B-157552, NOV. 24, 1965

B-157552, NOV. 24, 1965

TO LIEUTENANT COLONEL PLATON H. KARMERES, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1965, PERTAINING TO YOUR CLAIM FOR 2 DAYS' ADDITIONAL PAY AND ALLOWANCES FOR TRAVEL TIME INCIDENT TO TRAVEL PERFORMED BY YOU FROM WESTCHESTER, ILLINOIS, TO KANSAS CITY, MISSOURI, MARCH 21, 1964, AND RETURN ON APRIL 4, 1964, IN CONNECTION WITH A TOUR OF ACTIVE DUTY FOR TRAINING AS A RESERVE OFFICER.

BY LETTER ORDER NO. T-2-145, HEADQUARTERS, XI UNITED STATES ARMY CORPS, ST. LOUIS, MISSOURI, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A 13 -DAY PERIOD PLUS THE TIME NECESSARY TO PERFORM TRAVEL. THAT ORDER, WHICH WAS ADDRESSED TO YOU AT HEADQUARTERS AND HEADQUARTERS COMPANY, 85TH DIVISION (TRAINING), CHICAGO, ILLINOIS, DIRECTED YOU TO PROCEED TO THE SEMINAR ADMINISTRATIVE OFFICE, ROOM 403, MUNICIPAL AUDITORIUM, KANSAS CITY, MISSOURI, IN SUFFICIENT TIME TO REPORT BETWEEN 8 A.M. AND 3 P.M., MARCH 22, 1964, AND PROVIDED THAT UPON SATISFACTORY COMPLETION OF THE PERIOD OF ACTIVE DUTY FOR TRAINING, UNLESS SOONER RELIEVED OR EXTENDED BY PROPER AUTHORITY, YOU WERE TO RETURN TO THE PLACE WHERE YOU ENTERED ON SUCH ACTIVE DUTY. ALSO, THAT ORDER AUTHORIZED YOU TO TRAVEL BY PUBLIC CARRIER (LAND, SEA OR AIR). IT APPEARS THAT YOU DEPARTED FROM YOUR HOME IN WESTCHESTER, ILLINOIS, A SUBURB OF CHICAGO, ILLINOIS, ON MARCH 21, 1964, BY PRIVATELY OWNED AUTOMOBILE AND ARRIVED IN KANSAS CITY ON THE SAME DATE. THE SEMINAR SESSIONS COMMENCED MARCH 23, 1964, AND AFTER COMPLETION THEREOF AND SIGN-OUT AT APPROXIMATELY 1:30 P.M., ON APRIL 3, 1964, YOU DEPARTED FROM KANSAS CITY THE SAME DAY BY PRIVATELY OWNED AUTOMOBILE, ARRIVING IN WESTCHESTER THE FOLLOWING DAY.

ON APRIL 4, 1964, YOU WERE PAID A MILEAGE ALLOWANCE AS REIMBURSEMENT OF YOUR EXPENSES INCIDENT TO THE TRAVEL PERFORMED TO AND FROM KANSAS CITY AND 13 DAYS' PAY AND ALLOWANCES COVERING THE PERIOD MARCH 22 TO APRIL 3, 1964. SUBSEQUENTLY YOU CLAIMED ADDITIONAL PAY AND ALLOWANCES TO COVER THE DAYS ON WHICH YOU PERFORMED TRAVEL TO AND FROM KANSAS CITY, THAT IS, MARCH 21 AND APRIL 4, 1964, RESPECTIVELY. THE CLAIM WAS DENIED BY THE OFFICE OF THE INSPECTOR GENERAL, HEADQUARTERS, FIFTH UNITED STATES ARMY, ON JULY 29, 1964, AND AFTER IT WAS REFERRED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, BY AN ASSISTANT ADJUTANT GENERAL, HEADQUARTERS, 85TH DIVISION (TRAINING), THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION. BY SETTLEMENT DATED AUGUST 10, 1965, THE CLAIMS DIVISION DISALLOWED THE CLAIM FOR THE REASON THAT YOU COULD HAVE USED AVAILABLE COMMERCIAL AIR TRANSPORTATION ON MARCH 22 AND APRIL 3, 1964, FOR YOUR TRAVEL PURPOSES AND, THEREFORE, IT WAS NOT NECESSARY FOR YOU TO PERFORM TRAVEL ON MARCH 21 AND APRIL 4, 1964, IN ORDER TO COMPLY WITH LETTER ORDER NO. T 2-145. ALSO, MENTION WAS MADE IN THAT SETTLEMENT OF DEPARTMENT OF THE ARMY MESSAGE 955588, DATED FEBRUARY 13, 1964, WHICH ESTABLISHED THE POLICY FOR DETERMINING ALLOWABLE TRAVEL TIME FOR MEMBERS ORDERED TO ACTIVE DUTY WITH PAY.

IN YOUR LETTER OF AUGUST 13, 1965, YOU QUESTION THE PROPRIETY OF THE CLAIMS DIVISION SETTLEMENT FOR THE REASONS (1) THAT HEADQUARTERS, XI UNITED STATES ARMY CORPS DID NOT DISTRIBUTE THE TRAVEL INFORMATION CONTAINED IN DEPARTMENT OF THE ARMY MESSAGE 955588 UNTIL AFTER YOUR TOUR OF DUTY STARTED, (2) THAT LETTER ORDER NO. T-2-145 SPECIFICALLY PROVIDED FOR 13 DAYS (ACTIVE DUTY FOR TRAINING) PLUS TIME FOR TRAVEL, AND (3) THAT AIR TRAVEL WAS AUTHORIZED, BUT WAS NOT DIRECTED. IN ADDITION, YOU SAY THAT PRIOR TO THE RECEIPT OF THE INFORMATION FROM XI UNITED STATES ARMY CORPS THE POLICY WAS FOR THE ALLOWANCE OF TRAVEL TIME ON THE BASIS OF ONE DAY PRIOR TO THE REPORTING DATE AND ONE DAY FOR RETURN TRAVEL.

REGULATIONS GOVERNING THE PAY OF RESERVE MEMBERS ON ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING AND IN EFFECT AT THE TIME OF YOUR ACTIVE DUTY FOR TRAINING WERE CONTAINED IN DEPARTMENT OF THE ARMY MESSAGE 955588, DATED FEBRUARY 13, 1964, WHICH, IN PERTINENT PART, READ AS FOLLOWS:

"B. A MEMBER ORDERED TO ACDUTRA FOR 30 DAYS OR LESS IS AUTHORIZED TRAVEL TIME BASED ON THE LATEST COMMERCIAL AIR SCHEDULES WHICH WILL PERMIT REPORTING ON THE DATE INDICATED IN ORDERS REGARDLESS OF MEANS OF TRAVEL ACTUALLY USED. ADDITIONAL TRAVEL TIME REQUIRED TO TRAVEL TO OR FROM AIR TERMINAL/S), NOT TO EXCEED 2 HOURS FOR EACH TRIP, SHOULD BE INCLUDED IN THE TRAVEL TIME. TRAVEL TIME WILL BE LIMITED TO ONE DAY WITH THE FOLLOWING EXCEPTIONS:

"/1) IF AIR TRANSPORTATION IS NOT REASONABLY AVAILABLE, TRAVEL TIME WILL BE BASED ON TIME REQUIRED TO TRAVEL BY FASTEST SURFACE TRANSPORTATION NOT TO EXCEED TIME ACTUALLY USED.

"/2) IF AIR SCHEDULES OR TRANSPORTATION DELAYS BEYOND THE CONTROL OF THE MEMBER PRECLUDE COMPLETION OF TRAVEL WITHIN ONE DAY, ACTUAL AIR TRAVEL TIME AND TRAVEL TIME REQUIRED TO AND FROM AIR TERMINALS WILL BE ALLOWED. AIR TRANSPORTATION IS CONSIDERED REASONABLY AVAILABLE WHEN COMMERCIAL AIR TERMINALS ARE LOCATED WITHIN 50 MILES OF THE TRAINING STATION AND 50 MILES OF THE PLACE FROM WHICH ORDERED TO ACDUTRA.'

UNDER THOSE REGULATIONS A MEMBER OF THE RESERVE TRAVELING TO HIS FIRST DUTY STATION UNDER AN ORDER SPECIFYING ACTIVE DUTY FOR TRAINING OF 30 DAYS OR LESS IS ENTITLED TO TRAVEL TIME FOR NECESSARY AND OFFICIAL TRAVEL FROM THE DATE HE NECESSARILY WOULD BE REQUIRED TO BEGIN TRAVEL FROM HIS HOME, BASED ON APPLICABLE COMMERCIAL AIR SCHEDULES WHICH WILL PERMIT REPORTING ON THE DATE SHOWN IN THE ORDER WHEN SUCH MEANS OF TRANSPORTATION IS REASONABLY AVAILABLE, IRRESPECTIVE OF THE MODE OF TRANSPORTATION ACTUALLY UTILIZED BY HIM. SINCE YOUR ACTIVE DUTY FOR TRAINING ORDERS REQUIRED YOU TO REPORT TO THE SEMINAR ADMINISTRATIVE OFFICE IN KANSAS CITY, BETWEEN 8 A.M. AND 3 P.M., MARCH 22, 1964, AND IN VIEW OF A REPORT FROM OUR TRANSPORTATION DIVISION WHICH SHOWS THAT YOU COULD HAVE DEPARTED FROM CHICAGO BY COMMERCIAL AIR AT 9:45 A.M., MARCH 22, 1964, AND ARRIVED IN KANSAS CITY AT 11:09 A.M., THAT DAY, IN SUFFICIENT TIME TO REPORT TO THE SEMINAR ADMINISTRATIVE OFFICE, THE DATE OF YOUR ENTRY ON ACTIVE DUTY UNDER THE PURVIEW OF THE ABOVE REGULATIONS MUST BE CONSIDERED AS MARCH 22, 1964. THEREFORE, THERE APPEARS TO BE NO LEGAL AUTHORITY FOR PAYMENT TO YOU OF TRAVEL TIME FOR MARCH 21, 1964, THE DATE OF THE COMMENCEMENT OF YOUR ACTUAL TRAVEL TO KANSAS CITY BY PRIVATELY OWNED AUTOMOBILE.

IN CONNECTION WITH YOUR RETURN TRAVEL, THE MENTIONED REGULATIONS CONTEMPLATE PAYMENT TO YOU OF PAY AND ALLOWANCES FOR THE PERIOD OF NECESSARY AND OFFICIAL TRAVEL FROM THE TIME FOLLOWING YOUR SIGN-OUT AT 1:30 P.M., APRIL 3, 1964, UNTIL YOUR ARRIVAL AT YOUR HOME, BASED ON COMMERCIAL AIR SCHEDULES APPLICABLE TO THAT PERIOD. OUR TRANSPORTATION DIVISION REPORT SHOWS THAT YOU COULD HAVE DEPARTED FROM KANSAS CITY BY COMMERCIAL AIR AS LATE AS 9 P.M., APRIL 3, 1964, AND ARRIVED IN CHICAGO 10:05 P.M., IN SUFFICIENT TIME TO ARRIVE AT YOUR HOME PRIOR TO MIDNIGHT THAT DATE. ACCORDINGLY, PAYMENT TO YOU TO COVER TRAVEL TIME FOR APRIL 4, 1964, THE DATE YOU ARRIVED AT YOUR HOME, WOULD BE CONTRARY TO THE GOVERNING REGULATIONS.

WHILE LETTER ORDER NO. T-2-145 ORDERED YOU TO ACTIVE DUTY FOR TRAINING FOR PERIOD OF 13 DAYS PLUS THE TIME NECESSARY TO PERFORM TRAVEL, SUCH ORDER HAVING BEEN ISSUED AFTER THE RELEASE DATE OF DEPARTMENT OF THE ARMY MESSAGE 955588 MUST BE READ IN CONJUNCTION THEREWITH. PURSUANT TO THAT MESSAGE PAYMENT TO YOU FOR THE TIME NECESSARY TO PERFORM TRAVEL IS REQUIRED TO BE BASED UPON CONSTRUCTIVE TRAVEL TIME AS SHOWN BY COMMERCIAL AIR SCHEDULES AND, AS INDICATED ABOVE, UNDER THESE SCHEDULES NECESSARY TRAVEL COULD HAVE BEEN PERFORMED BY AIR ON MARCH 22, 1964, THE DAY YOU WERE REQUIRED TO REPORT FOR ACTIVE DUTY FOR TRAINING AND ON APRIL 3, 1964, THE DAY YOU WERE RELEASED FROM SUCH DUTY, BOTH OF THESE BEING INCLUDED IN THE 13 DAY PERIOD FOR WHICH YOU WERE PAID PAY AND ALLOWANCES. THE FACT THAT AIR TRAVEL WAS NOT SPECIFICALLY DIRECTED IN THE ORDER IS NOT CONTROLLING, DEPARTMENT OF THE ARMY MESSAGE 955588 BEING FOR APPLICATION IN YOUR CASE IRRESPECTIVE OF WHETHER OR NOT AIR TRAVEL WAS DIRECTED IN YOUR ORDER AND REGARDLESS OF THE MODE OF TRANSPORTATION ACTUALLY UTILIZED BY YOU. ALSO, THE FAILURE OF HEADQUARTERS, XI UNITED STATES ARMY CORPS TO DISTRIBUTE THAT MESSAGE TO HEADQUARTERS, 85TH DIVISION (TRAINING), PRIOR TO THE COMMENCEMENT OF YOUR TOUR OF ACTIVE DUTY FOR TRAINING MAY NOT BE CONSIDERED AS CREATING AN OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY YOU PAY AND ALLOWANCES FOR TRAVEL TIME CONTRARY TO THE PROVISIONS OF THAT MESSAGE. IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; AND 22 COMP. GEN. 221.

IN VIEW OF THE FOREGOING, WE MUST HOLD THAT THE SETTLEMENT OF AUGUST 10, 1965, WAS CORRECT AND, ..END :