B-156903, JUN. 22, 1965

B-156903, JUN. 22, 1965

TO MASTER SERGEANT JAMES J. GIDDINGS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1965, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED MAY 7, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL BY COMMERCIAL AIR FROM SEOUL, KOREA, TO SEATTLE, WASHINGTON.

BY ORDERS DATED DECEMBER 26 AND 29, 1964, HEADQUARTERS U.S. ARMY SERVICE COMMAND DEPOT, APO SAN FRANCISCO 96220, YOU WERE AUTHORIZED EMERGENCY LEAVE UNDER THE PROVISIONS OF ARMY REGULATIONS 630-5 FOR APPROXIMATELY 30 DAYS ON ACCOUNT OF THE DEATH OF YOUR BROTHER ON DECEMBER 24, 1964. THE TRAVEL INSTRUCTIONS IN THESE ORDERS INCLUDED AUTHORIZATION TO TRAVEL BY MILITARY AIRCRAFT AND AT GOVERNMENT EXPENSE IN A DUTY STATUS ON A NON PER DIEM BASIS FOR THE ROUND TRIP BETWEEN THE OVERSEAS AERIAL PORT AND THE CONTINENTAL UNITED STATES AERIAL PORT. IT IS REPORTED THAT THERE WAS NO MILITARY AIR TRANSPORTATION FROM THE FAR EAST TO THE CONTINENTAL UNITED STATES DURING THE PERIOD DECEMBER 25 TO 28, 1964. IN YOUR CLAIM ON DD FORM 827 DATED FEBRUARY 2, 1965, YOU SAY THAT WHEN YOU WERE INFORMED AFTER RECEIVING NOTICE OF YOUR BROTHER'S DEATH THAT NO MILITARY FLIGHTS WERE LEAVING KOREA UNTIL DECEMBER 28, 1964, YOU TOOK A COMMERCIAL FLIGHT LEAVING DECEMBER 26, 1964, SINCE YOUR FATHER'S HEALTH WAS FAILING AND IT WAS NECESSARY THAT YOU RETURN IN TIME TO MAKE ARRANGEMENTS FOR YOUR BROTHER'S FUNERAL. IT APPEARS TO BE YOUR BELIEF THAT THE GOVERNMENT WAS OBLIGATED TO MEET THE TRAVEL REQUIREMENTS OF YOUR EMERGENCY LEAVE. AUTHORIZATION, EITHER BY FURNISHING TRANSPORTATION IN KIND OR, IF NOT AVAILABLE, BY REIMBURSING YOU FOR COMMERCIAL TRANSPORTATION. THE SETTLEMENT OF MAY 7, 1965, DISALLOWED YOUR CLAIM FOR THE REASON THAT THE TRAVEL INVOLVED WAS FOR PERSONAL REASONS RATHER THAN PUBLIC BUSINESS AND, THEREFORE, YOU WERE NOT IN A TRAVEL STATUS SO AS TO ENTITLE YOU TO TRANSPORTATION ALLOWANCES.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES 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 WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED UNDER THAT AUTHORITY, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES EXPRESSLY THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. IT HAS CONSISTENTLY BEEN HELD THAT ALLOWANCES ARE NOT PAYABLE FOR TRAVEL SOLELY FOR LEAVE PURPOSES, EVEN THOUGH PERFORMED IN A DUTY STATUS UNDER COMPETENT ORDERS, THE TRAVEL BEING CONSIDERED AS MADE FOR PERSONAL REASONS AND NOT HAVING BEEN PERFORMED ON PUBLIC BUSINESS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; DAY V. UNITED STATES, 123 CT.CL. 10, 18; 30 COMP. GEN. 226.

PARAGRAPH 20B OF ARMY REGULATIONS 630-5, UNDER WHICH YOUR ORDERS WERE AUTHORIZED, PROVIDES:

"EMERGENCY LEAVE. TRAVEL PERFORMED IN CONNECTION WITH EMERGENCY LEAVE IS AUTHORIZED AT GOVERNMENT EXPENSE ONLY FROM OVERSEA PORT OF EMBARKATION TO CONUS PORT OF DEBARKATION AND IDENTIFIED AREAS AS STATED IN PARAGRAPH 10B. GOVERNMENT EXPENSE AS USED IN THESE REGULATIONS RELATES TO EXPENDITURE OF APPROPRIATED FUNDS IN REIMBURSEMENT TO MATS OR MSTS FOR SPACE REQUIRED TRAVEL. COMMERCIAL TRAVEL AT GOVERNMENT EXPENSE IS NOT AUTHORIZED FOR ANY PORTION OF TRAVEL AUTHORIZED IN CONNECTION WITH EMERGENCY LEAVE. TRAVEL OF MILITARY PERSONNEL ON EMERGENCY LEAVE WILL BE CHARGED TO OPERATION AND MAINTENANCE, ARMY APPROPRIATION OF THE COMMAND AUTHORIZING THE TRAVEL. ORDERS OF THE COMMAND AUTHORIZING MILITARY EMERGENCY LEAVE TRAVEL WILL CITE THE COMPLETE ACCOUNTING CLASSIFICATION OF THE APPLICABLE MISSION FUNDS AND THE APPROPRIATE CUSTOMER IDENTIFICATION CODE. FUNDS CITED WILL BE SUFFICIENT TO COVER COST OF ROUND TRIP TRAVEL. LEAVE STATUS COMMENCES OR TERMINATES UPON ARRIVAL AT PORT OF DEBARKATION OR REPORTING TO PORT OF EMBARKATION FOR RETURN TRAVEL. ALL TRAVEL PERFORMED WITHIN CONTINENTAL UNITED STATES IS AT INDIVIDUAL'S EXPENSE AND IN A LEAVE STATUS. * * *"

IT IS TO BE NOTED THAT ARMY REGULATIONS 630-5 SPECIFICALLY PROVIDE THAT COMMERCIAL TRAVEL AT GOVERNMENT EXPENSE IS NOT AUTHORIZED FOR ANY PORTION OF THE TRAVEL AUTHORIZED IN CONNECTION WITH EMERGENCY LEAVE. THE REGULATION AUTHORIZES THE USE OF AVAILABLE GOVERNMENT TRANSPORTATION FROM THE OVERSEAS PORT OF EMBARKATION TO THE PORT OF BUT IF SUCH TRANSPORTATION IS NOT AVAILABLE, OR NOT USED WHEN AVAILABLE, THE REGULATION PRECLUDES REIMBURSEMENT FOR COMMERCIAL TRANSPORTATION. THE BASIS FOR SUCH RESTRICTION IS THAT ONLY TRAVEL ON PUBLIC BUSINESS IS AUTHORIZED AT PUBLIC EXPENSE. WHILE, UNDER THE TERMS OF YOUR ORDERS, YOU WERE IN A LEAVE STATUS ONLY DURING THE PERIOD WHILE IN THE UNITED STATES, THE TRAVEL TO AND FROM THE UNITED STATES WAS ONLY FOR THE PURPOSE OF TAKING SUCH EMERGENCY LEAVE AND, THEREFORE, REIMBURSEMENT IN ANY AMOUNT FOR THE COMMERCIAL TRANSPORTATION USED IS NOT AUTHORIZED UNDER THE SPECIFIC TERMS OF THE REGULATIONS.

RELATIVE TO WHETHER CATEGORY "Z" AIRLIFT TRANSPORTATION SHOULD HAVE BEEN FURNISHED YOU FOR THIS TRAVEL, PARAGRAPH 3620A OF AIR FORCE MANUAL 75-4D PROVIDES THAT CATEGORY "Z" AIRLIFT IS INDIVIDUALLY TICKETED TRAVEL ON REGULAR SCHEDULED U.S. FLAG INTERNATIONAL AIR CARRIERS AT SPECIAL RATES APPLICABLE TO DEPARTMENT OF DEFENSE TRAFFIC PUBLISHED IN THE TARIFFS OF THE PARTICIPATING CARRIERS. PARAGRAPH 3620B (2) (C) OF AIR FORCE MANUAL 75-4D PROVIDES THAT CATEGORY "Z" SERVICE, WHICH IS AUTHORIZED FOR USE IN THE OVERSEAS MOVEMENT OF PERSONNEL IN CERTAIN CIRCUMSTANCES FAVORABLE TO THE INTERESTS OF THE GOVERNMENT,"WILL NOT BE USED FOR MOVEMENT OF MILITARY PERSONNEL TRAVELING IN AN EMERGENCY LEAVE STATUS.' THUS, THE USE OF THIS TYPE OF TRANSPORTATION WAS PROHIBITED IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF MAY 7, 1965, WAS CORRECT AND MUST BE SUSTAINED.