B-163269, JAN. 29, 1968

B-163269, JAN. 29, 1968

TRAVEL EXPENSES - FOREIGN AIRCRAFT DECISION TO CHIEF WARRANT OFFICER SUSTAINING DISALLOWANCE OF CLAIM FOR REIMBURSEMENT FOR TRAVEL ON FOREIGN AIRCRAFT. ARMY MEMBER WHO WAS AUTHORIZED TO TRAVEL ON A SPACE AVAILABLE BASIS AND WHO, DUE TO DELAY FOR VISA AND TO AVOID 2 DAY DELAY, USED FOREIGN AIRCRAFT FOR TRAVEL MAY NOT BE REIMBURSED FOR TRAVEL COSTS IN ABSENCE OF DETERMINATION OF OFFICIAL NECESSITY FOR USE OF FOREIGN AIRCRAFT.

TO CHIEF WARRANT OFFICER FRANCISCO BALILING, USA, W3400177:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 7, 1967, WITH ENCLOSURES, TO PRESIDENT LYNDON B. JOHNSON, CONCERNING YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU ON LUFTHANSA GERMAN AIRLINES FROM BANGKOK, THAILAND, TO KARACHI, PAKISTAN, ON FEBRUARY 16, 1967.

BY ORDERS DATED FEBRUARY 4, 1967, HEADQUARTERS, 937TH ENGINEER GROUP (COMBAT), APO 86318, SAN FRANCISCO, CALIFORNIA, YOU WERE ORDERED TO REPORT TO TRI SERVICE ATCO, CIVILIAN TERMINAL, TON SON NHUT AIRPORT, VIETNAM, FOR MOVEMENT TO FRANKFURT, GERMANY, THENCE TO THE UNITED STATES, EN ROUTE TO YOUR PERMANENT DUTY STATION AT YUMA PROVING GROUND, YUMA, ARIZONA. THE ORDERS PROVIDED FOR CONCURRENT TRAVEL FOR YOUR WIFE FROM GERMANY TO THE UNITED STATES. SPECIAL INSTRUCTIONS ON THE ORDERS STATED THAT TRAVEL FROM VIETNAM TO KARACHI, PAKISTAN, AND FROM THE AERIAL PORT IN EUROPE TO CONTINENTAL UNITED STATES WOULD BE ON A SPACE-REQUIRED BASIS BUT THAT TRAVEL BETWEEN KARACHI, PAKISTAN, AND THE AERIAL PORT IN EUROPE WOULD BE ON A SPACE-AVAILABLE BASIS. THE CIRCUITOUS TRAVEL WAS AUTHORIZED SO THAT YOU COULD JOIN YOUR WIFE IN GERMANY AND COMPLETE THE TRAVEL TO THE UNITED STATES WITH HER.

IN YOUR CLAIM TO THIS OFFICE YOU STATED THAT YOUR FLIGHT FROM VIETNAM TO KARACHI, PAKISTAN, WAS CANCELLED BECAUSE YOU DID NOT HAVE A VISA TO ENTER PAKISTAN, BUT THAT YOU OBTAINED TRANSPORTATION ON AN MAC EMBASSY FLIGHT TO BANGKOK, THAILAND. ALSO, YOU STATED THAT UPON YOUR ARRIVAL THERE YOU APPLIED FOR A VISA FOR PAKISTAN WHICH WAS ISSUED ON FEBRUARY 16, 1967. FURTHER, YOU STATED THAT ON THAT DAY YOU TRAVELED TO KARACHI, PAKISTAN, ON LUFTHANSA GERMAN AIRLINES AT PERSONAL EXPENSE, AND FROM THERE YOU WENT TO FRANKFURT, GERMANY. YOU EXPLAINED THAT THE DEPARTURE DELAY IN YOUR CASE RESULTED BECAUSE AN OFFICIAL AT THE AMERICAN EMBASSY IN SAIGON, VIETNAM, FURNISHED YOU INFORMATION WHICH YOU BELIEVE TO BE ERRONEOUS CONCERNING THE NEED FOR A VISA TO ENTER PAKISTAN, AND THAT THE USE OF A FOREIGN FLAG CARRIER ON FEBRUARY 16, 1967, WAS NECESSARY SINCE NO AMERICAN AIR TRANSPORTATION WAS AVAILABLE BEFORE FEBRUARY 18, 1967.

THE DEPARTMENT OF THE ARMY DENIED PAYMENT OF YOUR CLAIM FOR TRAVEL FROM BANGKOK TO KARACHI IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS SINCE THE CLAIM WAS NOT SUPPORTED BY A DETERMINATION OF THE IMPRACTICABILITY FOR USE OF OR UNAVAILABILITY OF AIRCRAFT OF UNITED STATES REGISTRY. ALSO, BY SETTLEMENT DATED NOVEMBER 6, 1967, THE CLAIMS DIVISION OF THIS OFFICE DISALLOWED YOUR CLAIM FOR THE REASONS STATED.

IN YOUR LETTER TO THE PRESIDENT YOU REQUEST THAT AN EXCEPTION TO CURRENT POLICY BE GRANTED IN THE CIRCUMSTANCES OF YOUR CASE TO AUTHORIZE REIMBURSEMENT OF THE COST OF THE SPACE-REQUIRED TRAVEL ON A FOREIGN FLAG CARRIER.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.' THIS POLICY OF REQUIRING TRAVEL BY OFFICERS OR EMPLOYEES OF THE UNITED STATES ON VESSELS OF AMERICAN REGISTRY WAS ENDORSED FOR EXTENSION TO AIRCRAFT BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1, 1962, 76 STAT. 1428. THIS RESOLUTION EXPRESSES THE VIEW THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, SUCH TRAVEL SHOULD BE PERFORMED ON UNITED STATES AIR FLAG CARRIERS, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE.

THE PERTINENT STATUTE WITH RESPECT TO TRAVEL ALLOWANCES, 37 U.S.C. 404, PROVIDES THAT UNDER THE REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED, UPON A PERMANENT CHANGE OF STATION OR OTHERWISE, TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS.

REGULATIONS ISSUED PURSUANT TO THE ABOVE STATUTORY AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M2150-1 SPECIFICALLY RESTRICTS THE USE OF FOREIGN REGISTERED AIRCRAFT. UNDER THAT PARAGRAPH, THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES IS REQUIRED, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. PARAGRAPH M2150-2 SPECIFIES THAT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. IT FURTHER PROVIDES THAT SUCH A DETERMINATION MAY NOT BE BASED MERELY ON A SHORT DELAY IN AWAITING TRANSPORTATION BY VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY.

IT APPEARS FROM THE INFORMATION YOU FURNISHED THIS OFFICE THAT YOU WERE ADVISED BY AN EMPLOYEE OF THE AMERICAN EMBASSY, SAIGON, VIETNAM, THAT YOU WOULD NOT BE REQUIRED TO OBTAIN A VISA TO ENTER PAKISTAN. THE RECORD INDICATES THAT THIS INFORMATION WAS BASED ON THE ASSUMPTION THAT YOU WOULD PERFORM THE TRAVEL THROUGH THE COUNTRY WITHIN 48 HOURS AND IS IN ACCORD WITH THE INSTRUCTION CONTAINED IN THE USAF FOREIGN CLEARANCE GUIDE- PAKISTAN. HOWEVER, SINCE YOUR ORDERS OF FEBRUARY 4, 1967, STATED THAT TRAVEL BETWEEN KARACHI, PAKISTAN, AND AERIAL PORT IN EUROPE WOULD BE ON A SPACE-AVAILABLE BASIS, THERE WAS NO GUARANTEE THAT YOU WOULD DEPART PAKISTAN WITHIN THE 48-HOUR PERIOD AND THEREFORE, YOU WERE REQUIRED TO HAVE A VISA IN YOUR POSSESSION. ANY MISUNDERSTANDING ON THE PART OF THE EMBASSY EMPLOYEE WITH RESPECT TO THE PROVISION IN YOUR ORDERS STATING THAT TRAVEL OUT OF KARACHI WOULD BE ON A SPACE-AVAILABLE BASIS AFFORDS NO BASIS FOR DISREGARD OF THE REGULATIONS APPLICABLE TO YOUR TRAVEL ON A FOREIGN FLAG CARRIER.

WITH RESPECT TO YOUR APPARENT BELIEF THAT THE USE OF A FOREIGN FLAG CARRIER WAS JUSTIFIED IN ORDER TO AVOID A DELAY OF TWO DAYS IN DEPARTURE FROM BANGKOK, THE LAW AND REGULATIONS SPECIFICALLY BAR PAYMENT OF ANY ALLOWANCE FOR TRAVEL EXPENSES INCURRED ON AN AIRPLANE OF FOREIGN REGISTRY IN THE ABSENCE OF PROOF OF THE NECESSITY FOR ITS USE. IF AUTHORIZATION IS TO BE MADE FOR THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY ON THE BASIS OF NECESSITY, A STATEMENT OF THE DETERMINATION OF NECESSITY MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE AND THE DEPARTMENT OF THE ARMY PROPERLY DENIED PAYMENT OF YOUR CLAIM SINCE THE RECORD SHOWS THAT AN AMERICAN FLAG CARRIER WAS AVAILABLE FOR YOUR TRAVEL FROM BANGKOK TO KARACHI TWO DAYS AFTER YOUR ARRIVAL AT BANGKOK. IN SUCH CIRCUMSTANCES IT APPEARS THAT YOUR TRAVEL TO KARACHI ON FEBRUARY 16, 1967, WAS NOT REQUIRED BECAUSE OF URGENT GOVERNMENT BUSINESS OR OFFICIAL NECESSITY WITHIN THE CONTEMPLATION OF PARAGRAPH M2150-2, JOINT TRAVEL REGULATIONS.

THE ABOVE-MENTIONED REGULATIONS ARE PROMULGATED PURSUANT TO STATUTORY AUTHORITY AND HAVE THE FORCE AND EFFECT OF THE LAW ITSELF. OUR OFFICE IS WITHOUT JURISDICTION TO WAIVE THE PROVISIONS THEREOF OR MAKE AN EXCEPTION TO SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS.

REGARDING THE PRESIDENT'S ACTION IN THIS MATTER, SECTIONS 71 AND 74 OF TITLE 31, UNITED STATES CODE, PROVIDE THAT ALL CLAIMS AND DEMANDS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE AND THAT SUCH SETTLEMENT SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. PRESUMABLY, FOR THIS REASON, YOUR LETTER TO PRESIDENT JOHNSON WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION AND REPLY. WE TRUST YOU WILL UNDERSTAND THAT OUR OFFICE HAS JURISDICTION IN THE MATTER UNDER THE CITED CODE PROVISIONS.

WE MUST COMPLY WITH THE APPLICABLE STATUTES IN SETTLING CLAIMS AGAINST THE GOVERNMENT AND, AS STATED ABOVE, THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM.