B-164673, OCT. 22, 1968

B-164673, OCT. 22, 1968

TO MR. FRANCIS W. STEVENS:

THIS REFERS TO YOUR LETTER OF JUNE 18, 1968, WITH ENCLOSURES, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES BECAUSE OF AN ERRONEOUS PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD OF JULY 18, 1967, THROUGH JANUARY 12, 1968, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AT RUSSELSHEIM, GERMANY.

BY LETTER OF JULY 15, 1968, WE ADVISED YOU THAT BEFORE DISPOSING OF THE MATTER WE FOUND IT NECESSARY TO OBTAIN A REPORT FROM THE DEPARTMENT OF THE ARMY WHICH HAS NOW BEEN RECEIVED.

DURING THE PERIOD JULY 18, 1967, TO JANUARY 12, 1968, YOU WERE ISSUED TRAVEL ORDERS ON A WEEKLY BASIS AUTHORIZING YOU TO TRAVEL FROM RUSSELSHEIM TO WORMS FOR TEMPORARY DUTY. THE TRAVEL ORDERS AUTHORIZED PER DIEM AND MILEAGE. THE RECORD INDICATES THAT THE TRAVEL WAS PERFORMED DAILY FROM ASTHEIM, GERMANY, TO WORMS WHICH IS APPROXIMATELY 30 MILES DISTANT. THE AVERAGE DRIVING TIME WAS 50 TO 60 MINUTES DEPENDING ON TRAFFIC CONDITIONS. YOU SAY IN PERFORMING THE TRAVEL IT WAS NECESSARY FOR YOU TO BE AWAY FROM YOUR DUTY STATION OVER 10 HOURS DAILY. YOUR OFFICIAL STATION FINALLY WAS TRANSFERRED FROM RUSSELSHEIM TO WORMS BY ORDER OF FEBRUARY 13, 1968, EFFECTIVE ON OR ABOUT MARCH 22, 1968.

WHILE YOU WERE PAID MILEAGE AND PER DIEM IN ACCORDANCE WITH YOUR TRAVEL ORDERS, IT WAS LATER DETERMINED BY ADMINISTRATIVE OFFICIALS THAT YOU WERE NOT ENTITLED TO AN ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE AND YOU WERE HELD TO BE INDEBTED FOR THE PAYMENTS IN QUESTION.

THE DEPARTMENT OF THE ARMY ADVISES US THAT IN AUTHORIZING YOUR TRAVEL CONSIDERATION WAS NOT GIVEN TO CERTAIN JTR REGULATIONS, ONE OF WHICH IS JTR C8050-4, WHICH READS IN PART AS FOLLOWS: ,4. TEMPORARY DUTY AT NEARBY PLACES OUTSIDE THE PERMANENT DUTY STATION AREA. PER DIEM ALLOWANCE WILL NOT BE AUTHORIZED WHEN AN EMPLOYEE DOES NOT INCUR ADDITIONAL SUBSISTENCE EXPENSES BECAUSE OF A TEMPORARY DUTY ASSIGNMENT IN THE VICINITY OF, BUT OUTSIDE, THE PERMANENT DUTY STATION AREA REGARDLESS OF WHETHER OR NOT TRAVEL BEGINS OR ENDS AT HIS REGULAR PLACE OF DUTY OR HIS RESIDENCE. * *

IT HAS BEEN HELD THAT THE PER DIEM ALLOWANCE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT AUTHORIZED BY THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 5701 ET SEQ., IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN PUBLIC PLACES AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY, ETC., WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF ABODE. SEE BORNHOFT V UNITED STATES, 137 CT. CL. 134. THUS, THE REGULATION QUOTED ABOVE APPEARS TO BE IN CONSONANCE WITH THE PURPOSE OF A PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCE.

WHILE YOU DID PERFORM THE TRAVEL BY A PRIVATELY OWNED AUTOMOBILE AND WERE ENTITLED TO REIMBURSEMENT FOR MILEAGE, THERE IS NOTHING OF RECORD TO SHOW THAT YOU INCURRED ANY ADDITIONAL SUBSISTENCE BY REASON OF YOUR TEMPORARY DUTY ASSIGNMENT TO WORMS, GERMANY. IN THE ABSENCE OF SUCH A SHOWING THE ATTEMPT TO AUTHORIZE PER DIEM IN LIEU OF SUBSISTENCE IN YOUR TRAVEL ORDER WAS IMPROPER AS INDICATED BY JTR C8050-4.

SINCE YOU WERE NOT ENTITLED TO BE PAID ANY PER DIEM IN LIEU OF SUBSISTENCE, THERE IS NO BASIS FOR RELIEVING YOU OF LIABILITY FOR YOUR INDEBTEDNESS TO THE UNITED STATES. WE ARE FURNISHING A COPY OF THIS DECISION TO THE DEPARTMENT OF THE ARMY.