B-170444, OCT. 29, 1970

B-170444, OCT. 29, 1970

MILEAGE ALLOWANCE - REIMBURSEMENT AFFIRMING PRIOR DECISION DISALLOWING CLAIM FOR REIMBURSEMENT OF MILEAGE ALLOWANCE FOR TRAVEL PERFORMED IN PRIVATELY OWNED VEHICLE BETWEEN CLAIMANT'S RESIDENCE AND NUMEROUS TEMPORARY DUTY STATIONS WHILE AN EMPLOYEE OF THE DEFENSE CONTRACT SERVICES ADMINISTRATION. WHERE A LOCAL REGULATION DID NOT PERMIT REIMBURSEMENT FOR MILEAGE TRAVELED ON TEMPORARY DUTY UNLESS THE DISTANCE TRAVELED WAS GREATER THAN THE DISTANCE BETWEEN THE RESIDENCE OF THE TRAVELER AND HIS PERMANENT DUTY STATION, WHICH IS NOT HERE THE CASE, IT IS A PROPER EXERCISE OF AN AGENCY'S ADMINISTRATIVE DISCRETION TO LIMIT REIMBURSEMENT FOR TRAVEL TO THE AMOUNT BY WHICH SUCH TRAVEL EXCEEDS THE DISTANCE TO AND FROM THE EMPLOYEE'S RESIDENCE AND PERMANENT DUTY STATION. THE DETERMINATION OF ANOTHER COMPONENT OF EMPLOYEE'S DEPARTMENT APPLYING A MORE LIBERAL RULE DOES NOT DISTURB THE AUTHORITY OF THE ADMINISTRATIVE OFFICE IN QUESTION. THEREFORE, THE CLAIM MUST BE DISALLOWED.

TO MR. EDMUND A. JOHNSTON:

THIS WILL REFER TO YOUR LETTER OF JUNE 15, 1970, REQUESTING A REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF MAY 12, 1970, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT OF MILEAGE ALLOWANCE FOR TRAVEL PERFORMED IN YOUR PRIVATELY OWNED VEHICLE WHILE YOU WERE ON OFFICIAL GOVERNMENT BUSINESS FOR THE DEFENSE CONTRACT SERVICES ADMINISTRATION. THE TRAVEL IN QUESTION WAS PERFORMED INTERMITTENTLY BETWEEN YOUR RESIDENCE AND NUMEROUS DEFENSE CONTRACT FACILITIES DURING THE PERIOD NOVEMBER 6, 1968, THROUGH SEPTEMBER 4, 1969. AS YOU POINT OUT, OUR LETTER OF SETTLEMENT WAS SOMEWHAT INACCURATE IN REFERRING TO THE PLACES OF DUTY TO WHICH YOU TRAVELED AS BEING IN THE "VICINITY OF YOUR OFFICIAL PERMANENT DUTY STATION." YOUR LETTER EXPLAINS THAT THE TEMPORARY DUTY TRAVEL ORIGINATED AT YOUR PLACE OF RESIDENCE AND THE FACILITIES VISITED WERE IN THE VICINITY OF YOUR RESIDENCE "WHICH IS WHY TRAVEL DIRECTLY FROM AND TO MY RESIDENCE WAS AUTHORIZED AND APPROVED." THIS APPROVAL APPARENTLY WAS FOR USE OF YOUR AUTOMOBILE BUT, AS YOU SEEM TO AGREE, DID NOT CONSTITUTE AUTHORIZATION FOR REIMBURSEMENT OF MILEAGE ALLOWANCE. YOU FURTHER STATE THAT: "IN NO INSTANCE WOULD THE TRAVEL FROM MY OFFICIAL DUTY STATION HAVE BEEN LESS THAN THE DISTANCE FROM RESIDENCE TO FACILITY AND IN JUST ABOUT EVERY INSTANCE THE DISTANCE FROM OFFICIAL DUTY STATION TO FACILITY WOULD HAVE BEEN IN THE RANGE OF 30 TO 45 MILES FROM MY OFFICIAL DUTY STATION." THE ROUND-TRIP DISTANCE BETWEEN YOUR RESIDENCE AND PERMANENT DUTY STATION IS SHOWN AS 76 MILES.

YOUR CLAIM WAS DISALLOWED BY YOUR ADMINISTRATIVE AGENCY AND THE DISALLOWANCE SUSTAINED BY OUR CLAIMS DIVISION FOR THE REASON THAT A LOCAL REGULATION OF THE AGENCY DID NOT PERMIT REIMBURSEMENT FOR MILEAGE TRAVELED ON TEMPORARY DUTY UNDER THE CIRCUMSTANCES DESCRIBED UNLESS THE DISTANCE TRAVELED WAS GREATER THAN THE DISTANCE BETWEEN THE RESIDENCE OF THE TRAVELER AND HIS PERMANENT DUTY STATION. IN NO CASE DID THE DISTANCE OF YOUR TEMPORARY DUTY TRAVEL EXCEED THE DISTANCE BETWEEN YOUR RESIDENCE AND PERMANENT HEADQUARTERS STATION. ACCORDINGLY, NO REIMBURSEMENT WAS ALLOWED FOR THE MILEAGE TRAVELED.

WE DO NOT HAVE THE TEXT OF THE LOCAL REGULATION IN QUESTION; HOWEVER, WE NOTE THAT SECTION C 6153, VOLUME 2, JOINT TRAVEL REGULATIONS, AS IN EFFECT DURING THE PERIOD IN QUESTION, PROVIDED AS FOLLOWS:

"C 6153 USE OF PRIVATELY OWNED CONVEYANCE BETWEEN RESIDENCE AND TEMPORARY DUTY STATION

"WHEN AN EMPLOYEE PERFORMS DAILY OR INTERMITTENT TRAVEL DIRECTLY FROM HIS RESIDENCE TO TEMPORARY DUTY STATION, INSTEAD OF REPORTING TO HEADQUARTERS AND THENCE TO THE TEMPORARY DUTY STATION, MILEAGE FOR USE OF PRIVATELY OWNED CONVEYANCE MAY BE AUTHORIZED OR APPROVED, PROVIDED SUCH MODE OF TRANSPORTATION IS ADVANTAGEOUS TO THE GOVERNMENT. REIMBURSEMENT FOR MILEAGE MAY BE LIMITED TO AN AMOUNT REPRESENTING THE DIFFERENCE BETWEEN REPORTING TO THE EMPLOYEE'S PERMANENT DUTY STATION AND THE TEMPORARY DUTY STATION."

YOU QUESTION THE "VALIDITY" OF THE LOCAL REGULATION BECAUSE YOU BELIEVE IT TO BE CONTRARY TO OUR HOLDING IN 36 COMP. GEN. 795 (1957) IN WHICH IT WAS STATED THAT:

" *** WHERE AN OFFICER OR AN EMPLOYEE IS PROPERLY AUTHORIZED TO USE A PRIVATELY-OWNED AUTOMOBILE FOR OFFICIAL BUSINESS, IT IS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW HIM MILEAGE FROM WHATEVER POINT HE BEGINS HIS JOURNEY WITH NO REQUIREMENT THAT THERE BE DEDUCTED FROM THE COMPUTATION OF SUCH MILEAGE THE DISTANCE THAT THE EMPLOYEE WOULD NORMALLY TRAVEL BETWEEN HIS HOME AND HIS HEADQUARTERS *** . THE ADMINISTRATIVE OFFICIALS, HOWEVER, IN EXERCISING THEIR DISCRETIONARY POWER IN THIS MATTER ARE TO GIVE DUE CONSIDERATION TO THE INTERESTS OF BOTH THE GOVERNMENT AND THE EMPLOYEE. WHERE APPROPRIATE THEY MAY AND SHOULD IN THE EXERCISE OF THIS DISCRETION RESTRICT THE MILEAGE ALLOWABLE, BY WAY OF A REDUCED RATE OR DISTANCE."

AS YOUR REASON FOR BELIEVING THE REGULATION TO BE INCONSISTENT WITH THIS DECISION YOU CITE AN ARTICLE IN A PUBLICATION OF GENERAL CIRCULATION REPORTING THAT ANOTHER ORGANIZATIONAL COMPONENT OF THE DEPARTMENT OF DEFENSE APPLIES A MORE LIBERAL POLICY THAN THAT IN EFFECT IN THE ORGANIZATION IN WHICH YOU ARE EMPLOYED. YOU BELIEVE THAT THE REPORTED ALLOWANCE BY ANOTHER UNIT OF THE DEFENSE DEPARTMENT OF REIMBURSEMENT FOR MILEAGE, WITHOUT RESTRICTION, FOR TEMPORARY DUTY TRAVEL OF THE SAME CHARACTER YOU PERFORMED, BUT FOR WHICH YOU WERE DENIED REIMBURSEMENT, RESULTS IN AN INEQUITY. FURTHER, IT IS YOUR VIEW THAT THE HOLDING IN 36 COMP. GEN. 795 (1957) WAS NOT INTENDED TO RESULT IN COMPLETE DISALLOWANCE OF A CLAIM FOR MILEAGE REIMBURSEMENT AS IN YOUR CASE AND THAT SUCH AN INTERPRETATION BY THE ADMINISTRATIVE OFFICIAL RESPONSIBLE CONSTITUTES AN UNLAWFUL EXERCISE OF AUTHORITY.

WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR VIEWS. HOWEVER, WE ARE UNABLE TO AGREE THAT THE ACTION OF ADMINISTRATIVE OFFICIALS IN DENYING YOUR CLAIM FOR REIMBURSEMENT WAS CONTRARY TO THE HOLDING IN 36 COMP. GEN. 795 OR OTHERWISE UNLAWFUL.

IN OTHER CASES IN WHICH WE HAVE INTERPRETED LOCAL REGULATIONS SIMILAR TO THAT APPLIED IN YOUR CASE WE HAVE CONCLUDED IT IS A PROPER EXERCISE OF AN AGENCY'S ADMINISTRATIVE DISCRETION TO LIMIT REIMBURSEMENT FOR TRAVEL TO THE AMOUNT BY WHICH SUCH TRAVEL EXCEEDS THE DISTANCE TO AND FROM THE EMPLOYEE'S RESIDENCE AND PERMANENT DUTY STATION. SEE B 164189, JUNE 25, 1968, AND B-164614, JULY 22, 1968, COPIES ENCLOSED.

THE DETERMINATION OF ANOTHER COMPONENT OF THE DEPARTMENT BY WHICH YOU ARE EMPLOYED TO APPLY, IN ITS DISCRETION, A MORE LIBERAL RULE DOES NOT DISTURB THE AUTHORITY OF YOUR ADMINISTRATIVE OFFICE TO EXERCISE ITS DISCRETION IN THE MANNER EXPRESSED BY ITS REGULATIONS. NEITHER IS IT CONTRARY TO THE DECISION IN 36 COMP. GEN. 795 THAT THIS SHOULD BE THE CASE.

WE NOTE THAT SECTION C 6153 OF VOLUME 2, JOINT TRAVEL REGULATIONS, WAS AMENDED EFFECTIVE SEPTEMBER 1, 1970, TO REQUIRE PAYMENT OF MILEAGE UNDER CIRCUMSTANCES SUCH AS HERE INVOLVED WHERE THE USE OF AN AUTOMOBILE IS AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE GOVERNMENT. HOWEVER, THE CHANGE IS PROSPECTIVE AND DOES NOT PROVIDE GROUNDS FOR CHANGING THE DISALLOWANCE ACTION BY OUR CLAIMS DIVISION WHICH IS HEREBY AFFIRMED.