B-166236, MAY 21, 1969

B-166236, MAY 21, 1969

TO SECOND LIEUTENANT JAMES C. SMITH:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR MILEAGE FOR TRAVEL FROM WESTOVER AIR FORCE BASE, MASSACHUSETTS, TO MT. PLEASANT, TEXAS, AND RETURN DURING THE PERIOD JUNE 5 TO 13, 1968.

BY SPECIAL ORDER NO. T-947, DATED JUNE 4, 1968, YOU WERE DIRECTED TO PROCEED FROM WESTOVER AIR FORCE BASE, MASSACHUSETTS, TO 377 COMBAT SUPPORT GROUP, APO SAN FRANCISCO, CALIFORNIA, FOR TEMPORARY DUTY OF APPROXIMATELY 90 DAYS UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PERMANENT STATION, WESTOVER AIR FORCE BASE. THE ORDERS AUTHORIZED YOU TO PROCEED ON OR ABOUT JUNE 6, 1968, GRANTED 20 DAYS' LEAVE AND REQUIRED YOU TO REPORT TO MILITARY AIR COMMAND TERMINAL, TRAVIS AIR FORCE BASE, CALIFORNIA, ON JUNE 15, 1968, FOR OCEAN TRANSPORTATION.

YOU SAY YOU WERE GRANTED 10 DAYS' LEAVE EN ROUTE TO YOUR TEMPORARY STATION FOR THE PURPOSE OF DRIVING YOUR WIFE TO HER HOME IN MT. PLEASANT, TEXAS. YOUR ITINERARY SHOWS YOU DEPARTED WESTOVER AIR FORCE BASE ON JUNE 5 AND ARRIVED AT MT. PLEASANT THE NEXT DAY. ON JUNE 10, 1968, WHILE ON LEAVE IN THAT CITY YOU RECEIVED A TELEPHONE CALL ADVISING YOU THAT YOUR ORDERS WERE CANCELLED AND TO RETURN TO WESTOVER AIR FORCE BASE. YOUR RETURN TRAVEL WAS PERFORMED DURING THE PERIOD JUNE 11 TO 13, 1968.

PAYMENT OF YOUR CLAIM WAS DENIED BY THE AIR FORCE IN THE ABSENCE OF A PROVISION IN THE JOINT TRAVEL REGULATIONS AUTHORIZING PAYMENT. HOWEVER, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES EXISTS FOR MEMBERS OF THE ARMED FORCES ONLY WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATIONS UPON PUBLIC BUSINESS PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY DUTY. PARAGRAPH M3050, JOINT TRAVEL REGULATIONS.

IT HAS LONG BEEN CONSIDERED THAT NO OFFICIAL TRAVEL ON PUBLIC BUSINESS IS REQUIRED UNDER TRAVEL ORDERS UNTIL SUCH TIME AS THE TRAVELER MUST DEPART FROM HIS DUTY STATION TO REACH HIS DESTINATION BY ORDINARY MEANS OF TRANSPORTATION (UNLESS OTHERWISE DIRECTED) ON THE DATE DESIGNATED BY THE ORDERS. THE TERMS AND CONDITIONS OF TRAVEL ORDERS ARE SUBJECT TO MODIFICATION OR REVOCATION AT ANY TIME PRIOR TO THE EXECUTION OF THE TRAVEL AS DIRECTED, AND IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY PROVIDING FOR REIMBURSEMENT, ANY EXPENSES INCURRED BY THE MEMBER BEFORE THE DATE OF NECESSARY COMPLIANCE WITH THE ORDERS MUST BE BORNE BY HIM IF THE ORDERS ARE CANCELLED PRIOR TO THAT DATE. 19 COMP. GEN. 315; 33 COMP. GEN. 289.

IN THE PAPERS SUBMITTED WITH YOUR CLAIM REFERENCE IS MADE TO OUR DECISION OF NOVEMBER 21, 1956, B-129607, 36 COMP. GEN. 421, INVOLVING CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO DEPARTED THEIR DUTY STATION ON LEAVE GRANTED IN CONNECTION WITH ORDERS DIRECTING TEMPORARY DUTY AT A DISTANT POINT BUT WHO WERE DIRECTED TO RETURN BEFORE REPORTING TO THE TEMPORARY STATION SINCE REQUIREMENT FOR THEIR TRAVEL HAD BEEN CANCELLED. ALTHOUGH TRAVEL WAS PERFORMED IN THAT CASE IN A LEAVE STATUS AND PRIOR TO NECESSARY COMPLIANCE WITH THE TRAVEL ORDERS, THE PAYMENT OF TRAVEL EXPENSES WAS AUTHORIZED SINCE THE CANCELLATION WAS NOT EFFECTED UNTIL SUBSEQUENT TO THE DATE OF SUCH NECESSARY COMPLIANCE. THE PRINCIPLE IN THAT CASE HAS NO APPLICATION IN YOUR CASE SINCE YOUR ORDERS WERE CANCELLED BEFORE THE DATE OF NECESSARY COMPLIANCE WITH THEIR TRAVEL REQUIREMENTS.

UNDER THE PROVISIONS OF THE ACT OF DECEMBER 23, 1963, 77 STAT. 475, 37 U.S.C. 406A, AND IN PROVISIONS OF THE JOINT TRAVEL REGULATIONS ISSUED THEREUNDER, IT IS PROVIDED THAT A MEMBER SHOULD NOT BE DENIED REIMBURSEMENT FOR TRAVEL COMMENCED BEFORE THE EFFECTIVE DATE OF ORDERS DIRECTING A CHANGE OF HIS PERMANENT DUTY STATION IN THE EVENT OF THEIR CANCELLATION BEFORE THAT DATE. SUCH AUTHORITY, HOWEVER, WAS NOT EXTENDED TO CIRCUMSTANCES WHERE TEMPORARY DUTY ASSIGNMENTS ARE MADE UNDER ORDERS NOT DIRECTING A PERMANENT CHANGE OF STATION.

IN THE PRESENT CASE, SINCE YOU WERE NOT REQUIRED TO BE AT TRAVIS AIR FORCE BASE, CALIFORNIA, UNTIL JUNE 15, 1968, IT IS APPARENT THAT YOUR DEPARTURE FROM YOUR STATION ON JUNE 5 WAS NOT REQUIRED TO COMPLY WITH YOUR ORDERS BUT BECAUSE YOU WERE GRANTED LEAVE. THUS, YOUR TRAVEL WAS FOR PERSONAL REASONS AND THE TEMPORARY DUTY ORDERS WERE CANCELLED BEFORE TRAVEL WAS REQUIRED THEREUNDER. THE LAW AND REGULATIONS DO NOT PROVIDE FOR PAYMENT FOR TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES UNDER THOSE CIRCUMSTANCES. ACCORDINGLY, YOUR CLAIM IS DISALLOWED.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT LAWFULLY BE ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

SINCE THERE ARE NUMEROUS CASES IN WHICH MEMBERS TRAVEL ON LEAVE AND ARE NOT ENTITLED TO PAYMENT OF TRAVEL ALLOWANCES WE DO NOT REGARD YOUR CLAIM AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.