B-169106, DEC. 9, 1970

B-169106, DEC. 9, 1970

EXCESS TRANSPORTATION DEBT AFFIRMING PRIOR DECISION DENYING RELIEF TO CLAIMANT FOR INDEBTEDNESS TO THE UNITED STATES, REPRESENTING EXCESS TRANSPORTATION FOR TRAVEL FROM OAKLAND ARMY BASE, CALIF., TO HONOLULU, HAWAII, ABOARD A COMMERCIAL VESSEL. WHERE CLAIMANT'S ORDERS AUTHORIZED TRANSPORTATION "AS MAY BE AUTHORIZED BY TRANSPORTATION OFFICER" AND "IF MILITARY AIRCRAFT IS NOT AVAILABLE COMMERCIAL AIR TRANSPORTATION IS AUTHORIZED" HE IS LIMITED TO GOVERNMENT AIR OR COMMERCIAL AIR TRANSPORTATION AND WHERE CLAIMANT WAS TRAVELING UNDER INDIVIDUAL TEMPORARY DUTY ORDERS, NOT AUTHORIZED CONCURRENT TRAVEL WITH DEPENDENTS TO PERMANENT DUTY STATION. HE IS NOT ENTITLED UNDER THE LAW AND REGULATIONS TO TRAVEL BY COMMERCIAL VESSEL AT GOVERNMENT EXPENSE BUT ONLY BY THE LEAST EXPENSIVE MEANS MEETING THE NEEDS OF THE SERVICE AND BECAUSE MILITARY AIR WAS AVAILABLE CLAIMANT IS PROPERLY CHARGED THE DIFFERENCE IN COST OF TRANSPORTATION BY COMMERCIAL VESSEL AND TRANSPORTATION BY MILITARY AIR.

TO LIEUTENANT COLONEL STEVEN S. CROWELL:

YOUR LETTER OF OCTOBER 26, 1970, WITH ENCLOSURES, REQUESTS FURTHER CONSIDERATION OF DECISION OF APRIL 28, 1970, B-169106, 49 COMP. GEN. , IN WHICH WE ADVISED LIEUTENANT COLONEL R. D. BRIERCHECK, FC, FINANCE AND ACCOUNTING OFFICER, THAT YOU WERE INDEBTED TO THE UNITED STATES IN THE SUM OF $270 REPRESENTING EXCESS TRANSPORTATION FURNISHED TO YOU FOR YOUR TRAVEL FROM OAKLAND ARMY BASE, CALIFORNIA, TO HONOLULU, HAWAII, JUNE 10 TO 16, 1969. THAT AMOUNT WAS COLLECTED FROM YOU IN JUNE 1970, BY CHECK AGE AGAINST YOUR PAY.

YOU WERE TRANSFERRED FROM VIETNAM TO HEADQUARTERS UNITED STATES ARMY, PACIFIC, HAWAII, AS A PERMANENT CHANGE OF STATION BY ORDERS DATED JANUARY 30, 1969, AS AMENDED BY ORDERS DATED FEBRUARY 23, 1969. BY ORDERS DATED MAY 20, 1969, AS AMENDED, YOU WERE DIRECTED TO PROCEED FROM HAWAII TO WASHINGTON, D.C., FOR TEMPORARY DUTY OF APPROXIMATELY THREE DAYS UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION. WHILE ITEM 11 OF THE ORDERS AUTHORIZED TRANSPORTATION "AS MAY BE DETERMINED BY TRANSPORTATION OFFICER," ITEM 13 STATED THAT "IF MIL ACFT IS NOT AVAILABLE, COM AIR TRANSP AUTH." THE ORDERS ALSO AUTHORIZED A DELAY OF 27 DAYS CHARGEABLE TO LEAVE IN RETURNING. YOU TRAVELED TO WASHINGTON, D.C., BY AIR ON MAY 23, 1969, AND UPON COMPLETION OF THE TEMPORARY DUTY YOU TRAVELED TO ANNISTON, ALABAMA, IN A LEAVE STATUS TO JOIN YOUR DEPENDENTS.

PRIOR TO YOUR TEMPORARY DUTY ORDERS OF MAY 20, 1969, YOUR DEPENDENTS HAD BEEN AUTHORIZED TO TRAVEL TO YOUR NEW STATION IN HAWAII. THE AUTHORIZATION STATED THAT THEY HAD EXPRESSED A PREFERENCE FOR TRAVEL BY COMMERCIAL VESSEL. YOU TRAVELED WITH YOUR DEPENDENTS TO OAKLAND ARMY BASE, CALIFORNIA, AND WERE FURNISHED TRANSPORTATION WITH THEM ABOARD A COMMERCIAL VESSEL TO HONOLULU.

IN THE DECISION OF APRIL 28, 1970, WE HELD THAT SINCE YOU WERE NOT PERFORMING AUTHORIZED CONCURRENT TRAVEL WITH YOUR DEPENDENTS TO YOUR PERMANENT STATION BUT WERE TRAVELING UNDER INDIVIDUAL TEMPORARY DUTY ORDERS, YOU WERE NOT ENTITLED UNDER THE LAW AND REGULATIONS TO TRAVEL BY COMMERCIAL VESSEL AT GOVERNMENT EXPENSE. COLONEL BRIERCHECK WAS INFORMED THAT ANY ADVICE BY GOVERNMENT PERSONNEL THAT YOU WERE ENTITLED TO TRAVEL BY THAT MEANS WAS ERRONEOUS AND THAT YOU WERE ENTITLED ONLY TO TRAVEL BY THE LEAST EXPENSIVE MEANS MEETING THE NEEDS OF THE SERVICE, CITING 40 COMP. GEN. 482 (1961) AND 41 COMP. GEN. 100 (1961).

SINCE GOVERNMENT AIR WAS AVAILABLE FOR YOUR TRAVEL IT WAS CONCLUDED THAT YOU WERE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $270 REPRESENTING THE COST OF TRANSPORTATION ERRONEOUSLY FURNISHED YOU BY COMMERCIAL VESSEL ($315) LESS THE COST OF TRANSPORTATION BY MILITARY AIR ($45). ALSO, WE ADVISED THE ACCOUNTING AND FINANCE OFFICER FOR THE REASONS STATED THAT YOU WERE NOT ENTITLED TO ADDITIONAL PER DIEM FOR THE OCEAN TRAVEL AS CLAIMED NOR TO AN ADJUSTMENT IN THE LEAVE CHARGED TO YOU FOR THE ADDITIONAL TRAVEL TIME INVOLVED.

IN YOUR PRESENT LETTER YOU URGE THAT THE DECISION IS UNFAIR. IT IS YOUR POSITION THAT YOUR ORDERS AUTHORIZED TRANSPORTATION AS DETERMINED BY THE TRANSPORTATION OFFICER AND YOU MADE NO REQUEST FOR TRANSPORTATION OTHER THAN THAT WHICH YOU EXPECTED TO RECEIVE, THAT IS, BY AIR, ALTHOUGH YOU WERE HAPPY TO ACCEPT THE TRANSPORTATION OFFERED. YOU SAY YOUR CASE IS DIFFERENT FROM THE TWO PRIOR DECISIONS CITED BY US IN THAT IN THOSE CASES THE INDIVIDUALS DETERMINED THEMSELVES THE TYPE OF TRANSPORTATION UTILIZED WHEREAS IN YOUR CASE THE TRANSPORTATION OFFICER MADE THE DETERMINATION.

YOU SAY THAT 37 U.S.C. 404 PROVIDES FOR TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, AND THAT TWO LEGAL OFFICES OF THE ARMY AGREED YOU WERE ENTITLED TO THE TRANSPORTATION FURNISHED. ADDITION, YOU INVITE ATTENTION TO SECTION 531 OF DEPARTMENT OF DEFENSE APPROPRIATION ACT 1969, 82 STAT. 1135, WHICH PROVIDES THAT A CERTAIN AMOUNT OF THE FUNDS APPROPRIATED FOR TRAVEL EXPENSES IN CONNECTION WITH TEMPORARY DUTY AND PERMANENT CHANGE OF STATION OF CIVILIAN AND MILITARY PERSONNEL SHALL BE AVAILABLE ONLY FOR THE PROCUREMENT OF COMMERCIAL PASSENGER SEA TRANSPORTATION SERVICE ON AMERICAN-FLAG VESSELS. THUS, YOU CONTEND THAT TEMPORARY DUTY OCEAN TRAVEL MAY BE BY SURFACE TRANSPORTATION NOTWITHSTANDING THE AVAILABILITY OF AIR TRANSPORTATION.

THE PROVISION IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT 1969 TO WHICH YOU REFER HAS BEEN CONTAINED IN THE APPROPRIATION ACTS FOR MANY YEARS; IT IS A LIMITATION ON THE EXPENDITURE OF FUNDS FOR TRAVEL ON OTHER THAN AMERICAN-FLAG VESSELS. IT DOES NOT, HOWEVER, CONFER ANY ENTITLEMENT TO SUCH TRANSPORTATION IN THE CASE OF MILITARY PERSONNEL. THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF THE UNIFORMED SERVICES ARE CONTAINED IN 37 U.S.C. 404 AND THOSE PROVISIONS AUTHORIZE THE TRAVEL ALLOWANCES UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. WHILE AS STATED BY YOU, THAT SECTION PROVIDES THAT SUCH TRAVEL AND TRANSPORTATION ALLOWANCES MAY BE PROVIDED WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION, THE LAW IS INOPERATIVE IN AND OF ITSELF BUT IS DEPENDENT UPON SECRETARIAL REGULATIONS.

THE GOVERNING SECRETARIAL REGULATIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. SUPPLEMENTARY REGULATIONS ARE PRESCRIBED BY THE SERVICES. AS STATED IN THE DECISION OF APRIL 28, 1970, PART F OF THE JOINT TRAVEL REGULATIONS PROVIDES TRAVEL ALLOWANCES FOR TEMPORARY DUTY TRAVEL OUTSIDE THE UNITED STATES AND PARAGRAPHS M4253-4C AND M4253-5 OF THOSE REGULATIONS PROVIDE FOR PER DIEM (TRAVEL EXPENSE) FOR TRAVEL ABOARD COMMERCIAL VESSELS IN PROPER CASES.

WE MENTIONED THAT THE RECORD SHOWS THE FINANCE AND ACCOUNTING OFFICER WAS ADVISED BY THE JUDGE ADVOCATE GENERAL'S OFFICE, U.S. ARMY PACIFIC, THAT YOU WERE ENTITLED TO TRANSPORTATION BY COMMERCIAL VESSEL FOR THE REASON THAT UNDER ITEM 11 OF THE ORDERS OF MAY 20, 1969, THE TRANSPORTATION OFFICER AT OAKLAND ARMY BASE COULD HAVE FURNISHED TRANSPORTATION BY ANY MODE CONSIDERED APPROPRIATE. WE SAID THAT PARAGRAPH 304002, ARMY REGULATION 55-355 WAS CITED IN SUPPORT OF THAT VIEW AND ARMY REGULATION 55 -28 WAS CITED WITH RESPECT TO APPLICATIONS FOR PORT CALL REQUESTS IN CONNECTION WITH SURFACE TRANSPORTATION. ALSO, WE SAID THAT THE OFFICE OF THE COMPTROLLER OF THE ARMY SHARES THE VIEW THAT YOU WERE ENTITLED TO TRANSPORTATION BY COMMERCIAL VESSEL.

THOSE VIEWS WERE BASED ON ARMY REGULATIONS AND IN THE DECISION OF APRIL 28, 1970, WE SAID IN THAT REGARD:

"WITH RESPECT TO THE ARMY REGULATIONS CITED ABOVE, PARAGRAPH 3-4, ARMY REGULATION 55-28, PROVIDES THAT PORT CALL REQUESTS FOR TEMPORARY DUTY TRAVEL WILL BE SUBMITTED IN THE FORMAT SHOWN IN APPENDIX A. FIELD NO. 26 OF APPENDIX A PROVIDES THAT FOR UNACCOMPANIED MILITARY PERSONNEL THE DESIRED OR REQUIRED MODE OF TRANSPORTATION SHOULD BE ENTERED ON THE REQUEST BY CODE NUMBER AND LISTS VARIOUS CODED MODES INCLUDING 'AIR REQUIRED' AND 'COMMERCIAL SURFACE DESIRED.' WHILE THAT INSTRUCTION INDICATES THAT THE MODE OF TRANSPORTATION DESIRED BY THE TRAVELER MAY BE ENTERED ON THE PORT CALL REQUEST, PARAGRAPH 1-3E OF THE SAME REGULATION SPECIFICALLY PROVIDES THAT THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) IS RESPONSIBLE FOR--

"(1) DETERMINING THE MODES OF TRANSPORTATION TO BE USED BASED ON DA AND DOD POLICIES.

"PARAGRAPH 304002, ARMY REGULATION 55-355, PROVIDES THAT WHEN TRAVEL ORDERS DO NOT DIRECT A SPECIFIC MODE OF COMMERCIAL TRANSPORTATION, THE PERSON ARRANGING FOR TRANSPORTATION, IN ARRIVING AT A DECISION REGARDING THE MODE OF COMMERCIAL TRANSPORTATION TO BE USED WILL BE REQUIRED TO USE PASSENGER TRANSPORTATION WHICH PROVIDES SATISFACTORY SERVICE AND MEETS THE MILITARY REQUIREMENTS, TAKING INTO CONSIDERATION OVERALL ECONOMY, AND SOUND TRAFFIC JUDGMENT.

"SINCE THE LATTER REGULATION IS ALSO PUBLISHED AS PARAGRAPH 304002 OF DEFENSE SUPPLY AGENCY REGULATION 4500.3 (MILITARY TRAFFIC MANAGEMENT REGULATION), IT APPARENTLY ESTABLISHES DEPARTMENT OF DEFENSE POLICY AS WELL AS DEPARTMENT OF THE ARMY POLICY FOR FURNISHING TRANSPORTATION BY THE LEAST EXPENSIVE MEANS MEETING MILITARY REQUIREMENTS."

WHILE THE ORDERS OF MAY 20, 1969, AUTHORIZED TRANSPORTATION AS DETERMINED BY THE TRANSPORTATION OFFICER, THEY ALSO PROVIDED THAT TRANSPORTATION BY "COMMERCIAL AIR" WAS AUTHORIZED ONLY IF MILITARY AIR WAS NOT AVAILABLE. THE CONCLUSION SEEMS INESCAPABLE, THEREFORE, THAT UNDER THE MENTIONED REGULATIONS THE ORDERS MUST BE CONSIDERED AS CONTEMPLATING TRAVEL BY GOVERNMENT AIR IF AVAILABLE. HENCE, THE DETERMINATION BY THE TRANSPORTATION OFFICER WAS LIMITED TO GOVERNMENT AIR OR COMMERCIAL AIR. SINCE MILITARY REQUIREMENTS FOR YOUR TRAVEL WOULD HAVE BEEN MET BY MILITARY AIR AND FURNISHING TRANSPORTATION BY THAT MODE WOULD HAVE RESULTED IN "OVERALL ECONOMY AND SOUND TRAFFIC JUDGMENT" WE NECESSARILY CONCLUDED YOU WERE NOT ENTITLED TO TRAVEL BY COMMERCIAL VESSEL AT GREATER EXPENSE.

WE STATED THAT IT LONG HAS BEEN THE VIEW THAT THE GOVERNMENT'S LIABILITY FOR TRAVEL OF MEMBERS IS LIMITED TO THE LEAST EXPENSIVE MEANS MEETING THE NEEDS OF THE SERVICE, CITING 40 COMP. GEN. 482 (1961) AND 41 COMP. GEN. 100 (1961). UNDER THE LAW AND REGULATIONS THAT RULE IS FOR APPLICATION WHETHER THE MORE EXPENSIVE MEANS IS SELECTED BY THE MEMBER OR IS FURNISHED BY REASON OF ERRONEOUS ADVICE BY GOVERNMENT PERSONNEL SINCE ERRONEOUS ADVICE DOES NOT AFFORD A LEGAL BASIS FOR INCREASING A MEMBER'S ENTITLEMENT.

IN THIS REGARD YOU WERE TRAVELING WITH YOUR DEPENDENTS WHO WERE PERFORMING TRAVEL UNDER YOUR CHANGE OF PERMANENT STATION ORDERS TO HAWAII AND IF YOUR TRAVEL HAD BEEN PERFORMED UNDER THOSE ORDERS YOU COULD HAVE BEEN AUTHORIZED SURFACE TRANSPORTATION UNDER THE PROVISIONS OF PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS. THIS MAY HAVE LED TO THE ERRONEOUS ADVICE. SUCH PROVISIONS, HOWEVER, CAN HAVE NO APPLICATION IN THE CASE OF TEMPORARY DUTY TRAVEL SINCE THERE IS NO STATUTORY PROVISION FOR THE TRAVEL BY DEPENDENTS INCIDENT TO ORDERED TEMPORARY DUTY TRAVEL OF THE MEMBERS OF THE UNIFORMED SERVICES.

SINCE THERE WAS NO AUTHORITY FOR FURNISHING YOUR TRANSPORTATION BY COMMERCIAL VESSEL IN ORDER TO ACCOMPANY YOUR DEPENDENTS AND UNDER THE FACTS IN YOUR CASE YOU WERE AUTHORIZED ONLY GOVERNMENT AIR TRANSPORTATION FOR YOUR TRAVEL YOU WERE, AS WE HELD IN THE DECISION OF APRIL 28, 1970, PROPERLY CHARGED WITH THE EXCESS COST INCURRED.