B-151574, AUG. 12, 1963

B-151574, AUG. 12, 1963

TO MR. LAURENCE A. MALONE:

YOUR LETTERS OF MAY 6, MAY 21, AND JULY 18, 1963, REQUEST FURTHER CONSIDERATION OF YOUR CLAIM FOR $259.57 REPRESENTING ADDITIONAL PER DIEM AND MILEAGE IN CONNECTION WITH PERMANENT CHANGE OF DUTY STATION TRAVEL FOR THE PERIOD FROM OCTOBER 15 TO OCTOBER 25, 1962. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF APRIL 29, 1963.

THE RECORD SHOWS THAT UNDER TRAVEL ORDER NO. A-719, DATED OCTOBER 5, 1962, YOU WERE DIRECTED TO PROCEED FROM YOUR FORMER HOME IN MIDDLETOWN, PENNSYLVANIA, TO NORTON AIR FORCE BASE, CALIFORNIA, IN CONNECTION WITH YOUR TRANSFER OF PERMANENT DUTY STATION FROM OLMSTED AIR FORCE BASE, PENNSYLVANIA, TO NORTON AIR FORCE BASE, CALIFORNIA. THE TRAVEL ORDER AUTHORIZED TRAVEL BY PRIVATELY-OWNED VEHICLE. UNDER THE ORDER REIMBURSEMENT WAS AUTHORIZED FOR 12 CENTS A MILE, SUBJECT TO THE LIMITATION THAT IT MIGHT NOT EXCEED THE COST TO THE GOVERNMENT OF THE TRAVEL BY THE USUAL ROUTE AND MODE OF TRANSPORTATION. PER DIEM OF $16, ALSO, WAS AUTHORIZED BUT SIMILARLY WAS LIMITED TO TRAVEL TIME BY THE USUAL MODE OF TRANSPORTATION AS REQUIRED BY PARAGRAPH 37, CH. 9, AFM 40-10.

THE TRAVEL INVOLVED WAS PERFORMED BY YOU BY MEANS OF PRIVATELY-OWNED AUTOMOBILE AND YOUR REIMBURSEMENT WAS EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF YOUR ORDER.

SUBSEQUENTLY, ON NOVEMBER 19, 1962, SPECIAL ORDER A-792 WAS ISSUED PURPORTING TO AMEND YOUR TRAVEL ORDER BY DELETING THE WORDS "LIMITED TO TRAVEL TIME BY USUAL MODE OF TRANSPORTATION" FROM THE PER DIEM PROVISION OF YOUR ORIGINAL ORDER.

YOU NOW CLAIM REIMBURSEMENT FOR ACTUAL MILEAGE AND PER DIEM FOR THE TRAVEL TIME CONSUMED FOR THE JOURNEY, I.E., 2,568 MILES AT 12 CENTS PER MILE AND 10 1/4 DAYS AT $16 PER DAY. YOUR CLAIM IS BASED UPON THE ABOVE- CITED AMENDATORY ORDER WHICH PURPORTS TO ESTABLISH AN ADMINISTRATIVE DETERMINATION THAT THE MODE OF TRANSPORTATION UTILIZED BY YOU WAS MORE ADVANTAGEOUS TO THE GOVERNMENT IN ACCORDANCE WITH AFM 40-10, CH. 6, PARAGRAPH 7.

YOU WERE ADVISED IN OUR SETTLEMENT OF APRIL 29, 1963, THAT THE PROVISIONS OF AFM 40-10, CH. 9, PARAGRAPH 37B--- UNDER WHICH YOUR TRAVEL WAS PERFORMED--- RESTRICTED YOUR REIMBURSEMENT TO THE CONSTRUCTIVE COSTS TO THE GOVERNMENT OF TRAVEL BY COMMON CARRIER. WHILE PARAGRAPH 6D, CH. 6 OF THE REGULATIONS PERMITS THE USE OF A PRIVATELY-OWNED CONVEYANCE IN CONNECTION WITH A PERMANENT CHANGE OF STATION MOVEMENT IT RESTRICTS REIMBURSEMENT TO THE CONSTRUCTIVE COST LIMITATION.

YOU HAVE SUBMITTED EVIDENCE TO ESTABLISH THAT IT WAS ADMINISTRATIVELY INTENDED THAT YOU BE REIMBURSED PURSUANT TO THE AMENDATORY ORDERS AND, GENERALLY, IT MAY BE SAID THAT WHEN THE ORIGINAL ORDERS DO NOT EXPRESS THE INTENT OF THE AUTHORIZING OFFICER, THEY VALIDLY MAY BE AMENDED. HOWEVER, IN YOUR CASE, THE DEPARTMENT'S REGULATIONS, ISSUED WITHIN THE SCOPE OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, IN THEMSELVES ARE A LIMITATION UPON THE AUTHORITY OF ADMINISTRATORS TO ORDER TRAVEL PERFORMED UNDER CONDITIONS OTHER THAN THOSE PRESCRIBED BY THE REGULATIONS. THE REGULATIONS OF THE DEPARTMENT ARE VALID ADMINISTRATIVE REGULATIONS AND IT IS WELL ESTABLISHED LAW THAT SUCH REGULATIONS MAY NOT BE WAIVED OR MODIFIED RETROACTIVELY SO AS TO VARY THE RIGHTS OF THE PARTIES VESTED UNDER THEM. THUS, WHILE YOU MAY HAVE BEEN ADVISED IN GOOD FAITH CONCERNING YOUR ENTITLEMENT BY THE OFFICERS TO WHOM YOUR LETTERS REFER, THEY WERE WITHOUT AUTHORITY TO OFFER MORE THAN THE REGULATIONS PROVIDED.

CONCERNING THE AMENDING ORDER, OUR OFFICE ORDINARILY DOES NOT QUESTION AN ADMINISTRATIVE DETERMINATION OF ADVANTAGE. HOWEVER, WE CANNOT GIVE EFFECT TO SUCH A DETERMINATION WHERE THE REPORTED FACTS ADMIT THAT THERE IS NO BASIS FOR THE STATEMENT OF ADVANTAGE. TO HOLD OTHERWISE WOULD RENDER THE STATUTORY REQUIREMENT OF "MORE ADVANTAGEOUS TO THE GOVERNMENT" MEANINGLESS. CONSEQUENTLY, NO ADDED RIGHTS COULD VEST IN YOU UNDER THE AMENDATORY TRAVEL AUTHORIZATION.

THEREFORE, NO LAWFUL BASIS EXISTS FOR ALLOWING YOU ANY AMOUNT IN EXCESS OF THE TRANSPORTATION AND TRAVEL EXPENSE WHICH WOULD HAVE BEEN INCURRED HAD THE TRAVEL BEEN PERFORMED BY THE USUAL MODE OF TRANSPORTATION IN ACCORDANCE WITH THE REGULATIONS REFERRED TO ABOVE. SINCE THAT SUM HAS BEEN PAID OUR OFFICE HAS NO RECOURSE BUT TO SUSTAIN THE SETTLEMENT OF APRIL 29, 1963.