B-172207, JUL 21, 1971

B-172207, JUL 21, 1971

CIVILIAN EMPLOYEE - PER DIEM - AMENDMENT OF ORDERS DECISION AUTHORIZING PAYMENT OF CLAIM OF JOHN E. SEYFRIED, EDWARD B. WESTENDORF, JAMES L. MURRAY, AND JOHN X. TEUFEN FOR PER DIEM INCIDENT TO THEIR ASSIGNMENT TO THE U.S. ARMY CHICAGO PROCUREMENT AGENCY. THESE CLAIMS WERE PREVIOUSLY DISALLOWED BY CLAIMS DIVISION, GAO, ON JANUARY 14 AND 15, 1971 BECAUSE THE ASSIGNMENTS WERE TO HAVE BEEN PERMANENT. THE QUESTION AS TO WHETHER A DUTY STATION IS TO BE PERMANENT OR TEMPORARY IS NOT MERELY FOR ADMINISTRATIVE DETERMINATION, BUT IS A QUESTION OF FACT TO BE DETERMINED FROM THE GIVEN SITUATION. 33 COMP. GEN. 98 (1953). FROM THE RECORD, IT IS APPARENT THAT AT THE TIME OF THE TRANSFERS CHICAGO WAS NOT CONTEMPLATED AS A PERMANENT DUTY STATION FOR CLAIMANTS. THEREFORE, THE COMP. GEN. WOULD HAVE NO OBJECTION TO THE TRAVEL ORDERS BEING AMENDED TO REFLECT CHICAGO AS A TEMPORARY DUTY STATION WITH PAYMENT OF APPROPRIATE PER DIEM RATES.

TO MAJOR GENERAL ROBERT C. FORBES, USA:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF MARCH 19, 1971, REGARDING THE CLAIMS, NOS. Z-2432725, Z-2432726, AND Z-2432727, OF MESSRS. JOHN E. SEYFRIED, EDWARD B. WESTENDORF, AND JAMES L. MURRAY FOR PER DIEM INCIDENT TO THEIR ASSIGNMENTS TO THE UNITED STATES ARMY CHICAGO PROCUREMENT AGENCY. THESE CLAIMS, AS WELL AS CLAIM NO. Z 2432724 OF MR. JOHN X. TEUFEN, WERE DENIED BY OUR CLAIMS DIVISION SETTLEMENT LETTERS DATED JANUARY 14 AND 15, 1971. INASMUCH AS MR. TEUFEN'S CLAIM FOR PER DIEM, OF WHICH RECONSIDERATION HAS BEEN REQUESTED, ARISES OUT OF CIRCUMSTANCES SIMILAR TO THOSE OF THE OTHER THREE CLAIMENTS, WE HAVE CONSIDERED THE FOUR CLAIMS JOINTLY.

THE RECORD SHOWS THAT AS EMPLOYEES OF THE UNITED STATES ARMY CINCINNATI PROCUREMENT AGENCY, CINCINNATI, OHIO, EACH CLAIMANT WAS ADVISED OF THE CONTEMPLATED CLOSURE OF THAT ACTIVITY AND WAS OFFERED AND ACCEPTED A TRANSFER TO THE UNITED STATES ARMY CHICAGO PROCUREMENT AGENCY. MESSRS. SEYFRIED, MURRAY, AND TEUFEN, BY TRAVEL ORDERS DATED JANUARY 22, 1970, AND MR. WESTENDORF, BY TRAVEL ORDER DATED FEBRUARY 13, 1970, WERE AUTHORIZED CHANGES OF PERMANENT STATION FROM CINCINNATI, OHIO, TO CHICAGO, ILLINOIS, AND REIMBURSEMENT OF EXPENSES INCIDENT TO THE TRANSFER PURSUANT TO THE PROVISIONS OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, AS AMENDED. ALL FOUR EMPLOYEES REPORTED FOR DUTY ON FEBRUARY 17, 1970.

SHORTLY AFTER THEIR ARRIVAL AT THE CHICAGO AGENCY, THE CLAIMANTS WERE ADVISED BY LETTER FROM THE COMMANDING OFFICER, DATED MARCH 6, 1970, OF THE ANNOUNCED CLOSURE OF THE CHICAGO AGENCY AND THE TRANSFER OF THE FUNCTION BEING PERFORMED THERE TO THE SAN FRANCISCO AND NEW YORK AGENCIES WITH ADVICE RELATIVE TO PLACEMENT AND RELOCATION OPPORTUNITIES FOR THE EMPLOYEES.

THE RECORD FURTHER INDICATES THAT THE ANNOUNCED CLOSURE WAS TO BE ACCOMPLISHED ON A THREE PART BASIS. LETTERS DATED MARCH 9, 1970, FROM THE COMMANDING OFFICER AND ADDRESSED TO EACH OF THE INDIVIDUAL EMPLOYEES STATED AS FOLLOWS:

"AS YOU KNOW, THE DEPARTMENT OF THE ARMY HAS ANNOUNCED THAT THE CHICAGO PROCUREMENT AGENCY IS BEING CLOSED EFFECTIVE 11 DECEMBER 1970. THIS CLOSURE WILL BE ACCOMPLISHED ON A PHASED BASIS WITH ONE-THIRD OF THE WORKFORCE TO BE SEPARATED NO LATER THAN 29 JUNE 1970, ONE-THIRD NO LATER THAN 30 SEPTEMBER 1970 AND THE REMAINING ONE-THIRD BY 11 DECEMBER 1970.

BY LETTERS OF APRIL 6, 1970, ADDRESSED TO THE COMMANDING OFFICER EACH OF WHICH IS PHRASED SUBSTANTIALLY THE SAME, MESSRS. SEYFRIED, WESTENDORF, MURRAY, AND TEUFEN REPORTED THE ABOVE RELATED SEQUENCE OF EVENTS AND STATED AS FOLLOWS:

"IN ACCORDANCE WITH MY ATTACHED TRAVEL ORDER *** AND JOINT TRAVEL REGULATIONS (JTR), I TOOK ADVANTAGE OF THE 30 DAYS TEMPORARY QUARTERS IN ORDER TO FIND PERMANENT QUARTERS FOR MY FAMILY, WHO WOULD FOLLOW SHORTLY THEREAFTER. ON 6 MARCH 1970, SEVENTEEN CALENDAR DAYS AFTER REPORTING FOR DUTY TO CHICAGO, I WAS 'ASTOUNDED' BY THE OFFICIAL ANNOUNCEMENT THAT THE AGENCY WOULD CLOSE. I WAS NOTIFIED THAT FROM CHICAGO, I MAY HAVE TRANSFER RIGHTS TO NEW YORK OR SAN FRANCISCO. ALSO, AN ATTEMPT WOULD BE MADE TO HAVE ALL TRANSFERS EFFECTED BY JULY 1970.

"WHEN I ACCEPTED THE PCS TO CHICAGO, I NATURALLY ASSUMED THAT THE TRANSFER WOULD BE OF A PERMANENT NATURE. HOWEVER, UNDER THE PRESENT CONDITION I AM CONTINUING TO RESIDE IN TEMPORARY QUARTERS WHILE MAINTAINING MY HOME IN CINCINNATI. AS A RESULT OF THE FOREGOING IT HAS CREATED A FINANCIAL HARDSHIP AND AN EMOTIONAL STRAIN ON MY FAMILY. THIS TIME IT WOULD BE UNECONOMICAL TO PROCEED WITH THE PCS MOVE TO CHICAGO, WHICH WOULD AMOUNT TO APPROXIMATELY *** ($8400, $7100, $6200 AND $8600, RESPECTIVELY) AS INDICATED ON MY TRAVEL ORDER.

"SINCE THE JTR COVERING PCS IS PERMISSIVE, IT IS REQUESTED THAT PER DIEM BE AUTHORIZED SINCE MY DUTY STATION STATUS WAS CHANGED FROM PERMANENT TO A TEMPORARY SITUATION. *** "

BECAUSE OF THE IMMINENCE OF THE BASE CLOSURE, AS WELL AS THE UNCERTAINTY AS TO THE DATE AT WHICH THEIR TRANSFERS WOULD BE EFFECTED, THE FOUR CLAIMANTS CONTINUED TO RESIDE IN TEMPORARY QUARTERS AT CHICAGO UNTIL THEIR SUBSEQUENT TRANSFERS RETAINING THEIR CINCINNATI HOMES RATHER THAN SUBJECT THEIR FAMILIES TO TWO SUCCESSIVE MOVES. IN CONSEQUENCE, OTHER THAN THE 30 DAYS TEMPORARY QUARTERS ALLOWANCE, THEY DID NOT INCUR SUCH RELOCATION EXPENSES FOR WHICH REIMBURSEMENT HAD BEEN AUTHORIZED BY THEIR PERMANENT CHANGE OF STATION ORDERS. THEIR SUBSEQUENT TRANSFERS WERE ORDERED AS FOLLOWS: MR. SEYFRIED, OCTOBER 10, 1970; MR. WESTENDORF, NOVEMBER 28, 1970; MR. MURRAY, NOVEMBER 14, 1970, AND MR. TEUFEN, SEPTEMBER 12, 1970.

IN VIEW OF THE ABOVE CIRCUMSTANCES, MESSRS. SEYFRIED, WESTENDORF, MURRAY, AND TEUFEN SUBMITTED CLAIMS FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD FROM FEBRUARY 17, 1970, THROUGH THE DATES OF THEIR RESPECTIVE TRANSFERS. THOSE CLAIMS WERE DENIED BY OUR CLAIMS DIVISION ON THE BASIS THAT THERE IS NO AUTHORITY UNDER APPLICABLE REGULATIONS FOR PAYMENT OF PER DIEM TO AN EMPLOYEE ON DUTY WITHIN HIS PERMANENT DUTY STATION AREA, NOR IS THERE ANY BASIS FOR PAYMENT TO EMPLOYEES OF AMOUNTS WHICH THOUGH AUTHORIZED ARE NOT IN FACT INCURRED.

THE LETTER OF FEBRUARY 12, 1971, FROM MESSRS. SEYFRIED, WESTENDORF, AND MURRAY, AND THAT FROM MR. TEUFEN, REQUESTING RECONSIDERATION OF THEIR CLAIMS, ASKS, IN VIEW OF THE ANNOUNCED CLOSURE OF THE CHICAGO AGENCY AND THE UNCERTAINTY AS TO THEIR TRANSFER DATES, THAT THE DESIGNATION OF CHICAGO AS A PERMANENT DUTY STATION BE CHANGED TO A TEMPORARY DUTY STATION.

THIS OFFICE HAS REPEATEDLY HELD THAT AN AGENCY MAY NOT DESIGNATE AN EMPLOYEE'S OFFICIAL DUTY STATION AT SOME PLACE OTHER THAN THE PLACE AT WHICH HE IS EXPECTED TO PERFORM THE PREPONDERANCE OF HIS DUTIES IN ORDER TO PAY HIM PER DIEM AT SUCH PLACE, 31 COMP. GEN. 289 (1951), 32 ID. 87 (1952), 36 ID. 568 (1958). WE HAVE, HOWEVER, RECOGNIZED THAT WHETHER A PARTICULAR DUTY STATION IS IN FACT A PERMANENT STATION OR TEMPORARY IS NOT MERELY A MATTER OF ADMINISTRATIVE DESIGNATION, BUT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS, AND WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO THE DURATION THEREOF AND THE NATURE OF THE DUTY, 33 COMP. GEN. 98 (1953).

YOU INDICATED BY YOUR LETTER OF JUNE 15, 1971, THAT ON FEBRUARY 11, 1970, SIX DAYS PRIOR TO THE EFFECTIVE DATE OF THE TRANSFERS OF THE FOUR CLAIMANTS, THE ARMY MATERIEL COMMAND REQUESTED CLEARANCE OF A CONGRESSIONAL ANNOUNCEMENT OF THE CHICAGO PROCUREMENT AGENCY CLOSURE. APPLICABLE DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE ARMY DIRECTIVES DO NOT PERMIT RELEASE OF INFORMATION TO EMPLOYEES AND THE PUBLIC OF MAJOR PERSONNEL REDUCTIONS, TRANSFERS, AND CLOSURES PRIOR TO THE APPROVAL AND RELEASE TO THE VARIOUS CONGRESSIONAL DELEGATIONS. YOU STATE THAT IT WAS FOR THIS REASON THAT THE ARMY MATERIEL COMMAND WAS PRECLUDED FROM INFORMING THE CLAIMANTS PRIOR TO THEIR DEPARTURE FROM CINCINNATI THAT THEY WOULD NOT HAVE CONTINUING POSITIONS IN CHICAGO. YOU FURTHER INDICATE THAT IT WAS BECAUSE OF THESE RESTRICTIONS THAT THE ORIGINAL PERMANENT CHANGE OF STATION ORDERS WERE NEITHER CANCELLED NOR CHANGED TO DESIGNATE CHICAGO AS A TEMPORARY DUTY STATION. WE NOTE THAT HAD THE CLAIMANTS BEEN AWARE OF THE SITUATION THEY PROBABLY WOULD HAVE ACCEPTED ASSIGNMENTS ELSEWHERE AS OFFERED.

FROM THE FOREGOING, IT IS APPARENT THAT AT THE TIME OF THE TRANSFERS OF MESSRS. SEYFRIED, WESTENDORF, MURRAY, AND TEUFEN TO THE CHICAGO AGENCY IT WAS NOT CONTEMPLATED THAT CHICAGO WOULD IN FACT BE THEIR PERMANENT ASSIGNMENTS. THEREFORE UNDER THE PARTICULAR CIRCUMSTANCES OF THESE CASES, WE WOULD HAVE NO OBJECTION TO THEIR TRAVEL ORDERS BEING AMENDED AT THIS TIME TO DESIGNATE CHICAGO AS THE TEMPORARY DUTY STATION OF EACH AND APPROPRIATE RATES OF PER DIEM AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS. AN ADJUSTMENT SHOULD BE MADE FOR THE 30 DAYS TEMPORARY QUARTERS ALLOWANCE PREVIOUSLY PAID TO EACH.

THE CLAIMANTS HAVE BEEN ADVISED OF THIS ACTION.