B-167274, AUG. 18, 1969

B-167274, AUG. 18, 1969

CIVIL PAY - TRANSFERS - PER DIEM DECISION TO CERTIFYING OFFICER OF INTERNAL REVENUE SERVICE CONCERNING TRAVEL EXPENSES AND PER DIEM FOR OVERSEAS EMPLOYEE INCIDENT TO RETURN FROM LIMA, PERU AND TRANSFER TO NEW DELHI, INDIA. OVERSEAS EMPLOYEE WHO, BEFORE COMPLETION OF 2 YEARS OVERSEAS TOUR, RETURNED TO UNITED STATES WITH FAMILY WHILE CONSIDERATION WAS BEING GIVEN TO EMPLOYEE'S TRANSFER TO NEW DELHI MAY HAVE RETURN TRAVEL CONSIDERED AS RETURN FOR REASSIGNMENT SINCE EMPLOYEE WAS NOT ELIGIBLE FOR HOME LEAVE. THEREFORE EMPLOYEE ONLY AND NOT FAMILY MAY BE PAID PER DIEM FOR DELAYS AND TEMPORARY DUTY IN UNITED STATES. EMPLOYEE MAY BE PAID PER DIEM FOR FAMILY WHILE THEY WERE IN FACT TRAVELING. EMPLOYEE WHOSE DAUGHTER RETURNED TO U.S. FROM PERU IN ADVANCE OF HIS RETURN AND WHO DID NOT TRAVEL TO NEW DELHI UNTIL 6 MONTHS AFTER EMPLOYEE ARRIVED AT HIS NEW STATION AND AFTER SHE BECAME 21 YEARS OLD MAY NOT HAVE TRAVEL FROM SAN FRANCISCO TO NEW DELHI AND RETURN AFTER HER 21ST BIRTHDAY REGARDED AS REIMBURSABLE.

TO MRS. MARGUERITE U. LYLES:

WE REFER TO YOUR LETTER OF JUNE 16, 1969, YOUR REFERENCE A:F:AF, BY WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT TWO TRAVEL VOUCHERS OF MR. ERNEST L. LANGBEIN, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), TREASURY DEPARTMENT, TO REIMBURSE HIM CERTAIN TRAVEL COSTS AND PER DIEM INCIDENT TO HIS TRANSFERS FROM LIMA, PERU, TO NEW DELHI, INDIA, AND FROM THERE TO SAN FRANCISCO, CALIFORNIA, WHICH OCCURRED IN 1967 AND 1968.

MR. LANGBEIN, AN IRS EMPLOYEE STATIONED IN SAN FRANCISCO, CALIFORNIA, HAD BEEN ASSIGNED AS A TAX ADVISOR TO THE IRS FOREIGN TAX ASSISTANCE STAFF IN AUGUST 1966 FOR A TWO-YEAR TOUR OF OVERSEAS DUTY IN LIMA, PERU, UNDER THE AGENCY FOR INTERNATIONAL DEVELOPMENT SPONSORED FOREIGN SERVICE PROGRAM.

MR. LANGBEIN'S TWO OLDER DAUGHTERS PRECEEDED THE REST OF THE FAMILY FROM LIMA TO SAN FRANCISCO IN JULY 1967 AT WHICH TIME THE TRANSFER TO NEW DELHI WAS BEING DISCUSSED BUT HAD NOT BEEN APPROVED. ON SEPTEMBER 29, 1967, MR. LANGBEIN, HIS WIFE AND THEIR TWO YOUNGER CHILDREN LEFT LIMA FOR SAN FRANCISCO ARRIVING ON OCTOBER 3, AFTER DELAYING THEIR TRAVEL FOR PERSONAL CONVENIENCE. THE TRAVEL AUTHORIZATION DATED AUGUST 11, 1967, UNDER WHICH THAT TRAVEL WAS PERFORMED DESCRIBED THE TRAVEL AS ,RETURN TRAVEL PENDING FURTHER OVERSEAS ASSIGNMENT.' DUE TO DELAYS IN OBTAINING FINAL CLEARANCE FOR MR. LANGBEIN'S ASSIGNMENT TO NEW DELHI HE WAS UNABLE TO COMMENCE TRAVEL TO THAT PLACE IMMEDIATELY. WHEN APPROVAL WAS OBTAINED (ORDERS DATED OCTOBER 5, 1967), HE TRAVELED WITH HIS WIFE AND THREE YOUNGER CHILDREN FROM SAN FRANCISCO VIA WASHINGTON COMMENCING ON OCTOBER 17. THEY ARRIVED IN NEW DELHI ON NOVEMBER 1, AFTER DELAYS FOR OFFICIAL BUSINESS AND PERSONAL CONVENIENCE. MR. LANGBEIN'S OLDEST DAUGHTER CHOSE TO REMAIN IN THE UNITED STATES FOR PERSONAL REASONS AND DID NOT TRAVEL TO NEW DELHI UNTIL MAY 1968.

THE PRINCIPAL QUESTIONS INVOLVED ARE WHETHER MR. LANGBEIN IS ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE FOR HIMSELF AND HIS FAMILY FOR THE PERIOD THEIR TRAVEL WAS DELAYED IN THE UNITED STATES WAITING CLEARANCE OF THE ASSIGNMENT TO NEW DELHI AND WHETHER HE IS ENTITLED TO THE TRAVEL OF HIS ELDEST DAUGHTER AT GOVERNMENT EXPENSE FROM SAN FRANCISCO TO NEW DELHI AND RETURN WITH THE FAMILY IN JULY 1968 UPON COMPLETION OF THE ASSIGNMENT THERE, IN VIEW OF THE FACT THAT SHE BECAME 21 YEARS OLD ON NOVEMBER 3, 1967.

WE NOTE THAT MR. LANGBEIN WAS NOT ELIGIBLE FOR HOME LEAVE TRAVEL AT THE TIME HE RETURNED FROM LIMA TO SAN FRANCISCO. ACCORDINGLY, THAT TRAVEL FOR MR. LANGBEIN AND HIS FAMILY MAY BE CONSIDERED PROPER ONLY UNDER THE VIEW THAT IT WAS AUTHORIZED AS A RETURN FOR REASSIGNMENT TO SAN FRANCISCO, PENDING THE APPROVAL OF THE ASSIGNMENT TO NEW DELHI.

WE FIND NO PROVISION IN THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS WHICH PERMITS THE PAYMENT OF PER DIEM TO AN EMPLOYEE AND HIS FAMILY FOR DELAYS IN TRAVEL CAUSED BY THE UNCERTAINTY OF THE EMPLOYEE'S NEXT ASSIGNMENT. THE SECTIONS OF THOSE REGULATIONS CITED BY MR. LANGBEIN (SECTIONS 126.4 AND 156.7) ALLOW PER DIEM TO CONTINUE DURING DELAYS EN ROUTE TO A POST OF ASSIGNMENT ONLY DURING THE PERFORMANCE OF TEMPORARY DUTY BY THE EMPLOYEE. FURTHER, IT DOES NOT APPEAR THAT PER DIEM FOR THE FAMILY WAS AUTHORIZED EVEN WHILE MR. LANGBEIN WAS REQUIRED TO PERFORM TEMPORARY DUTY IN WASHINGTON, D.C., AND CHICAGO, ILLINOIS, EN ROUTE TO NEW DELHI. ACCORDINGLY, PER DIEM SHOULD BE PAID MR. LANGBEIN ONLY FOR HIMSELF FOR TIME NECESSARILY SPENT IN PERFORMING TRAVEL AND TEMPORARY DUTY. FOR HIS FAMILY THERE APPEARS TO BE NO BASIS FOR THE PAYMENT OF PER DIEM EXCEPT WHILE THEY WERE IN FACT TRAVELING.

TRAVEL FOR MR. LANGBEIN'S OLDEST DAUGHTER FROM LIMA TO SAN FRANCISCO WAS PERFORMED PRIOR TO THE TRAVEL OF THE REST OF THE FAMILY AND BEFORE THE TRANSFER TO NEW DELHI WAS FINALLY APPROVED. ALTHOUGH THAT TRANSFER WAS APPROVED AND ACCOMPLISHED BEFORE SHE BECAME 21, SHE CHOSE TO DELAY TRAVEL FROM THE UNITED STATES TO NEW DELHI FOR PERSONAL REASONS UNTIL AFTER SHE WAS 21. MR. LANGBEIN ASSERTS THAT HER STAY IN THE UNITED STATES MERELY INTERRUPTED TRAVEL INCIDENT TO THE CHANGE OF STATION FROM LIMA TO NEW DELHI FOR A PERIOD OF LESS THAN 12 MONTHS AS AUTHORIZED BY SECTION 132.2-3 OF THE APPLICABLE REGULATIONS. SINCE TRAVEL BEGUN BEFORE A CHILD'S 21ST BIRTHDAY MAY BE COMPLETED AFTER SUCH BIRTHDAY AND SINCE THE RETURN OF A CHILD AFTER HIS 21ST BIRTHDAY FROM AN OVERSEAS POST TO WHICH HE TRAVELED AT GOVERNMENT EXPENSE IS AUTHORIZED BY SECTION 126.3 OF THE APPLICABLE REGULATIONS, MR. LANGBEIN BELIEVES HE IS ENTITLED TO HIS DAUGHTER'S ROUND TRIP TRAVEL BETWEEN SAN FRANCISCO AND NEW DELHI AT GOVERNMENT EXPENSE. HOWEVER, THE TRAVEL TO THE UNITED STATES WAS COMPLETED BEFORE THE TRANSFER TO NEW DELHI HAD BEEN AUTHORIZED. AS INDICATED ABOVE, THE EMPLOYEE'S FIRST TRAVEL AUTHORIZATION AFTER HIS DAUGHTER'S DEPARTURE IS TO BE VIEWED AS A TRANSFER BACK TO SAN FRANCISCO FOR REEMPLOYMENT IN HIS OLD POSITION PENDING AN ANTICIPATED REASSIGNMENT TO NEW DELHI. IN THE CIRCUMSTANCES WE BELIEVE THAT THE TRAVEL OF THE OLDEST DAUGHTER FROM LIMA TO SAN FRANCISCO MUST BE VIEWED AS RELATED TO THE TRANSFER ORDER OF AUGUST 11, 1967, TO CALIFORNIA AND NOT AS PART OF A TRANSFER FROM LIMA TO NEW DELHI. SINCE PERFORMANCE OF HER TRAVEL FROM SAN FRANCISCO TO NEW DELHI WAS BEGUN AFTER HER 21ST BIRTHDAY, IT MAY NOT BE AT GOVERNMENT EXPENSE. 33 COMP. GEN. 168. IT FOLLOWS THAT HER RETURN TO SAN FRANCISCO FROM NEW DELHI MAY NOT BE AT GOVERNMENT EXPENSE.

THE VOUCHERS, WHICH ARE RETURNED HEREWITH, TOGETHER WITH SUPPORTING PAPERS, MAY BE CERTIFIED FOR PAYMENT ONLY IN ACCORDANCE WITH THE ABOVE, TO THE EXTENT THEY ARE OTHERWISE CORRECT.