B-188648, NOV 18, 1977

B-188648: Nov 18, 1977

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IN ACCORDANCE WITH PENALTY FORMULA SET FORTH AT 56 COMP.GEN. 209 (1977) EMPLOYEE IS LIABLE FOR $16.02. NOTWITHSTANDING FACT THAT AIR TRANSPORTATION BETWEEN LONDON AND EDINBURG WAS FURNISHED AT NO ADDITIONAL COST. THE REMAINDER OF THE TRAVEL WAS PERFORMED EITHER BY FOREIGN AIR CARRIER OF BY MEANS OF GROUND TRANSPORTATION. IT IS MR. HE STATES THAT THE GOVERNMENT TRANSPORTATION REQUEST PROVIDED FOR HIS OFFICIAL TRAVEL DID NOT INCLUDE THE TRIP FROM LONDON TO EDINBURG BUT THAT TRANSPORTATION BETWEEN LONDON AND EDINBURG WAS PROVIDED AT NO ADDITIONAL COST. RECOGNIZING THAT THE TRAVEL INVOLVED WAS PURELY PERSONEL. THAT HE WAS NEVER ADVISED THAT HE WOULD BE ASSESSED A PENALTY. HE POINTS OUT THAT HE ROUND-TRIP TRAVEL BETWEEN LONDON AND EDINBURG WAS PERFORMED ON SUNDAY AND THAT NO U.S.

B-188648, NOV 18, 1977

EMPLOYEE AUTHORIZED OFFICIAL TRAVEL TO AFRICA WITH RETURN TO WASHINGTON, D.C., VIA LONDON, TOOK SIDE TRIP BY FOREIGN AIR CARRIER FROM LONDON TO EDINBURG AS A MATTER OF PERSONAL CONVENIENCE. IN ACCORDANCE WITH PENALTY FORMULA SET FORTH AT 56 COMP.GEN. 209 (1977) EMPLOYEE IS LIABLE FOR $16.02, AMOUNT BY WHICH HIS PERSONAL TRAVEL DIVERTED GOVERNMENT REVENUES FROM CERTIFICATED U.S. AIR CARRIERS TO FOREIGN CARRIERS, NOTWITHSTANDING FACT THAT AIR TRANSPORTATION BETWEEN LONDON AND EDINBURG WAS FURNISHED AT NO ADDITIONAL COST.

GILBERT GRIFFIS - FLY AMERICA ACT, SIDE TRIP BY FOREIGN AIR CARRIER:

BY LETTER DATED MARCH 21, 1977, GARY E. PIKE, AUTHORIZED CERTIFYING OFFICER, ACTION, HAS FORWARDED FOR ADVANCE DECISION MR. GILBERT GRIFFIS' CLAIM FOR REIMBURSEMENT OF THE $57.10 PENALTY ASSESSED IN CONNECTION WITH AND USE OF NONCERTIFICATED FOREIGN AIR CARRIER SERVICE BETWEEN LONDON, ENGLAND, AND EDINBURG, SCOTLAND.

IN THE COURSE OF OFFICIAL BUSINESS PERFORMED IN APRIL AND MAY OF 1976, MR. GRIFFIS TRAVELED FROM WASHINGTON, D.C., TO MADRID, SPAIN, THENCE TO JOHANNESBURG, SOUTH AFRICA, MAIROBI, KENYA, AND ADDIS ABABA, ETHIOPIA. FOLLOWING THE COMPLETION OF DUTY IN ADDIS ABABA ON MAY 15, MR. GRIFFIS TRAVELED TO LONDON TO ATTEND A MEETING AND RETURNED TO WASHINGTON, D.C., ON MAY 17.

THE EMPLOYEE USED CERTIFICATED U.S. AIR CARRIER SERVICE FOR THE TRANSOCEANIC PORTIONS OF TRAVEL FROM WASHINGTON TO MADRID AND FOR RETURN TRAVEL FROM LONDON TO WASHINGTON. THE REMAINDER OF THE TRAVEL WAS PERFORMED EITHER BY FOREIGN AIR CARRIER OF BY MEANS OF GROUND TRANSPORTATION. THE CERTIGYING OFFICER DOES NOT QUESTION THE PROPRIETY OF THE EMPLOYEE'S TRAVEL BY FOREIGN AIR CARRIERS OR THE JUSTIFICATION OFFERED FOR USE OF SUCH SERVICE IN CONNECTION WITH THE OFFICIAL TRAVEL PERFORMED. THE ISSUE PRESENTED FOR ADVANCE DECISION RELATES ONLY TO THE EMPLOYEE'S USE OF FOREIGN AIR CARRIER SERVICE IN CONNECTION WITH INDIRECT TRAVEL PERFORMED AS A MATTER OF THE EMPLOYEE'S OWN CONVENIENCE BETWEEN LONDON AND EDINBURG FOR WHICH HE HAS BEEN ASSESSED A PENALTY OF $57.10.

IT IS MR. GRIFFIS' POSITION THAT HE HAS BEEN IMPROPERLY HELD RESPONSIBLE FOR THE $57.10 AMOUNT. IN THIS CONNECTION, HE STATES THAT THE GOVERNMENT TRANSPORTATION REQUEST PROVIDED FOR HIS OFFICIAL TRAVEL DID NOT INCLUDE THE TRIP FROM LONDON TO EDINBURG BUT THAT TRANSPORTATION BETWEEN LONDON AND EDINBURG WAS PROVIDED AT NO ADDITIONAL COST. RECOGNIZING THAT THE TRAVEL INVOLVED WAS PURELY PERSONEL, MR. GRIFFIS EXPLAINS THAT HE UNDERSTOOD HE WOULD BE RESPONSIBLE FOR ANY ADDITIONAL AIR FARE INVOLVED IN CONNECTION WITH SUCH TRAVEL, BUT THAT HE WAS NEVER ADVISED THAT HE WOULD BE ASSESSED A PENALTY. HE POINTS OUT THAT HE ROUND-TRIP TRAVEL BETWEEN LONDON AND EDINBURG WAS PERFORMED ON SUNDAY AND THAT NO U.S. FLAG AIR CARRIER PROVIDES SERVICE BETWEEN LONDON AND EDINBURG.

WERE THERE AN OFFICIAL PURPOSE FOR MR. GRIFFIS' TRAVEL BETWEEN LONDON AND EDINBURG, THE USE OF FOREIGN FLAG AIR CARRIER SERVICE TO PERFORM THAT TRAVEL WOULD BE PROPER UNDER THE COMPTROLLER GENERAL'S GUIDELINES FOR IMPLEMENTATION OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974 INASMUCH AS AIR TRANSPORTATION BETWEEN THOSE CITIES IS NOT PROVIDED BY ANY U.S. AIR CARRIER.

HOWEVER, WHERE THE EMPLOYEE TAKES A SIDE TRIP OR OTHERWISE INDIRECTLY ROUTES HIS TRAVEL, AND WHERE SUCH INDIRECT TRAVEL IS WHOLLY OR IN PART SUBSIDIZED BY THE FARE PAYABLE BY THE GOVERNMENT IN CONNECION WITH THE EMPLOYEE'S OFFICIAL ITINERARY, THE EMPLOYEE IS RESPONSIBLE NOT ONLY FOR ANY ADDITIONAL COST ATTRIBUTABLE TO HIS PERSONAL TRAVEL BUT FOR ANY DIVERSION OF REVENUES FROM CERTIFICATED U.S. AIR CARRIERS. 56 COMP.GEN. 209 (1977). THE OPPORTUNITY THAT GOVERNMENT TRAVEL MAY AFFORD AN EMPLOYEE TO AUGMENT HIS PERSONAL TRAVEL PLANS IS PURELY FORTUITOUS AND IS SANCTIONED ONLY INSOFAR AS IT DOES NOT RESULT IN ADDITIONAL COST TO THE GOVERNMENT OR OR CONTRAVENE OTHERWISE APPLICABLE LAWS AND REGULATIONS. THE EXTENT THAT SUCH PERSONAL TRAVEL RESULTS IN A REDUCTION IN RECEIPT OF GOVERNMENT REVENUES BY U.S. AIR CARRIERS OVER REVENUES THEY WOULD HAVE EARNED HAD THE EMPLOYEE PERFORMED ONLY AUTHORIZED TRAVEL, THAT PERSONAL TRAVEL DOES INVOLVE A VIOLATION OF THE REQUIREMENT FOR USE OF CERTIFICATED U.S. AIR CARRIER SERVICE IMPOSED BY 49 U.S.C. SEC. 1517.

WHILE WE AGREE WITH THE CERTIFYING OFFICER'S DETERMINATION THAT MR. GRIFFIS IS FINANCIALLY RESPONSIBLE UNDER 49 U.S.C. SEC. 1517 FOR THE DIVERSION OF GOVERNMENT REVENUES FROM U.S. TO FOREIGN AIR CARRIERS AS A RESULT OF HIS ROUND-TRIP TRAVEL BETWEEN LONDON AND EDINBURG, IT APPEARS THAT THE $57.10 AMOUNT WHICH HE HAS BEEN ASSESSED IN CONNECTION WITH THAT TRAVEL IS EXCESSIVE. THE SEGMENT DISTANCES TRAVELED BY THE EMPLOYEE, INCLUDING THE 688 ROUND-TRIP DISTANCE BETWEEN LONDON AND EDINBURG, DETERMINED FROM THE OFFICIAL AIRLINE GUIDE, ARE AS FOLLOWS:

D.C. TO N.Y. 229 CERTIFICATED N.Y. TO MADRID 3,588 CERTIFICATED MADRID TO LAS PALMAS 1,097 NONCERTIFICATED LAS PALMAS TO JOHANNESBURG 4,728 NONCERTIFICATED JOHANNESBURG TO NAIROBI 1,810 NONCERTIFICATED NAIROBI TO ADDIS ABABA 724 NONCERTIFICATED ADDIS ABABA TO LONDON 3,667 NONCERTIFICATED LONDON TO EDINBURG 344 NONCERTIFICATED EDINBURG TO LONDON 344 NONCERTIFICATED LONDON TO D.C. 3,658 CERTIFICATED

THE EMPLOYEE WAS AUTHORIZED TO TRAVEL A TOTAL OF 19,501 AIR MILES AND TO USE CERTIFICATED U.S. AIR CARRIERS FOR 7,475 OF THOSE MILES. BY REASON OF INDIRECT ROUND-TRIP TRAVEL BETWEEN LONDON AND EDINBURG HE IN FACT TRAVELED 20,189 MILES, USING CERTIFICATED U.S. AIR CARRIER SERVICE FOR 7,475 OF THOSE MILES. WE ARE ADVISED BY THE CERTIFYING OFFICER THAT THE EMPLOYEE'S TRAVEL BETWEEN LONDON AND EDINBURG INVOLVED NO ADDITIONAL COST.

OUR DECISION AT 56 COMP.GEN. 209, SUPRA, SETS FORTH THE FOLLOWING FORMULA FOR DETERMINING THE AMOUNT OF THE PENALTY TO BE ASSESSED IN CONNECTION WITH THE EMPLOYEE'S UNAUTHORIZED USE OF FOREIGN CARRIER AIR SERVICE:

SUM OF CERTIFICATED CARRIER SEGMENT MILEAGE, AUTHORIZED X FARE PAYABLE

SUM OF ALL SEGMENT MILEAGE, AUTHORIZED BY GOVERNMENT

MINUS

SUM OF CERTIFICATED CARRIER SEGMENT MILEAGE, TRAVELED X THROUGH FARE

SUM OF ALL SEGMENT MILEAGE, TRAVELED PAID

(7475/19501 X $1,232.58) - (7475/20189 X $1,232.58)

(.383 X $1,232.58) - (.370 X $1,232.58)

(.383 - .370) $1,232.58

.013 X $1,232.58

$16.02

BASED ON APPLICATION OF THE FORMULA SET FORTH AT 56 COMP.GEN. 209, SUPRA, THE PENALTY ASSESSED MR. GRIFFIS AS A RESULT OF HIS INDIRECT TRAVEL BY FOREIGN AIR CARRIER IS $16.02 RATHER THAN THE $57.10 AMOUNT ADMINISTRATIVELY DETERMINED TO BE DUE. ACCORDINGLY, MR. GRIFFIS MAY BE REIMBURSED $41.08, THE DIFFERENCE BETWEEN $57.10 AND $16.02.