B-162989, JANUARY 26, 1968, 47 COMP. GEN. 405

B-162989, JANUARY 26, 1968, 47 COMP. GEN. 405

TRAVEL EXPENSES - MILITARY PERSONNEL - LEAVES OF ABSENCE - INCIDENT TO ENLISTMENT EXTENSION THE PAYMENT OF MILEAGE OR A MONETARY ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES IN LIEU OF TRANSPORTATION FOR TRAVEL PERFORMED AT PERSONAL EXPENSE PURSUANT TO THE SPECIAL LEAVE PROVIDED BY 10 U.S.C. 703 (B), WHICH AUTHORIZES TRANSPORTATION TO AND FROM A DUTY STATION "AT THE EXPENSE OF THE UNITED STATES" INCIDENT TO THE EXTENSION OF AN ENLISTMENT FOR AT LEAST 6 MONTHS, MAY NOT BE AUTHORIZED BY REVISING PARAGRAPH M5501 OF THE JOINT TRAVEL REGULATIONS, AS AMENDED, ABSENT SPECIFIC AUTHORITY IN SECTION 703 (B) FOR THE PAYMENT OF COMMUTED TRAVEL AND TRANSPORTATION ALLOWANCES AND, THEREFORE, TRAVEL PERFORMED BY MEMBERS AT PERSONAL EXPENSE WHILE ON LEAVE PURSUANT TO 10 U.S.C. 703 (B) MAY BE REIMBURSED ONLY ON AN ACTUAL EXPENSE BASIS.

TO THE SECRETARY OF THE ARMY, JANUARY 26, 1968:

REFERENCE IS MADE TO LETTER OF OCTOBER 23, 1967, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION WHETHER PARAGRAPH M5501, VOLUME 1, CHAPTER 5, PART J, OF THE JOINT TRAVEL REGULATIONS MAY BE REVISED TO AUTHORIZE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION TO MEMBERS FOR TRAVEL PERFORMED BY PRIVATELY OWNED VEHICLE, OR OTHERWISE AT PERSONAL EXPENSE, INCIDENT TO THE SPECIAL LEAVE AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 703 (B), FOR THE EXTENSION OF ENLISTMENT FOR AT LEAST 6 MONTHS IN CERTAIN SPECIFIED AREAS. THIS REQUEST HAS BEEN ASSIGNED CONTROL NO. 67-36, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES THAT THE PRESENT REGULATIONS PRECLUDE THE PAYMENT OF MILEAGE OR THE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR ANY TRAVEL PERFORMED AT PERSONAL EXPENSE. THE REASON GIVEN FOR THIS RESTRICTION IS IT APPEARED THAT THE STATUTE DID NOT PROVIDE AUTHORITY FOR PRESCRIBING PAYMENT OF THOSE ALLOWANCES. HOWEVER, HE EXPRESSES DOUBT AS TO WHETHER SUCH RESTRICTION IS A LEGAL NECESSITY.

IN HIS LETTER, THE UNDER SECRETARY QUOTES AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY RELATIVE TO THE QUESTION PRESENTED, IN WHICH THERE WAS REFERRED TO THE FACT THAT THE COMPTROLLER GENERAL HAS FREQUENTLY STATED THAT AUTHORIZATION FOR THE REIMBURSEMENT OF TRAVEL EXPENSES DOES NOT AUTHORIZE THE PAYMENT OF MILEAGE, OR PER DIEM, OR OTHER FORMS OF COMMUTED ALLOWANCES, AND THAT THE COMMUTATION OF SUCH EXPENSES IS ALLOWABLE ONLY WHEN AUTHORIZED BY STATUTE, CITING 23 COMP. GEN. 875, AND DECISIONS CITED THEREIN. IT WAS STATED IN THE OPINION, HOWEVER, THAT NONE OF THE STATUTORY LANGUAGE CONSIDERED IN THE COMPTROLLER GENERALS DECISIONS IS AS BROAD AS THAT CONTAINED IN 10 U.S.C. 703 (B) (2), WHICH AUTHORIZES TRANSPORTATION "AT THE EXPENSE OF THE UNITED STATES" WITHOUT LIMITATION OR QUALIFICATION. IT WAS THEREFORE CONSIDERED THAT A LEGAL BASIS EXISTS FOR APPROVING THE PROPOSED REVISION AS AUTHORIZED BY THAT LANGUAGE.

SECTION 703 (B) WAS ADDED TO TITLE 10, U.S.C. BY PUBLIC LAW 89-735, APPROVED NOVEMBER 2, 1966. THE SUBSECTION PROVIDES IN PERTINENT PART AS FOLLOWS:

(B)UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, AND NOTWITHSTANDING SUBSECTION (A), A MEMBER WHO IS ON ACTIVE DUTY IN AN AREA DESCRIBED IN SECTION 310 (A) (2) OF TITLE 37 AND WHO, BY REENLISTMENT, EXTENSION OF ENLISTMENT, OR OTHER VOLUNTARY ACTION, EXTENDS HIS REQUIRED TOUR OF DUTY IN THAT AREA FOR AT LEAST SIX MONTHS, MAY BE---

(1) AUTHORIZED NOT MORE THAN THIRTY DAYS OF LEAVE, EXCLUSIVE OF TRAVEL TIME, AT AN AUTHORIZED PLACE SELECTED BY THE MEMBER; AND

(2) TRANSPORTED AT THE EXPENSE OF THE UNITED STATES TO AND FROM THAT PLACE.

PARAGRAPH M5501, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE STATUTORY AUTHORITY QUOTED ABOVE, PROVIDES AS FOLLOWS:

M5501 TRANSPORTATION AUTHORIZED

A MEMBER WHO IS ENTITLED TO TRANSPORTATION UNDER THIS PART WILL BE FURNISHED GOVERNMENT TRANSPORTATION OR GOVERNMENT-PROCURED TRANSPORTATION TO THE MAXIMUM EXTENT PRACTICABLE. WHEN GOVERNMENT OR GOVERNMENT-PROCURED TRANSPORTATION IS NOT UTILIZED AND THE MEMBER PROCURES TRANSPORTATION AT PERSONAL EXPENSE, HE WILL BE REIMBURSED:

1. FOR TRANSOCEANIC TRAVEL, IN ACCORDANCE WITH PAR. M4159-4;

2. FOR LAND TRAVEL BY SURFACE MEANS, AT THE COST ACTUALLY PAID BY THE MEMBER;

3. FOR OVERLAND AIR TRAVEL, ON THE SAME BASIS, AS FOR TRANSOCEANIC AIR TRAVEL UNDER ITEM 1.

PAYMENT OF MILEAGE, MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION, OR PER DIEM ALLOWANCES IS NOT AUTHORIZED.

IT HAS BEEN WELL ESTABLISHED THAT COMMUTED PAYMENTS, SUCH AS MILEAGE, MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, OR PER DIEM LAWFULLY MAY BE MADE FOR AUTHORIZED TRAVEL ONLY IF BASED UPON A SPECIFIC STATUTORY AUTHORIZATION. 15 COMP. GEN. 206; 23 ID. 875-877; 40 ID. 221; ID. 226- 230; AND 45 ID. 814. IN SECTION 404 OF TITLE 37, UNITED STATES CODE, THE STATUTE AUTHORIZES "TRAVEL AND TRANSPORTATION ALLOWANCES" TO MEMBERS OF THE UNIFORMED SERVICES PERFORMING TRAVEL UNDER ORDERS. SUBPARAGRAPH D THEREOF, SPECIFICALLY SETS FORTH THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED, FOR EACH KIND OF TRAVEL. BASED ON THIS AUTHORIZATION, THE JOINT TRAVEL REGULATIONS PROMULGATED THEREUNDER, PROPERLY AUTHORIZE THE PAYMENT OF MILEAGE AND PER DIEM TO MEMBERS PERFORMING OFFICIAL TRAVEL UNDER COMPETENT ORDERS. SEE ALSO IN THIS CONNECTION THE PROVISIONS OF 5 U.S.C. 5723 (B). A STATUTORY ASSUMPTION, HOWEVER, BY THE GOVERNMENT OF AN OBLIGATION TO PAY NECESSARY TRAVEL EXPENSES WITHOUT SUCH AN EXPRESS AUTHORIZATION FOR THE PAYMENT OF COMMUTED ALLOWANCES HAS CONSISTENTLY BEEN CONSTRUED AS AUTHORITY FOR REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS ONLY. 45 COMP. GEN. 814.

THE LANGUAGE CONTAINED IN SECTION 703 (B) OF TITLE 10, UNITED STATES CODE, WHICH PROVIDES THAT MEMBERS ENTITLED TO LEAVE THEREUNDER MAYBE "TRANSPORTED AT THE EXPENSE OF THE UNITED STATES TO AND FROM THAT PLACE," CLEARLY DOES NOT CONTAIN SPECIFIC AUTHORIZATION FOR THE PAYMENT OF COMMUTED TRAVEL AND TRANSPORTATION ALLOWANCES. FURTHERMORE, EVEN IF AS STATED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL, THE LANGUAGE AUTHORIZES SUCH TRANSPORTATION "WITHOUT LIMITATION OR QUALIFICATION," THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-735, 10 U.S.C. 703 (B), INDICATES THAT THE SOLE PURPOSE OF THAT PROVISION WAS TO PROVIDE FOR ONLY NECESSARY TRANSPORTATION AT NO EXPENSE TO THE MEMBER, OR, AS STATED IN THE HEARINGS THAT THE MEMBERS WOULD GET "FREE TRANSPORTATION.' THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY THAT THEY ARE TO BE PAID A COMMUTED ALLOWANCE FOR TRAVEL PERFORMED AT PERSONAL EXPENSE, WHICH MAY OR MAY NOT COVER THE COST OF THE TRAVEL PERFORMED. COMPARE 43 COMP. GEN. 378.

IT MUST THEREFORE BE CONSIDERED THAT PARAGRAPH M5501, JOINT TRAVEL REGULATIONS, MAY NOT BE REVISED UNDER THE AUTHORITY OF THE PROVISIONS OF SECTION 703 (B) OF TITLE 10, U.S.C. TO PROVIDE FOR THE PAYMENT OF MILEAGE OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR ANY TRAVEL PERFORMED BY MEMBERS AT PERSONAL EXPENSE WHILE ON LEAVE.