B-170423, FEB 18, 1972

B-170423, FEB 18, 1972

MILITARY PERSONNEL - TRANSPORTATION ALLOWANCE - STATUTORY INTERPRETATION DECISION DISAFFIRMING PRIOR DENIAL OF A CLAIM OF CLETIS G. HARPER FOR ADDITIONAL TRANSPORTATION ALLOWANCE, REPRESENTING THE DIFFERENCE BETWEEN THE ACTUAL COST OF AIR TRANSPORTATION AND THE AMOUNT RECOMMENDED BY THE ARMY FINANCE CENTER. CLAIMANT WAS PREVIOUSLY ADVISED THAT, SINCE THE AMOUNT INVOLVED WAS MORE THAN $15, REIMBURSEMENT COULD NOT BE ALLOWED UNDER THE PROVISIONS OF PARAGRAPH M4203-2, JTR. SUBSEQUENT TO THAT PRIOR DECISION, THE COMP. GEN. HAS BEEN INFORMED THAT THE AIR FORCE ACCOUNTING AND FINANCE CENTER HAS INTERPRETED THIS REGULATION AS AUTHORIZING REIMBURSEMENT FOR THE ACTUAL COST OF TRANSPORTATION WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE OR WHEN THEY ARE AVAILABLE BUT THE MEMBER UTILIZES PERSONAL FUNDS IN AN AMOUNT OF $15 OF LESS. UPON RECONSIDERATION, THE COMP. GEN. AGREES WITH THE AIR FORCE INTERPRETATION. THE CLAIM MAY BE ALLOWED SINCE IT APPEARS UNLIKELY THAT MR. HARPER COULD HAVE OBTAINED A TRANSPORTATION REQUEST FOR THE REQUIRED TRAVEL.

TO MR. SECRETARY:

WE AGAIN REFER TO LETTER OF AUGUST 17, 1971, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTING THAT WE RECONSIDER DECISION B-170423 OF NOVEMBER 6, 1970, IN THE CASE OF MR. CLETIS G. HARPER, INVOLVING AN APPLICATION OF PARAGRAPH M4203-2 OF THE JOINT TRAVEL REGULATIONS. THE REQUEST WAS ASSIGNED CONTROL NO. 71-39 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE DECISION OF NOVEMBER 6, 1970, INVOLVED THE CLAIM OF CAPTAIN CLETIS HARPER, USAR, FOR ADDITIONAL TRANSPORTATION ALLOWANCE FOR HIS TRAVEL FROM TULSA, OKLAHOMA, TO DURHAM, NORTH CAROLINA, AND RETURN, DURING THE PERIOD DECEMBER 1 TO 12, 1969. THE TRAVEL WAS DIRECTED BY ORDERS DATED NOVEMBER 20, 1969, WHICH AUTHORIZED TRAVEL BY PUBLIC CARRIER. CAPTAIN HARPER TRAVELED BY COMMERCIAL AIR AT PERSONAL EXPENSE OF $194.55, INCLUDING TAXI AND LIMOUSINE FARES TO AND FROM TERMINALS. UPON COMPLETION OF THE TRAVEL HE WAS PAID $110.30 BY THE ARMY. THE PAYMENT WAS COMPUTED ON THE BASIS OF A ROUND-TRIP DISTANCE OF 2,206 MILES AT 5 CENTS PER MILE AND WAS REPORTED TO HAVE BEEN MADE IN ACCORDANCE WITH PARAGRAPH M4203 OF THE JOINT TRAVEL REGULATIONS.

PAYMENT OF HIS CLAIM FOR $84.25, REPRESENTING THE DIFFERENCE BETWEEN THE ACTUAL COST OF AIR TRAVEL ($194.55) AND THE AMOUNT ALLOWED ($110.30) WAS NOT RECOMMENDED BY THE FINANCE CENTER, U.S. ARMY, FOR THE REASON THAT CAPTAIN HARPER HAD PURCHASED COMMERCIAL AIR TRANSPORTATION ON NOVEMBER 11, 1969, AND THERE WAS NO SHOWING THAT HE COULD NOT HAVE OBTAINED A TRANSPORTATION REQUEST. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE AND SUCH ACTION WAS SUSTAINED BY THE 1970 DECISION IN WHICH WE SAID THAT PARAGRAPH M4203 OF THE JOINT TRAVEL REGULATIONS PROVIDES IN PART AS FOLLOWS:

"M4203 TRANSPORTATION

"1. TRANSPORTATION IN KIND. TRANSPORTATION (INCLUDING BERTHS, PARLOR CAR SEATS, OR STATEROOMS, WHEN REQUIRED) IN KIND MAY BE FURNISHED AS CONTEMPLATED BY THE ORDERS, AS AUTHORIZED IN CHAPTER 2, PART A.

"2. REIMBURSEMENT FOR COST OF TRANSPORTATION. WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE TO THE TRAVELER AT THE TIME AND PLACE REQUIRED OR WHEN T/R'S ARE AVAILABLE BUT THE TRAVELER PROCURES TRANSPORTATION AT OWN EXPENSE ON COMMON CARRIERS IN AMOUNTS OF $15 (PLUS TAX) OR LESS (INCLUDING SLEEPING ACCOMMODATIONS OR PARLOR CAR SEATS), HE MAY ELECT TO RECEIVE REIMBURSEMENT FOR THE ACTUAL COST OF TRANSPORTATION TO THE TRAVELER FOR THE MODE OF TRANSPORTATION AUTHORIZED AND ACTUALLY USED, BASED UPON HIS CERTIFICATION AS TO THE COST INVOLVED.

"3. MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION

"A. TRAVEL AT PERSONAL EXPENSE. EXCEPT AS PROVIDED IN SUBPARS. 2 AND B, WHEN AUTHORIZED TRAVEL IS PERFORMED AT PERSONAL EXPENSE, THE MEMBER WILL BE REIMBURSED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF $0.05 PER MILE FOR THE OFFICIAL DISTANCE."

WE ADVISED CAPTAIN HARPER THAT HE APPARENTLY MADE NO ATTEMPT TO OBTAIN A TRANSPORTATION REQUEST. WE FURTHER SAID THAT EVEN IF HE HAD MADE AN EFFORT TO OBTAIN A TRANSPORTATION REQUEST AND IT WAS NOT AVAILABLE TO HIM, SINCE THE AMOUNT INVOLVED IS IN EXCESS OF $15 THERE IS NO AUTHORITY UNDER THE PROVISIONS OF PARAGRAPH M4203-2 OF THE REGULATIONS TO REIMBURSE HIM FOR THE COST OF HIS TRAVEL ON ANY BASIS OTHER THAN THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT A RATE OF 5 CENTS PER MILE.

THE ASSISTANT SECRETARY SAYS THAT PRIOR TO FEBRUARY 1, 1959, PARAGRAPH M4203-2 OF THE REGULATIONS READ AS FOLLOWS:

"WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE TO THE TRAVELER AT THE TIME AND PLACE REQUIRED, HE MAY ELECT TO RECEIVE REIMBURSEMENT FOR THE ACTUAL COST OF TRANSPORTATION FOR THE MODE OF TRANSPORTATION AUTHORIZED AND ACTUALLY USED, BASED UPON HIS CERTIFICATION OF THE COST INVOLVED."

THE ASSISTANT SECRETARY SAYS BY CHANGE 77 TO THE JOINT TRAVEL REGULATIONS NO. 123, DATED MAY 1, 1955, AS AMENDED BY SUPPLEMENT NO. 1, DATED FEBRUARY 4, 1957, PARAGRAPH M4203-2 WAS AMENDED TO ADD THE FOLLOWING:

"OR WHEN T/R'S ARE AVAILABLE BUT THE TRAVELER PROCURES TRANSPORTATION AT HIS OWN EXPENSE ON COMMON CARRIERS IN THE AMOUNTS OF $15 (PLUS TAX) OR LESS (INCLUDING SLEEPING ACCOMMODATIONS OR PARLOR CAR SEATS)."

THE ASSISTANT SECRETARY FURTHER SAYS IT WAS NEVER INTENDED THAT THIS ADDITION TO PARAGRAPH M4203-2 WOULD DEFEAT A MEMBER'S RIGHT TO ELECT TO RECEIVE REIMBURSEMENT FOR THE ACTUAL COST OF TRANSPORTATION AT PERSONAL EXPENSE, REGARDLESS OF THE AMOUNT, WHEN T/R'S WERE NOT AVAILABLE TO HIM AT THE TIME AND PLACE REQUIRED. HE EXPLAINS THAT ON THE CONTRARY, ANOTHER SITUATION WAS ADDED GIVING A MEMBER THE RIGHT TO ELECT REIMBURSEMENT FOR THE COST OF PERSONALLY PROCURED TRANSPORTATION WHICH PREVIOUSLY WAS DENIED.

THE GAO REGULATION CITED BY THE ASSISTANT SECRETARY PROVIDES THAT TRANSPORTATION REQUESTS ORDINARILY WILL NOT BE USED TO OBTAIN OFFICIAL PASSENGER TRANSPORTATION WHEN THE AMOUNT INVOLVED IS $1 OR LESS, PLUS FEDERAL TRANSPORTATION TAX, AND THAT CASH PAYMENTS UP TO $15, PLUS TAX, MAY BE MADE BY THE TRAVELER UNDER REGULATIONS BY THE DEPARTMENT OR AGENCY INVOLVED.

THE ASSISTANT SECRETARY ENCLOSED A COPY OF A STATEMENT BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER THAT IT HAS INTERPRETED PARAGRAPH M4203-2 AS AUTHORIZING REIMBURSEMENT FOR THE ACTUAL COST OF TRANSPORTATION UNDER EACH OF TWO SEPARATE CONDITIONS, (1) WHEN TR'S ARE NOT AVAILABLE, AND (2) WHEN TR'S ARE AVAILABLE, BUT THE MEMBER PROCURES TRANSPORTATION AT HIS OWN EXPENSE IN AN AMOUNT OF $15 OR LESS.

UPON RECONSIDERATION OF THE MATTER AND IN VIEW OF THE EXPLANATION FURNISHED BY THE ASSISTANT SECRETARY, WE AGREE WITH THE AIR FORCE INTERPRETATION OF PARAGRAPH M4203-2 OF THE JOINT TRAVEL REGULATIONS AND WILL APPLY IT IN THAT MANNER IN APPLICABLE CASES.

WITH RESPECT TO CAPTAIN HARPER'S CLAIM, WHILE HE EVIDENTLY DID NOT ATTEMPT TO OBTAIN A TRANSPORTATION REQUEST, HE CONTENDS THAT THE ORDERS OF NOVEMBER 20, 1969, WERE DELIVERED TO HIS HOME IN TULSA ON NOVEMBER 28, 1969, THAT HE WAS INFORMED OF THEIR ARRIVAL UPON REACHING HOME AT APPROXIMATELY 1800 HOURS ON THAT DATE, AND THAT DUE TO THE LATENESS OF THE HOUR AND THE DAY OF THE WEEK (FRIDAY) A TRANSPORTATION OFFICER TO WHOM HE COULD PRESENT HIS ORDERS AND OBTAIN A TRANSPORTATION REQUEST WAS NOT AVAILABLE IN HIS AREA. ALSO, SINCE THE DAY WAS FRIDAY FOLLOWING THANKSGIVING DAY HE CONTENDS THAT RESERVATIONS FOR AIR TRAVEL WERE AT A PREMIUM.

CAPTAIN HARPER'S ORDERS REQUIRED HIM TO REPORT TO HIS TRAINING STATION IN DURHAM, NORTH CAROLINA, ON MONDAY, DECEMBER 1, 1969. WHILE HE PURCHASED TRANSPORTATION ON NOVEMBER 11, 1969, WITHOUT AWAITING RECEIPT OF HIS ORDERS, IT APPEARS THAT BECAUSE OF THE LATE ARRIVAL OF THE ORDERS IT IS UNLIKELY THAT HE COULD HAVE OBTAINED A TRANSPORTATION REQUEST FOR THE REQUIRED TRAVEL. ACCORDINGLY, INSTRUCTIONS HAVE BEEN ISSUED FOR THE ALLOWANCE OF THE CLAIM.