B-180599, NOV 14, 1974

B-180599, NOV 14, 1974

1. WHEN A CIVILIAN EMPLOYEE OF THE ARMED SERVICES IS AUTHORIZED A STATED AMOUNT OF $2,988 FOR TRANSPORTATION EXPENSES, WHICH AN AGENCY HAS DETERMINED TO BE AN APPROPRIATE AMOUNT INCIDENT TO A PERMANENT CHANGE OF STATION WHILE ON TRAINING ASSIGNMENT, AND HE EXCEEDS HIS AUTHORIZED AMOUNT BY $976.44, THERE IS NO AUTHORITY TO REIMBURSE HIM THE ADDITIONAL TRAVEL AND TRANSPORTATION EXPENSES. 2. ALTHOUGH MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE ATTEND A MILITARY SCHOOL AT THE SAME LOCATION, REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES VARY SINCE THEY TRAVEL UNDER THE PROVISIONS OF DIFFERENT VOLUMES OF THE JTR AND, THOUGH THE REGULATIONS ARE VERY SIMILAR IN PURPOSE, THEY DO HAVE DIFFERENCES.

RAYMOND F. MOSS - REQUEST FOR ADDITIONAL TRANSPORTATION EXPENSE:

MR. RAYMOND F. MOSS, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, HAS APPEALED THE SETTLEMENT ISSUED SEPTEMBER 28, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF THIS OFFICE WHICH DISALLOWED HIS CLAIM FOR ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS.

THE RECORD SHOWS THAT PURSUANT TO TRAVEL ORDER NO. A-1508, ISSUED JULY 9, 1970, MR. MOSS WITH HEADQUARTERS AT HILL AIR FORCE BASE, UTAH, REPORTED TO MAXWELL AIR FORCE BASE, ALABAMA, ON AUGUST 7, 1970, TO ATTEND THE AIR WAR COLLEGE. THIS TRAVEL ORDER CONTAINED THE FOLLOWING PROVISIONS:

"THE ROUND-TRIP COST OF TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD GOODS MAY NOT EXCEED $2,988. THE EXPENSE LIMITATION EXCLUDES THE COST OF TRANSPORTATION AND PER DIEM ALLOWANCE WHILE EN ROUTE FOR THE EMPLOYEE. ANY EXPENSES IN EXCESS OF THIS LIMITATION WILL BE BORNE BY THE EMPLOYEE."

AT THE CONCLUSION OF MR. MOSS' TRAINING, HE AND FAMILY RETURNED TO HIS ORIGINAL DUTY STATION AT HILL AIR FORCE BASE, UTAH. TRAVEL ORDER NO. A- 890, ISSUED JUNE 18, 1971, AUTHORIZED THIS RETURN WITH A DUTY REPORTING DATE OF AUGUST 9, 1971. THIS ORDER CONTAINED THE SAME LIMITATION ON TRAVEL AND TRANSPORTATION AS STATED IN THE ORDER ISSUED JULY 9, 1970. THE TOTAL ROUND-TRIP COSTS OF DEPENDENTS TRAVEL AND OF THE SHIPMENT OF HOUSEHOLD GOODS BETWEEN ALABAMA AND UTAH AMOUNTED TO $3,964.44, WHICH WAS $976.44 MORE THAN THE LIMITATION OF $2,988 CONTAINED WITHIN THE TRAVEL ORDER. MR. MOSS CONTENDS THAT HE IS ENTITLED TO REIMBURSEMENT FOR THE EXCESS AMOUNT OF $976.44 FOR SHIPMENT OF HOUSEHOLD GOODS.

PARAGRAPH 4102 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, PROVIDES IN PERTINENT PART:

"1. *** A PERMANENT CHANGE OF STATION MAY BE AUTHORIZED FOR EMPLOYEES WHO ARE ASSIGNED FOR TRAINING IN GOVERNMENT OR NON-GOVERNMENT FACILITIES ***. THIS AUTHORITY MAY BE USED ONLY WHEN THE ESTIMATED COSTS OF ROUND TRIP TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD GOODS ARE LESS THAN THE ESTIMATED AGGREGATE PER DIEM AMOUNT PAYABLE DURING THE PERIOD OF ASSIGNMENT AT THE TRAINING LOCATION. ROUND TRIP REFERS TO MOVEMENT FROM THE EMPLOYEE'S PERMANENT DUTY STATION TO THE TRAINING LOCATION AND RETURN TO THE INITIAL PERMANENT DUTY STATION UPON COMPLETION OF TRAINING ASSIGNMENT. ***"

THE DEPARTMENT OF THE AIR FORCE HAD THE DISCRETION TO DETERMINE WHETHER MR. MOSS WAS TO BE AUTHORIZED EXPENSES APPLICABLE TO A PERMANENT CHANGE OF STATION OR WHETHER HE WAS TO BE PAID PER DIEM IN LIEU OF SUBSISTENCE UNDER SUBCHAPTER I, CHAPTER 57, TITLE 5, U.S.C. AND THE APPLICABLE REGULATIONS. ONCE THAT DETERMINATION IS MADE, THE EMPLOYEE SHOULD RECEIVE APPROPRIATE ALLOWANCE UNDER THE CHOSEN ALTERNATIVE. THE COST TO THE GOVERNMENT SHOULD OF COURSE BE ONE OF THE FACTORS TAKEN INTO ACCOUNT IN MAKING SUCH DETERMINATION. SEE B-178759, AUGUST 6, 1973.

IT IS FURTHER PROVIDED IN PARAGRAPH C2050 OF VOLUME 2 OF THE JTR THAT:

"1. PURPOSE.A TRAVEL ORDER ESTABLISHES THE CONDITIONS, IN WRITING, UNDER WHICH OFFICIAL TRAVEL AND TRANSPORTATION IS AUTHORIZED AT GOVERNMENT EXPENSE. TRAVEL ORDERS WILL BE ISSUED BEFORE THE PERFORMANCE OF TRAVEL UNLESS AN URGENT OR UNUSUAL SITUATION PREVENTS PRIOR ISSUANCE."

ONCE THE EMPLOYEE RECEIVES AUTHORIZATION FOR A PERMANENT CHANGE OF STATION, RELATIVE TO TRAINING ASSIGNMENT, THE AGENCY MUST PREPARE TRAVEL ORDERS ESTABLISHING THE CONDITION UPON WHICH OFFICIAL TRAVEL AND TRANSPORTATION IS AUTHORIZED AT GOVERNMENT EXPENSE.

MR. MOSS STATES THAT AT THE TIME HE VOLUNTEERED TO ATTEND THE SCHOOL, CORRESPONDENCE INDICATED THAT HE WOULD BE AUTHORIZED TO ATTEND IN A PERMANENT CHANGE OF STATION STATUS OR IN A TEMPORARY DUTY STATUS AND NO INDICATION WAS MADE OF ANY DOLLAR LIMITATION ON THE MOVE. THERE IS ON FILE A LETTER DATED FEBRUARY 27, 1970, FROM MR. MILTON J. FELDMAN, CHIEF, TRAINING PROGRAMS BRANCH, CAREER PROGRAMS DIVISION, DIRECTORATE OF CIVILIAN PERSONNEL, SHOWING THAT MR. MOSS HAD BEEN SELECTED TO ATTEND THE 1970-71 RESIDENT COURSE AT THE AIR WAR COLLEGE. THE LETTER STATED THAT THE ROUND-TRIP COST OF TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD GOODS MAY NOT EXCEED $2,960 FOR EACH CANDIDATE ATTENDING IN A PERMANENT CHANGE OF STATION STATUS. THE FIGURE $2,960 WAS SUBJECT TO CHANGE IN VIEW OF A STUDY BEING MADE AT THE TIME BY AIR UNIVERSITY OF THE AVERAGE SUBSISTENCE EXPENSE THAT A CIVILIAN STUDENT MAY EXPECT TO INCUR WHILE IN ATTENDANCE AT THE ACADEMIC YEAR COURSES IN A TEMPORARY DUTY STATUS. EMPLOYEES WERE TO BE INFORMED AND CLEARLY UNDERSTAND THAT THE COST LIMITATION OF $2,960 APPLIES TO THE TOTAL EXPENSE FOR THE ROUND-TRIP MOVEMENTS. ANY EXPENSES IN EXCESS OF THE LIMITATION WAS TO BE BORNE BY THE EMPLOYEE CONCERNED. IT WAS ALSO STATED THAT FOR THOSE STUDENTS WHO ARE APPROVED TO ATTEND THE AUBURN UNIVERSITY PROGRAM AFTER THE COMPLETION OF THE AIR WAR COLLEGE, THE ROUND-TRIP COSTS OF TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD GOODS MAY NOT EXCEED AN ADDITIONAL $330 OVER THE PREVIOUS LIMITATION OF $2,960. AFTER THE ISSUANCE OF THE LETTER OF FEBRUARY 27, 1970, REFERRED TO ABOVE, THE SURVEY OF THE AVERAGE SUBSISTENCE EXPENSE THAT A CIVILIAN STUDENT MAY EXPECT TO INCUR WHILE IN ATTENDANCE AT THE AIR UNIVERSITY PROBABLY RESULTED IN THE ADJUSTMENT OF THE LIMITATION TO $2,988 WHICH THE AGENCY CONSIDERED AN APPROPRIATE ALLOWANCE FOR THE TOTAL EXPENSE FOR THE ROUND-TRIP MOVEMENT.

MR. MOSS ALSO REFERS TO EMPLOYEES FROM MAXWELL AFB, ALABAMA, WHO ATTENDED AFIT PROGRAMS AT WRIGHT-PATTERSON AFB, OHIO, WHICH IS RUN BY THE AIR UNIVERSITY AND WHO WERE AUTHORIZED A COST LIMITATION OF $3,700 FOR PCS MOVES. THE ONLY EVIDENCE ON FILE OF EMPLOYEES WHO WERE RESTRICTED TO THIS COST LIMITATION WERE EMPLOYEES OF HILL AFB, OGDEN, UTAH, WHO ATTENDED THE AFIT SCHOOL OF SYSTEMS AND LOGISTICS, WRIGHT PATTERSON AFB, OHIO.

MR. MOSS SAYS THAT THE PURPOSE OF HIS CLAIM IS TO QUESTION DISCRIMINATORY ACTION BEING EXERCISED IN APPLYING THIS REGULATION AGAINST A FEW CIVILIAN MEMBERS ATTENDING THE AIR WAR COLLEGE WHILE OTHER MEMBERS' (RESERVE OFFICERS, AIR NATIONAL GUARD OFFICERS) TRAVEL WAS COVERED ON THE BASIS OF WEIGHT ALLOWANCE WITH NO DOLLAR CEILINGS. IN RESPONSE TO THIS CONTENTION, IT SHOULD BE NOTED THAT THE JTR IS COMPRISED OF SEPARATE AND AND DISTINCT VOLUMES OF REGULATIONS. VOLUME 1 OF THE JTR IS ISSUED IN ACCORDANCE WITH AUTHORITY VESTED IN THE SECRETARIES OF THE UNIFORMED SERVICES UNDER TITLE 37, UNITED STATES CODE, AND GOVERNS ALL TRAVEL AND TRANSPORTATION ALLOWANCES OF MEMBERS OF THE UNIFORMED SERVICES. IT IS STATED THAT ALL MILITARY MEMBERS WHO ATTENDED THE AIR UNIVERSITY AT MAXWELL AFB, ALABAMA, WERE AUTHORIZED SHIPMENT OF 13,500 POUNDS OF HOUSEHOLD GOODS WHILE MR. MOSS WAS LIMITED TO SHIPMENT OF 11,000 POUNDS. THE WEIGHT LIMITATION OF THE TRANSPORTATION OF HOUSEHOLD GOODS OF MEMBERS OF THE UNIFORMED SERVICES, INCIDENT TO A PERMANENT CHANGE OF STATION, OF MEMBERS OF THE UNIFORMED SERVICES VARIES FROM 400 POUNDS TO 24,000 POUNDS DEPENDING ON THE RANK OF THE MILITARY PERSONNEL. SEE VOLUME 1 OF THE JTR, PARAGRAPH M8003.

VOLUME 2 OF THE JTR GOVERNS ALL TRAVEL AND TRANSPORTATION ALLOWANCE OF CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE. THIS REGULATION IMPLEMENTS CHAPTER 57, TITLE 5, UNITED STATES CODE. THE WEIGHT LIMITATION OF THE TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE OF CIVILIAN EMPLOYEES INCIDENT TO A PERMANENT CHANGE OF STATION IS LIMITED TO 11,000 POUNDS. SEE VOLUME 2 OF THE JTR, PARAGRAPH C7050. ALTHOUGH THESE REGULATIONS ARE VERY SIMILAR IN PURPOSE AND APPLICATION, THEY DO HAVE DIFFERENCES. HOWEVER, THESE REGULATIONS HAVE THE FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED BY OUR OFFICE.

IN VIEW OF THE FOREGOING, WE MUST SUSTAIN THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING THE CLAIM OF MR. MOSS.