B-171416, DEC. 30, 1970

B-171416, DEC. 30, 1970

EMERGENCY LEAVE - TRAVEL EXPENSES DENIAL OF CLAIM FOR ROUND-TRIP TRAVEL EXPENSES INCURRED BY MEMBER IN TRAVELING BETWEEN SPOKANE, WASH., AND TRAVIS AFB, CALIF., INCIDENT TO EMERGENCY LEAVE. WHERE THE LATE ARRIVAL OF A TELEGRAM INFORMING MEMBER THAT HIS EMERGENCY LEAVE WOULD BE EXTENDED, RESULTED IN AN UNNECESSARY ROUND TRIP, THE EXPENSES INCURRED, THEREBY, ARE NOT REIMBURSABLE SINCE MEMBER WAS NOT TRAVELING ON PUBLIC BUSINESS NOR DOES THE OVERSIGHT, RESULTING IN LATE ARRIVAL OF THE TELEGRAM AFFORD A LEGAL BASIS FOR REIMBURSEMENT.

TO AIRMAN FIRST CLASS RICHARD L. BARIDO:

REFERENCE IS MADE TO YOUR CLAIM IN THE AMOUNT OF $73.20 AS REIMBURSEMENT FOR ROUND TRIP TRAVEL PERFORMED AUGUST 28, 1970, FROM SPOKANE, WASHINGTON, TO TRAVIS AIR FORCE BASE, CALIFORNIA, INCIDENT TO EMERGENCY LEAVE.

IT APPEARS FROM YOUR STATEMENT ACCOMPANYING YOUR CLAIM THAT YOU WERE GRANTED EMERGENCY LEAVE FROM YOUR PERMANENT DUTY STATION IN THAILAND, FOR THE PERIOD FROM AUGUST 1 TO 28, 1970, SO YOU COULD RETURN TO YOUR HOME IN SPOKANE, WASHINGTON. WHILE THERE YOU REQUESTED AN EXTENSION OF LEAVE, WHICH WAS DENIED. SUBSEQUENTLY, ON AUGUST 26, 1970, YOU SUBMITTED A REQUEST FOR HUMANITARIAN REASSIGNMENT TO THE AUTHORITIES AT TRAVIS AIR FORCE BASE, CALIFORNIA, WHERE YOU WERE SCHEDULED TO REPORT ON AUGUST 28, 1970, FOR TRANSPORTATION TO THAILAND.

HAVING RECEIVED NO WORD REGARDING YOUR REQUEST, YOU RELATE THAT YOU TRAVELED BY COMMERCIAL MEANS TO TRAVIS AIR FORCE BASE, ON THE MORNING OF YOUR SCHEDULED REPORTING DATE, AUGUST 28, 1970. UPON ARRIVAL YOU LEARNED THAT ON THE MORNING OF AUGUST 27, 1970, A COMMERCIAL TELEGRAM, NIGHT LETTER SERVICE, HAD BEEN DISPATCHED FROM TRAVIS AIR FORCE BASE TO FAIRCHILD AIR FORCE BASE, WASHINGTON, ADVISING OF THE GRANT OF ADDITIONAL LEAVE PENDING A DECISION ON YOUR APPLICATION FOR HUMANITARIAN REASSIGNMENT. YOU THEN RETURNED TO SPOKANE BY COMMERCIAL CARRIER. YOU INDICATE THAT THE TOTAL COST OF YOUR TRANSPORTATION FROM SPOKANE TO TRAVIS AIR FORCE BASE AND RETURN, WAS $73.20.

YOUR CLAIM FOR REIMBURSEMENT OF THE TRANSPORTATION EXPENSES, DATED SEPTEMBER 3, 1970, WITH SUPPORTING DOCUMENTS, WAS RECEIVED FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, HEADQUARTERS UNITED STATES AIR FORCE, ON DECEMBER 1, 1970.

IN THE STATEMENT SUPPORTING YOUR CLAIM YOU EXPRESS THE OPINION THAT THE TRANSPORTATION EXPENSE SHOULD BE BORNE BY THE GOVERNMENT AS THE ROUND TRIP TRAVEL OF AUGUST 28, 1970, WOULD HAVE BEEN UNNECESSARY IF YOU HAD BEEN NOTIFIED PROMPTLY OF YOUR LEAVE EXTENSION. YOU POINT OUT THAT THE AUTHORITIES AT TRAVIS AIR FORCE BASE WERE AWARE OF YOUR REPORTING DATE AND, IN VIEW OF THE LITTLE REMAINING TIME, SHOULD HAVE CHOSEN A FASTER MEANS OF INFORMING YOU OF THE EXTENSION OF LEAVE, SUCH AS REGULAR COMMERCIAL TELEGRAPH SERVICE OR MILITARY COMMUNICATION FACILITIES.

IT LONG HAS BEEN HELD THAT TO AUTHORIZE PAYMENT FOR TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES THE TRAVEL MUST BE PERFORMED ON PUBLIC BUSINESS. PERRIMOND V UNITED STATES, 19 CT. CL. 509 (1884); DAY V UNITED STATES, 123 ID. 10, 18 (1952). CONSISTENT WITH THAT CONCEPT PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE TRAVELING AWAY FROM THEIR PERMANENT DUTY STATIONS "UPON PUBLIC BUSINESS." ADDITION, PARAGRAPH M6454 OF THE REGULATIONS EXPRESSLY PROVIDES THAT EXPENSES INCURRED DURING A PERIOD OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. IT HAS BEEN HELD THAT ALLOWANCES ARE NOT PAYABLE FOR TRAVEL PERFORMED SOLELY FOR LEAVE PURPOSES, THE TRAVEL BEING CONSIDERED AS MADE FOR PERSONAL REASONS AND NOT HAVING BEEN PERFORMED ON PUBLIC BUSINESS. 36 COMP. GEN. 257 (1956); 42 COMP. GEN. 27 (1962).

TRAVEL TO TRAVIS AIR FORCE BASE WAS FOR THE PURPOSE OF RETURN FROM EMERGENCY LEAVE, AND RETURN TRAVEL TO YOUR HOME IN SPOKANE WAS PERFORMED AS A RESULT OF THE EXTENSION OF EMERGENCY LEAVE. AS THIS TRAVEL WAS FOR PERSONAL REASONS, IT CANNOT BE REGARDED AS BEING PERFORMED ON PUBLIC BUSINESS ENTITLING YOU TO REIMBURSEMENT FOR TRAVEL BY COMMERCIAL MEANS. THE FACT THAT YOUR ADDITIONAL TRAVEL EXPENSES MAY HAVE RESULTED FROM AN OVERSIGHT BY GOVERNMENT PERSONNEL OF THE NEED TO NOTIFY YOU MORE EXPEDITIOUSLY OF THE EXTENSION OF YOUR LEAVE DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR REIMBURSEMENT OF SUCH EXPENSES.

SINCE THE LAW AND REGULATIONS AFFORD NO BASIS FOR THE PAYMENT OF YOUR CLAIM, THE OFFICE OF THE JUDGE ADVOCATE GENERAL, HEADQUARTERS UNITED STATES AIR FORCE, FORWARDED YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236, WITH THE RECOMMENDATION THAT IT BE FAVORABLY CONSIDERED.

THE ACT PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY 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 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 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.

WE DO NOT CONSIDER YOUR CLAIM TO HAVE ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. WHILE WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES OF YOUR TRAVEL, THERE HAVE BEEN NUMEROUS CASES IN WHICH MEMBERS HAVE BEEN PUT TO ADDITIONAL EXPENSE BECAUSE OF THE LACK OF THE MOST EXPEDITIOUS ADMINISTRATIVE ACTION IN FURNISHING NOTICE OF ADMINISTRATIVE CHANGES WITH RESPECT TO THE DUTY TO BE PERFORMED OR THE LEAVE AUTHORIZED TO BE USED BY A MEMBER.

SINCE WE ARE OF THE OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.