B-138597, FEB 20, 1959

B-138597, FEB 20, 1959

PRECIS-UNAVAILABLE

A. A. JOHNSON, UNITED STATES NAVY HYDROGRAPHIC OFFICE:

ON JANUARY 2, 1959, THE COMPTROLLER OF THE NAVY FORWARDED TO OUR OFFICE YOUR REQUEST FOR AN ADVANCE DECISION WHETHER YOU MAY PAY THE VOUCHERS, WHICH YOU ENCLOSED, OF NINE CIVILIAN EMPLOYEES RECLAIMING CERTAIN AMOUNTS FOR PER DIEM WHICH YOU DISALLOWED IN PREVIOUS VOUCHERS. THE EMPLOYEES ARE DONALD A. ATKOCIUS, CHARLES G. KAMMER, ROBERT L. CORY, PASQUALE S. DE LEONIBUS, ROGER S. STAPLES, PAUL A. MAZEIEA, JAMES L. CARROLL, PAUL M. DUNLAP, JR., AND GEORGE V. SHAEFER.

THE FILE INDICATES THE EMPLOYEES ARE OCEANOGRAPHERS AND THAT THE TRAVEL WAS PERFORMED IN CONNECTION WITH A HYDROGRAPHIC SURVEY CONDUCTED FROM SMALL MINE CRAFT WORKING OUT OF COPENHAGEN, DENMARK, AND KIEL, GERMANY. DURING PORTIONS OF THE WORK, THE EMPLOYEES WERE ABOARD THE CRAFT AT SEA FOR PERIODS OF LONGER THAN 24 HOURS AND IT IS THE PER DIEM FOR THOSE PERIODS WHICH IS IN QUESTION HERE. YOU DISALLOWED THE CLAIMS FOR PER DIEM DURING THOSE PERIODS AT THE BUREAU OF THE BUDGET LOCALITY RATE AND ALLOWED ONLY $4 PER DIEM UNDER THE PROVISIONS OF ITEM 9C OF THE PRINTED TRAVEL ORDER FORM. THE NUMBER OF DAYS FOR WHICH YOU ADJUSTED THE PER DIEM RATE VARIES IN EACH CASE BUT, FROM THE RECORD, WE ESTIMATE THAT IT WOULD AVERAGE CONSIDERABLY LESS THAN HALF THE TOTAL NUMBER OF DAYS BETWEEN FIRST ARRIVAL AT THE PORT AND FINAL DEPARTURE.

PER DIEM IN LIEU OF SUBSISTENCE OUTSIDE THE CONTINENTAL UNITED STATES WAS AUTHORIZED IN THE TRAVEL ORDERS AT THE "APPROPRIATE BUREAU OF THE BUDGET LOCALITY RATES)" ($12 IN COPENHAGEN AND $11 IN KIEL), SUBJECT TO NAVY CIVILIAN PERSONNEL INSTRUCTIONS (NCPI) 240, AS AMENDED, AND THE STANDARDISED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED. ITEM 9 OF THE PRINTED TRAVEL ORDER FORM, SPECIFIED IN PERTINENT PART:

"THE FOLLOWING PER DIEM RATES, NOT SUBJECT TO REDUCTION, APPLY UNDER THE CIRCUMSTANCES INDICATED: *** B. $1.80 WHILE ABOARD AN METS VESSEL, WHEN MEALS ARE FURNISHED WITHOUT CHARGE; C. $4 WHEN MEALS ARE FURNISHED WITH CHARGE ABOARD A GOVERNMENT VESSEL, ***."

THE EMPLOYEES CONTEND IN A MEMORANDUM SUPPORTING THEIR RECLAIM VOUCHERS THAT CONDITIONS UNDER WHICH THE SURVEY WAS PERFORMED NECESSITATED THEIR MAINTAINING QUARTERS ASHORE EVEN WHILE ON BOARD THE SHIP AT SEA. THEY SAY IN EFFECT, THAT THE TIMES AT SEA COULD NEVER BE SCHEDULED WITH CERTAINTY IN THAT THE DURATION OF THESE PERIODS WAS FREQUENTLY AFFECTED SUDDENLY BY SUCH CONTINGENCIES AS EQUIPMENT BREAKDOWNS AND ADVERSE WEATHER CONDITIONS REQUIRING IMPROMPTU RETURN TO PORT AND THAT, UNLESS THEY RETAINED THEIR SHORE QUARTERS, THEY COULD NOT BE SURE OF OBTAINING ANY QUARTERS IMMEDIATELY WHEN NEEDED UPON RETURN TO PORT OR OF BEING ABLE TO REDEEM THEIR LUGGAGE IMMEDIATELY, IF STORED. THEY SAY ALSO THAT THE SMALL MINE CRAFT USED AS "WORKING PLATFORMS" CANNOT ACCOMMODATE THE CIVILIANS AND THEIR PERSONAL BELONGINGS AND THAT, CUSTOMARILY, THE CIVILIANS WORK ABOARD THE CRAFT "AROUND THE CLOCK AND CATCH A FEW HOURS SLEEP ON DOCK, IN THE WORK SHACK, ON A BENCH IN THE WARDROOM, OR INFREQUENTLY IN THE BUNK OF AN 'ON-DUTY' SEAMAN."

ITEM 9C OF THE PRINTED TRAVEL ORDER FORM, QUOTED ABOVE, IS BASED ON NCPI 240.8-3(D)(3) WHICH IN TURN IS BASED ON THE POLICY SET FORTH IN SECTION 3, PARAGRAPH 3C, OF DEPARTMENT OF DEFENSE INSTRUCTION NO. 1420.1, DATED DECEMBER 6, 1956. THE FILE SHOWS THAT THE QUESTION WHETHER THAT SECTION NECESSARILY APPLIES TO SITUATIONS SIMILAR TO THAT INVOLVED HERE WAS PRESENTED TO THE DEPARTMENT OF DEFENSE BY THE NAVY. IN REPLY TO THE QUESTION, THE DIRECTOR OF PERSONNEL POLICY, DEPARTMENT OF DEFENSE SAID IN A MEMORANDUM DATED DECEMBER 18, 1958, THAT:

"*** SECTION III B, PARAGRAPH 3C, OF DOD INSTRUCTION 1420.1 WAS NOT INTENDED, AND IS NOT REQUIRED, TO BE CONSIDERED AS APPLYING TO THE SITUATION DESCRIBED.

"THE PER DIEM RATES PRESCRIBED IN THAT PARAGRAPH WERE FIXED IN CONSIDERATION OF THE ACTUAL EXPENSES AN EMPLOYEE NORMALLY WOULD INCUR ABOARD SHIP FOR A FULL DAY, DURING WHICH TIME QUARTERS ON BOARD SHIP WOULD BE FURNISHED. IN THE SITUATION DESCRIBED IT APPEARS THAT THE EMPLOYEES IN QUESTION WERE REQUIRED TO MAINTAIN QUARTERS ASHORE.

"UNDER THE GENERAL POLICIES STATED IN DOD INSTRUCTION 1420.1, AN APPROPRIATE PER DIEM RATE (NOT LIMITED TO $4.00) COULD BE AUTHORIZED IN FUTURE SUCH CASES IF IT IS ADMINISTRATIVELY DETERMINED THAT THE PARTICULAR CIRCUMSTANCES WARRANT A REDUCTION IN THE PER DIEM ALLOWANCE OTHERWISE PROPERLY PAYABLE."

THE POLICY, REGULATIONS, AND ITEM 9C OF THE TRAVEL ORDER FORM ARE APPARENTLY BASED ON SECTION 6.7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH REQUIRES THAT:

"WHERE MEALS AND/OR LODGING ARE FURNISHED WITHOUT CHARGE OR AT A NOMINAL COST BY A FEDERAL GOVERNMENT AGENCY AT A TEMPORARY DUTY STATION, AN APPROPRIATE DEDUCTION SHALL BE MADE FROM THE AUTHORIZED PER DIEM RATE."

THUS, THE $4 RATE WAS APPARENTLY DESIGNED FOR SITUATIONS WHEN QUARTERS ARE FURNISHED FREE ABOARD GOVERNMENT VESSELS AND CHARGES ARE MADE FOR MEALS. IF IT MAY BE SAID THAT QUARTERS WERE NOT, IN FACT, FURNISHED ABOARD THE MINE CRAFT FROM WHICH THESE EMPLOYEES CONDUCTED THEIR SURVEY, THEN WE AGREE THAT IT IS NOT NECESSARY TO APPLY THE $4 RATE. THIS RAISES THE QUESTION OF WHAT CONSTITUTES "QUARTERS FURNISHED" AND, SPECIFICALLY, WHETHER THE SLEEPING AND LIVING ACCOMMODATIONS THE EMPLOYEES USED ABOARD THE MINE CRAFT MUST, IN THE CIRCUMSTANCES, BE CONSIDERED AS QUARTERS FURNISHED WITHIN THE INTENT OF THE REGULATIONS. GENERALLY, THE ADEQUACY OF GOVERNMENT QUARTERS FOR FEDERAL EMPLOYEES IS A MATTER PROPERLY FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE OFFICE CONCERNED, TAKING INTO CONSIDERATION ALL THE FACTORS INVOLVED. WE WOULD UNDERTAKE IN A PROPER CASE, TO MAKE SUCH DETERMINATION IF WE WERE REQUESTED TO DO SO PROVIDING, OF COURSE, THAT ALL OF THE FACTS WERE BEFORE US. HERE, HOWEVER, WE DO NOT CONSIDER THE FACTS AVAILABLE TO US IN THE FILE SUFFICIENT TO PERMIT US TO MAKE AN AUTHORITATIVE DETERMINATION. THE PRESENT RECORD, WE WOULD BE INCLINED TO ACCEPT THE ADMINISTRATIVE CONCLUSION TO THE EFFECT THAT QUARTERS AS SUCH WERE NOT AVAILABLE AND WERE NOT FURNISHED IN VIEW OF WHICH THE $4 RATE DOES NOT APPLY. ONE PERTINENT FACTOR WHICH TENDS TO SUPPORT SUCH A CONCLUSION HERE IS THE APPARENTLY REASONABLE NECESSITY FOR THE EMPLOYEES TO MAINTAIN PRIVATE QUARTERS ASHORE WHILE THEY WERE AT SEA.

THE FILE INDICATES THAT THE EMPLOYEES PURCHASED THEIR MEALS ABOARD THE SHIPS AT NOMINAL COST WHICH WE UNDERSTAND FROM YOU AMOUNTED TO $1.10 PER DAY, THE BASIC GENERAL MESS RATE. IF SO, THAT APPEARS TO BE CONTRARY TO THE PROVISIONS OF PARAGRAPH 41421, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL (VOL. IV), WHICH REQUIRES THAT, IN ADDITION TO THE BASIC CHARGE OF $0.25 FOR BREAKFAST, $0.45 FOR DINNER, AND $0.40 FOR SUPPER, A SURCHARGE OF $0.25 FOR BREAKFAST, $0.45 FOR DINNER, AND $0.45 FOR SUPPER SHALL BE COLLECTED FOR MEALS SOLD FROM A GENERAL MESS TO OFFICERS AND CIVILIANS IN A TRAVEL STATUS WHO ARE RECEIVING A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE. IF THAT IS THE CASE, THE AMOUNT OF THE SURCHARGE WHICH EACH EMPLOYEE SHOULD HAVE PAID SHOULD BE ESTABLISHED AND COLLECTED BY SET-OFF AGAINST THE PRESENT VOUCHERS, WHICH THEN MAY BE PAID IN THE NET AMOUNT FOUND DUE, IF OTHERWISE CORRECT.

THE VOUCHERS AND SUPPORTING PAPERS ARE RETURNED.