B-123029, JULY 20, 1955, 35 COMP. GEN. 31

B-123029, JULY 20, 1955, 35 COMP. GEN. 31

TRAVELING EXPENSES - MILITARY, NAVAL, ETC., PERSONNEL - PERSONAL CONVENIENCE - USE OF FOREIGN CARRIERS ARMY OFFICER WHO, INCIDENT TO TRANSFER FROM OVERSEAS TO A POST OF DUTY IN THE UNITED STATES UNDER ORDERS WHICH AUTHORIZED TRAVEL FOR PERSONAL CONVENIENCE OVER CIRCUITOUS ROUTE AT NO EXPENSE TO THE GOVERNMENT, TRAVELED BY FOREIGN VESSEL AND FOREIGN AIRCRAFT MAY NOT BE REIMBURSED FOR TRAVEL EXPENSES AND PER DIEM IN VIEW OF SECTION 901 OF THE MERCHANT MARINE ACT, 1936, AND PARAGRAPH 2150, JOINT TRAVEL REGULATIONS, WHICH REQUIRE THE USE OF SHIPS AND AIRCRAFT OF AMERICAN REGISTRY, AND, IN THE ABSENCE OF ORDERS DIRECTING LAND TRAVEL IN THE UNITED STATES MAY NOT BE PAID MILEAGE FOR CONSTRUCTIVE TRAVEL.

TO COLONEL S. J. TAGGART, DEPARTMENT OF THE ARMY, JULY 20, 1955:

YOUR LETTER OF AUGUST 23, 1954, REQUESTED AN ADVANCE DECISION ON VOUCHERS STATED IN FAVOR OF COLONEL JAMES R. WHEATON, O-16458, FOR PER DIEM AND MILEAGE FOR HIS TRAVEL FROM THE FAR EAST COMMAND TO THE UNITED STATES BY A CIRCUITOUS ROUTE ON FOREIGN VESSELS AND AIRCRAFT.

BY LETTER ORDERS 8-183, HEADQUARTERS 2D TRANSPORTATION MAJOR PORT, APO 503, DATED AUGUST 21, 1953, COLONEL WHEATON WAS RELEASED FROM ASSIGNMENT AT THAT STATION, AND AFTER THE EXPIRATION OF 60 DAYS' LEAVE GRANTED HIM DURING WHICH HE WAS PERMITTED TO VISIT VARIOUS FOREIGN COUNTRIES, HE WAS DIRECTED TO REPORT TO THE COMMANDING GENERAL, NEW YORK PORT OF EMBARKATION, BROOKLYN, NEW YORK, FOR FURTHER ASSIGNMENT TO DUTY IN THE UNITED STATES. THE ORDERS AUTHORIZED TRAVEL BY COMMERCIAL CARRIER AT NO EXPENSE TO THE GOVERNMENT. BY ORDERS DATED NOVEMBER 3 AND 5, 1953, HE WAS RELEASED FROM ASSIGNMENT AT FORT HAMILTON, NEW YORK, AND ASSIGNED TO DUTY AT SOUTH CHARLESTON, WEST VIRGINIA, WITH INTERVENING TEMPORARY DUTY AT FORT GEORGE G. MEADE, MARYLAND, AND INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA. THE OFFICER TRAVELED FROM YOKOHAMA, JAPAN, TO MANILA, PHILIPPINE ISLANDS, BY MILITARY AIRCRAFT BETWEEN SEPTEMBER 4 AND 7, 1953. HE TRAVELED BY FOREIGN VESSELS AND AIRCRAFT BY A CIRCUITOUS ROUTE FROM MANILA TO BOSTON, MASSACHUSETTS, WHERE HE ARRIVED ON OCTOBER 27, 1953. TRAVELED FROM BOSTON TO BROOKLYN, NEW YORK, THENCE TO HIS TEMPORARY DUTY STATIONS, AND TO HIS PERMANENT STATION. ON VOUCHER NO. 809239, IN YOUR DECEMBER 1953 ACCOUNTS, HE WAS PAID $51.20 REPRESENTING PER DIEM FOR TRAVEL FROM YOKOHAMA TO MANILA AND FOR FOUR DAYS TEMPORARY DUTY IN THE UNITED STATES, AND MILEAGE FOR TRAVEL FROM BOSTON TO BROOKLYN, NEW YORK, AND THENCE TO SOUTH CHARLESTON, WEST VIRGINIA, BY WAY OF THE TEMPORARY DUTY STATIONS. ONE OF THE VOUCHERS SUBMITTED BY YOU IS FOR PER DIEM FOR THE TRAVEL FROM MANILA TO BOSTON. THE OTHER VOUCHER SUBMITTED, FOR $163.02, COVERS MILEAGE FOR CONSTRUCTIVE TRAVEL, SEPTEMBER 7 TO OCTOBER 27, 1953, FROM SEATTLE, WASHINGTON (USUAL PORT OF DEBARKATION), TO BROOKLYN, NEW YORK ($185.76), LESS $22.47 PREVIOUSLY PAID AS PER DIEM FOR TRAVEL FROM YOKOHAMA TO MANILA AND MILEAGE FROM BOSTON TO BROOKLYN.

YOU SAY THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT IN THIS CASE ARISES FROM PARAGRAPH 2150, JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT, UNLESS OTHERWISE AUTHORIZED OR RESTRICTED BY LAW, WHEN COMMERCIAL TRANSPORTATION TO OR FROM POINTS OUTSIDE THE UNITED STATES IS REQUIRED AND AUTHORIZED, IT WILL BE SECURED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, AND THAT CIRCUITOUS ROUTES FOR THE CONVENIENCE OF THE TRAVELER WILL NOT BE ACCEPTED AS SUFFICIENT JUSTIFICATION FOR USE OF SHIPS OR AIRCRAFT OF FOREIGN REGISTRY.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, 46 U.S.C. 1241, PROVIDES THAT " ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS * * * SHALL TRAVEL * * * ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES" IF AVAILABLE, AND THAT THE COMPTROLLER GENERAL OF THE UNITED STATES "SHALL NOT CREDIT ANY ALLOWANCES FOR TRAVEL * * * EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.'

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION OR OTHERWISE. JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY CLEARLY CONTEMPLATE THE FURNISHING OF TRANSPORTATION IN KIND, OR TO THE PAYMENT OF A MONETARY ALLOWANCE, FOR ORDERED TRAVEL PERFORMED AT PERSONAL EXPENSE ON GOVERNMENT BUSINESS.

THE ORDERS OF AUGUST 21, 1953, DIRECTED COLONEL WHEATON TO TRAVEL FROM JAPAN TO BROOKLYN, NEW YORK, AND AUTHORIZED HIM, FOR HIS OWN CONVENIENCE TO VISIT FOREIGN COUNTRIES, TO PROCEED TO BROOKLYN BY COMMERCIAL TRANSPORTATION OVER A ROUTE OF HIS OWN SELECTION AT NO EXPENSE TO THE GOVERNMENT. THE ORDERS DID NOT DIRECT ANY LAND TRAVEL IN THE UNITED STATES. SINCE THE OFFICER TRAVELED FROM MANILA TO BOSTON BY COMMERCIAL VESSELS AND AIRCRAFT OF FOREIGN REGISTRY, REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR THAT TRAVEL IS CLEARLY PROHIBITED BY SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AND PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS. HENCE, THERE IS NO PROPER BASIS FOR PAYMENT OF ANY PER DIEM ON A CONSTRUCTIVE BASIS FOR WATER TRAVEL BY THE OFFICER FROM MANILA TO BOSTON BETWEEN SEPTEMBER 7 AND OCTOBER 27, 1953. ALSO, SINCE NO LAND TRAVEL IN THE UNITED STATES WAS DIRECTED TO BE PERFORMED BY THE OFFICER ON GOVERNMENT BUSINESS PRIOR TO REPORTING TO THE COMMANDER, NEW YORK PORT OF EMBARKATION, THERE IS NO LEGAL BASIS FOR PAYMENT OF MILEAGE FOR CONSTRUCTIVE TRAVEL FROM SEATTLE, WASHINGTON (THE PORT TO WHICH HE WOULD HAVE BEEN FURNISHED GOVERNMENT TRANSPORTATION), TO BROOKLYN, NEW YORK. FOLLOWS THAT THE PAYMENT MADE TO HIM OF $13.74 FOR MILEAGE FROM BOSTON TO BROOKLYN WAS NOT AUTHORIZED, AND HE HAS BEEN OVERPAID THAT AMOUNT.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT ON EITHER OF THE VOUCHERS SUBMITTED, AND THEY WILL BE RETAINED HERE.