______________________ June 4, 1997 ______________________ GSBCA 13681-TRAV In the Matter of LARRY PONCE Larry Ponce, Tucson, AZ, Claimant. Charles Stockwell, Directorate of Support Services, Finance and Accounting Liaison Office, Defense Finance and Accounting Service, Denver, CO, appearing for the Department of Defense. NEILL, Board Judge. Larry Ponce, a civilian employee of the Department of the Air Force assigned to Davis-Monthan Air Force Base in Arizona, seeks to be reimbursed for the cost of an airline ticket which he purchased from a commercial travel agency not under contract with the United States Government. The ticket was purchased by Mr. Ponce in anticipation of his being ordered to Sheppard Air Force Base for special training. The finance officer at Davis-Monthan has refused to pay the claim and has asked that the General Accounting Office review the matter. Mr. Ponce joins in this request and has submitted for the record a letter in support of his claim for reimbursement. Background On June 30, 1995, orders were issued authorizing a temporary duty (TDY) assignment for Mr. Ponce to attend a training course at Sheppard Air Force Base, Texas, for the period of July 24 to August 25, 1995. The "remarks" section of Mr. Ponce's travel orders expressly referenced four items on the reverse side of the order as applicable to these orders. The first item, Item 1, read: Government procured transportation directed; report to the Traffic Management Office (TMO) as soon as possible. (Failure to procure transportation through TMO when directed will result in non reimbursement of travel expenses.) Prior to receiving these travel orders, but after being notified of the impending TDY, Mr. Ponce purchased an airline ticket on his own through a local commercial travel agent not under contract with the Government. He states that no one explained to him at that time that it was necessary to purchase the ticket through a commercial travel office under contract to the Government. Upon his return, Mr. Ponce filed a claim for reimbursement of the cost of his ticket. The claim was denied on the grounds that (1) the Department of Defense s Joint Travel Regulations (JTR) prohibit reimbursement of a ticket procured for official travel but purchased through a commercial travel office not under contract to the Government, and (2) the employee did not demonstrate that he had no alternative to purchasing the ticket from this travel agent. See JTR C2207. On September 5, 1995, Mr. Ponce's travel orders were amended. The amendment replaced the reference to Item 1 in the "remarks" block of the orders with reference instead to Item 3. This provision reads: For the traveler's convenience, round trip travel by POC [personally owned conveyance] and/or personally procured commercial transportation is authorized. Notwithstanding the amendment of claimant s travel orders, the finance officer to whom the claim had been submitted requested that the GAO first approve the claim as a condition to his paying it. In accordance with his request, Mr. Ponce s claim was submitted to GAO by the Defense Finance and Accounting Service (DFAS). In forwarding the claim to DFAS through Air Force command channels, the chief of the financial services branch of the Headquarters Air Combat Command at Langley Air Force Base in Virginia, has recommended against approval. His recommendation is based on the lack of satisfactory evidence that the employee had no alternative to purchasing the ticket from a travel agent not under contract with the Government. Discussion The Air Force s concern with regulations which seemingly prohibit reimbursement of Mr. Ponce is understandable. Nevertheless, there is a regulatory exception to this prohibition. Section 301-3.4(b)(2)(ii) of the Federal Travel Regulation (FTR) provides: The infrequent traveler, unaware of the general prohibition against the use of travel agents, who inadvertently purchases transportation with personal funds from a travel agent without the required advance administrative approval, may be granted an exception to the preclusive provision on a one-time basis and may be paid for the travel costs incurred not to exceed the cost which would have been properly chargeable to the Government if the transportation service has been purchased directly from the carrier. In such cases, the traveler will be advised that recurrence of such use of travel agents will result in denial of reimbursement unless it can be demonstrated that the traveler has no alternative. 41 CFR 301-3.4(b)(2)(ii) (1996). Mr. Ponce s statements, which are not challenged by the agency, qualify him as an infrequent traveler to whom this exception can apply. The propriety of the retroactive amendment of his travel orders may be open to question; nevertheless, the mere fact that the orders were officially amended convinces us that the authority issuing the initial orders with the requirement to use the base travel office has no objection to the exception being applied in this case. As to the recommendation by the chief of the financial services branch at Langley Air Force Base, it would appear that he has overlooked this exception. The oversight is understandable since the exception is not found in the Department of Defense s JTR but rather in the FTR. We have recently held, however, that the absence of this provision in the JTR does not prevent DFAS from granting an exception under this section of the FTR. Because the FTR is issued under delegation from the Congress, it is a legislative rule which has special weight. Kathleen M. Watkins, GSBCA 13983-TRAV (Jan. 13, 1997). See Freddy L. Scarber, GSBCA 14049-TRAV (Mar. 27, 1997); Ray Taylor, GSBCA 13688-TRAV (Jan. 13, 1997). Mr. Ponce may, therefore, be reimbursed for the cost of the ticket he purchased but not to exceed what the ticket would have cost if the Government had purchased the transportation service itself. In addition, he should be advised that recurrence of such use of travel agents will result in denial of reimbursement unless it can be demonstrated that he had no alternative. ________________ EDWIN B. NEILL Board Judge