B-175981, OCT 4, 1972

B-175981, OCT 4, 1972

CIVILIAN EMPLOYEES - OFFICIAL DUTY STATION - PER DIEM AND TRAVEL DECISION ALLOWING PAYMENT ON A TRAVEL VOUCHER SUBMITTED BY WAYNE Q. O. WENBURG, AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD JULY 1 THROUGH JULY 24, 1970, AND DENYING THE VALIDITY OF A BILL OF COLLECTION ISSUED MAY 4, 1970, TO RECOVER PER DIEM PAID FROM SEPTEMBER 25, 1968, TO JANUARY 31, 1970. AN EMPLOYEE'S OFFICIAL DUTY STATION FOR TRAVEL AND PER DIEM PURPOSES IS THE PLACE WHERE HE PERFORMS THE MAJOR PORTION OF HIS DUTIES AND WHERE IT IS EXPECTED THAT HE WILL SPEND THE GREATER PORTION OF HIS TIME. THIS LOCATION IS TO BE DETERMINED FROM THE CIRCUMSTANCES OF EACH SITUATION AND WHERE SUCH A DETERMINATION IS REASONABLE AND THERE IS NO EVIDENCE THAT THE LOCATION WAS PICKED TO GIVE THE EMPLOYEE A GREATER SUBSISTENCE ALLOWANCE, TRAVEL AND PER DIEM FOR PERIODS SPENT AWAY FROM THE OFFICIAL DUTY STATION ARE PROPERLY PAYABLE.

TO MR. HARRY J. PEDERSEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1972, AND ENCLOSURES, REFERENCE CO-193, TRANSMITTED TO THIS OFFICE BY LETTER DATED MAY 12, 1972, REFERENCE C/FRD/VEB:4-NJP, FROM MR. JOSEPH J. LACAMERA, CHIEF, VOUCHER EXAMINATION BRANCH, FINANCIAL REVIEW DIVISION, OFFICE OF THE CONTROLLER, AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT SHOULD BE MADE OF A TRAVEL VOUCHER SUBMITTED BY MR. WAYNE Q. O. WENBURG, AN EMPLOYEE OF AID, FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD JULY 1 THROUGH JULY 24, 1970. ALSO AT ISSUE IS THE VALIDITY OF THE BILL OF COLLECTION ISSUED MAY 4, 1970, IN THE AMOUNT OF $1,848.32, COVERING PER DIEM PAID TO MR. WENBURG FROM SEPTEMBER 25, 1968, TO JANUARY 31, 1970. THE RECORD DISCLOSES THAT TRAVEL VOUCHERS COVERING THE PERIOD FEBRUARY 2, 1970, THROUGH APRIL 5, 1971, REFLECTING CLAIMS FOR REIMBURSEMENT FOR TRAVEL EXPENSES OF THE EMPLOYEE, HAVE BEEN APPLIED TO THE ORIGINAL AMOUNT DEEMED TO BE OWED, LEAVING A BALANCE OF $26.52 DUE ON THE BILL OF COLLECTION.

YOU STATE THAT THE BASIC QUESTION IS WHETHER MR. WENBURG'S OFFICIAL DUTY STATION WAS MAIDUGURI, NIGERIA, AS SHOWN ON HIS VOUCHER, OR BORNU RANCH, WHICH IS LOCATED 28 OR 29 MILES SOUTH OF MAIDUGURI. THE FACTS AND CIRCUMSTANCES INVOLVED IN THE CLAIM WERE STATED IN DETAIL IN YOUR LETTER AND WILL BE REPEATED HERE ONLY TO THE EXTENT NECESSARY IN ARRIVING AT A DECISION IN THE MATTER.

IT APPEARS THAT IN 1965 MR. WENBURG WAS ASSIGNED TO THE POSITION OF AGRONOMY ADVISOR-CORPS, IN NIGERIA, WITH HIS POST OF DUTY ESTABLISHED AT MAIDUGURI. EARLY PLANNING FOR LIVESTOCK DEVELOPMENT IN NIGERIA, PROJECT 620-11-130-774, CONTEMPLATED 3 (SUBSEQUENTLY 2) AMERICAN TECHNICIANS ASSIGNED TO THE BORNU RANCH. FUNDS WERE PROVIDED BY AID TO BUILD 2 HOUSES FOR THE TECHNICIANS AT THE RANCH. PRIOR TO COMPLETION OF THE HOUSES, HOUSE TRAILERS WERE PROVIDED AT THE PROJECT SITES. THE RECORD INDICATES THAT IN 1966 THE GOVERNMENT OF NORTHERN NIGERIA EXPRESSED A DESIRE TO USE ONE OF THE BORNU RANCH HOUSES FOR ONE OF ITS OWN EMPLOYEES AND OFFERED A HOUSE IN MAIDUGURI FOR THE USE OF MR. WENBURG. IT IS NOT SHOWN WHETHER A FORMAL AGREEMENT WAS REACHED. HOWEVER, IN 1967, THE MATTER OF MR. WENBURG'S "PLACE OF WORK" CAME UP FOR REVIEW AND ON FEBRUARY 27, 1968, BORNU RANCH WAS DESIGNATED AS HIS OFFICIAL

ON SEPTEMBER 25, 1968, THE CLAIMANT WAS REASSIGNED TO THE POSITION OF LIVESTOCK-ADVISOR RANCH OPERATIONS, AND HIS DUTY STATION WAS CHANGED FROM BORNU RANCH TO MAIDUGURI. HIS NEW POSITION COMBINED 2 FORMER POSITIONS OF BORNU RANGE MANAGEMENT AND BORNU RANCH MANAGEMENT. A REVIEW OF THE JOB DESCRIPTION DISCLOSES THAT THE POSITION INVOLVED GIVING CONTINUED ASSISTANCE IN THE DEVELOPMENT OF A 400-SQUARE-MILE PILOT RANGE MANAGEMENT AREA LOCATED APPROXIMATELY 40 MILES NORTH OF MAIDUGURI, AND CONTINUED ASSISTANCE IN THE DEVELOPMENT OF THE 20,000 ACRE BORNU BEEF CATTLE BREEDING RANCH LOCATED ABOUT 20 MILES SOUTH OF MAIDUGURI. THE JOB DESCRIPTION LISTED THE FOLLOWING PRIMARY DUTIES OF THE EMPLOYEE FILLING THE POSITION:

"(A) ADVISE AND ASSIST IN THE DEVELOPMENT OF PLANS AND PROGRAMS FOR OPERATION FOR THE BORNU RANCH (CATTLE BREEDING).

"(B) CONTINUE TO TRAIN STAFF IN CATTLE RANCH OPERATIONS.

"(C) ADVISE AND ASSIST IN THE DEVELOPMENT OF A GRAZING CONTROL AND MANAGEMENT PROGRAM FOR THE BORNU BOREHOLE PILOT AREA.

"(D) TRAIN PERSONNEL ON-THE-JOB IN RANGE MANAGEMENT TECHNIQUES AND PROCEDURES.

"(E) ADVISE AND ASSIST IN COMPLETING A WATER DISTRIBUTION SYSTEM FOR THE BORNU BOREHOLE PILOT RANGE AREA."

AFTER HIS REASSIGNMENT TO MAIDUGURI, MR. WENBURG SUBMITTED TRAVEL VOUCHERS GENERALLY ON A MONTHLY BASIS, SHOWING MAIDUGURI AS HIS OFFICIAL DUTY STATION, CLAIMING PER DIEM SPENT AT BORNU RANCH AND ELSEWHERE. THE PAYMENT OF PER DIEM WAS MADE ON A REDUCED BASIS AS HOUSING WAS PROVIDED FOR THE EMPLOYEES AT BORNU RANCH. THE VOUCHERS WERE PAID AS SUBMITTED THROUGH JANUARY 1970 WITH ONLY NOMINAL ADJUSTMENTS. A SCHEDULE SHOWING PER DIEM CLAIMED COVERING THE PERIOD DECEMBER 1968 THROUGH JANUARY 1970 REVEALS THAT DURING THIS PERIOD MR. WENBURG CLAIMED PER DIEM FOR 141 DAYS AT BORNU RANCH WITH A MAXIMUM OF 305 ACTUAL DAYS THAT COULD HAVE BEEN WORKED. THE SCHEDULE ALSO DISCLOSES THAT 9 OF THE DAYS FOR WHICH PER DIEM WAS PAID WERE SATURDAYS, SINCE IN PRACTICE THE WORK-WEEK FOR FIELD WORKERS EXTENDS FROM MONDAY THROUGH SATURDAY. THE RECORD ALSO SHOWS THAT THE CHANGE OF JOB POSITION MADE IT NECESSARY FOR MR. WENBURG TO WORK WITH THE NIGERIAN MINISTRY LOCATED IN MAIDUGURI.

THIS OFFICE HAS CONSISTENTLY HELD THAT AN EMPLOYEE'S OFFICIAL DUTY STATION FOR TRAVEL AND PER DIEM PURPOSES IS THE PLACE AT WHICH HE PERFORMS THE MAJOR PORTION OF HIS DUTIES AND WHERE HE EXPECTS, AND IS EXPECTED, TO SPEND THE GREATER PART OF HIS TIME. THE AUTHORITY TO DESIGNATE THE POST OF DUTY OF AN EMPLOYEE OF THE GOVERNMENT INCLUDES ONLY THE AUTHORITY TO MAKE SUCH DESIGNATION IN ACCORDANCE WITH THE FOREGOING CRITERIA AND THE DESIGNATION OF ANY OTHER PLACE, FOR PURPOSES OF GIVING THE EMPLOYEE A GREATER SUBSISTENCE ALLOWANCE, IS NOT WITHIN THE AUTHORITY VESTED IN THE HEAD OF A DEPARTMENT OR OTHER ADMINISTRATIVE OFFICIAL CHARGED WITH SUCH RESPONSIBILITY. IN DETERMINING THE ACTUAL POST OF DUTY OF THE EMPLOYEE, EACH CASE IS TO BE DECIDED UPON THE FACTS AND CIRCUMSTANCES INVOLVED INCLUDING SUCH ADDITIONAL FACTORS AS THE CHARACTER OF THE ASSIGNMENT; THE REQUIRED DUTIES; THE NATURE OF SUCH DUTIES; AND THE LOCALE IN WHICH THEY ARE TO BE PERFORMED. 32 COMP. GEN. 87 (1952); 25 ID. 136 (1945); AND 10 ID. 469 (1931).

APPLYING THE FOREGOING PRECEDENTS TO THE CASE UNDER CONSIDERATION, THE EVIDENCE SHOWS THAT WHEN MR. WENBURG WAS REASSIGNED TO THE POSITION OF LIVESTOCK ADVISOR (RANCH OPERATIONS) IN SEPTEMBER 1968, IN ADDITION TO HIS DUTIES AT BORNU RANCH, HE WAS REQUIRED TO ADVISE AND ASSIST IN THE DEVELOPMENT OF A GRAZING CONTROL AND MANAGEMENT PROGRAM FOR THE BORNU BOREHOLE PILOT AREA LOCATED APPROXIMATELY 40 MILES NORTH OF MAIDUGURI; TRAIN PERSONNEL ON-THE-JOB IN RANGE MANAGEMENT TECHNICIAN PROCEDURES INCLUDING THE UDUBO RANGE LOCATED WEST OF MAIDUGURI; AND ADVISE AND ASSIST IN COMPLETING A WATER DISTRIBUTION SYSTEM FOR THE BORNU BOREHOLE PILOT RANGE AREA. THEREFORE, BASED UPON SUCH RESPONSIBILITIES, WE DO NOT VIEW THE ADMINISTRATIVE DETERMINATION OF MAIDUGURI AS HIS OFFICIAL DUTY STATION AS BEING ERRONEOUS SINCE IT WAS REASONABLE TO EXPECT THAT MR. WENBURG WOULD PERFORM THE MAJOR PORTION OF HIS DUTIES IN THE MAIDUGURI AREA AND THAT HE WOULD SPEND THE GREATER PART OF HIS TIME IN THAT LOCALE. THIS IS BORNE OUT BY THE FACT THAT IN ACTUALITY, HE SPENT ONLY ABOUT 45 PERCENT OF HIS TIME AT BORNU RANCH FOR WHICH PER DIEM WAS PAID.

FURTHER, THERE IS NO EVIDENCE TO SHOW THAT THE PURPOSE OF THE MAIDUGURI DESIGNATION WAS TO GIVE THE EMPLOYEE A GREATER SUBSISTENCE ALLOWANCE. FACT, SUCH DETERMINATION WAS MADE BY RESPONSIBLE AGENCY OFFICIALS BASED UPON THEIR REVIEW OF THE FACTS, WITH NO INPUT THEREIN BY THE CLAIMANT.

WE POINT OUT THAT THE CHANGE OF POSITION IN SEPTEMBER 1968 MADE IT NECESSARY FOR MR. WENBURG TO WORK WITH THE NIGERIAN MINISTRY, LOCATED IN MAIDUGURI, WHICH WOULD FURTHER BUTTRESS THE DESIGNATION OF MAIDUGURI AS HIS OFFICIAL POST OF DUTY. ALSO, HAD BORNU RANCH BEEN DESIGNATED AS THE EMPLOYEE'S DUTY STATION IN SEPTEMBER 1968 HE WOULD HAVE BEEN ENTITLED TO PER DIEM EXPENSES FOR TRAVEL IN THE MAIDUGURI AREA AND SUCH EXPENSES MAY WELL HAVE EQUALED OR EXCEEDED THE PER DIEM PAID TO HIM AS A RESULT OF THE MAIDUGURI DESIGNATION.

BASED UPON THE RECORD BEFORE US WE SEE NO JUSTIFICATION FOR THE ADMINISTRATIVE DETERMINATION MADE EARLY IN CALENDAR YEAR 1970 THAT PAYMENTS MADE SUBSEQUENT TO SEPTEMBER 25, 1968, FOR PER DIEM WHILE AT BORNU RANCH WERE ERRONEOUS. THE BILL OF COLLECTION ISSUED MAY 4, 1970, IN THE AMOUNT OF $1,848.32, SHOULD THEREFORE BE CANCELLED AND APPROPRIATE ADJUSTMENTS MADE TO EFFECT PAYMENT DUE MR. WENBURG. THE VOUCHER COVERING THE PERIOD JULY 1 THROUGH JULY 24, 1970, IS RETURNED HEREWITH WITH ATTACHMENTS, AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.