B-170177, SEP. 2, 1970

B-170177, SEP. 2, 1970

PER DIEM AND RECREDIT OF ANNUAL LEAVE SUSTAINING THE SETTLEMENT OF MARCH 23, 1970, THAT DISALLOWED CLAIM TO EMPLOYEE FOR PER DIEM AND RECREDIT OF ANNUAL LEAVE FOR THE PERIOD OF JUNE 1 - 8, 1967, WHEN HE FAILED TO REPORT TO OVERSEAS DUTY POST AS SCHEDULED ON JUNE 1, 1967. EMPLOYEE, WHO REMAINED AT HOME BEYOND HIS JUNE 1, 1967, SCHEDULED DATE TO RETURN TO OVERSEAS DUTY POST, AND DID NOT RETURN UNTIL JUNE 8, 1967, BECAUSE HIS TRAVEL AUTHORIZATION SPECIFIED RETURN BY GOVERNMENT OWNED OR CONTROLLED AIRCRAFT, WHICH HE WAS INFORMED WOULD NOT BE AVAILABLE UNTIL THE MORNING OF JUNE 8, PROBABLY WOULD HAVE HAD TRANSPORTATION MADE AVAILABLE HAD HE PRESENTED HIMSELF AT PORT OF CALL POINT. SINCE HE CHOSE TO REMAIN AT HOME BEYOND THE RETURN DATE, NOT IN AN OFFICIAL STATUS, PAYMENT OF PER DIEM WOULD NOT BE PROPER. RECREDITING OF THE EXTRA ANNUAL LEAVE USED IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE AGENCY.

TO MR. WESLEY L. GOECKER:

YOUR LETTER OF MAY 25, 1970, CONCERNS OUR DISALLOWANCE DATED MARCH 23, 1970, OF YOUR CLAIM FOR PER DIEM AND RECREDIT OF ANNUAL LEAVE CHARGED WITH RESPECT TO THE PERIOD JUNE 1 TO 8, 1967, WHILE YOU WERE AWAITING A PORT CALL FOR RETURN TRANSPORTATION TO JAPAN FROM SACRAMENTO, CALIFORNIA, THE POINT AT WHICH YOU WERE LOCATED FOR HOME LEAVE PURPOSES.

WITHOUT DETAILING THE FULL CIRCUMSTANCES INVOLVED IT MAY BE CONCEDED THAT THE RECORD SHOWS YOU WERE NOT RESPONSIBLE FOR THE DELAY OCCASIONED IN YOUR RETURN FROM CALIFORNIA TO JAPAN. YOUR FLIGHT TO JAPAN WAS TO DEPART FROM TRAVIS AIR FORCE BASE, SOME 46 MILES FROM SACRAMENTO WHERE YOU WERE LOCATED FOR HOME LEAVE PURPOSES. THE AUTHORIZATION UNDER WHICH YOU WERE TRAVELING DIRECTED THAT TRAVEL BE BY GOVERNMENT-OWNED OR CONTROLLED AIRCRAFT, THEREBY OBVIATING ANY OPTION YOU MIGHT HAVE OTHERWISE HAD FOR RETURNING ON TIME VIA COMMERCIAL CARRIER. SINCE YOUR HOME LEAVE POINT WAS RELATIVELY CLOSE TO TRAVIS AIR FORCE BASE, IT IS UNDERSTANDABLE THAT YOU CHOSE TO REMAIN THERE RATHER THAN TO PROCEED TO TRAVIS ON JUNE 1 FOR THE PURPOSE OF AWAITING TRANSPORTATION YOU WERE ADVISED WOULD NOT BE AVAILABLE UNTIL JUNE 8.

PARAGRAPH 7 OF THE AUTHORIZATION UNDER WHICH YOU WERE TRAVELING PROVIDED THAT:

7. "INDIV WB CARRIED IN A DY STATUS WHILE TVL THROUGH DATE OF ARR AT DEST AND FROM DATE OF DEPARTURE FROM PLACE OF RENEWAL AGRMT TVL EN ROUTE TO PERM DY STA OS. INDIV WILL CONVERT TO HOME LV, ANNUAL LV, OR LWOP FOR PD OF LV INDIC IN PARA 1 UPON ARR AT DEST. LV WILL NOT BE CHARGED ON OR AFTER DATE TVL IS BEGUN ON RTN TRIP TO OS DY STA IN RESPONSE TO PC. SELECTION OF INDIRECT ROUTE FOR PERSONAL RSN SHALL NOT INC PER DIEM OR PD IN WHICH SALARY PMT IS MADE FOR TVL TIME."

IF YOU HAD LEFT SACRAMENTO ON JUNE 1 FOR THE PURPOSE OF RETURNING TO JAPAN YOU, OF COURSE, WOULD HAVE BEEN DELAYED AT TRAVIS AIR FORCE BASE. SUCH DELAY WOULD HAVE BEEN BEYOND YOUR CONTROL AND PER DIEM WOULD, THEREFORE, HAVE BEEN PAYABLE WITHOUT ANY CHARGE TO ANNUAL LEAVE. HOWEVER, HAD YOU BEEN PHYSICALLY PRESENT AT TRAVIS IT IS POSSIBLE IF NOT PROBABLE THAT SPACE WOULD HAVE BEEN FOUND FOR YOUR RETURN TO JAPAN PRIOR TO JUNE 8.

IN THE FINAL ANALYSIS, WHILE WE APPRECIATE THAT IT WAS REASONABLE FOR YOU TO REMAIN IN SACRAMENTO WE DO NOT BELIEVE IT PROPER, UNDER THE QUOTED TERMS OF YOUR TRAVEL AUTHORIZATION, TO PROVIDE YOU A PER DIEM WITHOUT CHARGE TO ANNUAL LEAVE AND TO ALLOW YOU AT THE SAME TIME TO ENJOY THE PERSONAL BENEFITS OF REMAINING AT YOUR HOME LEAVE STATION. UNDER THE CIRCUMSTANCES, IF YOU WERE THINKING OF CLAIMING PER DIEM FOR THE PERIOD OF DELAY IT WAS INCUMBENT UPON YOU TO MAKE YOURSELF AVAILABLE AT TRAVIS AIR FORCE BASE DURING THAT TIME IN AN OFFICIAL DUTY TRAVEL STATUS. SO LONG AS YOU REMAINED AT YOUR HOME LEAVE STATION, IT MAY NOT BE SAID THAT YOU WERE IN SUCH AN OFFICIAL STATUS.

ACCORDINGLY, THE SETTLEMENT OF MARCH 23, 1970, IS SUSTAINED.

WITH REGARD TO THE SEPARATE MATTER YOU RAISE CONCERNING THE BASIS FOR COMPUTING THE AMOUNT OF PER DIEM PAID YOU, WE NOTE THAT THE ADMINISTRATIVE AGENCY CONSTRUCTIVELY ALLOWED FOR A DEPARTURE FROM SACRAMENTO AT 7 A.M. ON JUNE 8, APPARENTLY ON THE BASIS THAT THIS WOULD ADEQUATELY PROVIDE FOR REACHING TRAVIS AT 8:15 A.M. BUT WITHOUT RECOGNIZING THAT YOU WERE INSTRUCTED TO BE AT TRAVIS AT 5 A.M. FOR AN 8 A.M. FLIGHT. IN LIGHT OF THE REQUIRED EARLY REPORTING TIME, A REASONABLE TIME FOR DEPARTURE FROM SACRAMENTO WOULD HAVE BEEN BETWEEN NOON AND 6 P.M. ON THE PRECEDING DAY, JUNE 7. HAD YOUR CONSTRUCTIVE TRAVEL BEEN CALCULATED UPON SUCH BASIS, YOU WOULD HAVE BEEN PAID ADDITIONAL PER DIEM OF $12.

INSTRUCTIONS HAVE BEEN GIVEN FOR THE ISSUANCE OF A $12 SETTLEMENT IN YOUR FAVOR WHICH YOU MAY EXPECT TO RECEIVE IN DUE COURSE.