B-112337, DEC 22, 1952

B-112337, DEC 22, 1952

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL F. S. STRATTON, FC., USA:

BY FIRST INDORSEMENT OF OCTOBER 2, 1952, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 12, 1952, REQUESTING REVIEW OF SUSPENSIONS RAISED BY THE DIVISION OF AUDITS OF THIS OFFICE AGAINST PAYMENTS OF MILEAGE MADE ON VOUCHERS NO. 990 AND 1707, OF YOUR JULY 1950 ACCOUNT, NO. 9107, SEPTEMBER 1950, NO. 13034, OCTOBER 1950 AND NO. 21056, JANUARY 1951 ACCOUNT.

THE ORDERS ATTACHED TO THE ABOVE-MENTIONED VOUCHERS DIRECTED TRAVEL OF OFFICERS ON A PERMANENT CHANGE OF STATION BASIS, AND IN ALL BUT ONE INSTANCE, AUTHORIZED TRAVEL BY COMMERCIAL AIRCRAFT AS AN ALTERNATE MODE OF TRAVEL. THE ORDERS OF AUGUST 31, 1950, ATTACHED TO VOUCHER NO. 9107, STATED THAT MAJOR CRAWFORD "WILL PRO O/A 2 SEP 50 VIA COMMERCIAL CRAFT." IT APPEARS THAT EACH OF THE OFFICERS INVOLVED TRAVELED BY COMMERCIAL AIR FOR MOST OF THE DISTANCE TO THEIR DESTINATION AT CAMP STONEMAN, CALIFORNIA, AND THAT THEY WERE PAID MILEAGE FOR SUCH TRAVEL, DEDUCTIONS BEING MADE FOR TRANSPORTATION FURNISHED. IT IS STATED THAT SUCH PAYMENTS WERE MADE IN ACCORDANCE WITH LETTER FROM THE CHIEF OF FINANCE, DATED JANUARY 6, 1950, AND YOU REFER ALSO TO SECOND INDORSEMENT FROM THE SAME OFFICE DATED JUNE 7, 1951. THE SAID LETTER OF JANUARY 6 REFERS TO PARAGRAPH 3C, SPECIAL REGULATIONS 55-105-5, NOVEMBER 18, 1949, RELATING TO AUTHORIZATION IN ORDERS FOR TRAVEL BY DIFFERENT MODES OF CONVEYANCE INCLUDING COMMERCIAL AIRCRAFT, AND IT IS STATED IN SAID LETTER THAT IF THE TRAVELER PROCEEDS TO HIS NEW PERMANENT STATION BY COMMERCIAL AIR UNDER SUCH ORDERS, HE IS ENTITLED TO REIMBURSEMENT ON A MILEAGE BASIS. PARAGRAPH 2 OF THE SECOND INDORSEMENT OF JUNE 7, 1951, IS AS FOLLOWS:

"2. THE PROVISIONS CONTAINED IN LETTER, THIS OFFICE, DATED 6 JANUARY 1950, COPY ENCLOSED, FOR REIMBURSEMENT OF MILEAGE ON PERMANENT CHANGE OF STATION WHEN ORDERS AUTHORIZE RATHER THAN DIRECT TRAVEL BY COMMERCIAL AIRCRAFT WERE BASED ON NEW MILITARY AGREEMENTS ENTERED INTO WITH THE CARRIERS. SUCH AGREEMENTS IN EFFECT MODIFIED THE PROVISIONS OF EXISTING REGULATIONS AND THEREBY NEGATIVED THE BASIS FOR 18 COMP. GEN. 450 INSOFAR AS IT PERTAINS TO REIMBURSEMENT FOR AUTHORIZED TRAVEL BY COMMERCIAL AIRCRAFT SINCE SAID DECISION WAS BASED ON REGULATIONS IN EFFECT PRIOR TO THE CHANGE IN MILITARY AGREEMENTS AND ENSUING MODIFICATION OF REGULATIONS. THE PRINCIPLE SET FORTH IN 18 COMP. GEN. 450 IS THEREFORE NOT FOR APPLICATION TO TRAVEL PERFORMED ON AND AFTER THE MODIFICATION OF PERTINENT TRAVEL REGULATIONS."

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, IN EFFECT WHEN THE TRAVEL HERE INVOLVED WAS PERFORMED, SPECIFICALLY PROVIDED THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, MEMBERS OF THE UNIFORMED SERVICES MENTIONED THEREIN "SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID *** IN LIEU OF SUBSISTENCE, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $7 PER DAY." IN CONSIDERING THE SIMILAR PROVISIONS CONTAINED IN THE ACT OF MARCH 2, 1931, 46 STAT. 1461, IT WAS HELD IN 18 COMP. GEN. 450, THAT WHERE AN OFFICER'S TRAVEL ORDERS AUTHORIZED TRAVEL BY DIFFERENT MODES OF CONVEYANCE INCLUDING COMMERCIAL AIR, AND THE TRAVELER ELECTS TO TRAVEL BY COMMERCIAL AIRCRAFT, SUCH TRAVEL IS CONSIDERED TO BE TRAVEL BY AIR UNDER COMPETENT ORDERS WITHIN THE MEANING OF SUCH PROVISIONS OF THE LAW, FOR WHICH PER DIEM, NOT MILEAGE, IS PAYABLE. PARAGRAPH 72B, SPECIAL REGULATIONS 35-4805-1, FEBRUARY 25, 1949, IS TO THE SAME EFFECT. PARAGRAPH 3A(1), SPECIAL REGULATIONS 55-105-5, NOVEMBER 18, 1949, STATES THAT THE DEPARTMENT OF DEFENSE HAS ENTERED INTO SEPARATE AGREEMENTS WITH CERTAIN COMMON CARRIERS BY RAIL, AIR, BUS, AND SHIP WHICH RESULTED IN SAVINGS TO THE GOVERNMENT ON PASSENGER TRANSPORTATION FOR THE FISCAL YEAR 1950. SUBPARAGRAPH C THEREOF STATES THAT IN ORDER TO GIVE EFFECT TO SUCH AGREEMENTS, TRAVEL ORDERS NORMALLY WILL AUTHORIZE TRAVEL BY RAIL, BUS, SHIP, AND AIR, EXCEPT WHERE TRAVEL BY A PARTICULAR MODE OF TRANSPORTATION IS DIRECTED FOR THE REASONS STATED THEREIN. YOU STATE THAT THE POLICY OF AUTHORIZING RATHER THAN DIRECTING THE USE OF DIFFERENT MODES OF TRANSPORTATION WAS PREDICATED UPON A DESIRE TO MAKE KNOWN TO THE TRAVELER HIS RIGHT, AND TO THE TRANSPORTATION OFFICER HIS AUTHORITY TO ISSUE TRANSPORTATION REQUESTS VIA THE MODE OF TRAVEL DESIRED. WHILE IT MAY BE THAT IN ISSUING PERMANENT CHANGE OF STATION ORDERS OF THAT TYPE, IT WAS INTENDED THAT THE OFFICER INVOLVED SHOULD BE PAID MILEAGE IN THE EVENT THAT HE TRAVELED BY COMMERCIAL AIR, THE FACT REMAINS THAT SUCH ORDERS AUTHORIZED TRAVEL BY THAT MEANS OF TRANSPORTATION AND TO THE EXTENT THAT HE DID SO TRAVEL, NO RIGHT TO MILEAGE COULD ACCRUE TO HIM UNDER THE ABOVE CITED PROVISIONS OF LAW. THE STATEMENT IN THE SECOND INDORSEMENT OF JUNE 7, 1951, FROM THE OFFICE OF THE CHIEF OF FINANCE, TO THE EFFECT THAT THE CARRIER AGREEMENTS "IN EFFECT MODIFIED THE PROVISIONS OF EXISTING REGULATIONS AND THEREBY NEGATIVED THE BASIS FOR 18 COM. GEN. 450 INSOFAR AS IT PERTAINS TO REIMBURSEMENT FOR AUTHORIZED TRAVEL BY COMMERCIAL AIRCRAFT SINCE SAID DECISION WAS BASED ON REGULATIONS IN EFFECT PRIOR TO THE CHANGE IN MILITARY AGREEMENTS AND ENSUING MODIFICATION OF REGULATIONS", PLAINLY IS ERRONEOUS, SINCE THAT DECISION WAS NOT BASED ON REGULATIONS, BUT ON POSITIVE PROVISIONS OF LAW WHICH WERE STILL IN EFFECT DURING THE SEVERAL PERIODS HERE INVOLVED.

AS TO THE PROVISIONS OF PARAGRAPH 10C, ARMY REGULATIONS 35-4820, WHICH, ALTHOUGH PROVIDING THAT PER DIEM, NOT MILEAGE, SHALL BE PAID FOR TRAVEL ON PERMANENT CHANGE OF STATION UNDER ORDERS DIRECTING TRAVEL BY AIR, MAKE NO MENTION OF WHAT RULE SHOULD GOVERN REIMBURSEMENT WHERE THE ORDERS MERELY AUTHORIZE TRAVEL BY AIR, YOU ARE ADVISED THAT IF SUCH REGULATIONS COULD BE INTERPRETED AS IMPLYING THAT MILEAGE MAY BE PAID FOR AUTHORIZED TRAVEL BY AIR ON PERMANENT CHANGE OF STATION, SUCH INTERPRETATION WOULD BE CONTRARY TO LAW AND WOULD FURNISH NO SUPPORT FOR THE PAYMENTS IN QUESTION.

THE ORDERS ATTACHED TO VOUCHER NO. 9107 DIRECTED TRAVEL BY COMMERCIAL AIRCRAFT. IT IS NOTED THAT THE NOTICE OF EXCEPTION TO THE PAYMENT MADE THEREON, ISSUED UNDER DATE OF MARCH 9, 1951, ALLOWED CREDIT FOR ONE DAY'S PER DIEM OF $7. THE PROPER RATE APPEARS TO BE $5. SEE PARAGRAPH 42A(2)(A), SPECIAL REGULATIONS 35-4805-1, MAY 25, 1949. HENCE, CREDIT WILL BE ALLOWED FOR $101.84 INSTEAD OF $103.84 AS STATED IN SUCH NOTICE.

ACCORDINGLY, I HAVE TO ADVISE THAT YOUR LETTER AND THE ACCOMPANYING PAPERS FURNISH NO BASIS FOR REMOVAL OF THE AUDIT EXCEPTIONS TO WHICH YOU REFER.