B-147924, FEB. 8, 1962

B-147924, FEB. 8, 1962

TO LIEUTENANT COLONEL WILLIAM T. PHILLIPS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1961, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL PERFORMED BY YOU AND YOUR DEPENDENT WIFE FROM NEW YORK, NEW YORK, TO LE HAVRE, FRANCE, AND LATER TO FRANKFURT, GERMANY, WHICH WAS DISALLOWED BY OFFICE SETTLEMENT DATED DECEMBER 6, 1961.

THE RECORD SHOWS THAT BY PARAGRAPH 43, SPECIAL ORDERS NO. 178, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED AUGUST 12, 1960, YOU WERE RELIEVED FROM DUTY AND ASSIGNMENT AT CHICAGO, ILLINOIS, AUGUST 31, 1960; PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST, SEPTEMBER 1, 1960, AND TRANSFERRED TO THE U.S. ARMY RESERVE (RETIRED RESERVE). YOUR TRAVEL ITINERARY SHOWS THAT YOU AND YOUR WIFE DEPARTED FORT SHERIDAN, ILLINOIS, ON SEPTEMBER 2 AND ARRIVED AT FORT HAMILTON, NEW YORK, SEPTEMBER 7, 1960. YOU BOOKED PASSAGE FOR YOUR WIFE AND YOURSELF ON THE SS LIBERTE, A FRENCH LINE VESSEL, WHICH LEFT FOR LE HAVRE, FRANCE, ON SEPTEMBER 10, 1960, AND ARRIVED SEPTEMBER 15. YOU AND YOUR WIFE STAYED IN PARIS, FRANCE, UNTIL JUNE 20, 1961, AT WHICH TIME YOU TRAVELED BY TRAIN TO FRANKFURT, GERMANY, ARRIVING ON JUNE 21, AND YOUR WIFE JOINED YOU IN FRANKFURT FROM PARIS ON JULY 30, 1961.

YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL AND FOR THAT OF YOUR WIFE FROM FORT SHERIDAN, ILLINOIS, TO FRANKFURT, GERMANY, THE PLACE SELECTED BY YOU AS YOUR HOME UPON RETIREMENT, WAS ADMINISTRATIVELY ALLOWED FOR THE TRAVEL PERFORMED TO NEW YORK, NEW YORK, ONLY. THE REMAINING PORTION OF THE TRAVEL WAS DISALLOWED BY OFFICE SETTLEMENT DATED DECEMBER 6, 1961, FOR THE REASONS THAT YOU AND YOUR WIFE TRAVELED TO LE HAVRE, FRANCE, ON A VESSEL OF FOREIGN REGISTRY (FRENCH LINE), CONTRARY TO THE PROVISIONS OF THE MERCHANT MARINE ACT OF JUNE 29, 1936, 49 STAT. 2015 (46 U.S.C. 1251A), AND, ALSO BECAUSE THE MILITARY AIR TRANSPORT SERVICE MAINTAINED REGULARLY SCHEDULED FLIGHTS TO FRANKFURT, GERMANY, AND HAD YOU REQUESTED TRANSPORTATION, GOVERNMENT TRANSPORTATION WOULD HAVE BEEN AVAILABLE FOR YOU AND YOUR DEPENDENT.

IN YOUR LETTER YOU STATE YOU DO NOT UNDERSTAND THE APPLICABILITY OF THE MERCHANT MARINE ACT OF JUNE 29, 1936, SINCE THE TRAVEL INVOLVED WAS FROM YOUR LAST DUTY STATION TO HOME OF SELECTION. YOU SAY THAT ON JUNE 26, 1959, YOU REQUESTED SPACE AVAILABLE TRAVEL TO EUROPE TO BE PERFORMED ON OR AFTER SEPTEMBER 5, 1960, AND THAT YOU FOLLOWED UP YOUR REQUEST FOR TRAVEL TO EUROPE OR TO THE MEDITERRANEAN AREA. WHEN YOU REPORTED AT THE BROOKLYN ARMY TERMINAL ON OR ABOUT SEPTEMBER 5, 1960, YOU STATE THAT DUE TO YOUR LOW PRIORITY YOU WERE NOT ABLE TO GET PASSAGE ON TWO MILITARY VESSELS THAT WERE THERE AND THAT YOU DID NOT WANT TO WAIT FOR THE NEXT VESSEL DUE IN TWO WEEKS. ALSO YOU INDICATE THAT, BECAUSE OF YOUR LOW PRIORITY, IT WOULD HAVE BEEN DIFFICULT TO TRAVEL BY MILITARY AIR TRANSPORT SERVICE. YOU THEREFORE BOOKED PASSAGE TO EUROPE ON THE FRENCH LINE AS YOU SAY ALL OTHER LINES WERE BOOKED UNTIL OCTOBER.

THE OFFICE OF THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTS THAT DURING THE PERIOD SEPTEMBER 1, 1960, TO JUNE 30, 1961, GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM THE UNITED STATES TO EUROPE, THAT MILITARY AIR TRANSPORT SERVICE MAINTAINED REGULARLY SCHEDULED FLIGHTS FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO FRANKFURT, GERMANY, AND THAT MILITARY SEA TRANSPORTATION SERVICE MAINTAINED REGULARLY SCHEDULED SAILINGS FROM NEW YORK TO BREMERHAVEN, GERMANY.

SECTION 901 (A) OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY REFOR.'

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS INCLUDING TRAVEL FROM THE MEMBER'S LAST DUTY STATION TO HOME. PARAGRAPH 3003 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT CHANGE OF STATION" TO INCLUDE THE CHANGE FROM LAST DUTY STATION TO HOME UPON RETIREMENT. THEREFORE, YOUR TRAVEL FROM YOUR LAST DUTY STATION TO HOME OF SELECTION CONSTITUTED OFFICIAL TRAVEL WITHIN THE CONTEMPLATION OF SECTION 303 (C) AND SECTION 901 (A) OF THE ABOVE ACTS.

PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT EXCEPT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS OR THE TRANSPORTATION OFFICER MAY DETERMINE OTHERWISE, VESSELS REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE CONTINENTAL UNITED STATES. PARAGRAPH 7000-8, PERTAINING TO TRAVEL OF DEPENDENTS, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER PERMANENT CHANGE OF STATION, EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE. PARAGRAPH 11, ARMY REGULATIONS 55-31, IN EFFECT DURING THE PERIOD OF TRAVEL, PROVIDES THAT WHEN TRAVEL AT GOVERNMENT EXPENSE IS AUTHORIZED ON COMMERCIAL SHIPS, IT IS MANDATORY SUCH TRAVEL BE PERFORMED ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES UNLESS THE NONAVAILABILITY OF SUCH SHIPS OR THE NECESSITY OF THE MISSION REQUIRES THE USE OF A SHIP REGISTERED UNDER FOREIGN FLAG. ANY DETERMINATION OF THE NEED FOR UTILIZING A FOREIGN SHIP MUST BE BASED ON SATISFACTORY PROOF OF THE NECESSITY THEREFOR.

IT IS TO BE NOTED THAT ALTHOUGH YOU SELECTED FRANKFURT, GERMANY, AS YOUR HOME UPON RETIREMENT, YOU TRAVELED TO AND REMAINED IN PARIS, FRANCE, FOR SEVERAL MONTHS PRIOR TO TRAVELING TO FRANKFURT. SINCE THE AVAILABILITY OF GOVERNMENT TRANSPORTATION IS DETERMINED AT THE TIME THAT THE NECESSARY TRAVEL IS REQUIRED DIRECTLY TO THE PLACE SELECTED AND SINCE THROUGHOUT THE PERIOD SEPTEMBER 1960, TO JULY 1961, GOVERNMENT AIR AND SURFACE VESSEL TRANSPORTATION WAS AVAILABLE TO YOU AND YOUR DEPENDENT TO FRANKFURT, GERMANY, THE RECORD DOES NOT ESTABLISH ANY NECESSITY FOR THE USE OF A SHIP UNDER FOREIGN REGISTRY WITHIN THE MEANING OF SECTION 901 (A) OF THE MERCHANT MARINE ACT OF 1936, QUOTED ABOVE.

IN OUR DECISIONS OF FEBRUARY 24, 1961, 40 COMP. GEN. 482, AND AUGUST 10, 1961, B-144373 (41 COMP. GEN. 100), WE CONSIDERED CASES WHERE MEMBERS WERE AUTHORIZED TO PERFORM TRAVEL BETWEEN THE UNITED STATES AND OVERSEAS STATIONS BUT WERE NOT EXPRESSLY DIRECTED TO USE AVAILABLE GOVERNMENT TRANSPORTATION AND THEY USED COMMERCIAL TRANSPORTATION. WE HELD THAT IF TRANSPORTATION BY MILITARY AIR TRANSPORT SERVICE OR MILITARY SEA TRANSPORTATION SERVICE WAS AVAILABLE, THE MEMBERS COULD BE REIMBURSED ON THE BASIS OF THE LEAST EXPENSIVE AVAILABLE TRANSPORTATION AS BETWEEN MATS AND MSTS. THESE DECISIONS DO NOT CONSTITUTE AUTHORITY FOR REIMBURSEMENT ON SUCH BASIS IN YOUR CASE, HOWEVER, SINCE THE LAW SPECIFICALLY BARS THE PAYMENT OF ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN VESSEL IN THE ABSENCE OF PROOF OF THE NECESSITY THEREFOR. HENCE, WE HAVE NO RECOURSE OTHER THAN TO HOLD THAT YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR THE COST INVOLVED IN YOUR TRAVEL AND FOR THAT OF YOUR WIFE FROM NEW YORK TO LE HAVRE, FRANCE, IN SEPTEMBER 1960. AND, SINCE IT HAS BEEN ASCERTAINED THAT IT WOULD HAVE COST THE GOVERNMENT LESS FOR DIRECT AIR TRAVEL BY MATS AND MCGUIRE AIR FORCE BASE, NEW JERSEY, TO FRANKFURT, GERMANY, THAN FOR SURFACE TRANSPORTATION FROM NEW YORK, NEW YORK, TO BREMERHAVEN, GERMANY, PLUS RAIL TRAVEL FROM BREMERHAVEN TO FRANKFURT, GERMANY, THE RECORD PRESENTS NO BASIS FOR REIMBURSEMENT FOR THE LAND TRAVEL INVOLVED. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 6, 1961, WAS CORRECT AND IS SUSTAINED.