.

PARAGRAPH M6403 OF THE REGULATIONS PROVIDES THAT PERSONS OTHER THAN MEMBERS OR CIVILIAN EMPLOYEES DESIGNATED TO TRAVEL AS ATTENDANTS FOR DEPENDENTS WILL BE ISSUED INVITATIONAL TRAVEL ORDERS IN ACCORDANCE WITH THE APPROPRIATE REGULATIONS OF THE DEPARTMENT CONCERNED. TRAVEL AND TRANSPORTATION ALLOWANCES WILL BE AS PRESCRIBED IN SUCH INVITATIONAL ORDERS.

IN OUR DECISION, B-163494, JUNE 14, 1968 (47 COMP. GEN. ---), COPY ENCLOSED, WE CONSIDERED THE QUESTION WHETHER AUTHORIZED TRAVEL OF A DEPENDENT TO AND FROM MEDICAL FACILITIES ENTITLED THE MEMBER TO REIMBURSEMENT ON A MILEAGE BASIS. WE 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 THAT THERE WAS NO AUTHORITY FOR COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION OR PER DIEM. ALSO WE HELD THAT TRAVEL OF NECESSARY ATTENDANTS WHO ARE MEMBERS OF THE UNIFORMED SERVICES IS PROPERLY TO BE REGARDED AS TRAVEL ON PUBLIC BUSINESS IF DIRECTED BY COMPETENT ORDERS.

CONCERNING THE TRAVEL EXPENSES OF NON-MEMBER ATTENDANTS, WHO ACCOMPANY THE DEPENDENT, 10 U.S.C. 1040 (A) PROVIDES "IF A DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, ROUND-TRIP TRANSPORTATION AND TRAVEL EXPENSES MAY BE FURNISHED NECESSARY ATTENDANTS.' THIS LANGUAGE 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 THE GENERAL RULE AS EXPLAINED IN OUR DECISION OF JUNE 14, 1968, THAT COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION OR PER DIEM LAWFULLY MAY BE MADE ONLY IF BASED UPON A SPECIFIC STATUTORY AUTHORIZATION, WE BELIEVE 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.

THEREFORE, SINCE WE ARE NOT AWARE OF ANY AUTHORITY BY WHICH A PRIVATE PERSON TRAVELING AS AN ATTENDANT MAY BE PAID PER DIEM ALLOWANCES, WE MUST CONCLUDE THAT AS A NON-MEMBER ATTENDANT YOU ARE ENTITLED TO REIMBURSEMENT ONLY ON A PROPER SHOWING OF THE NECESSARY TRAVEL EXPENSES INCURRED.

MOREOVER, YOUR ORDERS OF MARCH 5, 1968, ISSUED LONG AFTER THE TRAVEL WAS PERFORMED, WOULD HAVE BEEN INEFFECTIVE TO AUTHORIZE PER DIEM IF IT WERE OTHERWISE PAYABLE SINCE, EXCEPT TO CORRECT ERRORS OR SUPPLY PROVISIONS INTENDED BUT INADVERTENTLY OMITTED IN THE ORIGINAL ORDERS, RETROACTIVE ORDERS ARE INEFFECTIVE TO INCREASE ENTITLEMENT TO TRAVEL ALLOWANCE FOR TRAVEL ALREADY PERFORMED. 23 COMP. GEN. 713; 24 COMP GEN. 439; 28 COMP. GEN. 732 AND 47 COMP. GEN. 127, 130.

THEREFORE, SINCE THE TRAVEL INVOLVED WAS PERFORMED BY GOVERNMENT TRANSPORTATION AND THERE IS NO SHOWING OF ANY TRAVELING EXPENSES INCURRED, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. HOWEVER, FURTHER CONSIDERATION WILL BE GIVEN YOUR CLAIM FOR REIMBURSEMENT OF THE ACTUAL TRAVEL EXPENSES INVOLVED UPON RECEIPT OF AN ITEMIZED STATEMENT SHOWING THE ACTUAL COSTS INCURRED, SUPPORTED BY RECEIPTS OR ANY OTHER DOCUMENTARY EVIDENCE WHICH YOU DEEM PERTINENT.