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Feeling So Fly Like A C12 (Or Maybe A UC35, Depending On Availability): A Primer On Utilizing MILAIR For Official Travel1

Volume 227 Issue 3 2019

I. Introduction

Hypothetical scenario: you are the new Chief of Administrative Law at V Corps in Heidelberg, Germany, and just got a heads up from G3 Aviation that there will be a military air (MILAIR) request coming in today for the Commanding General (CG), Major General (MG) Tressel. No sooner did you hang up the phone with the aviation folks when you received an urgent call from MG Tressel’s aide, who was frantically attempting to plan last minute travel for the boss after a number of taskings came down from U.S. Army Europe. According to the aide, MG Tressel needs to attend a rehearsal of concept (ROC) drill and provide his command intent with 2d Cavalry Regiment (2CR) in Grafenwoehr, Germany, on 1 April, followed immediately by travel to T’bilisi, Georgia, for a series of meetings with the Georgian Minister of Defense from 2-4 April. Major General Tressel then needs to stop in Oberammergau, Germany, to attend the Combined Training Conference (CTC) on 5 April, before returning to Heidelberg on 6 April. The aide signs off, “We need to make MILAIR work for this travel. I’ll have the request to G3 Aviation within the hour.” Good. That gives you an hour to learn how to review a request for MILAIR. Plenty of time.

With increased scrutiny on government travel, it is critical that judge advocates (JAs) understand the rules surrounding government travel and help ensure leaders comply with all laws, policies, and procedures governing the use of government aircraft.2 A JA well-versed in the nuances of MILAIR can help streamline the MILAIR process and enable mission success, all while keeping Army personnel “in the ethical midfield.”3

This article will provide JAs with an overview of the applicable rules pertaining to the use of government aircraft in lieu of commercial aircraft for official travel and outline how to analyze such requests for legal sufficiency. Part II will discuss the differences between operational and administrative use, and distinguish between routine site visits and the exercise of command authority. Then, Part III will discuss the two justifications for administrative use of MILAIR—commercial service is not reasonably available or it is more cost-effective than commercial transportation.4 Using MG Tressel’s proposed travel as a foundation, each justification will be discussed in turn and it will look at the practical application of the rules and how requestors can best document their request. Finally, Part IV will address who can approve each type of travel request.

II. Mission Requirement (i.e. Operational Use) vs. Other Official Travel (i.e. Administrative Use)

The Office of Management and Budget Circular No. A-126 (OMB A-126), issued in May 1992, is the cornerstone for all analysis of the use of government aircraft for official travel. It establishes that “agencies shall operate government aircraft only for official purposes” and draws a distinction between “mission requirements” and “other official travel.”5 Thus, the first question JAs must answer when analyzing a MILAIR request is whether the purpose of the travel is for “mission requirements,” also known as “operational” use, or if the travel is for another official purpose, also known as “administrative” use.6 The answer to this question will dictate the approval level for the MILAIR request.7

When classifying proposed travel as either operational or administrative, one should turn first to OMB A-126, which addresses travel for mission requirements and includes a non-exhaustive list of “activities that constitute the discharge of an agency’s official responsibilities.”8 It includes, “the transport of troops and/or equipment, training, evacuation (including medical evacuation), intelligence and counter-narcotics activities, search and rescue, transportation of prisoners, use of defense attaché-controlled aircraft, aeronautical research and space and science applications, and other such activities.”9

The Department of Defense (DoD) adopts a nearly identical definition of “official travel to meet mission requirements” in DoD Instruction (DoDI) 4500.43:

Mission requirements are activities that constitute the discharge of a DoD Component’s official responsibility. Such activities include, but are not limited to, the transport of troops and equipment, training, evacuation (including medical evacuation), intelligence and counter-narcotics activities, search and rescue, transportation of prisoners, use of defense attaché-controlled aircraft, aeronautical research and space and science applications, and other such activities. Mission requirements do not include official travel to give speeches, attend conferences or meetings, or make routine site visits.10

The Army, in Army Regulation (AR) 95-1, echoes and expands on the OMB A-126 and DoDI 4500.43 lists and rebrands “mission requirements” as “operational.”11 In addition to those operational uses previously enumerated, the Army includes as operational uses:

a. Actual or simulated tactical and combat operations.

b. [A]ircrew/crewmember training . . .

h. [R]esearch and development.

i. Maintenance flights.

j. Flight tests.

k. Repositioning or reassignment of aircraft . . .

m. Special use (Defense Support of Civilian Authorities/intelligence related activities, humanitarian, disaster relief, and deployments).

n. Aeromedical evacuation by aeromedical unit . . . [and]

p. Exercising command and/or supervision authority at adjacent and local installations.12

In addition to the expanded list of enumerated operational uses, AR 95-1 offers additional guidance on what qualifies as operational, noting, “[o]perational use includes those missions required to accomplish the Army’s mission and to maintain the combat readiness of aviation and ground units.”13 Importantly, AR 95-1, like OMB A-126, emphasizes that the enumerated list is not all-inclusive, thus giving Army personnel and JAs maneuver space to legitimately and effectively employ MILAIR.14

However, the Office of Management and Budget (OMB), DoD, and the Army distinguish between operational use and use for “other official travel.” The Army defines “other official travel,” or administrative travel, as “travel to give speeches; attend conferences, meetings, or training courses; make routine site visits; and other similar uses.”15 Thus, if an individual’s proposed travel is not one of the enumerated operational uses in either OMB A-126 or AR 95-1, or cannot be considered required to “maintain the combat readiness of aviation and ground units,” the travel is properly categorized as administrative travel.16

Most travel outside a combat theater is properly defined as “administrative.”17 However, AR 95-1 creates a significant gray area between operational use, which specifically includes “exercising command and/or supervision authority at adjacent and local installations,” and administrative use, which includes “routine site visits.”18 Analysis of whether something is a “routine site visit” will be fact-based and may require back and forth with the requestor so the travel can be properly categorized.19 For an individual’s travel to be considered for command or supervision purposes, there should be a formal command or supervisory relationship between the traveler and individuals at the destination.20 For example, the traveler should be in the rating chain of those whom he or she is visiting or the traveler should exercise some manner of control (e.g., administrative, tactical, operational, etc.) over the unit he or she is visiting.21 Further, an individual must demonstrate that the proposed travel is “more than a routine site visit.”

When determining if travel is more than a routine site visit, JAs should review the traveler’s schedule, looking for events that do not occur as a matter of course in a unit’s battle rhythm. For example, travel to attend a subordinate unit’s weekly Commander’s Update Brief (CUB) would be administrative use because the CUB is merely a routine meeting.22 If, however, a commander is traveling in order to observe a subordinate unit’s participation in an exercise, the purpose of the commander’s visit would be more than routine, and may qualify as exercising command or supervisory control, and could be properly categorized as operational use.23

When reviewing MG Tressel’s travel, JAs will notice four legs. Leg 1 is travel from Heidelberg to Grafenwoehr to observe a 2CR ROC drill; Leg 2 is from Grafenwoehr to T’bilisi for meetings with the Georgian Minister of Defense; Leg 3 is from T’bilisi to Oberammergau to attend the CTC; and Leg 4 is the return to home station. Applying the operational and administrative use standard to the purpose of the proposed travel reveals Leg 1 as an operational use, while Legs 2 through 4 are properly categorized as administrative use.

For Leg 1, MG Tressel is traveling to Grafenwoehr to observe a ROC drill and give his command intent to 2CR. Because MG Tressel will be exercising his command authority and because the purpose of his travel is for something more than a meeting or routine site visit, his travel could be properly categorized as operational.24 Conversely, the purpose of MG Tressel’s travel for Legs 2 through 4 is clearly administrative. While unquestionably important, MG Tressel’s engagement with the Georgian Minister of Defense is a meeting and does not involve him exercising command at an adjacent location. Moreover, travel for the purpose of a meeting is explicitly included as administrative use under AR 95-1.25 As such, his movement to Georgia is for an administrative purpose.26 Likewise, Leg 3 is for the purpose of MG Tressel attending a conference, another administrative purpose under AR 95-1, in Oberammergau, and is, thus, administrative in nature.27 Finally, Leg 4 is for MG Tressel’s return to home station and, thus, administrative.28

Keen to the distinction between operational and administrative use, JAs can, when appropriate, give individuals maneuver space and create travel efficiencies by categorizing travel as operational.29 That said, most travel will properly be categorized as administrative.30

III. Justifying MILAIR for Administrative Use

As a baseline for all government travel, government officials should only travel when they have shown “the benefit of the travel to the Army and that the purpose of the travel cannot be accomplished by a less expensive alternative, such as videoconference or Web-based communication.”31 When personal attendance is necessary, travelers should first look to utilize commercial air (COMAIR) for their administrative travel needs.32 Pursuant to OMB A-126, MILAIR may be utilized in two scenarios—no commercial service is reasonably available or MILAIR is more cost-effective than commercial transportation.33 Understanding each is key to a successful MILAIR review.

A. Commercial Service is Not Reasonably Available

The first justification for the use of MILAIR to satisfy one’s administrative, or non-operational, transportation needs arises when commercial service is not reasonably available to satisfy the traveler’s requirements. Office of Management and Budget A-126 defines reasonably available as, “able to meet the traveler’s departure and/or arrival requirements within a twenty-four hour period, unless the traveler demonstrates that extraordinary circumstances require a shorter period to fulfill effectively the agency requirement.”34 The DoD echoes this definition of “reasonably available” and offers additional guidance for requestors on how to document the unavailability of commercial travel.35

Requestors may show that commercial service is not reasonably available if they “clearly demonstrate that a valid official reason for the use of government aircraft exists,” and “cite scheduling requirements and why they cannot be changed, whether secure communications are required, or other appropriate factors.”36 Although MILAIR cannot be justified on the basis of rank or status, practically speaking, it is likely much easier for more senior travelers to justify MILAIR on this basis because their schedules are typically very full. In accordance with DoD Directive (DoDD) 4500.56, “[t]ravel status, distinguished visitor (DV) code or status, grade, or rank alone is not sufficient to justify the use of government aircraft or to dictate a particular aircraft type.”37

While JAs should not attempt to dictate a traveler’s schedule, it is the JA’s responsibility to ask hard questions about whether or not a particular meeting can be moved to accommodate a commercial flight.38 Indeed, it is important for JAs to keep in mind the language from OMB A-126, which requires traveler’s to consider travel options within a twenty-four hour period.39 For example, suppose MG Tressel’s travel to Grafenwoehr were for an administrative purpose. He would need to include his schedule for 31 March and 2 in order to show why commercial transportation options cannot meet his requirement to be in Grafenwoehr on 1 April.40 This is particularly true when dealing with high ranking travelers, who may be the senior ranking individual at an event and, thus, able to dictate times and places of meetings. If a requestor has the ability (i.e., the rank and authority) to move a meeting thirty minutes to accommodate a commercial travel option, the requestor must articulate in the MILAIR request why he or she cannot move the meeting. In many cases, moving one meeting causes a domino effect that impacts other engagements in the course of a day over which the requestor does not have control.

In addition to the guidance on when transportation is reasonably available set forth in OMB A-126 and DoDD 4500.56, the Joint Travel Regulation (JTR) is also instructive on the issue.41 Specifically, section 0202 of the JTR “addresses transportation to, from, and around official travel locations.”42 The JTR further establishes, “[n]ormally, a traveler is not required to travel between the hours of 2400 and 0600 if it is not necessary for the mission.”43 Thus, it is feasible that, although commercial flights may be offered to a traveler’s destination, they may be considered “reasonably unavailable” because of the time they are offered.44

Consider MG Tressel’s request to travel to T’bilisi via MILAIR for meetings with the Georgian Minister of Defense. Major General Tressel’s meetings with the Georgians are preceded by preparatory meetings with the Office of Defense Cooperation and the Ambassador.45 Now, assume a commercial flight is reasonably available if MG Tressel postpones his meeting with the country team until later in the day.46 While MG Tressel may be able to dictate a move of a meeting with the country team, he likely could not and should not do so if such a request would require him to also ask to shift meetings with the Ambassador or Georgian Minister. Thus, although a circumstance may arise where shifting a lower level meeting to accommodate commercial transportation may seem possible at first glance, the second and third order effects (e.g., impacting meetings over which the traveler does not have control) of such a move can amount to “other compelling operational considerations [that] make commercial transportation unacceptable” and justify the use of MILAIR.47

B. MILAIR is More Cost-Effective Than Commercial Air

Even if a traveler’s schedule can accommodate the use of commercial air, the use of MILAIR may still be appropriate if the actual cost of using MILAIR is less than the cost of using commercial air.48 Pursuant to OMB A-126, a cost comparison must be completed prior to approving the use of MILAIR.49 However, it is worth noting, “secondary use of the aircraft for other travel for the conduct of agency business may be presumed to result in cost savings (i.e., cost comparisons are not required).”50 That is, if a MILAIR flight is already scheduled (e.g., required use flight or training flight) that fits a traveler’s schedule, that traveler does not need to conduct a cost comparison. That said, practitioners are warned, “DoD components shall not schedule training missions to accommodate the travel of DoD senior officials. It is essential that managers and commanders at all levels prevent misuse of transportation resources well as perception of their misuse.”51 The ensuing sections discuss how to calculate the relevant costs for the purposes of the required cost comparison.

1. Calculating the Actual Cost of MILAIR

Because most MILAIR requests that JAs will provide a review involve DoD-owned aircraft, requestors will use the “variable cost of using the aircraft” as the actual cost of using the government aircraft.52 The DoD Comptroller publishes a memorandum annually which establishes the hourly cost for various military airframes.53 The titular, and most commonly used MILAIR assets, the C12 and UC35, cost $2,019 and $2,221 per hour, respectively, for fiscal year 2019 (FY19).54 Thus, requesters should multiply the number of flight hours by the airframe’s hourly rate to determine the cost against which they must compare the cost of commercial travel.55

While the basic formula for calculating MILAIR’s actual cost is straightforward, JAs should review a request carefully to ensure all costs are properly accounted for. For example, determining the number of flying hours for proposed travel requires more than just calculating the time between takeoff and landing. Indeed, calculating flying hours also includes “all time required to position the aircraft to begin the trip and to return the aircraft to its normal base of operations, if no follow-on trip is scheduled.”56 Imagine for a moment that MG Tressel did not utilize operational MILAIR for his travel to Grafenwoehr and instead used a non-tactical vehicle (NTV) (i.e., the aircraft is not already waiting for him in Grafenwoehr for his follow-on travel). When calculating the cost of MILAIR for the flight from Grafenwoehr to T’bilisi, MG Tressel would need to include the flight hours involved in moving the aircraft from its home station to Grafenwoehr.57

Moreover, situations may arise where, on a multi-leg journey such as the one contemplated for MG Tressel, the aircrew are required to stay at a location in a temporary duty status to support follow on legs. In such situations, the actual cost of MILAIR must include the “travel expenses (particularly reimbursement of subsistence (i.e., per diem and miscellaneous expenses))” of the crew.58 As such, the actual cost of utilizing MILAIR can be reduced to a simple mathematical formula: MILAIR = (Flying Hours x Aircraft’s Hourly Rate) + any additional crew costs.59 With the cost of MILAIR in hand, one can turn to calculating the cost of commercial air.

2. Calculating the Cost of Commercial Air

As with all other aspects of MILAIR, practitioners should begin their analysis of the cost of commercial air with OMB A-126. In accordance with OMB A-126, calculating the cost of commercial air begins with determining “the current government contract fare or price or the lowest fare or price known to be available for the trip.”60 The DoD reiterates this point in DoDI 4500.43, noting the cost of commercial air calculation begins with the available government rate.61 The Secretary of the Army (SecArmy) elaborated on these commercial air requirements, stating, “[c]ommercial air travel must be conducted using contract fares via a contracted commercial travel office.”62 As such, requestors are best-served if they obtain a quote for commercial air transportation from their servicing Schedule Airlines Traffic Office (SATO).63

While much attention is being paid to the cost of air travel, it is important for requestors to also consider the cost of commercial train travel when requesting MILAIR. This is particularly true if stationed overseas, where train travel is far more common and accessible than it is in the United States. Indeed, SecArmy allows requestors to use a noncontract commercial carrier when “rail service is available and that service is cost-effective and consistent with mission requirements.”64 The SecArmy travel policy, when considered with DoD policy to minimize travel cost, should be read to require requestors to consider commercial rail service, in addition to commercial air service, when determining the availability of and cost of commercial travel options.65

With a price quote from SATO (and/or the local rail provider, if necessary) in hand, requestors should continue their calculation. Next, requestors should “include, as appropriate, any differences in the costs of any additional ground or air travel, per diem and miscellaneous travel (e.g., taxis, parking, etc.), and lost employees’ work time (computed at gross hourly costs to the government, including benefits) between the two options.”66 Elaborating further, DoDD 4500.56 establishes, “[i]n determining commercial costs, the cost of rental cars, the cost of lodging and meals if the party must remain overnight, and other such appropriate factors may be considered.”67

Calculating lost time can be complicated as many requests include multiple legs, travelers, and missions. Ultimately, determining the number of lost hours for each leg of travel requires answering one simple question: how long does it take the traveler to get from their door to their duty location with commercial travel and how long does it take with MILAIR?68 The difference between the two numbers represents the traveler’s lost time. For purposes of calculating time associated with commercial travel, requestors should be mindful to include all factors that impact the traveler’s time. This may include transportation to the terminal, time to check-in and clear security, time to gather baggage at one’s destination, and time to acquire a rental car.69 Likewise, requestors must do the same for MILAIR, though JAs should expect the various aspects of travel to be much faster with MILAIR.70 For example, it is typically not necessary to arrive at the terminal two or three hours early for a military flight, as it would be for a commercial flight. Likewise, travelers on MILAIR can expect to avoid long waits for baggage or to clear customs.71

Judge Advocates should be cautious that requestors do not pad the “travel team,” in order to accumulate sufficient additional costs for commercial travel and lost time to justify the use of MILAIR on a cost-effective basis.72 Indeed, OMB A-126 reminds requestors to only include costs for travelers on official business.73 As such, JAs should ensure that requestors include a justification for each traveler included on a MILAIR request to assess whether the individual has legitimate official business.74 For example, it would likely be reasonable, given his mission requirements, for MG Tressel to travel with his Executive Officer (XO) or Aide, G3, the country desk officer for Georgia, and his communications sergeant. Conversely, it likely would not be reasonable for MG Tressel to assert that he needs to bring six members of his servicing Office of the Staff Judge Advocate. Again, JAs should be prepared to ask hard questions of requestors about the schedule of events and why each traveler’s participation is required when reviewing a MILAIR request for cost-effectiveness.75

As detailed in Part IV below, the Combatant Commands (CCMD) play a significant role in the MILAIR process. A CCMD publication may add policy guidance or additional administrative requirements, and JAs must be sure to consult any publications from their CCMD before reviewing requests in their area of operations (AO).76 For example, the U.S. European Command (USEUCOM) Instruction on MILAIR requires, “lost time shall be computed using the current FY DoD Military Personnel Composite Standard Pay and Reimbursement Rate via an hourly computation.”77 While this method for computing lost time may seem intuitive, it is not required by OMB A-126 or any of the relevant DoD or Army publications.78 Thus, for MG Tressel’s request, he would calculate the lost time for each person in the travel party by multiplying the number of lost hours by the rate calculated by OMB for FY19.79

To justify the use of MILAIR on the basis of cost-effectiveness, the requestor must document that the cost of MILAIR is less than the cost of commercial transportation.80 Take, for example, MG Tressel’s travel from T’bilisi, Georgia, to Oberammergau, Germany. The cost of each traveler’s commercial flight is $1,074.80 (plus $48 booking fee) and the use of COMAIR results in 4.39 lost hours per traveler.81 Thus, the total cost of COMAIR for five travelers is $8,124.38 versus a total MILAIR cost of $7,496 (four flight hours x $1,874 hourly rate).82 If the requestor is seeking a fixed wing asset, the requestor has sufficient data to complete the request. But, what if the request is for a rotary wing asset?

C. “Get to the Choppa!”83

The previous paragraphs contemplate a request for a fixed wing asset, though it is not uncommon for travelers to request movement on a rotary wing asset. While all the justifications for MILAIR that have previously been discussed are still applicable, there is enhanced scrutiny and additional requirements on requests for rotary wing aircraft due to the high cost of operating a rotary wing asset. Indeed, each flight hour in a UH-60 (Blackhawk) costs $4,587, while an hour in a CH-47 (Chinook) costs a whopping $6,489.84

Although OMB A-126 is silent on specific rules for rotary wing MILAIR requests, DoDD 4500.56 lays the foundation for additional scrutiny with respect to rotary wing MILAIR requests. It states, “[r]otary wing aircraft will be used only when the use of ground transportation would have a significant adverse impact on the ability of a senior official to effectively accomplish the purpose of the official travel. This policy applies to all officers and employees of the Department of Defense.”85 The SecArmy travel policy echoes the requirement for requestors to demonstrate that ground transportation would have a “significant adverse impact” on mission accomplishment.86

As previously noted, JAs must ensure they reference Combatant Command (COCOM) guidance when reviewing MILAIR requests. For example, USEUCOM reiterates the policy that ground transportation must be used vice rotary wing assets unless there would be a “significant adverse impact on the ability of a senior official to effectively accomplish the purpose of the official travel.”87 European Command goes on to require, “[f]or rotary-wing aircraft, the justification must include a clear explanation of why ground transportation cannot be used to meet mission requirements.”88 Now, well-versed in the standards for justifying a MILAIR request, JAs can turn their attention to ensuring the request is documented appropriately.

D. Documenting Requests

Upon reviewing a MILAIR request for administrative use, the first document JAs will see is Department of Defense (DD) Form 2768, which will include the names and justifications for all the travelers.89 Pursuant to DoDD 4500.56, “[a]ll requests for the use of government aircraft for other official travel must be signed by the senior traveler.”90 The SecArmy travel policy adds, “[u]nder no circumstances will a MILAIR flight be formally scheduled without the senior traveler’s signature (actual or digital) included on the appropriate request form. Further, the documented senior traveler must be onboard the requested aircraft or the scheduling agency may cancel the mission.”91 As with all travel, the requestor must include a certification statement, “specifying that alternate means, such as Secure Video-Teleconference or other Web-based communication are insufficient to accomplish travel objectives.”92

In addition to DD Form 2768, JAs should expect to see a fair amount of documentation supporting any MILAIR request. Documents should include the traveler’s schedule, dates, times, and costs times of commercial travel options, and time estimates for transfers (e.g., Google Maps time estimate for travel from official duty location to the servicing airport.)93 Thus, depending on a requestor’s justification for MILAIR, the requestor will need to submit documentation demonstrating why his or her schedule cannot accommodate commercial transportation options or why MILAIR is more cost-effective than commercial options.94

In the case of MG Tressel’s proposed travel, the CCMD has promulgated specific guidance for how he must satisfy the documentation requirements in OMB A-126. For example, if MG Tressel asserts that MILAIR is required because commercial air cannot meet his travel requirements, “a description of the travel itinerary must be submitted with the request that includes details on why commercial air cannot meet mission requirements.”95 Should MG Tressel attempt to justify MILAIR on the basis of cost, he would need to complete USEUCOM’s lost time worksheet, which accounts for differences in time and cost for commercial air and MILAIR, and, to the extent he relies upon those differences, provide documentation for them.96 For example, the request for MG Tressel’s second leg of travel from T’bilisi, Germay, to Oberammergau, Germany, would account for the difference in travel time to his TDY location from the airfield utilized by MILAIR (i.e., 0.66 hours from Altenstadt to Oberammergau) versus the travel time from the commercial airport (i.e. 1.80 hours from Munich to Oberammergau).97 Major General Tressel’s staff could document this temporal difference with screenshots from Google Maps or another online map service.98

It is worth noting that not all times associated with travel can be documented. For example, the time required for check-in at the airport, customs, or claiming baggage, will likely be based on the requestor’s, and JA’s, responsible judgment.99 With a complete and sufficient MILAIR packet in hand, a JA need only determine who the proper approval authority is.

IV. Who Can Say Yes?

Properly categorizing MILAIR as “operational” or “administrative” has a significant impact on the request’s approval level. Indeed, “operational” flights have a relatively low approval level, while “administrative” flights require general officer approval. Knowing the proper approval authority allows JAs and staffs to streamline the MILAIR process.

A. Operational Use

Conspicuous in its absence from OMB A-126 and DoD publications is any discussion of approval levels for operational MILAIR requests. Thankfully, Army publications offer some insight on the matter. Chapter 2 of AR 95-1 discusses aviation management and defines “final mission approval authority” as:

Members of the chain of command who are responsible for accepting the risk and approving all aviation operations (ground and air) within their unit. They approve missions for a specific risk level. Final mission approval authorities may only approve those missions whose assessed risk level is commensurate with their command level. Commanders in the grade of O-5 and above will select final mission approval authorities from the chain of command and designate them in writing along with the level of risk (low, moderate, high, extremely high) they are authorized to approve. At a minimum, company level commanders and below are the final mission approval authority for low-risk missions, battalion level commanders and above for moderate-risk missions, brigade level commanders and above for high-risk missions, and the first general officer in the chain of command for extremely high-risk missions. Approval authorities are based upon levels of command authority and not rank.100

Application of the AR 95-1, paragraph 2-14, standard makes intuitive sense, as it would be unduly burdensome to apply administrative use approval standards to, for example, every training flight that is scheduled. Indeed, SecArmy suggests as much in Army Directive 2017-05, noting the policy, “does not apply to ‘operational mission’ use of rotary-wing aircraft as defined in AR 95-1, or to mission-required use such as . . . exercising command or supervisory authority at adjacent or local installations, and other such activities.”101 Thus, the approval authority for “operational” flights lies with a commander within the unit that owns the aircraft, commensurate with the assessed level of risk.102 The approval authority for administrative use is not convenient.

B. Administrative Use

As a general rule, MILAIR requests for administrative use must be approved “one organizational level above” the senior traveler.103 That said, approval authority for administrative use is still relatively high. The DoD established that Combatant Commanders shall, “review and approve government air requests from DoD senior officials within their respective commands,” and gives the Combatant Commander the ability to delegate this authority.104 Thus, JAs will need to determine if their Combatant Commander has delegated their approval authority and if that delegation allowed further delegation from the Army Service Component Command (ASCC).

Let us revisit MG Tressel’s administrative use request once more. Absent a delegation, the approval authority for his request would lie with the Commander, USEUCOM. However, Commander, USEUCOM, has delegated his approval authority to U.S. Army Europe (USAREUR), and given the CG, USAREUR, the authority to further delegate.105 Thus, MG Tressel’s MILAIR request may be approved by the CG, USAREUR, or his delegee.106 It is worth highlighting that in the case of the USEUCOM, delegation may not be “below the two-star or civilian equivalent level.”107 As such, even if the JA’s ASCC has received delegated authority from the CCMD, it is possible that the ASCC is limited in its ability to further delegate. Here, MG Tressel’s request would likely require approval by a general officer at the ASCC.

V. Conclusion

Judge Advocates in the field can earn the trust and confidence of their commanders through effective navigation of the MILAIR labyrinth. When appropriate, categorizing MILAIR use as operational can streamline approval processes and allow travelers to move out quickly on a task. Understanding the justifications for administrative MILAIR—commercial service is not reasonably available or it is more cost-effective than commercial transportation—and how travelers should document their requests will allow JAs to assist their command’s planner and complete a legal review quickly. The use of MILAIR, whether operational or administrative, can create efficiencies for travelers, and, ultimately, ensure units accomplish their mission.

Appendix A. Sample MILAIR Packet

LEG 1: Grafenwoehr to T’bilisi

 

 

LEG 2: T’bilisi to Oberammergau

LEG 3: Oberammergau to Heidelberg


[*]Judge Advocate, United States Army. Presently assigned as Command Judge Advocate, 32d Army Air and Missile Defense Command, Fort Bliss, Texas. LL.M., 2019, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia; J.D., 2009, Cleveland-Marshall College of Law, Cleveland State University; B.S., 2002, The Ohio State University. Previous assignments include Administrative Law Attorney, United States Army Europe, Wiesbaden, Germany, 2017-2018; Operational Law Attorney, United States Army Europe, Wiesbaden, Germany, 2015-2017; Brigade Judge Advocate, 66th Military Intelligence Brigade, Wiesbaden, Germany, 2014-2015; Knowledge Management Attorney, Office of the Judge Advocate General, Pentagon, Arlington County, Virginia, 2013-2014; Trial Defense Counsel, Fort Belvoir, Virginia, 2012-2013; Trial Defense Counsel, Fort Leavenworth, Kansas, 2011-2012; Legal Assistance Attorney, Combined Arms Center, Fort Leavenworth, Kansas, 2010. Member of the bar of Ohio. This paper was submitted in partial completion of the Master of Laws requirements of the 67th Judge Advocate Officer Graduate Course.

1 Far East Movement, Like a G6 ft. The Cataracs and DEV (Cherrytree and Interscope Records 2010).

2 David Smith, Treasury Chief Steven Mnuchin Asked for a Government Jet for His Honeymoon, The Guardian (Sept. 13, 2017, 8:47 PM), https://www.theguardian.com/us-news/2017/sep/13/treasury-secretary-steven-mnuchin-honeymoon-government-jet; Miranda Green, Mnuchin Won’t Commit to Commercial Only Flights for Treasury Travel, CNN (Sep. 28, 2018, 12:23 PM), https://www.cnn.com/2017/09/28/politics/steven-mnuchin-military-jet-use/index.html; see also Press Release, Judicial Watch, Judicial Watch Uncovers New Documents Detailing Pelosi’s Use of Air Force Aircraft for Her Family in 2010 (July 21, 2011), https://www.judicialwatch.org/press-room/press-releases/judicial-watch-uncovers-new-documents-detailing-pelosis-use-of-air-force-aircraft-for-her-family-in-2010/; Associated Press, General William Ward Demoted for Lavish Travel, Spending, Politico (Nov. 13, 2012, 12:21 PM, Updated Nov. 13, 2012, 1:11 PM), https://www.politico.com/story/2012/11/general-william-ward-demoted-for-lavish-travel-spending-083770.

3 Memorandum from SecDef to all DoD Personnel, subject: Ethics Sentinels (13 Sept. 2018).

4 This article will not address “required users,” as there are so few of them in the Department of the Army that, practically speaking, the issues pertaining to them will not be helpful to the majority of readers and practitioners in the field.

5 Office of Mgmt. & Budget, OMB Cir. A-126, Improving The Use and Management of Government Aircraft para. 7 (May 22, 1992) [hereinafter OMB A-126].

6 U.S. Dep’t of Army, Reg. 95-1, Flight Regulations para. 3-5 (22 Mar. 2018) [hereinafter AR 95-1].

7 See AR 95-1, supra note 6, para. 2-14a(3); OMB A-126, supra note 5, para. 11a; U.S. Dep’t of Def., Dir. 4500.56, DoD Policy on the Use of Government Aircraft and Air Travel para. 4e (C5, 3 Apr. 2019) [hereinafter DoDD 4500.56]; U.S. Dep’t of Army, Dir. 2017-05, Secretary of the Army Policy for Travel by Department of the Army Senior Officials encl., para. 1g (18 Jan. 2017) [hereinafter AD 2017-05].

8 OMB A-126, supra note 5, para. 5b.

9 Id.

10 U.S. Dep’t of Def., Instr. 4500.43, Operational Support Airlift Glossary (C3, 31 Aug. 2018) [hereinafter DoDI 4500.43]; but see U.S. Dep’t of Def., Instr. 4515.13, Air Transportation Eligibility (C3, 13 Aug. 2018) [hereinafter DoDI 4515.13]; DoDD 4500.56, supra note 7 (while seminal references for MILAIR issues, do not address this issue).

11 AR 95-1, supra note 6, para. 3-3; see also DoDI 4500.43, supra note 10; DoDI 4515.13, supra note 10; DoDD 4500.56, supra note 7.

12 AR 95-1, supra note 6, para. 3-3.

13 Id.

14 Id.; OMB A-126, supra note 5, para. 5b.

15 AR 95-1, supra note 6, para. 3-5.

16 Id. paras. 3-3, 3-5.

17 AR 95-1, supra note 6, paras. 3-1–3-5.

18 Id. para. 3-5.

19 This assertion is based on the author’s recent professional experience as an Administrative Law Attorney for United States Army Europe from August 2017 to July 2018 [hereinafter Professional Experience].

20 Id.

21 Id.

22 See AR 95-1, supra note 6, para. 3-5.

23 Id. para. 3-3.

24 Id.

25 Id. para. 3-5.

26 Id.

27 Id.

28 Id.

29 Operational use of military aircraft (MILAIR) has a much lower approval level, and, thus, takes significantly less staff time to make a reality. See infra Section IV.

30 While AR 95-1, para. 3-3, includes “exercising command and/or supervision at adjacent and local installation” as an operational use, most MILAIR requests tend to be for official duties that fall within AR 95-1, para. 3-5’s “other official travel.” Professional Experience, supra note 19.

31 AD 2017-05, supra note 7, para. 1d.

32 OMB A-126, supra note 5, para. 8a(i).

33 Id.

34 Id. para. 8a.

35 DoDD 4500.56, supra note 7, para. 4c.

36 Id. encl. 3, para. 3b.

37 Id. para. 4c.

38 U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 2.1 (28 June 2018) [hereinafter AR 27-26], (stating, in part, “[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.”)

39 OMB A-126, supra note 5, para. 8a(i).

40 Id.

41 U.S. Dep’t of Def., The Joint Travel Regulations (JTR) (1 Jan. 2019) [hereinafter JTR].

42 Id. sec. 0202.

43 Id. para. 020202.

44 Id.; see also OMB A-126, supra note 5, para. 8a and DoDD 4500.56, supra note 7, encl. 3, para. 3a.

45 See infra Appendix A.

46 Id. It is also worth noting that most flights in and out of T’bilisi, Georgia, often fall within the “excluded hours” contemplated by the JTR. As such, a reasonable debate exists as to whether flights offered during excluded hours alone can justify the use of MILAIR when those flights are the only flights offered to or from a destination. That is, if there are never flights to or from a destination during non-excluded hours, as defined by the JTR, can that alone justify the use of MILAIR? See JTR, supra note 41, para. 020202.

47 DoDD 4500.56, supra note 7, encl. 3, para. 3a.

48 OMB A-126, supra note 5, para. 8a(ii).

49 OMB A-126, supra note 5, Attachment A.

50 OMB A-126, supra note 5, para. 8a(ii).

51 DoDD 4500.56, supra note 7, para. 4a.

52 Id.

53 Memorandum from Anne J. McAndrew, Deputy Comptroller, Office of Under Sec’y of Def. to Assistant Sec’y of Army (Fin. Mgmt. & Comptroller), et al., subject: Fiscal Year (FY) 2019 Department of Defense (DoD) Fixed Wing and Helicopter Reimbursement Rates (12 Oct. 2018) [hereinafter Aircraft Reimbursement Rates Memo].

54 Id.

55 OMB A-126, supra note 5, Attachment A.

56 Id.

57 Id.

58 OMB A-126, supra note 5, Attachment B; see also infra Appendix A.

59 OMB A-126, supra note 5, Attachments A & B.

60 OMB A-126, supra note 5, Attachment A.

61 DoDI 4500.43, supra note 10, encl. 3, para. 4a(2)(a).

62 AD 2017-05, supra note 7, para. 3a.

63 Id.

64 AD 2017-05, supra note 7, para. 3a(4).

65 Id.; DoDD 4500.56, supra note 7, para. 4a.

66 OMB A-126, supra note 5, Attachment A.

67 DoDD 4500.56, supra note 7, encl. 3, para. 3c.

68 Professional Experience, supra note 20.

69 OMB A-126, supra note 5, Attachment A.

70 Professional Experience, supra note 20.

71 Id.

72 AD 2017-05, supra note 317, para. 5b(2).

73 OMB A-126, supra note 5, Attachment A.

74 OMB A-126, supra note 5, Attachment A.

75 AR 27-26, supra note 38, r. 2.1.

76 For example, U.S. European Command’s (USEUCOM) instruction on MILAIR parrots the definition of “mission requirements” already discussed from OMB A-126 and DoDI 4500.43. U.S. European Command, Instruction 3207.01, Military Airlift Policies and Procedures para. 5(e) (5 Mar. 2015) [hereinafter ECI 3207.01] (on file with the author); OMB A-126, supra note 5, para. 5b; DoDI 4500.43, supra note 10, Glossary. Also, I would be remiss if I did not thank members of the Military and Civil Law Division at U.S. Army Europe for their help acquiring the MILAIR publications relevant to USEUCOM—MAJ Shawn Atkins, CPT Kelsey Mowatt-Larssen, SGT Ebony Harris, SGT Veape Milo, and Mrs. Jennifer Serakas.

77 ECI 3207.01, supra note 76, para. 7a(7).

78 See supra notes 5, 6, 7, and 10.

79 ECI 3207.01, supra note 76, para. 7a(7); Memorandum from Mary E. Tompkey, Assistant Deputy Comptroller, Office of Under Sec’y of Def. to Dir., Health & Fin. Policy, Office of Assistant Sec’y of Defense (Health Affairs), et al., subject: Fiscal Year (FY) 2019 Department of Defense (DoD) Military Personnel Composite Standard Pay and Reimbursement Rates (30 Mar. 2018) [hereinafter Personnel Reimbursement Rates].

80 OMB A-126, supra note 5, para. 8a(ii).

81 See infra Appendix A.

82 Id. A-5.

83 Predator (Twentieth Century Fox 1987). Arnold Schwarzenegger’s character, Major “Dutch” Schaefer, famously gives this order as he attempts to rescue a group of people from an extra-terrestrial being in a South American jungle.

84 Aircraft Reimbursable Rates Memo, supra note 533.

85 DoDD 4500.56, supra note 7, para. 4k.

86 AD 2017-05, supra note 7, para. 6a.

87 ECI 3207.01, supra note 76, para. 6q.

88 Id. para. 7a(2)(c)5.

89 U.S. Dep’t of Def., DD Form 2768, Military Air Passenger/Cargo Request, (Mar. 1998).

90 DoDD 4500.56, supra note 7, encl. 3, para. 3b.

91 AD 2017-05, supra note 7, para. 1f.

92 JTR, supra note 41, para. 010104A.

93 OMB A-126, supra note 5, para. 12.

94 Id.

95 ECI 3207.01, supra note 76, para. 7a(2)(c)3.

96 USEUCOM’s lost time worksheet is a fillable spreadsheet with the Office of Management and Budget reimbursement rates for aircraft and personnel preloaded. It allows requestors to easily compare cost variances for commercial air and MILAIR.

97 See infra Appendix A.

98 OMB A-126, supra note 5, para. 12.

99 JTR, supra note 41, para. 010102 (“The guiding principle behind the JTR is to travel responsibly. The word ‘responsibly’ means that the traveler exercises the same care in incurring expenses for Government travel that a prudent person would exercise if traveling at personal expense.”); see also AR 27-26, supra note 38, r. 2.1.

100 AR 95-1, supra note 6, para 2-14a(3).

101 AD 2017-05, supra note 7, para. 6b.

102 AR 95-1, supra note 6, para 2-14a(3).

103 OMB A-126, supra note 5, para. 11a; see also DoDD 4500.56, supra note 7, para. 4e; AD 2017-05, supra note 7, para. 1g.

104 DoDD 4500.56, supra note 7, para. 11c.

105 Memorandum from General Curtis M. Scaparrotti, Commander, U.S. Europe Command to Commander, U.S. Naval Forces Europe, et al., subject: Delegation of Military Air Transportation Approval Authority (23 June 2016) [hereinafter EUCOM Delegation Memo].

106 Id. para. 2. It should also be noted that the ability of the CG, U.S. Army Europe’s delegee to approve MG Tressel’s request is contingent upon that individual being one organizational level higher than MG Tressel. See OMB A-126, supra note 5, para. 11a; see also DoDD 4500.56, supra note 7, para. 4e; AD 2017-05, supra note 7, para. 1g.

107 EUCOM Delegation Memo, supra note 105.