In the Matter of MICHELLE R. VILLERS

November 4, 2016

CBCA 5117-TRAV

In the Matter of MICHELLE R. VILLERS

Michelle R. Villers, Norton, OH, Claimant.

Maj. Carlos M. Colon, Jr., Chief, Air Force Casualty Services Branch, Headquarters

Air Force Personnel Center, Department of the Air Force, Joint Base San Antonio-Randolph,

TX, appearing for Department of the Air Force.

HYATT, Board Judge.

The Air Force Casualty Services Branch filed this claim on behalf of Michelle R.

Villers. Ms. Villers was issued invitational travel orders, under the emergency family

member travel program, to visit her daughter, a member of the Air Force, who was gravely

ill. This program, which is implemented by the Air Force pursuant to the authority of 37

U.S.C. § 411h (2006)1, provides for the reimbursement of travel expenses incurred by family

members who visit seriously ill or injured military members. In May 2007, Ms. Villers flew

to Lackland Air Force Base to be with her daughter, who eventually passed away in August

2007.

Ms. Villers incurred reimbursable travel costs consisting of $1159.78 for airline

tickets and $4739.25 in per diem (meal and incidental expenses). She was able to stay on

base and did not incur lodging expenses. The Air Force provided her with an advance in the

amount of $2186. In May 2013, Ms. Villers contacted the Air Force to seek payment of the

1

This provision is currently codified at 37 U.S.C. § 481h (2012).

CBCA 5117-TRAV

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remaining amount of $3713.03, submitting documentation relevant to the claim.2 After

working with the Air Force, she submitted a formal voucher for that amount to the Defense

Finance and Accounting Service (DFAS) on February 5, 2014. DFAS determined that the

voucher should not be paid because it was submitted more than six years after the claim

accrued.

Discussion

The Air Force points out that Ms. Villers initiated the process to obtain reimbursement

for the subject expenses with the agency prior to the expiration of the six-year period and

expresses regret that the agency was not more proactive in assisting her to pursue her claim.

In addition, the Air Force acknowledges that it failed to advise Ms. Villers to the need to

submit her completed voucher prior to the expiration of the six-year period provided by

statute. In essence, the Air Force has asked the Board to review the disallowance of the

claim by DFAS and to determine if the circumstances provide a basis to find either that the

six-year limitation was in fact met, or that the time limitation should be extended under the

doctrine of equitable tolling. See Irwin v. Department of Veterans Affairs, 498 U.S. 89

(1990).

The authority to authorize reimbursement of the expenses incurred by Ms. Villers

derives from Title 37 of the United States Code, which governs pay and allowances of the

uniformed services. Section 411h of this title, authorizing travel and transportation

allowances for family members of seriously injured or ill members of the uniformed forces,

provides in pertinent part:

(a)(1) Under uniform regulations prescribed by the Secretaries

concerned, transportation described in subsection (c) may be provided for not

more than three family members of a member described in paragraph (2) if the

attending physician or surgeon and the commander or head of the military

medical facility exercising control over the member determine that the

presence of the family member may contribute to the member’s health and

welfare. . . .

(2) A member referred to in paragraph (1) is a member of the

uniformed services who —

2

Correspondence included in the materials provided by the agency suggests that

there may have been some confusion as to whether the claim should be handled by the

Department of Veterans Affairs or the Air Force.

CBCA 5117-TRAV

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(A) is serving on active duty or is entitled to pay and allowances under

section 204(g) of this title (or would be so entitled were it not for

offsetting earned income described in that section) . . . ; and

(B) either — (i) is seriously ill, seriously injured, or in a situation of

imminent death (whether or not electrical brain activity still exists or

brain death is declared); and is hospitalized in a medical facility in or

outside the United States . . . .

37 U.S.C. § 411h.

Statute, at 31 U.S.C. § 3702 (2012), defines how various claims against the United

States are to be handled. The statute provides in pertinent part:

(a) Except as provided in this chapter or another law, all claims of or against

the United States Government shall be settled as follows:

(1) The Secretary of Defense shall settle—

(A) claims involving uniformed service members’ pay,

allowances, travel, transportation, payments for unused accrued

leave, retired pay, and survivor benefits; and

(B) claims by transportation carriers involving amounts

collected from them for loss or damage incurred to property

incident to shipment at Government expense.

(2) The Director of the Office of Personnel Management shall settle claims

involving Federal civilian employees’ compensation and leave.

(3) The Administrator of General Services shall settle claims involving

expenses incurred by Federal civilian employees for official travel and

transportation, and for relocation expenses incident to transfers of official duty

station.

(4) The Director of the Office of Management and Budget shall settle claims

not otherwise provided for by this subsection or another provision of law.

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Subsection (b)(1) of section 3702 provides that

A claim against the Government presented under this section must contain the

signature and address of the claimant or an authorized representative. The

claim must be received by the official responsible under subsection (a) for

settling the claim or by the agency that conducts the activity from which the

claim arises within 6 years after the claim accrues except—

(A) as provided in this chapter or another law . . . .

This Board has been delegated the authority provided to the Administrator of General

Services in 31 U.S.C. § 3702(a)(3) to settle claims involving federal civilian employees. This

authority includes resolving claims of certain invitational travelers who are not employed by

the Federal Government. The Federal Travel Regulation (FTR) defines invitational travel,

in pertinent part, as

[a]uthorized travel of individuals . . . not employed [by the Government] . . .

when they are acting in a capacity that is directly related to, or in connection

with, official activities of the Government. Travel allowances authorized for

such persons are the same as those normally authorized for employees in

connection with temporary duty.

41 CFR 300-3.1 (2007).

With respect to claims involving the expenses of invitational travelers, our

predecessor in deciding these matters noted:

The Government Accountability Office (GAO — formerly the General

Accounting Office) has interpreted [31 U.S.C. § 3702(a)] to permit an agency

“to invite a private individual (or more than one) to a meeting or conference

at government expense, but only if that individual is legitimately performing

a direct service for the government.” DoD Section 6 School Board Members

— Invitational Travel Orders, B-260,896 (Oct. 17, 1996); see also Chairman,

United States Civil Service Commission, 37 Comp. Gen. 349 (1957); Secretary

of Commerce, 27 Comp. Gen. 183 (1947). Such an individual is called an

“invitational traveler.” 41 CFR 301-1.2(c) (2005). The GAO’s understanding

of the law is persuasive and of long standing, so we will follow it. Because an

invitational traveler is a Federal civilian employee for the purpose of the

federal travel expense laws, we may settle travel expense claims brought by

such a traveler.

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Kenath O. Traegde, GSBCA 16842-TRAV, 06-2 BCA ¶ 33,303, at 165,141 (footnote

omitted).

This is a narrow exception, however. In a subsequent decision concerning invitational

travel, the Board determined it did not have the authority to review a claim involving travel

expenses of relatives of a member of the uniformed services, who were issued invitational

travel orders to attend a memorial service, given that the family members were not civilian

employees of the United States and there was no nexus to the civilian employee workforce.

Michael T. Hoyt, CBCA 3299-TRAV, 14-1 BCA ¶ 35,558.

Under the reasoning of Hoyt, we lack authority to resolve this claim. The benefits in

question accrued under statutory authority prescribing pay and allowances for members of

the uniformed services. Ms. Villers is not a federal civilian employee, and, because her

daughter was a member of the military, there is no nexus to the civilian employee workforce

such as to bring this claim within the parameters of 31 U.S.C. § 3702(a)(3). Accordingly,

we must dismiss the claim and return the matter to the Air Force.

__________________________________

CATHERINE B. HYATT

Board Judge