B-175580, SEP 5, 1972

B-175580, SEP 5, 1972

MILITARY PERSONNEL - AUTHORIZED TRAVEL - ORAL ORDERS DENIAL OF CLAIM BY JOEL P. KRUSE FOR ADDITIONAL TRAVEL ALLOWANCES INCIDENT TO TEMPORARY DUTY FROM FEBRUARY 22 TO MARCH 5, 1971, WHILE ON ACTIVE DUTY WITH THE U.S. ARMY. THE ORDERS OF FEBRUARY 16, 1971, AUTHORIZED THE TRAVEL WITH TRANSPORTATION TO BE BY GOVERNMENT VEHICLE; THE ORDERS OF APRIL 2, 1971, AUTHORIZED TRAVEL BY PRIVATELY OWNED VEHICLE. PARAGRAPH M3002-2, JTR, PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND CONFIRMED IN WRITING GIVING THE DATE OF THE VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. IN THIS CASE, THE ORDERS OF APRIL 2 DO NOT PURPORT TO CONFIRM THE ALLEGED PRIOR ORAL ORDER AND MAY NOT BE TAKEN AS CONFIRMATORY OF SUCH ORDERS. SEE B-173064, JUNE 30, 1971. ACCORDINGLY, THE PRIOR SETTLEMENT OF THIS CLAIM IS SUSTAINED.

TO MR. JOEL P. KRUSE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1972, IN WHICH YOU IN EFFECT REQUEST REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF MARCH 9, 1972, WHICH DENIED YOUR CLAIM FOR ADDITIONAL TRAVEL ALLOWANCES INCIDENT TO TEMPORARY DUTY FROM FEBRUARY 22 TO MARCH 5, 1971, WHILE YOU WERE ON ACTIVE DUTY IN THE U.S. ARMY.

ORDER NUMBER ALFAG-AC 2-486, FEBRUARY 16, 1971, HEADQUARTERS FIFTH UNITED STATES ARMY, FORT SHERIDAN, ILLINOIS, AUTHORIZED ROUND-TRIP TRAVEL FOR YOU AND TWO OTHER MEMBERS, TO FORT BENJAMIN HARRISON, INDIANA, IN CONNECTION WITH TEMPORARY DUTY OF APPROXIMATELY 12 DAYS. TRAVEL WAS TO COMMENCE ON FEBRUARY 22, 1971; TRANSPORTATION BY GOVERNMENT VEHICLE WAS AUTHORIZED.

BY LETTER ORDERS NUMBER 4-01, APRIL 2, 1971, SAME HEADQUARTERS, THE ORIGINAL ORDER AS IT PERTAINED TO YOU WAS AMENDED TO STATE THAT TRAVEL BY PRIVATELY OWNED VEHICLE WAS AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT.

THE RECORD SHOWS THAT YOU DEPARTED FROM FORT SHERIDAN AT 3 P.M., FEBRUARY 22, 1971, AS A PASSENGER IN THE PRIVATELY OWNED VEHICLE OF ANOTHER MEMBER, ARRIVED AT LAFAYETTE, INDIANA, AT 7 P.M., AND STAYED THE NIGHT THERE BECAUSE OF REPORTEDLY BAD WEATHER CONDITIONS. YOU DEPARTED FROM THAT CITY THE NEXT DAY AT 7 A.M. AND ARRIVED AT FORT HARRISON AT 9:45 A.M. OF THE SAME DAY. AFTER TEMPORARY DUTY AT THAT INSTALLATION WAS CONCLUDED, YOU RETURNED TO FORT SHERIDAN BY GOVERNMENT AUTOMOBILE ON MARCH 5, 1971.

YOU WERE PAID $38.55 FOR PER DIEM AND MILEAGE ALLOWANCES. SUPPLEMENTAL VOUCHER DATED APRIL 1, 1971, YOU MADE CLAIM FOR ADDITIONAL PAYMENT OF $20.55 FOR PER DIEM AND QUARTERS ALLOWANCES. THIS CLAIM WAS FORWARDED HERE BY THE FINANCE CENTER, U.S. ARMY AND WAS DISALLOWED FOR THE REASON THAT THE RETROACTIVE MODIFICATION OF YOUR ORIGINAL TRAVEL ORDER COULD NOT BE ACCEPTED AS INCREASING YOUR ENTITLEMENT TO PER DIEM.

YOU SAY THAT DUE TO POOR WEATHER, YOU WERE ORDERED BY THE NONCOMMISSIONED OFFICER-IN-CHARGE TO TRAVEL WITH HIM AND ANOTHER MEMBER ASSIGNED TO DUTY AT FORT HARRISON, IN THE LATTER'S PRIVATE AUTOMOBILE. YOU EXPRESS THE OPINION THAT DENIAL OF YOUR CLAIM INDICATES THAT THE (SUPPLEMENTAL) VOUCHER WAS INCORRECTLY FILED OR THAT THE ORDER YOU RECEIVED WAS UNLAWFUL.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES GENERALLY IS CONTAINED IN 37 U.S.C. 404, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS SHALL BE ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS. THESE REGULATIONS ARE CONTAINED IN VOLUME 1 OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M3000 OF THE REGULATIONS STATES THAT NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR. PARAGRAPH M3001 DEFINES A COMPETENT TRAVEL ORDER AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING A MEMBER OR GROUP OF MEMBERS TO TRAVEL BETWEEN DESIGNATED POINTS. PARAGRAPH M3002 2 PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING THE DATE OF THE VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); 44 ID. 405 (1965); AND 45 ID. 599 (1966).

WITH RESPECT TO WRITTEN ORDERS CONFIRMING VERBAL ORDERS, WE HAVE ACCEPTED SUCH ORDERS IF THEY ARE ISSUED WITHIN A REASONABLE TIME AFTER THE VERBAL ORDERS ARE GIVEN AND ARE FULLY SUBSTANTIATED BY EVIDENCE THAT AN EMERGENCY PREVENTED THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE. 43 COMP. GEN. 281 (1963).

THE ORDERS OF APRIL 2, 1971, WHICH PURPORTED TO AUTHORIZE YOUR USE OF A PRIVATELY OWNED VEHICLE AS MORE ADVANTAGEOUS TO THE GOVERNMENT, WERE ISSUED AFTER YOUR RETURN TO FORT SHERIDAN ON MARCH 5, 1971 AND ATTEMPTED TO CHANGE WRITTEN ORDERS ISSUED PRIOR TO YOUR TRAVEL WHICH CONTAINED NO SIMILAR AUTHORITY. IN THE ABSENCE OF ALLEGATION AND PROOF OF ERROR OR INADVERTENCE IN ISSUING THE ORIGINAL ORDERS, THESE RETROACTIVE ORDERS ARE WITHOUT EFFECT TO INCREASE YOUR TRAVEL RIGHTS WHICH VESTED UPON COMPLETION OF YOUR TRAVEL.

YOU CONTEND THAT BECAUSE OF BAD WEATHER CONDITIONS YOU WERE GIVEN ORAL ORDERS TO UTILIZE ANOTHER MEMBER'S PRIVATE AUTOMOBILE FOR TRAVEL FROM FORT SHERIDAN TO FORT HARRISON. HOWEVER, THE ORDERS OF APRIL 2, 1971, DO NOT PURPORT TO CONFIRM SUCH PRIOR ORAL ORDERS TO WHICH NO REFERENCE IS MADE. IN SUCH CIRCUMSTANCES, SUBSEQUENT WRITTEN ORDERS MAY NOT BE ACCEPTED AS CONFIRMATORY OF PRIOR ORAL ORDERS. SEE DECISIONS B-173064, JUNE 30, 1971, AND B-175211, MARCH 31, 1972, COPIES ENCLOSED.

PARAGRAPH M4204-5 OF THE JOINT TRAVEL REGULATIONS (CHANGE 217, FEBRUARY 1, 1971) PROVIDES AS FOLLOWS:

"TRAVEL BY PRIVATELY OWNED CONVEYANCE. WHEN TRAVEL ORDERS SPECIFICALLY STATE THAT TRAVEL BY PRIVATELY OWNED CONVEYANCE IS MORE ADVANTAGEOUS TO THE GOVERNMENT, PER DIEM ALLOWANCES ARE PAYABLE FOR THE ACTUAL TIME NECESSARY TO PERFORM THE DIRECTED TRAVEL. WHEN TRAVEL ORDERS DO NOT CONTAIN SUCH STATEMENT, IT WILL BE CONSIDERED THAT TRAVEL BY PRIVATELY OWNED CONVEYANCE IS FOR THE CONVENIENCE OF THE MEMBER. THE RATE OF PER DIEM APPLICABLE AND THE PERIOD FOR WHICH PER DIEM IS PAYABLE FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE SHALL BE AT THE RATE APPLICABLE TO SUCH MODE FOR THE TIME ACTUALLY CONSUMED, THE TOTAL PER DIEM PAYABLE NOT TO EXCEED THAT PAYABLE FOR CONSTRUCTIVE TRAVEL OVER A USUALLY TRAVELED ROUTE BY AIR OR SURFACE COMMON CARRIER, WHICHEVER MORE NEARLY MEETS THE REQUIREMENTS OF THE ORDERS AND IS MORE ECONOMICAL TO THE GOVERNMENT."

WITHOUT VALID AUTHORIZATION OR APPROVAL OF YOUR TRAVEL BY PRIVATELY OWNED VEHICLE AS MORE ADVANTAGEOUS TO THE GOVERNMENT, THE ABOVE PROVISION REQUIRES THAT PER DIEM FOR TRAVEL FROM FORT SHERIDAN TO FORT HARRISON BE LIMITED TO THAT FOR CONSTRUCTIVE TRAVEL OVER A USUALLY TRAVELED ROUTE BY AIR OR SURFACE COMMON CARRIER. IT APPEARS FROM THE RECORD THAT YOU WERE PROPERLY PAID ON THAT BASIS.

ACCORDINGLY, THE SETTLEMENT OF MARCH 9, 1972, IS SUSTAINED.