B-155065, JAN. 24, 1966

B-155065, JAN. 24, 1966

TO MAJOR JOHN E. MALOY, 0 960 845:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1965, RETURNING A COPY OF OUR DECISION OF DECEMBER 23, 1964, B-155065, TO YOU AND REQUESTING RECONSIDERATION OF YOUR CLAIM FOR MILEAGE INCIDENT TO TRAVEL PERFORMED BY YOU AND YOUR DEPENDENTS BY PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN TO BERLIN, GERMANY, ON JULY 26, 1963, INCIDENT TO A PERMANENT CHANGE OF STATION FROM FORT SAM HOUSTON, TEXAS.

IN OUR DECISION OF DECEMBER 23, 1964, WE SUSTAINED THE SETTLEMENT DATED JULY 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR THE DISTANCE BETWEEN BREMERHAVEN AND BERLIN. THE DISALLOWANCE WAS SUSTAINED FOR THE REASON THAT SINCE YOUR ORDERS DID NOT INDICATE THAT THE USE OF YOUR PRIVATELY OWNED AUTOMOBILE FOR THE TRAVEL BETWEEN THOSE CITIES HAD BEEN ADMINISTRATIVELY DETERMINED AS MORE ADVANTAGEOUS TO THE GOVERNMENT THERE WAS FOR APPLICATION IN YOUR CASE THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS THERE CITED WHICH PROHIBITED REIMBURSEMENT OF THE COST OF TRANSPORTATION AND THE PAYMENT OF MILEAGE WHERE TRANSPORTATION UNDER THE TERMS OF A CONTRACT OR AGREEMENT WITH THE UNITED STATES, OR ON A COMPLIMENTARY BASIS, WAS AVAILABLE TO A MEMBER AND HIS DEPENDENTS BY A FOREIGN GOVERNMENT AT NO COST TO THE UNITED STATES OR THE MEMBER.

IT APPEARS FROM YOUR LETTER OF DECEMBER 27, 1965, THAT YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR MILEAGE INCIDENT TO THE TRAVEL PERFORMED BY YOU AND YOUR DEPENDENTS HAS BEEN MADE BECAUSE A RECENT DECISION OF THIS OFFICE, B-157195, DATED SEPTEMBER 22, 1965, 45 COMP. GEN. - , COPY ENCLOSED. IN OUR DECISION OF APRIL 10, 1964, 43 COMP. GEN. 675, WHICH WAS CITED IN OUR DECISION OF DECEMBER 23, 1964, TO YOU, WE EXPRESSED THE VIEW, BASED ON THE REPRESENTATION MADE BY THE ASSISTANT SECRETARY OF THE AIR FORCE CONCERNING THE AVAILABILITY OF FREE GERMAN GOVERNMENT RAIL TRANSPORTATION BETWEEN BREMERHAVEN AND FRANKFURT, WEST GERMANY, AND BERLIN AND IN LINE WITH OUR PRIOR DECISIONS THERE CITED, THAT UNDER THE LAW AND REGULATIONS THERE WAS NO AUTHORITY FOR THE PAYMENT OF A MONETARY ALLOWANCE TO A MEMBER FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE WHERE IT IS SHOWN THAT NEITHER THE GOVERNMENT NOR THE MEMBER WOULD HAVE BEEN REQUIRED TO PAY ANY CHARGE FOR TRAVEL WHICH THE MEMBER OR HIS DEPENDENTS MIGHT HAVE PERFORMED ON THE GERMAN TRAINS OPERATING BETWEEN THE ABOVE-MENTIONED CITIES. WE HELD THEREFORE, THAT THE RECORD PRESENTED DID NOT JUSTIFY PROPOSED CHANGES TO PARAGRAPHS M4203-5 AND M7000-13 OF THE JOINT TRAVEL REGULATIONS WHEREBY THE PROHIBITIONS AS SET FORTH THEREIN WOULD APPLY ONLY WHEN THE MEMBER UTILIZES TRANSPORTATION MADE AVAILABLE BY A FOREIGN GOVERNMENT WITHOUT CHARGE RATHER THAN BY REASON OF THE AVAILABILITY OF SUCH LIMITED TRANSPORTATION.

THE MATTER OF THE PROPOSED CHANGES TO THE REGULATIONS WAS AGAIN CONSIDERED BY US PURSUANT TO A REQUEST BY THE SECRETARY OF THE ARMY CONTAINED IN A LETTER DATED JUNE 24, 1965. THAT OFFICIAL MADE THE REPRESENTATION TO THE EFFECT THAT THE TRAINS OPERATING TO AND FROM BERLIN DO NOT CONSTITUTE AVAILABLE TRANSPORTATION FURNISHED TO THE UNITED STATES BY A FOREIGN GOVERNMENT WITHOUT CHARGE AS ALL THE COSTS OF THOSE TRAINS ARE CHARGED TO DOLLAR FUNDS MADE ANNUALLY AVAILABLE TO THE ARMY BY OBLIGATIONAL AUTHORITY. IN SUPPORT OF THOSE REPRESENTATIONS DATA AND INFORMATION AS TO THE SOURCE OF FUNDS FOR THE OPERATION AND MAINTENANCE OF SUCH TRAINS WERE FURNISHED. ACCORDINGLY, WE STATED IN OUR DECISION OF SEPTEMBER 22, 1965, B-157195, THAT IN VIEW OF THOSE REPRESENTATIONS "WE WILL NOT HEREAFTER REGARD TRANSPORTATION" ON THE "BERLIN TRAINS" AS TRANSPORTATION AVAILABLE TO A MEMBER OR HIS DEPENDENTS "BY A FOREIGN GOVERNMENT, AT NO COST TO THE UNITED STATES OR THE MEMBER" WITHIN THE MEANING OF PARAGRAPHS M4150-1, M4203-5, AND M7000-13 OF THE JOINT TRAVEL REGULATIONS. WE FURTHER STATED THAT, FOR REASONS GIVEN, IT WAS OUR VIEW THAT THESE TRAINS SHOULD BE REGARDED AS GOVERNMENT CONVEYANCES WITHIN THE CONTEMPLATION OF PARAGRAPH M1150-6 OF THE JOINT TRAVEL REGULATIONS WHICH DEFINES THE TERM "GOVERNMENT CONVEYANCE" AND, CONSEQUENTLY, THE PROVISIONS OF THE REGULATIONS WITH RESPECT TO THE AVAILABILITY AND UTILIZATION OF GOVERNMENT CONVEYANCES WOULD THEREAFTER BE FOR CONSIDERATION IN CIRCUMSTANCES WHERE THE TRAVEL INVOLVED COULD BE PERFORMED ON THOSE TRAINS.

THE DECISION OF SEPTEMBER 22, 1965, IS NOT FOR APPLICATION IN YOUR CASE SINCE YOUR TRAVEL TO BERLIN BY PRIVATELY OWNED AUTOMOBILE WAS PERFORMED ON JULY 26, 1963, WHEREAS THAT DECISION, AS STATED THEREIN, IS FOR PROSPECTIVE APPLICATION. CONSEQUENTLY IT AFFORDS NO BASIS FOR CHANGING OUR VIEWS WITH RESPECT TO YOUR CLAIM AND OUR DECISION OF DECEMBER 23, 1964, IS AFFIRMED.