B-150580, FEB. 6, 1963

B-150580, FEB. 6, 1963

TO STAFF SERGEANT EDWARD L. FIDLER, USA, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1962, AND ENCLOSURES, REQUESTING RECONSIDERATION OF THAT PART OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL FROM NEW YORK, NEW YORK, TO COLOGNE, GERMANY, INCIDENT TO YOUR RELIEF FROM ACTIVE DUTY IN THE UNITED STATES ARMY. YOUR LETTER WAS REFERRED TO OUR OFFICE FOR REPLY BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.

BY SPECIAL ORDERS NO. 188 DATED JULY 31, 1961, YOU WERE RELIEVED FROM ACTIVE DUTY EFFECTIVE AUGUST 31, 1961, AT ABERDEEN PROVING GROUND, MARYLAND, AND PLACED ON THE RETIRED LIST SEPTEMBER 1, 1961. THE DEPARTMENT OF THE ARMY REPORTED THAT YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL TO YOUR HOME OF SELECTION, MUNICH, GERMANY, WAS PARTIALLY PAID ON FEBRUARY 5, 1962, FOR TRAVEL FROM ABERDEEN PROVING GROUND TO NEW YORK, NEW YORK. BY OUR CLAIMS DIVISION SETTLEMENT OF MARCH 13, 1962, YOU WERE ALLOWED THE AMOUNT DUE FOR TRAVEL FROM FRANKFURT, GERMANY, TO MUNICH, GERMANY, LESS THE AMOUNT YOU WERE OVERPAID BY THE ARMY FOR TRAVEL FROM ABERDEEN PROVING GROUND TO NEW YORK. ALSO, YOU WERE ADVISED IN THE SETTLEMENT THAT THE JOINT TRAVEL REGULATIONS PROVIDE THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES, EXCEPT WHEN THE ISSUING AUTHORITY DETERMINES THAT THEIR USE WOULD INTERFERE OR PREVENT PERFORMANCE OF OFFICIAL BUSINESS OR WHEN THEY ARE NOT AVAILABLE.

YOU SAY THAT YOU WERE NOT INSTRUCTED AND YOU HAD NOT SEEN ANY REGULATIONS REQUIRING THE USE OF UNITED STATES FLAG TRANSPORTATION FACILITIES, AND AS A RESULT WHEN YOU WERE TOLD ON AUGUST 31, 1961, AT MCGUIRE AIR FORCE BASE THAT IT WOULD BE 10 DAYS TO TWO WEEKS BEFORE YOU COULD GET A SPACE AVAILABLE FLIGHT TO EUROPE, YOU IMMEDIATELY WENT TO NEW YORK CITY AND TOOK THE ONLY AVAILABLE SCHEDULED FLIGHT THAT NIGHT WHICH HAPPENED TO BE ON A GERMAN LINE.

THE OFFICE OF THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTED THAT GOVERNMENT AIR AND SURFACE TRANSPORTATION WERE AVAILABLE FROM NEW YORK TO GERMANY DURING THE PERIOD INVOLVED. ALSO IT WAS REPORTED THAT SINCE YOU WERE TRAVELING PURSUANT TO RETIREMENT ORDERS YOU WERE ENTITLED TO SPACE REQUIRED TRAVEL, NOT SPACE AVAILABLE TRAVEL, ON GOVERNMENT FACILITIES AND HAD YOU REQUESTED TRANSPORTATION AT THE U.S. ARMY TRANSPORTATION TERMINAL COMMAND, ATLANTIC, IT WOULD HAVE BEEN PROVIDED SINCE MILITARY AIR TRANSPORT SERVICE OPERATED APPROXIMATELY TWO PLANES A DAY TO FRANKFURT DURING THE PERIOD INVOLVED.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY REFOR.'

THE PERTINENT STATUTE WITH RESPECT TO TRAVEL ALLOWANCES, 37 U.S.C. 404, 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 UNDERCOMPETENT ORDERS INCLUDING TRAVEL FROM THE MEMBER'S LAST DUTY STATION TO HOME. PARAGRAPH 3003 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT CHANGE OF STATION" TO INCLUDE THE CHANGE FROM LAST DUTY STATION TO HOME UPON RETIREMENT. THEREFORE,THE TRAVEL FROM YOUR LAST DUTY STATION TO HOME OF SELECTION CONSTITUTED OFFICIAL TRAVEL WITHIN THE CONTEMPLATION OF 37 U.S.C. 404 AND SECTION 901 OF THE MERCHANT MARINE ACT OF 1936.

PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT EXCEPT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, OR THAT SUCH CARRIERS ARE NOT AVAILABLE, VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE CONTINENTAL UNITED STATES. IF HE AUTHORIZES THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY ON THE BASIS OF SUCH A DETERMINATION, A STATEMENT OF THIS DETERMINATION MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE SINCE THE REGULATIONS SPECIFICALLY BAR THE PAYMENT OF ANY ALLOWANCE FOR TRAVEL EXPENSES INCURRED ON AN AIRPLANE OF FOREIGN REGISTRY IN THE ABSENCE OF PROOF OF THE NECESSITY THEREFOR, THERE IS NO AUTHORITY TO ALLOW YOUR CLAIM.

IN THIS REGARD IT MAY BE NOTED THAT THE REQUIREMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES ON VESSELS OR AIRCRAFT OF AMERICAN REGISTRY WAS RECENTLY ENDORSED BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1, 1962. THIS RESOLUTION PROVIDES THAT IT IS THE SENSE OF THE CONGRESS THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, THAT SAID TRAVEL BE PERFORMED BY THEM ON UNITED STATES FLAG AIR CARRIERS, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE.

THE FACT THAT A RECOMMENDATION WILL BE MADE BY THE OFFICE OF THE CHIEF OF FINANCE THAT THE PROVISIONS OF 2150, JOINT TRAVEL REGULATIONS, BE INCLUDED IN A FUTURE REVISION OF DA PAMPHLET 600-5, RETIRED ARMY PERSONNEL HANDBOOK, OR THAT YOU WERE NOT OTHERWISE ADVISED BY THE ARMY OF THE REQUIREMENT THAT TRAVEL BE PERFORMED ON SHIPS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, WOULD NOT PROVIDE A BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO THE TERMS OF THE REGULATIONS AND STATUTORY PROVISIONS INVOLVED. IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 ID. 221.

ACCORDINGLY, THE SETTLEMENT OF MARCH 13, 1962, WAS CORRECT AND IS SUSTAINED.

IN CONNECTION WITH YOUR REFERENCE TO PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS AND REQUEST FOR CLARIFICATION OF THE TERM "AUTHORITY, ISSUING AUTHORITY" AS USED IN THE SETTLEMENT OF MARCH 14, 1962, YOU ARE ADVISED THAT THE STATEMENT SHOULD HAVE READ "ORDER ISSUING AUTHORITY.' THIS REFERS TO THE OFFICIAL DESIGNATED TO MAKE DETERMINATIONS AS TO THE CONDITIONS AND MODE OF TRAVEL MEMBERS OF THE MILITARY SERVICES ARE AUTHORIZED TO USE UNDER THE APPLICABLE LAWS AND REGULATIONS, AND TO ISSUE ORDERS FOR THE TRAVEL.