B-187315, MAY 5, 1977

B-187315, MAY 5, 1977

EMPLOYEE WHO INCIDENT TO PERFORMANCE OF OFFICIAL TRAVEL WAS AUTHORIZED TRAVEL BY PRIVATELY OWNED CONVEYANCE (POV) FOR PERSONAL CONVENIENCE WAS PROPERLY CHARGED ANNUAL LEAVE FOR EXCESS TRAVEL TIME. AUTHORIZATION OF POV FOR PERSONAL CONVENIENCE IN LIEU OF COMMON CARRIER ESTABLISHES ENTITLEMENT TO TRAVEL EXPENSES LIMITED TO CONSTRUCTIVE COST BY APPROPRIATE COMMON CARRIER, IN THIS CASE AIRPLANE. WHETHER ANNUAL LEAVE IS TO BE CHARGED FOR EXCESS TRAVEL TIME IS PRIMARILY MATTER FOR CONSIDERATION BY AGENCY. AGENCY'S DETERMINATION AS TO CHARGING ANNUAL LEAVE FOR EXCESS TRAVEL TIME IS REASONABLE EXERCISE OF ITS DISCRETION.

DR. ALEXANDER ABASHIAN - CLAIM FOR ANNUAL LEAVE CHARGED DUE TO EXCESS TRAVEL TIME:

THIS MATTER RESULTS FROM THE APPEAL OF DR. ALEXANDER ABASHIAN OF THE CLAIMS DIVISION SETTLEMENT Z-2575939, JULY 12, 1976, WHICH DENIED HIS CLAIM FOR RECREDIT OF ANNUAL LEAVE CHARGED HIM INCIDENT TO A TEMPORARY DUTY ASSIGNMENT. SINCE DR. ABASHIAN DOES NOT QUESTION ANY OTHER PORTION OF THE CLAIMS DIVISION SETTLEMENT, OUR DECISION WILL BE LIMITED TO THE ANNUAL LEAVE ASPECT ONLY.

TRAVEL AUTHORIZATION 22821, DATED MAY 15, 1974, AUTHORIZED DR. ABASHIAN, AN EMPLOYEE OF THE NATIONAL SCIENCE FOUNDATION, TO TRAVEL BY COMMON CARRIER FROM WASHINGTON, D.C. TO ARGONNE, ILLINOIS, TO ATTEND A MEETING AND FROM THERE TO ASPEN, COLORADO, TO ATTEND A SECOND MEETING FROM JUNE 17 TO JUNE 21, 1974. THAT TRAVEL AUTHORIZATION ESTIMATED DR. ABASHIAN'S DEPARTURE DATE AS ON OR ABOUT JUNE 12, 1974, RETURNING ON OR ABOUT JULY 3, 1974. SUBSEQUENTLY, THE FIRST MEETING WAS CANCELLED AND AN AMENDMENT, DATED JUNE 6, 1974, TO TRAVEL AUTHORIZATION 22821 WAS ISSUED, AUTHORIZING TRAVEL BY "PRIVATELY OWNED VEHICLE FOR PERSONAL CONVENIENCE OF TRAVELER." IT STATED THE ESTIMATED DATES OF DEPARTURE AND RETURN AS ON OR ABOUT JUNE 12, 1974, AND JULY 5, 1974, RESPECTIVELY.

DR. ABASHIAN'S TRAVEL CLAIM INDICATES THAT HE LEFT WASHINGTON AT 4:00 P.M. JUNE 13, 1974, BY PRIVATELY OWNED AUTOMOBILE AND ARRIVED IN ASPEN, COLORADO, ON JUNE 16, 1974. HE ATTENDED THE MEETING FROM JUNE 17 THROUGH JUNE 21, 1974, AND THEN DEPARTED ASPEN ON JUNE 23, TAKING ANNUAL LEAVE FROM JUNE 24 THROUGH JUNE 28, 1974. HOWEVER, IN COMPUTING THE CONSTRUCTIVE COST THE NATIONAL SCIENCE FOUNDATION DETERMINED THAT DR. ABASHIAN COULD HAVE DEPARTED WASHINGTON, D.C., AT 2:30 P.M. ON JUNE 14, 1974, AND RETURNED THE EVENING OF JUNE 30, 1974. ACCORDINGLY, HE WAS CHARGED A TOTAL OF 13 HOURS OF ANNUAL LEAVE, AS INDICATED BELOW:

4:00 P.M. TO 5:00 P.M. JUNE 13, 1974 1 HOUR

8:30 A.M. TO 12:30 P.M. JUNE 14, 1974 4 HOURS

ALL DAY JULY 1, 1974 8 HOURS

DR. ABASHIAN'S POSITION, AS STATED IN HIS JULY 12, 1976, LETTER APPEALING THE CLAIMS DIVISION SETTLEMENT IS AS FOLLOWS:

"WHILE THE TRAVEL AUTHORIZATION PERMITTED ME OFFICIAL TIME TO REACH MY DESTINATION AND TO RETURN, I WAS ACTUALLY NOT GIVEN ANY SUCH TIME WHEN THE DIVISION OF FINANCIAL AND ADMINISTRATIVE MANAGEMENT CONSIDERED MY TRAVEL VOUCHER. OFFICIAL LEAVE WAS GRANTED TO ME BY THE ADMINISTRATOR OF MY DIVISION AS EVIDENCED BY THE TRAVEL AUTHORIZATION, YET THIS WAS CHANGED AFTER MY RETURN BY THE FINANCIAL OFFICE REFERENCED ABOVE. I DO NOT BELIEVE THAT IT IS PROPER FOR THE GOVERNMENT TO EXPECT ME TO USE ANNUAL LEAVE TO REACH AN OFFICIAL DESTINATION * * * ."

THE CLAIMS DIVISION IN THEIR JULY 12, 1976, SETTLEMENT DENYING DR. ABASHIAN'S CLAIM STATED:

"INASMUCH AS USE OF YOUR PRIVATELY-OWNED VEHICLE WAS SPECIFIED IN THE TRAVEL AUTHORIZATION AMENDMENT AS BEING FOR YOUR PERSONAL CONVENIENCE, CERTAIN PROVISIONS OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7), EFFECTIVE MAY 1, 1973, ARE APPLICABLE. PARAGRAPH 1-2.2D PROVIDES AS FOLLOWS:

'D. PERMISSIVE USE OF PRIVATELY OWNED CONVEYANCE. WHEN AN EMPLOYEE USES A PRIVATELY OWNED CONVEYANCE AS A MATTER OF PERSONAL PREFERENCE AND SUCH USE IS COMPATIBLE WITH THE PERFORMANCE OF OFFICIAL BUSINESS ALTHOUGH NOT DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT UNDER 1 2.2C(3) SUCH USE MAY BE AUTHORIZED OR APPROVED PROVIDED THAT REIMBURSEMENT IS LIMITED IN ACCORDANCE WITH THE PROVISIONS OF 1-4.'

"PARAGRAPH 1-4.3 PROVIDES IN PERTINENT PART AS FOLLOWS:

'WHENEVER A PRIVATELY OWNED CONVEYANCE IS USED FOR OFFICIAL PURPOSES AS A MATTER OF PERSONAL PREFERENCE IN LIEU OF COMMON CARRIER TRANSPORTATION UNDER 1-2.2D, PAYMENT FOR SUCH TRAVEL SHALL BE MADE ON THE BASIS OF THE ACTUAL TRAVEL PERFORMED, COMPUTED UNDER 1-4.1 AT THE MILEAGE RATE PRESCRIBED IN 1-4.2A PLUS THE PER DIEM ALLOWABLE FOR THE ACTUAL TRAVEL. THE TOTAL ALLOWABLE SHALL BE LIMITED TO THE TOTAL CONSTRUCTIVE COST OF APPROPRIATE COMMON CARRIER TRANSPORTATION INCLUDING CONSTRUCTIVE PER DIEM BY THAT METHOD OF TRANSPORTATION . . . '

"FINALLY, PARAGRAPH 1-4.3C PROVIDES THAT THE 'CONSTRUCTIVE PER DIEM SHALL BE THE AMOUNT WHICH WOULD HAVE BEEN ALLOWABLE IF THE TRAVELER HAD USED THE CARRIER UPON WHICH THE CONSTRUCTIVE TRANSPORTATION COSTS ARE DETERMINED.' THESE REGULATIONS MAKE IT CLEAR THAT AUTHORIZATION OF PERMISSIVE USE OF YOUR OWN CAR DID NOT ENTITLE YOU TO REIMBURSEMENT FOR ACTUAL TRAVEL EXPENSES IN EXCESS OF THOSE YOU WOULD HAVE INCURRED BY USE OF COMMON CARRIER. THE CHARGING OF ANNUAL LEAVE BEING PRIMARILY A MATTER FOR ADMINISTRATIVE CONSIDERATION, YOUR EMPLOYING AGENCY WOULD HAVE THE DISCRETION TO CHARGE OR NOT TO CHARGE YOU ANNUAL LEAVE FOR TRAVEL TIME IN EXCESS OF THAT NECESSARY FOR THE CONSTRUCTIVE TRAVEL SCHEDULE. COMP.GEN. 425(1966). FURTHERMORE, THE USE OF ESTIMATED DEPARTURE AND RETURN DATES ON A TRAVEL ORDER IS NOT VIEWED AS AN INDICATION OF ABSOLUTE ENTITLEMENT TO USE OF OFFICIAL TIME, BUT RATHER AS AN ESTIMATE OF THE MAXIMUM AMOUNT OF TIME THE EMPLOYEE IS AUTHORIZED OR EXPECTED TO BE AWAY FROM HIS PERMANENT DUTY STATION, FOR OFFICIAL PURPOSES OR OTHERWISE."

THE NATIONAL SCIENCE FOUNDATION DETERMINED DR. ABASHIAN'S TRAVEL ENTITLEMENTS ON A CONSTRUCTIVE BASIS, AS REQUIRED BY THE FTR, AND DEVELOPED A CONSTRUCTIVE SCHEDULE AS DISCUSSED ABOVE. WE BELIEVE THAT THIS SCHEDULE IS A REASONABLE ONE. THUS, WE CONCUR IN THE CLAIMS DIVISION'S APPLICATION OF THE FEDERAL TRAVEL REGULATION. WE ALSO NOTE THAT THE FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 630, PARA. S3 4A(2) PROVIDES IN PART THAT:

" * * * ABSENCES BECAUSE OF EXCESS TRAVEL TIME RESULTING FROM THE USE OF PRIVATELY OWNED MOTOR VEHICLES FOR PERSONAL REASONS ON OFFICIAL TRIPS IS GENERALLY CHARGEABLE TO ANNUAL LEAVE. * * * "

ACCORDINGLY, WE SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING DR. ABASHIAN'S CLAIM FOR RECREDIT OF ANNUAL LEAVE CHARGED HIM DUE TO EXCESS TRAVEL TIME.