B-152608, APRIL 10, 1964, 43 COMP. GEN. 675

B-152608, APRIL 10, 1964, 43 COMP. GEN. 675

MILEAGE - MILITARY PERSONNEL - TRAVEL BY PRIVATELY OWNED AUTOMOBILE - FREE TRANSPORTATION BY A FOREIGN GOVERNMENT WHEN A MEMBER OF THE UNIFORMED SERVICES STATIONED OVERSEAS TRAVELS INCIDENT TO A PERMANENT CHANGE OF STATION WITH HIS DEPENDENTS BY PRIVATELY OWNED AUTOMOBILE FOR PERSONAL CONVENIENCE AND AT HIS OWN EXPENSE OVER A ROUTE FOR WHICH FREE RAIL TRANSPORTATION BY A FOREIGN GOVERNMENT IS PARTIALLY AVAILABLE, THE MEMBER MAY NOT BE PAID MILEAGE FOR THAT PORTION OF THE TRAVEL FOR WHICH THERE IS FREE RAIL TRANSPORTATION, EVEN IF IT WOULD HAVE BEEN IMPRACTICABLE TO UTILIZE THE RAIL TRANSPORTATION, TRAVEL WITHOUT COST TO THE UNITED STATES BEING OUTSIDE THE REIMBURSEMENT CONCEPT OF 37 U.S.C. 404 AND 406 AUTHORIZING TRAVEL AND TRANSPORTATION ALLOWANCES; THEREFORE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PRECLUDE PAYMENT OF A MONETARY ALLOWANCE FOR THAT PORTION OF THE TRAVEL FOR WHICH FREE RAIL TRANSPORTATION IS FURNISHED BY A FOREIGN GOVERNMENT ON A UTILIZATION BASIS RATHER THAN ON THE AVAILABILITY OF THE FREE TRANSPORTATION.

TO THE SECRETARY OF THE AIR FORCE, APRIL 10, 1964:

BY LETTER OF SEPTEMBER 19, 1963, THE ASSISTANT SECRETARY OF THE AIR FORCE (FINANCIAL MANAGEMENT) REQUESTED A DECISION AS TO THE LEGALITY OF PROPOSED CHANGES TO THE JOINT TRAVEL REGULATIONS TO AUTHORIZE PAYMENT OF MONETARY ALLOWANCE INCIDENT TO TRAVEL OF A MEMBER AND/OR DEPENDENT AT PERSONAL EXPENSE IN INSTANCES WHERE TRANSPORTATION IS AVAILABLE FROM A FOREIGN GOVERNMENT AT NO COST TO THE UNITED STATES OR THE MEMBER, UNDER THE TERMS OF A CONTRACT OR AGREEMENT WITH THE UNITED STATES, OR TRANSPORTATION IS FURNISHED BY A FOREIGN GOVERNMENT ON A COMPLIMENTARY BASIS. REIMBURSEMENT IN SUCH INSTANCES IS NOW PROHIBITED BY PARAGRAPHS 4203-5 (TEMPORARY DUTY TRAVEL) AND 7000-13 (DEPENDENT TRAVEL) OF THE JOINT TRAVEL REGULATIONS BUT NO SIMILAR PROVISION IS CONTAINED IN CHAPTER 4, PART D, OF THE REGULATIONS, PERTAINING TO PERMANENT CHANGE OF STATION TRAVEL OF A MEMBER. THE REQUEST WAS ASSIGNED CONTROL NO. 63-19 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. THE DECISION IN THIS CASE HAS BEEN DELAYED AWAITING ADDITIONAL INFORMATION FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WHICH INFORMATION WAS FURNISHED BY MEMORANDUM OF MARCH 23, 1964.

IN THE LETTER FROM THE ASSISTANT SECRETARY IT IS STATED THAT THE ONLY TRANSPORTATION CURRENTLY BEING FURNISHED MEMBERS AND DEPENDENTS WITHOUT CHARGE ON A REGULAR BASIS BY A FOREIGN GOVERNMENT IS THAT FURNISHED BY THE GERMAN GOVERNMENT FOR TRAVEL BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN. ALSO IT IS STATED THAT UNDER THE CURRENT REGULATIONS A MEMBER WHO PERFORMS AUTHORIZED TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM BERLIN TO PARIS IS DENIED PAYMENT OF MONETARY ALLOWANCE FOR THAT PORTION OF THE TRAVEL BETWEEN BERLIN AND FRANKFURT BECAUSE OF THE AVAILABILITY OF FREE GERMAN GOVERNMENT RAIL TRANSPORTATION BETWEEN BERLIN AND FRANKFURT NOTWITHSTANDING THAT IT WOULD BE IMPRACTICABLE TO UTILIZE THE RAIL TRANSPORTATION FOR THAT PORTION OF THE TRIP. IT IS POINTED OUT THAT IN A CASE WHERE A MEMBER IS AUTHORIZED TO PERFORM TRAVEL BY PRIVATELY OWNED CONVEYANCE TO SEVERAL LOCATIONS IN GERMANY AND FRANCE THE CURRENT REGULATION ACTS TO PROHIBIT THE PAYMENT OF MONETARY ALLOWANCES FOR ANY TRAVEL BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN EVEN THOUGH THESE PLACES MAY BE ONLY EN ROUTE TO THE TEMPORARY DUTY LOCATIONS. FURTHER IT IS SAID THAT THERE MAY BE OTHER SITUATIONS WHERE, OCCASIONALLY BUT NOT ON A REGULAR BASIS, TRANSPORTATION MAY BE MADE AVAILABLE BY A FOREIGN GOVERNMENT WITHOUT COST TO THE MEMBER. IN SUCH CASES THE ASSISTANT SECRETARY SAYS THE FINANCE OFFICER PROBABLY WOULD NOT BE AWARD OF THE AVAILABILITY OF SUCH TRANSPORTATION AND, CONSEQUENTLY, PAYMENT OF MONETARY ALLOWANCE WOULD BE PRECLUDED ONLY WHEN THE MEMBER'S CLAIM SHOWED THAT HE WAS FURNISHED FREE TRANSPORTATION. ALSO HE SAYS THAT THE IMPRACTICABILITY OF UTILIZING SUCH LIMITED TRANSPORTATION MADE AVAILABLE BY THE GERMAN GOVERNMENT WITHOUT CHARGE IS MORE PRONOUNCED IN CASES WHERE MEMBERS AND DEPENDENTS ARE AUTHORIZED TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE ON PERMANENT CHANGE OF STATION ORDERS. IT IS URGED THAT UPON DETACHMENT FROM THE OLD PERMANENT DUTY STATION THE MEMBER SHOULD BE AFFORDED THE OPPORTUNITY TO ELECT TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE TO THE NEW PERMANENT DUTY STATION AND BE PAID MILEAGE FOR THE ENTIRE DISTANCE ON THE SAME BASIS AS PERMITTED WITHIN THE UNITED STATES.

THE ASSISTANT SECRETARY SAYS THAT, BY WAY OF COMPARISON, IT SHOULD BE NOTED THAT IN CASES WHERE GOVERNMENT TRANSPORTATION, SUCH AS MILITARY AIR TRANSPORT SERVICE, IS AVAILABLE FOR ONLY A PORTION OF THE ORDERED TRAVEL THE REGULATIONS DO NOT PRECLUDE THE PAYMENT OF MILEAGE FOR THAT PORTION. IN VIEW OF THESE CIRCUMSTANCES, HE SAYS THAT IT APPEARS THAT THE UTILIZATION OF TRANSPORTATION MADE AVAILABLE BY A FOREIGN GOVERNMENT WITHOUT CHARGE SHOULD BE THE REASON FOR PRECLUDING PAYMENT OF MONETARY ALLOWANCE RATHER THAN THE MERE AVAILABILITY OF SUCH LIMITED TRANSPORTATION.

BRIEFLY, THE PROPOSED CHANGES ARE INTENDED TO PROVIDE THAT ACTUAL UTILIZATION, RATHER THAN MERE AVAILABILITY, OF TRANSPORTATION FURNISHED BY A FOREIGN GOVERNMENT WITHOUT CHARGE SHOULD BE THE BASIS FOR PRECLUDING PAYMENT OF MONETARY ALLOWANCES AND TO HAVE THIS PROHIBITION OF PAYMENT OF ALLOWANCES PERTAIN TO PERMANENT CHANGE-OF- STATION TRAVEL, TEMPORARY DUTY TRAVEL, AND DEPENDENT TRAVEL.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTIONS 404 AND 406 OF TITLE 37, UNITED STATES CODE. SECTION 404/A)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 UNDER ORDERS WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION. SUBPARAGRAPH (D) OF THAT SECTION (WHICH IS ALSO A LIMITATION ON THE ALLOWANCES WHICH MAY BE PRESCRIBED FOR DEPENDENT TRAVEL UNDER SECTION 406) PROVIDES THAT THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED FOR EACH KIND OF TRAVEL MAY NOT BE MORE THAN ONE OF THE FOLLOWING:

(1) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE OF THE COST OF TRANSPORTATION AT A RATE THAT IS NOT MORE THAN 7 CENTS A MILE * * *; (2) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE AS PROVIDED BY CLAUSE (1) OF THIS SECTION, PLUS A PER DIEM IN PLACE OF SUBSISTENCE OF NOT MORE THAN $12 A DAY; OR (3) A MILEAGE ALLOWANCE OF NOT MORE THAN 10 CENTS A MILE * * *.

UNDER EARLIER STATUTES AUTHORIZING TRANSPORTATION ALLOWANCES FOR MEMBERS AND DEPENDENTS AT GOVERNMENT EXPENSE IT HAS BEEN HELD THAT THE PAYMENT OF MONETARY ALLOWANCE IS AUTHORIZED ONLY WHERE THE "TRANSPORTATION IN KIND" WHICH WOULD HAVE BEEN FURNISHED BY THE GOVERNMENT WOULD REQUIRE THE PAYMENT BY THE GOVERNMENT OF A CHARGE FOR THE FARE OF THE TRAVELER. SEE 9 COMP. GEN. 35, 38; 16 ID. 578. ALSO IT HAS BEEN HELD THAT MILITARY PERSONNEL PERFORMING TRAVEL UNDER CIRCUMSTANCES ENTITLING THEM ONLY TO TRANSPORTATION IN KIND, WHO FAIL TO AVAIL THEMSELVES OF THE TRANSPORTATION AUTHORIZED, MAY NOT BE PAID A MONETARY ALLOWANCE, OR THE CASH EQUIVALENT OF THE TRANSPORTATION WHICH WOULD HAVE BEEN FURNISHED. SEE 35 COMP. GEN. 522. COMPARE 38 COMP. GEN. 871. SINCE SUCH STATUTORY PROVISIONS OBVIOUSLY CONTEMPLATE CASES INVOLVING SOME TRANSPORTATION COSTS TO THE GOVERNMENT NO OTHER CONCLUSIONS COULD REASONABLY BE REACHED UNDER THE STATUTES.

CASES INVOLVING TRAVEL, HOWEVER, WHICH IS WITHOUT COST TO THE UNITED STATES, WOULD SEEM TO BE CLEARLY OUTSIDE THE REIMBURSEMENT CONCEPT OF THE STATUTES. CONSEQUENTLY, THE REGULATIONS GOVERNING TRAVEL OF MEMBERS IN INSTANCES WHERE TRANSPORTATION WAS MADE AVAILABLE BY FOREIGN GOVERNMENTS-- - ORIGINALLY PRESCRIBED IN PARAGRAPH 2100 OF THE JOINT TRAVEL REGULATIONS BY CHANGE 22 DATED APRIL 1, 1954--- PRECLUDED PAYMENT OF TRANSPORTATION ALLOWANCES IN LIEU OF TRANSPORTATION PRESCRIBED IN PARAGRAPHS 4203-3 AND 7003 FOR TRAVEL PERFORMED IN OCCUPIED AREAS WHERE TRAVEL COULD BE PERFORMED AT NO COST TO THE GOVERNMENT OR THE TRAVELER, UNLESS THE MODE OF TRANSPORTATION EMPLOYED WAS SPECIFICALLY DIRECTED AS MORE ADVANTAGEOUS TO THE GOVERNMENT. SUBSEQUENTLY, PARAGRAPH 2100 OF THE REGULATIONS WAS REMOVED BY CHANGE 44 DATED MARCH 1, 1956, AND THE CURRENT REGULATIONS, PARAGRAPHS 4203-5 AND 7000-13, WERE PROMULGATED. THE REGULATIONS CONTEMPLATE THE TRANSPORTATION IN SUCH CASES WILL BE FURNISHED AT NO COST TO THE GOVERNMENT.

WE HAVE PREVIOUSLY CONSIDERED CLAIMS FOR MILEAGE FOR TRAVEL PERFORMED IN GERMANY AND WE HAVE CONSISTENTLY HELD THAT, UNDER THE LAW AND REGULATIONS DISCUSSED ABOVE, THERE IS NO AUTHORITY FOR THE PAYMENT OF MILEAGE WHERE IT IS SHOWN THAT THE GOVERNMENT WOULD NOT HAVE BEEN REQUIRED TO PAY A FARE FOR ANY TRAVEL WHICH THE MEMBER MIGHT HAVE PERFORMED BY RAIL IN GERMANY. SEE B-77941, JULY 15, 1948; B-85417, JUNE 10, 1949; B-121043, OCTOBER 5, 1954; COMPARE B-127180, APRIL 27, 1956.

IN JUSTIFICATION OF THE PROPOSED REGULATIONS THE ASSISTANT SECRETARY SAYS THAT MEMBERS WHO ARE AUTHORIZED TO PERFORM TRAVEL BY PRIVATELY OWNED CONVEYANCE TO SEVERAL LOCATIONS IN GERMANY AND FRANCE FIND IT IMPRACTICABLE TO UTILIZE THE LIMITED TRANSPORTATION MADE AVAILABLE BY THE GERMAN GOVERNMENT TO THEM WITHOUT CHARGE. WHILE WE RECOGNIZE THAT SUCH SITUATIONS MAY ARISE, IT WOULD SEEM THAT GENERALLY THE PRIMARY REASON FOR NOT USING THE AVAILABLE FREE RAIL TRANSPORTATION IS THE PERSONAL CONVENIENCE OF THE TRAVELER RATHER THAN THE GOVERNMENT'S INTEREST. ALSO, IN INSTANCES WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT A SUFFICIENT ELEMENT OF GOVERNMENT INTEREST MAY EXIST TO WARRANT THE ACCOMPLISHMENT OF TRAVEL BY PRIVATELY OWNED CONVEYANCE BECAUSE IT IS IMPRACTICABLE TO USE THE FREE RAIL TRANSPORTATION OR FOR OTHER REASONS, IT APPEARS THAT SUCH TRAVEL MAY BE AUTHORIZED UNDER ORDERS AUTHORIZING SUCH MODE OF TRANSPORTATION AS MORE ADVANTAGEOUS TO THE GOVERNMENT.

WITH RESPECT TO THE STATEMENT IN THE ASSISTANT SECRETARY'S LETTER THAT IN CASES WHERE GOVERNMENT TRANSPORTATION, SUCH AS MILITARY AIR TRANSPORT SERVICE, IS AVAILABLE FOR ONLY A PORTION OF THE ORDERED TRAVEL THE REGULATIONS DO NOT PRECLUDE THE PAYMENT OF MILEAGE FOR THAT PORTION, IT IS OUR VIEW THAT MILITARY AIR TRANSPORT SERVICE DOES NOT PRESENT AN ANALOGOUS SITUATION FOR THE REASONS THAT IT IS NOT FREE TO THE UNITED STATES SINCE AN ACTUAL DIRECT COST UNQUESTIONABLY IS INCURRED BY THE GOVERNMENT WHENEVER TRAVEL IS PERFORMED BY THE MILITARY AIR TRANSPORT SERVICE AND THE MILITARY SEA TRANSPORTATION SERVICE. SEE 40 COMP. GEN. 482 AND 41 COMP. GEN. 100.

ADDITIONAL INFORMATION CONCERNING THE PROCUREMENT, FUNDING AND PAYMENT PROCEDURES FOR OBTAINING RAIL TRANSPORTATION FOR THE UNITED STATES MILITARY FORCES FROM WESTERN GERMANY TO BERLIN, GERMANY, HAS BEEN FURNISHED THIS OFFICE BY THE DEPARTMENT OF THE ARMY. IN A REPORT DATED MARCH 23, 1964, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, IT IS STATED THAT FUNDS AND OBLIGATIONAL AUTHORITY FOR SUCH RAIL TRANSPORTATION ARE PART OF THE TOTAL DOLLAR OBLIGATIONAL AUTHORITY AUTHORIZED THE ARMY IN EUROPE; THAT THE SAME TYPE OF TRANSPORTATION WARRANTS AS ARE USED BY THE UNITED STATES MILITARY FORCES FOR ALL OTHER COMMERCIAL TRANSPORTATION IN EUROPE ARE USED FOR COMMERCIAL TRANSPORTATION FOR SUCH MILITARY FORCES FROM WESTERN GERMANY TO BERLIN AND VICE VERSA; AND THAT PAYMENT TO THE DEUTSCHES BUNDESBAHN IS MADE CHARGING THE FUNDS MADE AVAILABLE BY OBLIGATIONAL AUTHORITY FROM THE DEPARTMENT OF THE ARMY BASED UPON PRESENTATION OF THE AUTHENTICATED TRANSPORTATION WARRANTS TO THE MILITARY FORCES.

WE UNDERSTAND FROM THIS REPORT THAT TRAVEL ON TRAINS BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN IS PAID FOR OUT OF FUNDS ALLOCATED FOR THE SUPPORT OF THE ARMY AND THAT SUCH FUNDS INCLUDE BOTH APPROPRIATED FUNDS AND DM FUNDS (DEUTSCHE MARKS) MADE AVAILABLE BY THE GERMAN GOVERNMENT. HOWEVER THE AMOUNT OF THE DM FUNDS PRESUMABLY IS SUFFICIENT TO PAY FOR THE TRANSPORTATION OF THE MEMBERS ON THE GERMAN TRAINS OPERATING BETWEEN BERLIN, FRANKFURT AND BREMERHAVEN AND THE FACT THAT SUFFICIENT DM FUNDS MAY NOT BE AVAILABLE FOR THE TOTAL EXPENSES OF THE ARMY IS NOT A SUFFICIENT BASIS FOR US TO CONCLUDE THAT SUCH RAIL TRANSPORTATION IS NOT IN FACT FREE AS REPORTED BY THE ASSISTANT SECRETARY OF THE AIR FORCE IN HIS LETTER OF SEPTEMBER 19, 1963.

ACCORDINGLY, IN VIEW OF THE REPRESENTATIONS MADE IN THE ASSISTANT SECRETARY'S LETTER THAT THE USE OF THE RAIL TRANSPORTATION WHICH IS AVAILABLE WOULD NOT REQUIRE THE PAYMENT BY THE GOVERNMENT OF A CHARGE FOR THE FARE OF THE TRAVELER, IT IS THE VIEW OF THIS OFFICE THAT THE PRESENT RECORD DOES NOT AFFORD A PROPER BASIS FOR THE PROPOSED REVISION OF THE REGULATIONS.