B-155778, FEB. 15, 1965

B-155778, FEB. 15, 1965

TO CAPTAIN JOHN J. FLACHSENHAR, USN 75113:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 27, 1964, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 14, 1964, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRAVEL ALLOWANCES INCIDENT TO YOUR TRAVEL AND YOUR DEPENDENTS' TRAVEL FROM SAIGON, VIETNAM, TO BOSTON, MASSACHUSETTS, UNDER ORDERS OF APRIL 13, 1960.

BY THOSE ORDERS, YOU WERE RELIEVED FROM ASSIGNMENT WITH CHIEF, NAVY SECTION, MILITARY ASSISTANCE ADVISORY GROUP, SAIGON, VIETNAM, AND REASSIGNED TO DUTY AT BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS. THE ORDERS PROVIDED FOR CONCURRENT TRAVEL OF YOUR DEPENDENTS TO YOUR NEW DUTY STATION BY THE USE OF GOVERNMENT TRANSPORTATION FOR THE TRAVEL OUTSIDE THE UNITED STATES, WHERE AVAILABLE, AND AUTHORIZED YOU TO TRAVEL THERE VIA CIRCUITOUS ROUTING WITH THE UNDERSTANDING THAT YOU WERE NOT ENTITLED TO MILEAGE OR EXPENSES IN EXCESS OF THAT ALLOWED BY ORDERS.

PURSUANT TO THOSE ORDERS, AND PRESUMABLY ON THE BASIS THAT GOVERNMENT TRANSPORTATION BETWEEN SAIGON, VIETNAM, AND CONTINENTAL UNITED STATES WAS NOT AVAILABLE, GOVERNMENT TRANSPORTATION REQUEST M 1 227 895 WAS ISSUED BY LIEUTENANT COLONEL MARSH B. STOCKTON AT SAIGON, VIETNAM, ON JUNE 28, 1960, BY WHICH TRANS WORLD AIRLINES WAS AUTHORIZED TO FURNISH YOU AND YOUR DEPENDENTS 4 MIXED-CLASS FARES (TOURIST CLASS TO LONDON THENCE ECONOMY CLASS) FROM BANGKOK, THAILAND, TO BOSTON, MASSACHUSETTS.

THE RECORD SHOWS THAT YOU WERE FURNISHED ADDITIONAL TRANSPORTATION AND RELATED SERVICES BY THE CARRIER PRICED AT $654 WHICH WAS ORIGINALLY BILLED TO THE GOVERNMENT ON THE BASIS OF BEING WITHIN AN ALLOWABLE MAXIMUM REPRESENTING THE VALUE OF FIRST CLASS FARES FROM SAIGON TO BOSTON BY DIRECT ROUTE, WHICH WAS ADMINISTRATIVELY DENIED AND WHICH YOU PAID TO THE CARRIER. ALSO, THE RECORD SHOWS THAT IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR MAXIMUM ENTITLEMENT FOR TRANSPORTATION AND MILEAGE WAS $3,167.88, REPRESENTING 4 JET TOURIST FARES FROM SAIGON, VIETNAM, TO SAN FRANCISCO, CALIFORNIA, IN THE SUM OF $2,448 (4 PERSONS AT $612 EACH) AND MILEAGE FOR 4 PERSONS IN THE SUM OF $719.88 FROM SAN FRANCISCO, CALIFORNIA, TO BOSTON, MASSACHUSETTS, OR A TOTAL SUM OF $3,167.88.

SINCE THE DEPARTMENT OF THE NAVY HAD ALREADY PAID THE SUM OF $3,311.20, FOR THE TRANSPORTATION FURNISHED, IT WAS DETERMINED THAT AN OVERPAYMENT OF $143.32 HAD BEEN MADE BY THE GOVERNMENT. THROUGH INADVERTENCE, HOWEVER, ONLY $43.32 WAS COLLECTED FROM YOU AS ADJUSTMENT OF SUCH OVERPAYMENT LEAVING A BALANCE DUE IN THE SUM OF $100.

YOU NOW CLAIM REIMBURSEMENT OF THE SUM OF $697.32 REPRESENTING THE SUM OF $654 YOU PAID TO THE CARRIER PLUS THE SUM OF $43.32 WHICH YOU PAID TO THE GOVERNMENT. IT APPEARS TO BE YOUR VIEW THAT IN THE ABSENCE OF GOVERNMENT TRANSPORTATION YOU WERE ENTITLED TO TRANSPORTATION FOR YOURSELF AND YOUR DEPENDENTS VIA A CIRCUITOUS ROUTE TO THE EXTENT OF THE COST OF FIRST CLASS TRANSPORTATION VIA THE DIRECT ROUTE REGARDLESS OF THE MODE AND CLASS OF TRANSPORTATION ACTUALLY USED. ALSO, YOU SAY THAT SECNAV NOTICE 4650, DATED JUNE 8, 1960, WHICH PROVIDES FOR THE USE OF LESS THAN FIRST CLASS ACCOMMODATIONS IN THE PERFORMANCE OF OFFICIAL TRAVEL WHERE IT WILL MEET THE REQUIREMENTS OF THE TRAVELER, WAS NOT RECEIVED AT YOUR DUTY STATION AT VIETNAM UNTIL AFTER YOUR DEPARTURE AND CONSEQUENTLY SHOULD NOT BE USED AS A BASIS TO DENY YOUR CLAIM.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 404 AND 406, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED UPON PERMANENT CHANGE OF STATION TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES, OR MILEAGE, FOR PERSONAL AND DEPENDENT TRAVEL PERFORMED UNDER COMPETENT ORDERS. UNDER THE STATUTE AND REGULATIONS, THE GOVERNMENT'S OBLIGATION IS LIMITED TO FURNISHING THE MEMBER AND HIS DEPENDENTS TRANSPORTATION OR REIMBURSEMENT THEREFOR FROM HIS OLD TO HIS NEW DUTY STATION. WHERE THE AUTHORIZED TRAVEL IS PERFORMED BY A ROUTE OTHER THAN THE DIRECT OR OFFICIAL ROUTE THE MEMBER GENERALLY IS DUE REIMBURSEMENT FOR THE TRAVEL AND TRANSPORTATION COSTS ACTUALLY INCURRED, NOT TO EXCEED THE COSTS THAT WOULD HAVE NECESSARILY BEEN INVOLVED FOR TRAVEL BY THE DIRECT OR OFFICIAL ROUTE TO HIS NEW DUTY STATION.

UNDER EARLIER STATUTES AUTHORIZING TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES AND DEPENDENTS AT GOVERNMENT EXPENSE IT HAS BEEN HELD THAT A MEMBER WHO PERFORMS AUTHORIZED TRAVEL BY A ROUTE OTHER THAN THE DIRECT OR OFFICIAL ROUTE SHALL BE REIMBURSED FOR THE EXPENSES HE WOULD HAVE NECESSARILY INCURRED BY THE DIRECT ROUTE TO THE EXTENT EXPENSES OF THE ,SAME CHARACTER" ARE ACTUALLY INCURRED BY THE CIRCUITOUS ROUTE. SEE 7 COMP. GEN. 840, 842. IN 22 COMP. GEN. 1109 AND 23 COMP. GEN. 199, INVOLVING TRAVEL PERFORMED BY CIVILIAN EMPLOYEES, WE INDICATED THAT IF LESS THAN FIRST CLASS ACCOMMODATIONS ACTUALLY ARE USED FOR INDIRECT ROUTE TRAVEL THE CONSTRUCTIVE COST OF ALLOWABLE DIRECT ROUTE TRAVEL SHOULD BE BASED ON LIKE ACCOMMODATIONS. SUBSEQUENTLY, IN 33 COMP. GEN. 553, AS A RESULT OF REVISION OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS APPLICABLE TO CIVILIAN EMPLOYEES, WE STATED THAT IT WOULD BE PROPER TO REIMBURSE THE EMPLOYEE FOR TRANSPORTATION EXPENSES INCURRED OVER THE INDIRECT ROUTE NOT TO EXCEED THE COST OF THE AUTHORIZED FIRST CLASS TRANSPORTATION BY THE DIRECT ROUTE NOTWITHSTANDING THE USE OF LESS THAN FIRST CLASS ACCOMMODATIONS OVER THE INDIRECT ROUTE. SEE ALSO 37 COMP. GEN. 113 AND 40 COMP. GEN. 65. HOWEVER, WE RECOGNIZED IN THOSE DECISIONS THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO RESTRICT THE DIRECT COST TO LESS THAN FIRST CLASS BY A PROVISION IN THE TRAVEL ORDERS OR OTHER ADMINISTRATIVE REGULATION.

IT HAS BEEN THE POLICY OF THE VARIOUS UNIFORMED SERVICES TO PROVIDE AND ENCOURAGE THE USE OF THE LEAST EXPENSIVE AVAILABLE TRANSPORTATION MEETING THE NEEDS OF THE MEMBERS AND THEIR DEPENDENTS. SEE 41 COMP. GEN. 100. CONFORMITY WITH THIS POLICY, ON SEPTEMBER 2, 1958, THE OFFICE OF THE SECRETARY OF THE NAVY, BY SECNAV NOTICE 4650 ANNOUNCED ADMINISTRATIVE PROCEDURE THAT LESS THAN FIRST CLASS ACCOMMODATIONS WHICH SATISFACTORILY MEET THE NEEDS OF THE TRAVELER SHOULD BE UTILIZED, WHERE ACCEPTABLE TO THE TRAVELER. THE SECNAV NOTICE OF JUNE 8, 1960, TO WHICH YOU REFER IN YOUR LETTER OF NOVEMBER 27, 1964, IS MERELY A RESTATEMENT OF THE PRIOR REGULATION AND THE LONG STANDING POLICY OF THE NAVY. THEREFORE THE REGULATION WAS EFFECTIVE IN VIETNAM PRIOR TO YOUR DEPARTURE AND YOUR CLAIM MUST BE CONSIDERED ON THE BASIS OF THAT REGULATION.

IN LIEU OF TRANSPORTATION FOR YOURSELF AND DEPENDENTS BY THE DIRECT ROUTE BETWEEN YOUR OLD AND NEW DUTY STATIONS YOU FOUND ACCEPTABLE AND USED LESS THAN FIRST CLASS ACCOMMODATIONS FOR YOUR INDIRECT TRAVEL. IN THAT CIRCUMSTANCE, WE WOULD NOT BE JUSTIFIED, IN VIEW OF THE ESTABLISHED POLICY OF THE NAVY DEPARTMENT, AS SET FORTH IN SECNAV NOTICE 4650 OF JUNE 8, 1960, IN CONCLUDING THAT BUT FOR YOUR DESIRE TO TRAVEL CIRCUITOUSLY YOU WOULD NOT HAVE FOUND ACCEPTABLE THE JET TOURIST ACCOMMODATIONS THAT WERE AVAILABLE TO YOU OVER THE DIRECT ROUTE, THE VALUE OF WHICH WAS USED BY THE NAVY DEPARTMENT IN THE DETERMINATION OF YOUR MAXIMUM TRANSPORTATION ALLOWANCE ENTITLEMENT FOR THE TRAVEL INVOLVED. THEREFORE THE COMPUTATION OF THE CONSTRUCTIVE COST OF YOUR PERSONAL AND DEPENDENTS' TRAVEL IS CONSIDERED TO BE CORRECT.

ACCORDINGLY THE SETTLEMENT OF OCTOBER 14, 1964, IS SUSTAINED. YOU ARE AGAIN REQUESTED TO REMIT THE OVERPAYMENT OF $100 WHICH SHOULD BE REFUNDED BY PERSONAL CHECK OR POSTAL MONEY ORDER, MADE PAYABLE TO THE DEPARTMENT OF THE NAVY AND FORWARDED PROMPTLY TO THE CHIEF OF NAVAL PERSONNEL, WASHINGTON, D.C., (ATTN.:PERS B3).