A-97837, SEPTEMBER 26, 1938, 18 COMP. GEN. 256

A-97837: Sep 26, 1938

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IS NOT ENTITLED TO MILEAGE. THERE IS BEFORE ME THE MATTER OF ISSUING APPROPRIATE ADMINISTRATIVE REGULATIONS TO CARRY OUT THE PROVISIONS OF SUCH ACT. IN CONSIDERING WHAT ADMINISTRATIVE REGULATIONS WILL BE APPROPRIATE. CERTAIN QUESTIONS HAVE ARISEN AS TO WHICH I AM IN DOUBT AND AS TO WHICH I AM THEREFORE REQUESTING YOUR DECISION IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE ACT OF JULY 31. THE PRINCIPAL QUESTION ABOUT WHICH I AM IN DOUBT IS WHETHER AN OFFICER WHO MAY BE ORDERED TO TRAVEL IN PERFORMANCE OF A MILITARY DUTY AND WHO MAY BE DIRECTED TO PERFORM SUCH TRAVEL BY MEANS OF COMMERCIAL AIRCRAFT WILL BE ENTITLED TO MILEAGE AT 8 CENTS A MILE WITH CERTAIN DEDUCTIONS FOR TRANSPORTATION FURNISHED.

A-97837, SEPTEMBER 26, 1938, 18 COMP. GEN. 256

TRAVEL BY COMMERCIAL AIRCRAFT - MILITARY PERSONNEL -REIMBURSEMENT BASIS UNDER ACT, JUNE 23, 1938 AN ARMY OFFICER ORDERED TO TRAVEL BY COMMERCIAL AIRCRAFT WITH TRANSPORTATION FURNISHED ON GOVERNMENT TRANSPORTATION REQUEST UNDER THE PROVISIONS OF SECTION 204 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 983, IS NOT ENTITLED TO MILEAGE, WITH DEDUCTIONS FOR TRANSPORTATION FURNISHED, BUT TO ACTUAL EXPENSES, OR PER DIEM IN LIEU THEREOF, UNDER AND WITHIN THE LIMITATIONS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1461.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 26, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 10, 1938, AS FOLLOWS:

IN CONNECTION WITH THE PROVISIONS OF SECTION 204 (C) OF THE ACT APPROVED JUNE 23, 1938 (PUBLIC, NO. 706--- 75TH CONGRESS), THERE IS BEFORE ME THE MATTER OF ISSUING APPROPRIATE ADMINISTRATIVE REGULATIONS TO CARRY OUT THE PROVISIONS OF SUCH ACT. IN CONSIDERING WHAT ADMINISTRATIVE REGULATIONS WILL BE APPROPRIATE, CERTAIN QUESTIONS HAVE ARISEN AS TO WHICH I AM IN DOUBT AND AS TO WHICH I AM THEREFORE REQUESTING YOUR DECISION IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE ACT OF JULY 31, 1894 (28 STAT. 208; U.S.C. 31:74).

THE PRINCIPAL QUESTION ABOUT WHICH I AM IN DOUBT IS WHETHER AN OFFICER WHO MAY BE ORDERED TO TRAVEL IN PERFORMANCE OF A MILITARY DUTY AND WHO MAY BE DIRECTED TO PERFORM SUCH TRAVEL BY MEANS OF COMMERCIAL AIRCRAFT WILL BE ENTITLED TO MILEAGE AT 8 CENTS A MILE WITH CERTAIN DEDUCTIONS FOR TRANSPORTATION FURNISHED, AS PROVIDED IN THE ACT OF JUNE 10, 1922 (42 STAT. 631; U.S.C. 37:20); OR, WHETHER SUCH OFFICER WILL BE ENTITLED TO ACTUAL EXPENSES OR PER DIEM FOR SUCH AIR TRAVEL UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1931 (46 STAT. 1461; U.S.C. 37:20), AMENDING SECTION 12 OF THE ACT OF JUNE 10, 1922, TO PROVIDE ACTUAL EXPENSES OR PER DIEM FOR TRAVEL OF MILITARY PERSONNEL BY AIR.

IN YOUR DECISION OF FEBRUARY 27, 1929 (8 C.G. 469), IT WAS HELD THAT THE ACT OF JULY 11, 1919 (41 STAT. 109), WHICH WAS THE PREDECESSOR OF THE ACT OF MARCH 2, 1931, AND WHICH ALSO ALLOWED ACTUAL EXPENSES FOR AIR TRAVEL, APPLIED ONLY TO TRAVEL BY GOVERNMENT-OWNED AIRPLANES. THIS VIEW HAS SINCE BEEN REFERRED TO BY YOU IN A-95292; JUNE 20, 1938, AS ALSO APPLICABLE TO TRAVEL BY AIR UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1931, HEREIN CITED. IN VIEW OF THE ACT OF JUNE 23, 1938, SUPRA, IN WHICH IT IS INDICATED THAT THE CONGRESS INTENDED TO PLACE COMMERCIAL AIR TRAVEL BY EMPLOYEES OF THE GOVERNMENT ON THE SAME BASIS AS OTHER MODES OF TRAVEL, I AM IN DOUBT WHETHER YOU WILL ADHERE TO YOUR VIEW OF THE 1931 ACT AS SET FORTH IN ABOVE-CITED DECISIONS.

IN THE EVENT YOUR DECISION ON THE QUESTION ABOVE IS THAT MILEAGE IS PAYABLE FOR SUCH TRAVEL OF MILITARY PERSONNEL COVERED BY THE 1922 ACT, SUPRA, THERE IS THEN FOR CONSIDERATION WHETHER SUCH PERSONNEL WILL BE ENTITLED TO MILEAGE AT 8 CENTS PER MILE WITH A DEDUCTION OF 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED AND WITHOUT ADDITIONAL DEDUCTION BY REASON OF THE FACT THAT THE COST OF TRANSPORTATION BY COMMERCIAL AIRCRAFT MAY BE IN EXCESS OF THAT BY RAIL.

BY REASON OF THE PROVISIONS IN THE LAST SENTENCE OF SECTION 204 (C)OF THE ACT OF JUNE 23, 1938, THE REQUIREMENTS IN YOUR DECISION A 34175, JANUARY 30, 1931, FOR DEDUCTING ACTUAL COST OF COMMERCIAL AIRPLANE TRANSPORTATION INSTEAD OF 3 CENTS PER MILE WOULD NOT SEEM UNDER THE CIRCUMSTANCES AS PROPER FOR APPLICATION.

SINCE IT IS DESIRED TO PROMULGATE APPROPRIATE INSTRUCTIONS IN CONNECTION WITH THE ACT OF JUNE 23, 1938, AS SOON AS PRACTICABLE, AN EARLY DECISION WILL BE APPRECIATED.

SECTION 204 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 983, 984, PROVIDES:

TRAVEL BY PERSONNEL OF THE UNITED STATES GOVERNMENT ON COMMERCIAL AIRCRAFT, DOMESTIC OR FOREIGN, INCLUDING TRAVEL BETWEEN AIRPORTS AND CENTERS OF POPULATION OR POSTS OF DUTY WHEN INCIDENTAL TO TRAVEL ON COMMERCIAL AIRCRAFT, SHALL BE ALLOWED AT PUBLIC EXPENSE WHEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY, AND TRANSPORTATION REQUESTS FOR SUCH TRAVEL MAY BE ISSUED UPON SUCH AUTHORIZATIONS. SUCH EXPENSE SHALL BE ALLOWED WITHOUT REGARD TO COMPARATIVE COSTS OF TRANSPORTATION BY AIRCRAFT WITH OTHER MODES OF TRANSPORTATION.

MILEAGE TO ARMY OFFICERS IS PRESCRIBED BY SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS AMENDED BY THE ACT OF JUNE 1, 1926, 44 STAT. 680, AS FOLLOWS:

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, * * *

THE ACT OF MARCH 2, 1931, 46 STAT. 1461, PROVIDES:

THAT THE FIRST PARAGRAPH OF SECTION 12 OF THE ACT ENTITLED "AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED JUNE 10, 1922, AS AMENDED BY THE ACT OF JUNE 1, 1926 (FORTY-FOURTH STATUTES AT LARGE, PAGE 680; TITLE 37, UNITED STATES CODE, PAGE 2069, SECTION 20), BE, AND THE SAME IS HEREBY FURTHER AMENDED BY ADDING THERETO THE FOLLOWING PROVISO, TO WIT: "PROVIDED, THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, FLYING CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTION 92, 94, 97, OR 99 OF THIS NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.'

THE ACT OF JUNE 12, 1906, 34 STAT. 246, PROVIDING FOR FURNISHING TRANSPORTATION TO OFFICERS OF THE ARMY ON TRANSPORTATION REQUESTS WAS QUOTED IN THE DECISION OF JANUARY 30, 1931, A-34175, CITED BY YOU. IN 25 COMP. DEC. 234, IT WAS HELD THAT AT THE TIME OF THE PASSAGE OF SUCH 1906 ACT TRAVEL BY AIRPLANE WAS NOT CONTEMPLATED, AND THAT IN THE ABSENCE OF LEGISLATION PROVIDING FOR MILEAGE ALLOWANCE FOR AIR TRAVEL THERE WAS NO AUTHORITY TO PAY MILEAGE FOR SUCH TRAVEL. THE CONGRESS SUBSEQUENTLY AUTHORIZED IN THE ACT OF JULY 11, 1919, 41 STAT. 109, THE PAYMENT OF ACTUAL AND NECESSARY EXPENSES ONLY FOR OFFICERS OF THE ARMY WHEN TRAVELING BY AIR ON DUTY WITHOUT TROOPS. AT THAT TIME TRAVEL BY AIR WAS PERFORMED EXCLUSIVELY BY THE GOVERNMENT OWNED AIRCRAFT. IT WAS STATED IN 8 COMP. GEN. 469, THAT THE ACT OF JUNE 12, 1906, PROVIDING FOR FURNISHING OF TRANSPORTATION ON TRANSPORTATION REQUESTS AND THE DEDUCTION OF 3 CENTS PER MILE THEREFOR IN THE MILEAGE ACCOUNT WAS NOT APPLICABLE TO EXTRAORDINARY MEANS OF TRANSPORTATION CITING 20 COMP. DEC. 485, AND FOLLOWING THIS RULE THE DECISION OF JANUARY 30, 1931, A-34175, CITED BY YOU, HELD THAT THE ACTUAL COST OF TRANSPORTATION FURNISHED VIA COMMERCIAL AIR LINES ON GOVERNMENT TRANSPORTATION REQUEST SHOULD BE DEDUCTED FROM THE OFFICER'S MILEAGE, WHERE HIS ORDERS OTHERWISE ENTITLED HIM TO MILEAGE.

SECTION 204 (C) OF THE ACT OF JUNE 23, 1938, CITED, NOW AUTHORIZES THE USE OF COMMERCIAL AIRCRAFT WHEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY AND DIRECTS THAT GOVERNMENT TRANSPORTATION REQUESTS MAY BE ISSUED UPON SUCH AUTHORIZATIONS, AND IT IS FURTHER PROVIDED THAT THE EXPENSE FOR AIR TRAVEL PROCURED ON TRANSPORTATION REQUESTS SHALL BE ALLOWED WITHOUT REGARD TO COMPARATIVE COSTS OF TRANSPORTATION BY AIRCRAFT WITH OTHER MODES OF TRANSPORTATION. THE EFFECT OF THIS STATUTE IS TO SPECIFICALLY AUTHORIZE THE USE OF COMMERCIAL AIRCRAFT, WHEN PROPERLY AUTHORIZED OR APPROVED. THE MILEAGE LAWS HAVE BEEN HELD NOT APPLICABLE TO TRAVEL ORDERED TO BE BY AIR AND THE DEDUCTION OF 3 CENTS PER MILE IS NOT APPLICABLE TO AIR TRANSPORTATION FURNISHED ON GOVERNMENT TRANSPORTATION REQUEST. IN VIEW THEREFORE OF THE SPECIFIC AUTHORITY TO UTILIZE SUCH MODE OF TRANSPORTATION, WHEN PROPERLY AUTHORIZED, THE ACT OF MARCH 2, 1931, IS CLEARLY APPLICABLE WHEN TRAVEL BY COMMERCIAL AIRPLANE IS DIRECTED IN ORDERS. ACCORDINGLY, YOU ARE ADVISED THAT WHERE TRAVEL IS ORDERED BY COMMERCIAL AIRPLACE UNDER THE PROVISIONS OF SECTION 204 (C) OF THE ACT OF JUNE 23, 1938, ACTUAL AND NECESSARY TRAVELING EXPENSES AT RATES NOT TO EXCEED $8 PER DAY OR, IN LIEU THEREOF, A PER DIEM AT RATES NOT TO EXCEED $6 PER DAY UNDER THE CITED ACT OF 1931, MAY BE PAID ARMY OFFICERS FOR ORDERED TRAVEL BY COMMERCIAL AIRCRAFT.

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  • AeroSage, LLC
    We dismiss in part and deny in part the protests.
    B-415893,B-415894

Apr 16, 2018

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