B-159299, JUN. 13, 1966

B-159299, JUN. 13, 1966

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF MAY 27, 1966, FROM THE UNDER SECRETARY OF THE ARMY (PDTATAC CASE NO. 66-20) REQUESTING OUR VIEWS CONCERNING THE VALIDITY OF CERTAIN TRAVEL RIGHTS WHICH IT IS PROPOSED TO ACCORD CERTAIN EXPERIENCED AND SKILLED MILITARY PERSONNEL CURRENTLY STATIONED IN EUROPE, BECAUSE THE SITUATION IN VIETNAM REQUIRES THEIR IMMEDIATE RETURN BY THE ARMY TO THE UNITED STATES TO STAFF NEW UNITS FOR EARLY DEPLOYMENT TO SOUTHEAST ASIA.

IT IS STATED THAT THE MOVEMENT OF THESE MEMBERS, OVER AND ABOVE THE HEAVY SUMMER ROTATION FLOW FROM EUROPE, HAS SATURATED TRANSPORTATION FACILITIES RESULTING, IN THE CASE OF OCEAN SHIPPING, IN THE EXISTENCE CURRENTLY AT BREMERHAVEN, GERMANY, OF A BACKLOG OF MORE THAN 2,000 AUTOMOBILES, THE OWNERS OF WHICH, WITH THEIR FAMILIES, ARE ARRIVING IN THE UNITED STATES BY AIR BETWEEN THE DATE OF THE UNDER SECRETARY'S LETTER AND JUNE 5, 1966. THE UNDER SECRETARY SAYS THAT IN SOME CASES DEPENDENTS OF THE SERVICEMEN ASSIGNED TO THE DEPLOYING UNITS WILL SETTLE AT LOCATIONS IN THE UNITED STATES AT POINTS BEYOND OR IN OPPOSITE DIRECTIONS FROM THE SPONSOR'S NEW DUTY STATION AND THAT, LACKING AN AUTOMOBILE UPON ARRIVAL IN THE CONTINENTAL UNITED STATES BECAUSE OF THE GOVERNMENT'S INABILITY, DUE TO THE UNUSUAL DEMANDS ON OCEAN SHIPPING FACILITIES, TO SHIP SERVICEMEN'S CARS PROMPTLY, THE MEMBER HAS A CHOICE OF (A) ACCOMPANYING DEPENDENTS TO SELECTED POINT OF RESIDENCE AT PERSONAL EXPENSE; OR (B) LACKING FUNDS, ALLOWING DEPENDENTS TO PROCEED AND ESTABLISH RESIDENCE WITHOUT HIS HELP; AND, WITH REFERENCE TO THE AUTOMOBILE, RETURNING TO THE PORT FOR THE CAR LATER AT PERSONAL EXPENSE, HAVING DEPENDENTS RETURN TO CLAIM THE CAR, OR ABANDONING IT.

THE UNDER SECRETARY SAYS THAT WHAT HE HAS IN MIND IN THE CIRCUMSTANCES INDICATED IS DIRECTING THE MEMBERS INVOLVED TO TRAVEL ON TEMPORARY DUTY TO THEIR CONTINENTAL UNITED STATES UNITS VIA THE LOCATION WHERE THEIR DEPENDENTS WILL RESIDE WHILE THEY ARE ON DUTY IN VIETNAM, WHERE THE MEMBERS WILL BE AUTHORIZED TO REMAIN FOR A SHORT PERIOD FOR THE PURPOSE OF SETTLING THEIR DEPENDENTS AND AVAILING THEMSELVES OF WHATEVER LEAVE THEY MAY BE PERMITTED TO TAKE PRIOR TO REPORTING TO THEIR UNITS. SUBSEQUENTLY, HE SAYS, IF TIME PERMITS AND THEIR AUTOMOBILES ARRIVE AT A CONTINENTAL UNITED STATES PORT, HE INTENDS ISSUING FURTHER TEMPORARY DUTY ORDERS DIRECTING THE MEMBERS TO TRAVEL TO THE PORT, TAKE POSSESSION OF THEIR VEHICLE, AND DRIVE IT TO THE DESIGNATED PLACE FOR THE USE OF DEPENDENTS AND RETURN TO THEIR DUTY STATION OR, IF THEY SO DESIRE, TO DRIVE THE VEHICLE FROM THE PORT TO THEIR CURRENT CONTINENTAL UNITED STATES DUTY STATION.

THE UNDER SECRETARY RECOGNIZES THAT IN NORMAL CIRCUMSTANCES THE TRAVEL AND TEMPORARY DUTY WHICH HE PROPOSES TO DIRECT, TO THE EXTENT THAT IT EXCEEDS THAT NECESSARY TO ACCOMPLISH THE DUTY REQUIREMENTS OF THE PROJECTED CHANGES OF STATION, WOULD BE CONSIDERED PERSONAL CONVENIENCE TRAVEL, LACKING THE ELEMENTS OF GOVERNMENT INTEREST. HE EXPRESSES THE BELIEF, HOWEVER, THAT THE UNUSUAL AND EMERGENCY SITUATION WHICH REQUIRES THE RAPID REASSIGNMENT OF MEMBERS AND RELOCATION OF DEPENDENTS INCIDENT TO MEETING OUR VIETNAM COMMITMENTS, AND THE GOVERNMENT'S INABILITY TO PROVIDE FOR THE EXPEDITIOUS RETURN OF AUTOMOBILES TO THE UNITED STATES, IMPOSE A HEAVY MORAL OBLIGATION ON THE GOVERNMENT TO PROVIDE FOR THE RESULTING ADDITIONAL TRAVEL AND TEMPORARY DUTY OUTLINED AT GOVERNMENT EXPENSE. SUCH CIRCUMSTANCES HE SUGGESTS THE VIEW THAT A DIRECTION BY THE SECRETARY OF THE TRAVEL ENVISIONED AS BEING NECESSARY IN THE MILITARY SERVICE SHOULD MEET THE REQUIREMENT NORMALLY ASSOCIATED WITH THE EXISTENCE OF A "TRAVEL STATUS" FOR TRAVEL ALLOWANCE PURPOSES WITHIN THE CONTEMPLATION OF THE PROVISIONS OF 37 U.S.C. 411 (C), WHICH VESTS IN THE SECRETARIES CONCERNED THE AUTHORITY TO DETERMINE WHAT CONSTITUTES A TRAVEL STATUS UNDER THE PERTINENT PROVISIONS OF 37 U.S.C. 404.

PUBLIC BUSINESS IS THE FOUNDATION UPON WHICH ENTITLEMENT TO BENEFITS UNDER 37 U.S.C. 404, AS UNDER PRIOR STATUTORY AUTHORITY FOR TRAVEL AND TRANSPORTATION OF MILITARY PERSONNEL, RESTS. 36 COMP. GEN. 257; 42 COMP. GEN. 27 AND COURT CASES CITED IN THESE DECISIONS. PARAGRAPH M3050 OF THE JOINT TRAVEL REGULATIONS CONTAINING THE DETERMINATION BY THE SECRETARIES OF THE CONSTITUENTS OF A TRAVEL STATUS UNDER THE PROVISIONS OF 37 U.S.C. 411 (C) CLEARLY RECOGNIZES THIS LEGAL REQUIREMENT. THE PHRASE "PUBLIC BUSINESS," AS SO USED, RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND IT HAS BEEN HELD THAT THE TRAVEL CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873.

IN THE EVENT OF A DIRECTED CHANGE OF STATION, THE ELEMENT OF PUBLIC BUSINESS WITH RESPECT TO THE AUTHORIZED TRAVEL INCLUDES ONLY THAT TRAVEL NECESSARY TO CARRY OUT THE REQUIREMENTS OF THE STATION CHANGE. WE ARE NOT AWARE OF ANY AUTHORITY THAT REASONABLY COULD BE CONSIDERED TO SUPPORT A CONCLUSION THAT TRAVEL ALLOWANCES COULD ACCRUE INCIDENT TO ANY TRAVEL EXCEEDING THAT REQUIRED TO ACCOMPLISH THE DIRECTED CHANGE OF STATION.

WHILE STATUTORY AUTHORITY IS PROVIDED GENERALLY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS TO THE NEW DUTY STATION OR ELSEWHERE AT GOVERNMENT EXPENSE IN CONNECTION WITH A DIRECTED PERMANENT CHANGE OF STATION, THAT AUTHORITY DOES NOT RELATE TO THE MEMBER'S TRAVEL AND HAS NOT BEEN RECOGNIZED AS PROVIDING ANY BASIS FOR THE VIEW THAT PUBLIC BUSINESS IS INVOLVED IN A MEMBER'S TRAVEL EXCEEDING THAT REQUIRED TO ACCOMPLISH THE REQUIREMENTS OF HIS TRAVEL ORDERS, PERFORMED TO FACILITATE THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS. SUCH ADDITIONAL TRAVEL UNIFORMLY HAS BEEN CONSIDERED AS TRAVEL FOR PERSONAL REASONS NOT INVOLVING PUBLIC BUSINESS EVEN THOUGH DIRECTLY CONCERNED WITH MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD GOODS AT GOVERNMENT EXPENSE AS AN INCIDENT TO THE MEMBER'S CHANGE OF STATION. B-156275, APRIL 28, 1965; B-130254, MARCH 4, 1957. COMPARE 39 COMP. GEN. 495.

SECTION 209 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, AS AMENDED, 5 U.S.C. 73C, PROVIDES THAT NO LAW OR REGULATION AUTHORIZING OR PERMITTING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EFFECTS OF OFFICERS, EMPLOYEES, OR OTHER PERSONS, SHALL BE CONSTRUED OR APPLIED AS INCLUDING OR AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE, EXCEPT THAT IN ANY FISCAL YEAR NOT MORE THAN $5,000 MAY BE EXPENDED FOR SUCH PURPOSE BY THE DEPARTMENT OF THE ARMY AND A LIKE AMOUNT BY THE NAVY DEPARTMENT. THAT LIMITATION HAS BEEN MODIFIED (10 U.S.C. 2634) TO AUTHORIZE SHIPMENT OF AUTOMOBILES ON PERMANENT CHANGE OF STATION BUT, WITH EXCEPTIONS NOT HERE MATERIAL, SUCH AUTHORITY IS LIMITED TO MOVEMENT BY WATER TRANSPORTATION ONLY. ALSO, WHEN THE MOVEMENT OF A MEMBER'S DEPENDENTS, HOUSEHOLD EFFECTS AND A MOTOR VEHICLE IS AUTHORIZED UNDER 37 U.S.C. 406 (H) FROM AN OVERSEAS LOCATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES, WITHOUT CHANGE OF STATION FOR THE MEMBER, TRANSPORTATION OF THE MOTOR VEHICLE IS LIMITED TO THAT AFFORDED UNDER 10 U.S.C. 2634. CONSEQUENTLY, IN VIEW OF SUCH STATUTORY DENIAL OF AUTHORITY FOR THE TRANSPORTATION AT GOVERNMENT EXPENSE OF MEMBERS' AUTOMOBILES BEYOND POINT OF DEBARKATION UPON ENTRY INTO THE UNITED STATES ON PERMANENT CHANGE OF STATION, IT IS APPARENT FOR REASONS MORE COMPELLING THAN IN THE CASES OF ADDITIONAL TRAVEL PERFORMED IN CONNECTION WITH THE FACILITATION OF MOVEMENT OF HOUSEHOLD GOODS AND DEPENDENTS BEING MOVED AT GOVERNMENT EXPENSE INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF STATION, THAT THE ELEMENT OF PUBLIC BUSINESS IS LACKING IN THE MOVEMENT OF THE MEMBER'S AUTOMOBILE IN THE UNITED STATES. THEREFORE, REIMBURSEMENT FOR TRAVEL HAS BEEN DENIED ON THAT BASIS FOR TRAVEL PERFORMED PRIMARILY FOR THE PURPOSE OF ACCOMPLISHING THE MOVEMENT OF AN AUTOMOBILE WITHIN THE UNITED STATES BY DIRECTION OF COMPETENT ORDERS. SEE DECISION OF SEPTEMBER 6, 1960, 40 COMP. GEN. 156. WE ARE OF THE VIEW THAT FOR THE REASONS SET FORTH IN THAT DECISION TRAVEL DIRECTED FOR THE PURPOSES STATED BY THE UNDER SECRETARY IN HIS LETTER OF MAY 27, 1966, COULD NOT BE CONSIDERED, EVEN UNDER THE UNUSUAL AND EMERGENCY CONDITIONS OUTLINED, TO INVOLVE PUBLIC BUSINESS SO AS TO AUTHORIZE ITS PERFORMANCE AT PUBLIC EXPENSE.