B-154796, SEP. 21, 1964

B-154796, SEP. 21, 1964

TO DWIGHT C. GARREN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 10, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT BELIEVED DUE UNDER PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, 77 STAT. 475, FOR TRAVEL PERFORMED FROM FORT LEAVENWORTH, KANSAS, TO PARIS, ARKANSAS, AND RETURN, PURSUANT TO SPECIAL ORDERS NO. 11, DATED JANUARY 16, 1964, WHICH WERE CANCELLED BY DEPARTMENT OF THE ARMY MESSAGE DATED JANUARY 30, 1964.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 11, HEADQUARTERS, U.S. DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, DATED JANUARY 16, 1964, YOU WERE TRANSFERRED TO THE 98TH QUARTERMASTER BATTALION, FORT POLK, LOUISIANA, TO REPORT FEBRUARY 16, 1964, WITH 15 DAYS' DELAY ON ROUTE CHARGEABLE AS LEAVE. AUTHORITY FOR THE TRANSFER WAS INDICATED AS PARAGRAPH 23, ARMY REGULATIONS 614-6. BY AIR MAIL MESSAGE FROM THE DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED JANUARY 30, 1964, ADDRESSED TO YOUR LEAVE ADDRESS, PARIS, ARKANSAS, YOU WERE NOTIFIED THAT THE ORDERS OF JANUARY 16, 1964, WERE REVOKED AND YOU WERE DIRECTED TO RETURN TO YOUR OLD STATION UPON COMPLETION OF YOUR LEAVE OR SOONER.

YOUR CLAIM FOR REIMBURSEMENT ON A MILEAGE BASIS FOR TRAVEL PERFORMED FROM FORT LEAVENWORTH, KANSAS, TO PARIS, ARKANSAS, PLACE OF LEAVE, AND RETURN, WAS MADE UNDER THE PROVISIONS OF DEPARTMENT OF THE ARMY CIRCULAR 35-1, DATED JANUARY 24, 1964, WHICH IMPLEMENTS PUBLIC LAW 88-238. HOWEVER, YOUR PROPOSED TRANSFER TO FORT POLK, LOUISIANA, WAS ON THE BASIS OF YOUR VOLUNTARY REQUEST FOR REASSIGNMENT AND WAS APPROVED PURSUANT TO PARAGRAPH 23, ARMY REGULATIONS 614-6, WHICH REQUIRES THAT YOU BEAR ALL THE COSTS INVOLVED IN SUCH REASSIGNMENT. SINCE YOU HAD PREVIOUSLY WAIVED YOUR RIGHT TO TRAVEL ALLOWANCE IN ORDER TO OBTAIN A PERMANENT CHANGE OF STATION FOR PERSONAL REASONS, YOUR CLAIM FOR REIMBURSEMENT WAS DISALLOWED BY THE SETTLEMENT DATED JULY 10, 1964.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS PROVIDING A PERMANENT CHANGE OF STATION. PROVIDES FURTHER THAT THE SECRETARIES CONCERNED MAY PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED. PUBLIC LAW 88-238, DECEMBER 23, 1963, 77 STAT. 475, AMENDS TITLE 37 BY ADDING SECTION 406A, WHICH PROVIDES IN PERTINENT PART THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE, IF OTHERWISE QUALIFIED, IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 404 FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER CANCELLED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED.

THE PERFORMANCE OF PUBLIC BUSINESS BY DIRECTION OF COMPETENT TRAVEL ORDERS IS THE BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE PROVISIONS OF 37 U.S.C. 404. HOWEVER, IN CIRCUMSTANCES WHERE THE PERFORMANCE OF TRAVEL IS CONSIDERED BENEFICIAL TO THE SERVICE BUT NOT TO THE EXTENT THAT PUBLIC BUSINESS IS INVOLVED, IT HAS BEEN THE PRACTICE OF THE UNIFORMED SERVICES TO ISSUE AUTHORIZATION- TYPE ORDERS PERMITTING THE PERFORMANCE OF TRAVEL WHILE THE TRAVELER REMAINS IN A DUTY STATUS, PROVIDING, OF COURSE, THAT HE WILL ASSUME ITS COSTS. TRAVEL OF THAT TYPE IS NOT CONSIDERED TO BE ON PUBLIC BUSINESS BY DIRECTION OF COMPETENT ORDERS FOR PURPOSES OF ENTITLEMENT TO TRAVEL ALLOWANCES WITHIN THE CONTEMPLATION OF THE CITED LAW AND REGULATIONS. SEE, IN THAT CONNECTION, PARAGRAPH 6453 OF THE JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT AN ORDER WHICH PERMITS A MEMBER TO TRAVEL AS DISTINGUISHED FROM DIRECTING HIM TO TRAVEL DOES NOT ENTITLE HIM TO THE EXPENSES OF SUCH TRAVEL. PARAGRAPH 23, ARMY REGULATIONS 614-6, IN THAT REGARD, PROVIDES THAT IN CERTAIN CIRCUMSTANCES WHERE PERSONAL PROBLEMS ARE INVOLVED ENLISTED PERSONNEL MAY REQUEST REASSIGNMENT TO ANOTHER AREA IN THE UNITED STATES WITHOUT COST TO THE UNITED STATES, AND THAT SUCH PERMISSIVE REASSIGNMENT WILL NOT BE CONSIDERED AS BEING PRIMARILY IN THE BEST INTERESTS OF THE SERVICE AND THE INDIVIDUAL CONCERNED WILL BEAR ALL EXPENSES INCIDENT THERETO. IT PROVIDES FURTHER THAT EACH INDIVIDUAL REQUESTING A PERMISSIVE REASSIGNMENT WILL INCLUDE IN HIS APPLICATION A STATEMENT THAT, IF THE REQUEST IS APPROVED, THE EXPENSES INCIDENT TO TRAVEL TO THE NEW STATION WILL BE BORNE BY HIM.

IN YOUR REQUEST FOR PERMISSIVE REASSIGNMENT YOU AGREED THAT YOU WERE TO BEAR ALL EXPENSES INCIDENT THERETO AND YOUR ORDERS WERE ISSUED ON THAT BASIS. SINCE YOU WERE NOT ENTITLED TO ANY TRAVEL ALLOWANCES UNDER YOUR ORDERS THEIR REVOCATION PROVIDES NO BASIS UNDER THE PROVISIONS OF PUBLIC LAW 88-238 FOR REIMBURSEMENT ON A MILEAGE BASIS FOR ANY TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS. ACCORDINGLY, THE SETTLEMENT OF JULY 10, 1964 IS SUSTAINED.

THE PAPERS SUBMITTED IN THE PRESENTATION OF YOUR CLAIM ON WHICH THE ACTION TAKEN BY THIS OFFICE WAS BASED HAVE BECOME A PART OF THE PERMANENT RECORDS OF THIS OFFICE AND MAY NOT BE RETURNED TO YOU AS REQUESTED.