B-162593, MAR. 14, 1968

B-162593, MAR. 14, 1968

TRAVEL EXPENSES - MILITARY PERSONNEL - ESCORT TRAVEL DECISION TO AIR FORCE MEMBER SUSTAINING DISALLOWANCE OF CLAIM FOR PER DIEM INCIDENT TO TRAVEL AND TEMPORARY DUTY TO ACT AS NON-MEDICAL ATTENDANT FOR DAUGHTER. ORDERS PROVIDING TRAVEL OF MEMBER ON PERMISSIVE BASIS AT NO EXPENSE TO THE GOVERNMENT FOR ACTING AS NON-MEDICAL ATTENDANT FOR DAUGHTER TO OVERSEAS HOSPITAL MUST BE REGARDED AS PROPER AND SINCE EVIDENCE DOES NOT SHOW THAT DAUGHTER COULD NOT HAVE TRAVELED WITHOUT ATTENDANT THERE IS NO BASIS TO MAKE PAYMENT ON BASIS OF AMENDED ORDER DIRECTING TRAVEL ON REIMBURSABLE BASIS.

TO LIEUTENANT COLONEL FREDERICK A. DE PALMA, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1967, REQUESTING REVIEW OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES (PER DIEM) INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED DURING THE PERIOD MAY 17 TO 29, 1966, WHICH WAS DISALLOWED BY SETTLEMENT DATED JULY 18, 1967.

BY SPECIAL ORDER 108 DATED APRIL 19, 1966, YOU WERE AUTHORIZED TO PROCEED ON OR ABOUT MAY 17, 1966, FROM NAPLES, ITALY, TO THE U.S. AIR FORCE HOSPITAL, WIESBADEN, GERMANY, ON TEMPORARY DUTY FOR APPROXIMATELY 20 DAYS FOR THE PURPOSE OF ACTING AS A NON-MEDICAL ATTENDANT (FOR YOUR DAUGHTER), AND RETURN. THE ORDERS STATED THAT THE TRAVEL AUTHORIZED DID NOT ENTITLE YOU TO THE EXPENSES OF TRAVEL.

SPECIAL ORDER 108 WAS AMENDED BY SPECIAL ORDER 180 DATED MAY 10, 1967, TO PROVIDE, IN LIEU OF THE PROVISION DENYING TRAVEL EXPENSES, THAT IF THE TEMPORARY DUTY WAS PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES AND GOVERNMENT QUARTERS AND/OR MESS WERE NOT AVAILABLE, YOU WERE DIRECTED TO OBTAIN A CERTIFICATE AS TO THE NONAVAILABILITY FROM THE INSTALLATION COMMANDER AS AUTHORIZED BY PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS. SPECIAL ORDER 301 DATED AUGUST 8, 1967, PURPORTS TO AMEND THE ORDERS OF MAY 10, 1967, TO INCLUDE THE STATEMENT "ORDER AMENDED PER AFM 10-3, AS ORIGINAL INTENT WAS NOT EXPRESSED BECAUSE OF INADVERTENCE AND/OR IGNORANCE.'

PARAGRAPH M6400 OF THE JOINT TRAVEL REGULATIONS PROVIDES AUTHORITY FOR TRAVEL AT GOVERNMENT EXPENSE OF ATTENDANTS FOR DEPENDENTS OF MILITARY PERSONNEL AT OVERSEAS STATIONS WHO ARE AUTHORIZED TRANSPORTATION FOR NECESSARY TRAVEL TO AND FROM MEDICAL FACILITIES UNDER AUTHORITY OF 10 U.S.C. 1040.

PARAGRAPH M7107 OF THE REGULATIONS SETS FORTH THE REQUIREMENTS INVOLVED IN THE DETERMINATION OF NECESSITY FOR THE DEPENDENTS' TRAVEL FOR MEDICAL CARE UNDER THE AUTHORITY OF PARAGRAPH M6400. SUCH REQUIREMENTS LIMIT ITS APPLICATION TO DEPENDENTS WHO REQUIRE MEDICAL CARE (OTHER THAN CARE INVOLVING ELECTIVE SURGERY DETERMINED TO BE NOT MEDICALLY INDICATED) WHICH IS UNAVAILABLE IN THE LOCALITY OF THE SPONSOR'S OVERSEAS DUTY STATION. PROPER CASES TRANSPORTATION OF THE DEPENDENT MAY BE AUTHORIZED OR APPROVED TO THE NEAREST APPROPRIATE MEDICAL FACILITY WHERE ADEQUATE MEDICAL CARE IS AVAILABLE; AND, IF THE DEPENDENT IS UNABLE TO TRAVEL UNATTENDED, TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR TRAVEL OF NECESSARY ATTENDANTS WHEN PERFORMED UNDER COMPETENT ORDERS. THE DETERMINATION THAT A DEPENDENT REQUIRES CARE UNDER THAT AUTHORITY MUST BE SUPPORTED BY A STATEMENT OF COMPETENT MEDICAL AUTHORITY AS TO THE SERIOUSNESS OF THE CONDITION AND THE ABSENCE OF FACILITIES FOR PROPER MEDICAL TREATMENT, WITH CITATION TO THAT PARAGRAPH IN THE ORDERS AUTHORIZING TRANSPORTATION OF THE DEPENDENT.

PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS, CITED IN THE AMENDING ORDERS OF MAY 10, 1967, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ASSIGNED ATTENDANT DUTY IN THE INDICATED CIRCUMSTANCES WILL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES WHILE PERFORMING TRAVEL AND TEMPORARY DUTY DIRECTED BY COMPETENT ORDERS IN THAT CAPACITY.

YOUR ORDERS OF APRIL 19, 1966, DID NOT DIRECT YOU TO PERFORM THE TRAVEL BUT AUTHORIZED PERMISSIVE TRAVEL UNDER THE PROVISIONS OF AIR FORCE REGULATION 35-26 DATED JULY 9, 1965. THIS REGULATION PROVIDES FOR PERMISSIVE TRAVEL AND TEMPORARY DUTY WITHOUT COST TO THE GOVERNMENT BY AIR FORCE MILITARY PERSONNEL TO ACCOMPANY THEIR OWN DEPENDENT PATIENTS TO MEDICAL FACILITIES FOR TREATMENT AND EVALUATION AND CONSEQUENTLY THE ORDERS STATED THAT YOU WERE NOT ENTITLED TO THE EXPENSES OF SUCH TRAVEL. THE MODIFICATIONS OF THE ORDERS ON THE BASIS OF "INADVERTENCE AND/OR IGNORANCE" WERE MADE BY YOUR LATER ORDERS OF MAY 10, 1967, AND AUGUST 8, 1967, TO BRING YOUR TRAVEL UNDER AUTHORITY OF PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS, IT BEING EXPLAINED IN LETTER OF MAY 24, 1967, TO OUR OFFICE FROM THE COMMANDER OF DETACHMENT 4 (SHAPE AF SOUTH) THAT THE ORIGINAL ORDERS WERE CUT WITHOUT KNOWLEDGE OF THE EXISTENCE OF THAT AUTHORITY.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES UNDER VALID ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713; 24 COMP. GEN. 439; 34 COMP. GEN. 355.

NO ERROR IS APPARENT ON THE FACE OF YOUR ORDERS OF APRIL 19, 1966, AND THE RECORDS DO NOT ESTABLISH THAT THE NATURE OF YOUR DAUGHTER'S ILLNESS WAS SUCH THAT SHE COULD NOT HAVE PERFORMED THE TRAVEL WITHOUT AN ATTENDANT. HENCE, THERE IS NO BASIS UPON WHICH WE MAY CONCLUDE THAT THOSE ORDERS DID NOT EXPRESS THE INTENTION OF THE ISSUING OFFICER TO AUTHORIZE YOUR TRAVEL ON A PERMISSIVE BASIS AT NO EXPENSE TO THE GOVERNMENT, RATHER THAN TO DIRECT YOUR TRAVEL FOR THAT PURPOSE ON A REIMBURSABLE BASIS AS CONTEMPLATED BY PARAGRAPH M6401 OF THE JOINT TRAVEL REGULATIONS.