B-175250, JUN 1, 1972

B-175250, JUN 1, 1972

MILITARY PERSONNEL - PERMANENT CHANGE OF STATION - REIMBURSEMENT WHILE IN A "TRAVEL STATUS" CONCERNING THE CLAIM OF CAPTAIN DAVID G. JACOBS, USAF, FOR REIMBURSEMENT FOR QUARTERS AND ADDITIONAL PER DIEM INCIDENT TO A PERMANENT CHANGE OF STATION. PURSUANT TO PARAGRAPH M3050-1, JTR, A MEMBER IS ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES ONLY WHILE ACTUALLY IN A "TRAVEL STATUS." IT IS THE COMP. GEN.'S VIEW THAT CAPTAIN JACOBS COMMENCED A TRAVEL STATUS UPON DEPARTURE FROM OMINATO AIR BASE AND IS THEREFORE ENTITLED TO PER DIEM FROM MARCH 5 AND 6, 1969. BECAUSE OF THE DELAY IN HIS FLIGHT TO THE UNITED STATES, HE IS ALSO ENTITLED TO TRAVEL ALLOWANCE FOR MARCH 12. HOWEVER, HIS EARLY DEPARTURE FOR YOKATA AIR BASE WAS NOT REQUIRED AND APPEARS TO HAVE BEEN MADE FOR PERSONAL REASONS. ACCORDINGLY, THE PERIOD MARCH 7 TO 9, 1969, IS PROPERLY CHARGEABLE TO HIS LEAVE ACCOUNT.

TO CAPTAIN DAVID G. JACOBS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26, 1972, WHICH REQUESTS REVIEW OF CLAIMS DIVISION SETTLEMENT OF DECEMBER 28, 1971, DISALLOWING YOUR CLAIM FOR ADDITIONAL PER DIEM AND FOR REIMBURSEMENT FOR QUARTERS CHARGES INCIDENT TO YOUR PERMANENT CHANGE OF STATION TO BERGSTROM AIR FORCE BASE, TEXAS, IN MARCH 1969.

SPECIAL ORDER NO. A-88, JANUARY 22, 1969, HEADQUARTERS 475TH COMBAT SUPPORT GROUP (PACAF), APO SAN FRANCISCO, CALIFORNIA 96519, AUTHORIZED YOUR PERMANENT CHANGE OF STATION FROM OPERATING LOCATION AA, 475 TACTICAL FIGHTER WING (PACAF), APO SAN FRANCISCO, CALIFORNIA 96519 TO 727 TACTICAL CONTROL SQUADRON (TAC), BERGSTROM AIR FORCE BASE, TEXAS 78743, EFFECTIVE MARCH 20, 1969. DELAY EN ROUTE CHARGEABLE AS ORDINARY LEAVE WAS AUTHORIZED. THE ORDER FURTHER PROVIDED THAT YOU WOULD PROCURE A MILITARY AIRLIFT COMMAND (MAC) TRANSPORTATION AUTHORIZATION FROM THE BASE TRAFFIC MANAGEMENT OFFICER AT THAT STATION (MISAWA AIR BASE, JAPAN), 5 WORKING DAYS PRIOR TO DEPARTURE FROM THERE. ALSO, IT PROVIDED THAT YOU WOULD PROCEED ON OR ABOUT 2 DAYS PRIOR TO PORT CALL DATE. BY FIRST INDORSEMENT TO THE ORDERS DATED FEBRUARY 7, 1969, YOU WERE SCHEDULED TO DEPART FOR THE UNITED STATES FROM YOKOTA AIR BASE, JAPAN, ON MARCH 12, 1969.

SPECIAL ORDER NO. A-559, MAY 17, 1969, HEADQUARTERS 475TH COMBAT SUPPORT GROUP (PACAF), AMENDED THE PRIOR ORDER TO PROVIDE FOR 2 DAYS' TEMPORARY DUTY FOR PERSONNEL PROCESSING AT 475 TACTICAL FIGHTER WING, MISAWA AIR BASE, JAPAN. SPECIAL ORDER NO. A-651, APRIL 22, 1970, SAME HEADQUARTERS, AMENDED THE ORIGINAL ORDER TO SPECIFY A TEMPORARY DUTY REPORTING DATE OF MARCH 5, 1969, AND CONTAINED A STATEMENT THAT THE VERBAL ORDERS OF THE COMMANDER WERE CONFIRMED, AND THAT EXIGENCIES OF THE SERVICE HAD PRECLUDED PUBLICATION OF COMPETENT WRITTEN ORDERS IN ADVANCE.

THE RECORD SHOWS THAT YOU DEPARTED FROM OMINATO AIR STATION, JAPAN, ON MARCH 5, 1969, AND ARRIVED LATER THE SAME DAY AT MISAWA AIR BASE. YOU LEFT THERE ON MARCH 7, 1969, AND TRAVELED VIA GOVERNMENT AIR TO YOKOTA AIR BASE AND ARRIVED LATER THAT DAY AT TACHIKAWA AIR BASE, JAPAN, WHERE YOU UTILIZED BACHELOR OFFICER QUARTERS (BOQ) AT A CHARGE OF $1.50 PER NIGHT UNTIL THE DELAYED DEPARTURE OF YOUR MAC FLIGHT TO THE UNITED STATES, ON MARCH 13, 1969.

IN VOUCHER DATED APRIL 14, 1969, YOU CLAIMED TRAVEL EXPENSES INCLUDING PER DIEM FOR MARCH 5-13, 1969, REIMBURSEMENT FOR RAIL TRANSPORTATION FROM OMINATO TO MISAWA ON MARCH 5, 1969, AND BOQ REIMBURSEMENT FOR MARCH 7-12, 1969. YOU WERE PAID $115.64, WHICH INCLUDED $8 PER DIEM FOR MARCH 13, 1969, AND $1.50 FOR RAIL FARE YOU HAD PAID FROM PERSONAL FUNDS. SUPPLEMENTAL VOUCHER DATED JUNE 1, 1970, YOU WERE TO BE PAID ADDITIONAL PER DIEM OF $14.15 FOR MARCH 5 AND 6, 1969, BUT YOU DID NOT ACCEPT THIS PAYMENT.

IN YOUR LETTER OF JANUARY 26, 1972, YOU INDICATE YOUR BELIEF THAT THE DIFFICULTIES ENCOUNTERED IN THIS MATTER RESULT FROM THE FACT THAT WHILE YOUR PARENT ORGANIZATION, THE 475TH FIGHTER GROUP, WAS STATIONED AT MISAWA AIR BASE, YOUR POST OF DUTY WAS OMINATO AIR STATION, 75 MILES AWAY, AND THAT THE ORDERS ORIGINALLY ISSUED TO YOU HAD SPECIFIC APPLICATION TO PERSONNEL PHYSICALLY PRESENT AT MISAWA BUT NOT TO YOUR CIRCUMSTANCES.

YOU POINT OUT THAT THESE ORDERS MADE NO PROVISION FOR TRAVEL FROM OMINATO TO MISAWA BUT PROVIDED THAT YOU WERE TO OBTAIN A TRAVEL AUTHORIZATION AT MISAWA 5 WORKING DAYS PRIOR TO DEPARTURE THEREFROM, A REQUIREMENT PROPERLY APPLICABLE TO A MEMBER STATIONED AT THAT BASE. ADDITIONALLY, ALTHOUGH THE DIRECTION TO PROCEED ON OR ABOUT 2 DAYS PRIOR TO PORT CALL DATE APPEARS TO YOU TO BE UNCLEAR IN ITS MEANING AND APPLICATION, YOU EXPRESS THE OPINION THAT SUCH DIRECTION PROVIDED SUFFICIENT AUTHORITY FOR DEPARTURE FROM MISAWA ON MARCH 7, 1969, TO MEET PORT CALL DATE OF MARCH 12, 1969.

IN SUMMARY, APPARENTLY YOU ARE OF THE OPINION THAT YOU ARE ENTITLED TO ADDITIONAL PER DIEM ALLOWANCES AS FOLLOWS: FOR MARCH 5 AND 6, 1969, FOR TRAVEL TO AND WHILE PROCESSING AT MISAWA AIR BASE; FOR MARCH 7 AND 8, 1969, AUTHORIZED TIME FOR TRAVEL TO THE PORT OF EMBARKATION; FOR MARCH 9- 11, 1969, EITHER AS PART OF THE AUTHORIZED TRAVEL TIME OF ON OR ABOUT TWO DAYS, OR WHILE AWAITING TRANSPORTATION, REGARDLESS OF WHETHER SUCH WAIT TOOK PLACE AT TACHIKAWA AIR BASE OR AT MISAWA AIR BASE; AND FOR MARCH 12, 1969, THE SCHEDULED DATE OF DEPARTURE OF YOUR MAC FLIGHT TO THE UNITED STATES. ALSO, YOU REQUEST REIMBURSEMENT FOR BOQ COSTS INCURRED FROM MARCH 7-12, 1969.

THE PERTINENT STATUTE, 37 U.S.C. 404(A)(1), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. IN ACCORD WITH THIS AUTHORITY, PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN SUCH STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO THE MODE OF TRAVEL, AND PERIODS OF NECESSARY TEMPORARY DUTY.

GENERALLY, THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT IS ONE FOR WHICH TRAVEL ALLOWANCES ARE AUTHORIZED IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, THE CHARACTER OF THE SERVICE AND THE CIRCUMSTANCES UNDER WHICH IT WAS PERFORMED. 24 COMP. GEN. 667, 670 (1945). IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO PER DIEM AND OTHER TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED BY THE MEMBER UNDER HIS ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS 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 HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713, 716 (1944); 24 ID. 439 (1944). SEE ALSO 44 COMP. GEN. 405 (1965).

ORDERS DATED JANUARY 22, 1969, INDICATED THAT YOU WERE TO BE RELIEVED FROM YOUR ASSIGNMENT AT OPERATING LOCATION AA, WHICH WAS AT OMINATO AIR STATION, 75 MILES FROM MISAWA AIR BASE. HOWEVER, THEY MADE NO PROVISION FOR TRAVEL TO MISAWA WHICH WAS THE LOCATION OF YOUR UNIT HEADQUARTERS WHERE YOU WERE TO OUT-PROCESS, SECURE TRANSPORTATION AUTHORIZATIONS, AND DEPART FOR THE AERIAL PORT OF EMBARKATION. IT APPEARS THAT THE ORDER- ISSUING AUTHORITY ORIGINALLY INTENDED TO PROVIDE FOR NECESSARY TRAVEL TO MISAWA, INCLUDING TEMPORARY DUTY FOR PROCESSING PURPOSES, AND THAT THE ORDERS OF MAY 16, 1969, AND APRIL 22, 1970, WERE ISSUED IN AN ATTEMPT TO CORRECT PRIOR ADMINISTRATIVE ERROR. THEREFORE, BASED ON THE ENTIRE RECORD BEFORE US INCLUDING OFFICIAL STATEMENTS AND YOUR EXPLANATION OF THE CIRCUMSTANCES, WE CONCLUDE THAT UPON DEPARTURE FROM OMINATO AIR BASE ON MARCH 5, 1969, YOU COMMENCED A TRAVEL STATUS, AND YOU ARE ENTITLED TO PER DIEM FOR MARCH 5 AND 6, 1969.

IT LONG HAS BEEN THE RULE THAT ORDERS DIRECTING TRAVEL OR TEMPORARY DUTY FOR AN APPROXIMATE PERIOD OF TIME DO NOT CONSTITUTE AUTHORITY FOR THE PAYMENT OF TRAVEL ALLOWANCES FOR A MATERIALLY LONGER PERIOD IN THE ABSENCE OF ADDITIONAL COMPETENT ORDERS EXTENDING THE PERIOD. WHILE "ON OR ABOUT 2 DAYS" HAS THE MEANING OF APPROXIMATELY 2 DAYS, SUCH PROVISION MAY NOT SERVE AS AUTHORITY FOR DEPARTURE APPROXIMATELY 5 DAYS PRIOR TO PORT CALL. THIS WOULD BE A MATERIALLY LONGER PERIOD OF TIME THAN COULD REASONABLY BE CONTEMPLATED BY YOUR ORDERS. SEE DECISION B 148499, MAY 17, 1962, COPY ENCLOSED.

ADDITIONALLY, IN 38 COMP. GEN. 513 (1959) WE STATED, QUOTING FROM THE SYLLABUS:

"ANY TRAVEL TIME ON PERMANENT CHANGE OF STATION OF MEMBERS OF THE UNIFORMED SERVICES WHICH MAY BE CONSIDERED INCIDENT TO THE PERSONAL CONVENIENCE OF THE TRAVELER, TO THE EXTENT THAT IT EXCEEDS THE TRAVEL TIME NECESSARY TO ACCOMPLISH THE TRAVEL REQUIRED, SHOULD NOT BE CONSIDERED AS AUTHORIZED TRAVEL TIME BUT SHOULD BE CHARGED AGAINST AUTHORIZED LEAVE OF ABSENCE."

IN ACCORDANCE WITH YOUR ORDERS YOU WERE TO LEAVE MISAWA ON MARCH 10, 1969, APPROXIMATELY 2 DAYS PRIOR TO THE PORT CALL SCHEDULED FOR MARCH 12, 1969. EVEN THE AMENDMENTS TO YOUR ORDERS DID NOT CHANGE THAT REQUIREMENT. HOWEVER, YOU CHOSE TO LEAVE THERE ON MARCH 7, 1969, WHICH RESULTED IN YOUR BEING IN THE TOKYO AREA FOR AN ADDITIONAL PERIOD OF TIME. SINCE YOUR EARLY DEPARTURE FOR YOKOTA AIR BASE WAS NOT CONSIDERED NECESSARY BY THE ORDER-WRITING AUTHORITY, WE MUST CONCLUDE IT RESULTED FROM PERSONAL REASONS, THAT DURING SUCH ADDITIONAL PERIOD YOU MAY NOT BE CONSIDERED AWAITING FURTHER TRANSPORTATION, AND YOU WERE NOT IN A TRAVEL STATUS AT THAT TIME. SEE DECISION B-156275, APRIL 28, 1965, COPY ENCLOSED. THEREFORE, RECONSTRUCTING YOUR TRAVEL TO CONFORM WITH YOUR ORDERS, TRAVEL ALLOWANCES WILL BE AUTHORIZED FOR MARCH 10 AND 11, 1969. THEY MAY NOT BE ALLOWED, HOWEVER, FOR THE PERIOD MARCH 7 TO 9, 1969, AND THOSE DAYS WERE PROPERLY CHARGED TO YOUR LEAVE ACCOUNT BY THE AIR FORCE.

ALSO, AS YOUR SCHEDULED FLIGHT TO THE UNITED STATES WAS DELAYED UNTIL THE NEXT DAY BECAUSE OF WEATHER CONDITIONS, YOU ARE CONSIDERED AS AWAITING TRANSPORTATION ON MARCH 12, 1969, AND YOU ARE ENTITLED TO TRAVEL ALLOWANCE FOR THAT DAY.

A SETTLEMENT FOR THE AMOUNT DUE AS PER DIEM FOR MARCH 5 AND 6, 1969, AND PER DIEM PLUS REIMBURSEMENT OF BOQ CHARGES FOR MARCH 10, 11 AND 12, 1969, WILL ISSUE IN DUE COURSE.