B-158091, DEC. 27, 1965

B-158091, DEC. 27, 1965

TO SP5 GEROLD K. STOTTLEMYRE, RA 55462961:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1965, IN EFFECT REQUESTING REVIEW OF A SETTLEMENT BY OUR CLAIMS DIVISION OF YOUR CLAIM FOR PERSONAL AND DEPENDENT TRAVEL ALLOWANCES FOR TRAVEL FROM FORT LEWIS, WASHINGTON, TO FORT WAINWRIGHT, ALASKA, VIA THE ALCAN HIGHWAY PURSUANT TO PERMANENT CHANGE-OF-STATION ORDERS.

BY PARAGRAPH 7, SPECIAL ORDERS 144, HEADQUARTERS 78TH ENGINEER BATTALION, APO 164, DATED AUGUST 5, 1964, AS AMENDED, YOU WERE TRANSFERRED ON PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION IN EUROPE AND ASSIGNED TO 171 IN BDE MECH APO 731 SEATTLE, WASHINGTON- - FORT WAINWRIGHT, ALASKA--- WITH 30 DAYS' DELAY EN ROUTE WITH LEAVE ADDRESS AT CABOOL, MISSOURI. SURFACE TRANSPORTATION WAS AUTHORIZED UNDER THOSE ORDERS FOR TRANSOCEANIC TRAVEL ABOARD THE U.S.N.S. PATCH, DEPARTING BREMERHAVEN, GERMANY, SEPTEMBER 11, 1964, AND SUCH ORDERS AUTHORIZED CONCURRENT TRAVEL OF YOUR DEPENDENTS. YOUR ITINERARY SHOWS THAT ON SEPTEMBER 21, 1964, YOU DEPARTED BROOKLYN ARMY TERMINAL, NEW YORK, BY PRIVATELY OWNED VEHICLE AND ARRIVED AT FORT LEWIS, WASHINGTON, ON OCTOBER 8, 1964, DEPARTING THAT STATION ON THAT DATE AND BY THE SAME MODE OF TRAVEL YOU ARRIVED AT FORT WAINWRIGHT, ALASKA, ON OCTOBER 14, 1964.

IT APPEARS FROM THE RECORD AND FROM YOUR STATEMENTS THAT YOU WERE PAID A MILEAGE ALLOWANCE FOR YOUR TRAVEL AND YOUR DEPENDENTS' TRAVEL FROM NEW YORK TO SEATTLE, WASHINGTON. IN YOUR ORIGINAL CLAIM FOR MILEAGE ALLOWANCE FOR YOU AND YOUR DEPENDENTS FOR TRAVEL BY PRIVATELY OWNED VEHICLE FROM FORT LEWIS, WASHINGTON, TO FORT WAINWIGHT, ALASKA, BY THE ALASKAN HIGHWAY, YOU STATED THAT PERSONNEL AT BOTH THE BROOKLYN ARMY TERMINAL AND AT THE SEATTLE--- TACOMA INSTALLATIONS--- INFORMED YOU THAT YOUR ORDERS WERE SUFFICIENT TO PERMIT YOU TO TRAVEL BY PRIVATELY OWNED VEHICLE VIA THE ALASKAN HIGHWAY. SINCE PRIOR APPROVAL OF THE OVERSEAS COMMANDER WAS NOT OBTAINED FOR THE TRAVEL BY PRIVATELY OWNED VEHICLE TO ALASKA, OUR CLAIMS DIVISION BY SETTLEMENT DATED JUNE 3, 1965, ALLOWED YOU THE SUM OF $176 REPRESENTING REIMBURSEMENT FOR YOUR TRAVEL AND YOUR DEPENDENTS' TRAVEL BETWEEN FORT LEWIS AND FORT WAINWRIGHT ON THE BASIS OF WHAT IT WOULD HAVE COST THE GOVERNMENT HAD TRAVEL BEEN PERFORMED BY MATS. THE RECORD SHOWS THAT SUBSEQUENT TO THE ISSUANCE OF THAT SETTLEMENT, THE DEPARTMENT OF THE ARMY FOUND THAT YOU HAD BEEN PAID $127.50 FOR DEPENDENT TRAVEL FROM SEATTLE TO FAIRBANKS, ALASKA, AND ACTION HAS BEEN TAKEN BY THE ARMY TO CHARGE YOUR ACCOUNT FOR SUCH OVERPAYMENT.

IN YOUR LETTER OF SEPTEMBER 27, 1965, YOU CLAIM THE DIFFERENCE BETWEEN THE AMOUNT ALLOWED YOU FOR TRAVEL FROM FORT LEWIS, WASHINGTON, TO FORT WAINWRIGHT, ALASKA, AND A MILEAGE ALLOWANCE FOR TRAVEL BY PRIVATELY OWNED VEHICLE BETWEEN THOSE POINTS VIA THE ALASKAN HIGHWAY. YOU AGAIN REITERATE THAT YOU WERE INFORMED BY MILITARY PERSONNEL THAT YOUR ORDERS WERE SUFFICIENT TO PERMIT YOU TO TRAVEL BY PRIVATELY OWNED VEHICLE TO YOUR NEW DUTY STATION VIA THE ALASKAN HIGHWAY.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM HIS POST OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. 37 U.S.C. 406 IS THE AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES. PARAGRAPH M4159-1 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SUCH AUTHORITY, PROVIDES, GENERALLY, EXCEPT AS PROVIDED IN SUBPARAGRAPHS 2 AND 3, THAT A MEMBER TRAVELING UNDER CHANGE OF STATION ORDERS TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES WILL BE ENTITLED TO THE ALLOWANCE PRESCRIBED IN PARAGRAPH M4150 (MILEAGE AT 6 CENTS A MILE OR TRANSPORTATION IN KIND, AND/OR PER DIEM), AS APPLICABLE FOR THE TRAVEL TO AND FROM THE PORTS INVOLVED. IMPLEMENTING REGULATIONS FOR THE DEPARTMENT OF THE ARMY CONTAINED IN ARMY REGULATION 55-46 DATED NOVEMBER 16, 1959, IN EFFECT DURING THE PERIOD HERE INVOLVED, SPECIFIED IN PARAGRAPH 34 (CURRENTLY IN PARAGRAPH 38 OF THAT REGULATION) THE ACTION REQUIRED TO BE TAKEN TO OBTAIN APPROVAL FOR CONCURRENT TRAVEL OF DEPENDENTS FROM ONE OVERSEAS COMMAND TO ANOTHER. FOR TRAVEL PERFORMED BY PRIVATELY OWNED VEHICLE FROM CONTINENTAL UNITED STATES TO ALASKA, ARMY REGULATION 310-10 DATED MAY 1964 EXPRESSLY PROVIDES IN PARAGRAPH 43, IN PERTINENT PART, AS FOLLOWS:

"TRAVEL ORDERS WILL NOT INDICATE A MODE OF TRANSPORTATION EXCEPT IN THE FOLLOWING CASES:

"D. (1) PERMANENT CHANGE OF STATION WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS AUTHORIZED BY THE APPROPRIATE OVERSEAS COMMANDER FOR TRAVEL FROM CONTINENTAL UNITED STATES TO ALASKA OR THE ISLAND PORTION OF NEWFOUNDLAND, OR RETURN TO CONTINENTAL UNITED STATES. IN THESE CASES THE PERMANENT CHANGE OF STATION ORDERS WILL INCLUDE, OR BE AMENDED TO INCLUDE, A STATEMENT TO AUTHORIZE TRAVEL BY PRIVATELY OWNED CONVEYANCE.'

IT WILL BE SEEN FROM THE ABOVE REGULATIONS THAT PRIOR APPROVAL OF YOUR OVERSEAS COMMANDER IN ALASKA WAS REQUIRED TO AUTHORIZE TRAVEL BY PRIVATELY OWNED VEHICLE FROM CONTINENTAL UNITED STATES TO ALASKA AND THAT SUCH APPROVAL AS STATED IN THE REGULATIONS WOULD BE INDICATED IN THE TRAVEL ORDERS OR THE ORDERS AMENDED TO SHOW SUCH AUTHORIZATION. YOUR ORDERS OF AUGUST 5, 1964, AS AMENDED, DO NOT CONTAIN SUCH AN AUTHORIZATION.

WHILE IT IS UNFORTUNATE THAT YOU WERE ERRONEOUSLY ADVISED BY ARMY PERSONNEL THAT YOUR ORDERS WERE SUFFICIENT TO AUTHORIZE YOUR TRAVEL BY PRIVATELY OWNED VEHICLE VIA THE ALASKAN HIGHWAY, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY THE ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 217 U.S. 507, 515. ACCORDINGLY, ON THE RECORD BEFORE US, THE SETTLEMENT OF JUNE 3, 1965, WAS CORRECT AND IS SUSTAINED.