B-150276, DEC. 20, 1962

B-150276, DEC. 20, 1962

TO MR. F. E. LAMBERT, USCG, AUTHORIZED CERTIFYING OFFICER:

BY FIRST ENDORSEMENT DATED NOVEMBER 1, 1962, THE COMMANDANT, UNITED STATES COAST GUARD, FORWARDED YOUR LETTER OF THE SAME DATE, WITH ENCLOSURES, ADDRESSED TO OUR CLAIMS DIVISION FOR DETERMINATION OF ENTITLEMENT OF LIEUTENANT COMMANDER ROBERT R. FLETCHER, U.S. PUBLIC HEALTH SERVICE, FOR DIFFERENCE IN MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION BETWEEN $0.07 PER MILE AND $0.05 PER MILE FOR TRAVEL PERFORMED BY PRIVATELY OWNED CONVEYANCE FROM WASHINGTON, D.C., TO PHILADELPHIA, PENNSYLVANIA, AND RETURN, DURING THE PERIOD OCTOBER 1 TO 5, 1962. YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR AN ADVANCE DECISION IN THE MATTER.

BY ORDERS OF THE COMMANDANT, USCO, DATED SEPTEMBER 28, 1962, COMMANDER FLETCHER WAS DIRECTED TO PROCEED ON OR ABOUT OCTOBER 1, 1962, FROM WASHINGTON, D.C., TO PHILADELPHIA, PENNSYLVANIA, AND PITTSBURGH, PENNSYLVANIA, FOR TEMPORARY DUTY IN CONNECTION WITH A PUBLIC HEALTH SERVICE RECRUITING PROGRAM FOR APPROXIMATELY FIVE DAYS AND, UPON COMPLETION THEREOF, TO RETURN TO HIS STATION. PER DIEM AND TRAVEL NECESSARY TO THE EXECUTION OF THE TEMPORARY DUTY, INCLUDING LOCAL TRAVEL BY COMMERCIAL MEANS, WAS AUTHORIZED. BY 5TH ENDORSEMENT DATED OCTOBER 12, 1962, THE ORDERS OF SEPTEMBER 28, 1962, WERE AMENDED TO PROVIDE AS FOLLOWS:

"HAVING FOUND IT MORE ADVANTAGEOUS TO THE GOVERNMENT TO UTILIZE PRIVATELY OWNED CONVEYANCE IN THE EXECUTION OF BASIC ORDERS, YOUR ACTION IN DOING SO IS HEREBY AUTHORIZED, APPROVED, AND CONFIRMED.'

IN YOUR LETTER OF NOVEMBER 1, 1962, YOU QUOTE THE ENDORSEMENT TO READ A LITTLE DIFFERENTLY, AS FOLLOWS:

"TRAVEL VIA PRIVATELY OWNED CONVEYANCE, BEING MORE ADVANTAGEOUS TO THE GOVERNMENT, IS HEREBY AUTHORIZED.'

YOU STATE THAT SUCH PROVISION WAS INADVERTENTLY OMITTED AT THE TIME OF PREPARATION OF THE ORDERS.

A COPY OF THE TRAVEL REIMBURSEMENT VOUCHER SHOWS THAT THE OFFICER DEPARTED WASHINGTON, D.C., OCTOBER 1, 1962, ARRIVED THE SAME DAY IN PHILADELPHIA, AND REMAINED THERE ON TEMPORARY DUTY UNTIL OCTOBER 5, 1962, ON WHICH DATE HE RETURNED TO WASHINGTON. HE WAS PAID PER DIEM, MISCELLANEOUS EXPENSES, AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT $0.05 PER MILE FOR TRAVEL FROM WASHINGTON TO PHILADELPHIA, AND RETURN. ON THE BASIS OF THE ORDERS AS AMENDED BY 5TH ENDORSEMENT DATED OCTOBER 12, 1962, THE OFFICER SUBMITTED A VOUCHER FOR THE DIFFERENCE IN MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION BETWEEN $0.07 PER MILE AND $0.05 PER MILE FOR THAT TRAVEL.

PARAGRAPH 4203-3 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT, GENERALLY, WHEN AUTHORIZED TRAVEL IS PERFORMED AT PERSONAL EXPENSE, THE MEMBER WILL BE REIMBURSED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF $0.05 PER MILE FOR THE OFFICIAL DISTANCE. SUBPARAGRAPH B (1) THEREOF PROVIDES THAT IT IS THE POLICY OF THE UNIFORMED SERVICES TO "AUTHORIZE" (AS DISTINGUISHED FROM "PERMIT") MEMBERS TO TRAVEL BY PRIVATELY OWNED CONVEYANCE WHENEVER SUCH MODE OF TRANSPORTATION IS ACCEPTABLE TO THE MEMBER AND IS DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. ALSO IS PROVIDED THAT THE DETERMINATION SHOULD BE BASED ON THE FACTS IN EACH INDIVIDUAL CASE AND THAT AUTHORIZATION SHOULD NOT BE GRANTED UNLESS THE ORDER ISSUING AUTHORITY IS CONVINCED THAT SUCH MODE OF TRAVEL IS CLEARLY MORE ADVANTAGEOUS TO THE GOVERNMENT THAN TRAVEL BY GOVERNMENT CONVEYANCE OR PUBLIC CARRIER. IT IS CLEARLY CONTEMPLATED THAT THE DETERMINATION OF ADVANTAGE TO THE GOVERNMENT BE MADE PRIOR TO THE PERFORMANCE OF THE DIRECTED TRAVEL. SUBPARAGRAPH B (2) PROVIDES THAT FOR TRAVEL ACTUALLY PERFORMED BY PRIVATELY OWNED CONVEYANCE UNDER ORDERS AUTHORIZING SUCH MODE OF TRANSPORTATION AS MORE ADVANTAGEOUS TO THE GOVERNMENT, THE MEMBER WILL BE PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF $0.07 PER MILE FOR THE OFFICIAL DISTANCE.

LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER COMPETENT ORDERS. SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER APPLICABLE STATUTES AND REGULATIONS, UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS OR ALL THE FACTS OR CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 CT.CL. 32; 24 COMP. GEN. 439, 34 ID. 355. THE ORDERS OF SEPTEMBER 28, 1962, WERE CLEAR AND UNAMBIGUOUS. FURTHERMORE, IT IS APPARENT FROM A READING OF THE ACTUAL WORDING OF THE AMENDMENT DATED OCTOBER 12, 1962, THAT IT DOES NOT SUPPORT THE CONTENTION THAT A PROSPECTIVE DETERMINATION THAT TRAVEL BY PRIVATE CONVEYANCE WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT WAS MADE AND HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORIGINAL ORDERS, BUT RATHER THAT IT HAD BEEN PREPARED SUBSEQUENT TO THE OFFICER'S RETURN FROM TEMPORARY DUTY ON THE BASIS OF HIS TRAVEL EXPERIENCE.

ACCORDINGLY, THE ORDERS OF SEPTEMBER 28, 1962, MAY NOT BE CONSIDERED AS PROPERLY MODIFIED BY THE AMENDMENT OF OCTOBER 12, 1962, WITHIN THE MEANING OF THE RULE SET OUT IN 24 COMP. GEN. 439, REFERRED TO ABOVE. THEREFORE YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER SUBMITTED, WHICH IS BEING RETAINED HERE. THE OFFICER'S ORIGINAL TRAVEL ORDERS OF SEPTEMBER 28, 1962, ARE RETURNED HEREWITH.