B-170655, JUL 3, 1972

B-170655, JUL 3, 1972

CIVILIAN EMPLOYEE - ADDITIONAL PER DIEM - STATUTORY INTERPRETATION DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF JAMES V. PIANI FOR ADDITIONAL PER DIEM INCIDENT TO HIS PERFORMANCE OF TEMPORARY DUTY ABOARD THE USNS SILAS BENT AS A CIVILIAN EMPLOYEE OF THE NAVY. IT CONTINUES TO BE THE OPINION OF THE COMP. GEN. THAT THE NORMAL STOPOVER PERIOD OF NOT EXCEEDING 3 DAYS REASONABLY IS TO BE CONSIDERED A PART OF THE EXTENDED PERIOD OF TEMPORARY DUTY ABOARD THE VESSEL AND IS NOT SUBJECT TO THE PROVISIONS OF 5 U.S.C. 5911(E).

TO MR. JAMES V. PIANI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1972, AS SUPPLEMENTED BY YOUR LETTER OF APRIL 29, REQUESTING RECONSIDERATION OF OUR DECISION OF NOVEMBER 18, 1971, B-170655, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO YOUR PERFORMANCE OF TEMPORARY DUTY ABOARD THE USNS SILAS BENT AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY.

THE FACTS OF THE CASE WERE STATED IN OUR DECISION OF NOVEMBER 18, 1971, AND THEREFORE NEED NOT BE REPEATED IN DETAIL HERE. THE RECORD INDICATES THAT YOU WERE ASSIGNED TO TEMPORARY DUTY ABOARD THE ABOVE - NAMED VESSEL TO PARTICIPATE IN AN ACOUSTIC SURVEY. PER DIEM FOR THE PERIOD JANUARY 3 THROUGH FEBRUARY 22, 1971, WAS PAID BY THE ADMINISTRATIVE AGENCY AT THE "ABOARD SHIP" PER DIEM RATE FOR THE TIME ABOARD THE VESSEL AND THE FIRST 3 DAYS THE SURVEY VESSEL WAS IN PORT, AND AT THE "LOCALITY" PER DIEM RATE FOR THE REMAINING DAYS IN PORT. YOU CLAIMED ADDITIONAL PER DIEM (BASED ON THE "LOCALITY" RATE) FOR THE FIRST 3 DAYS THE VESSEL WAS IN PORT DURING WHICH PERIOD YOU OCCUPIED COMMERCIAL QUARTERS. YOU REQUEST REVIEW OF THE MATTER ON THE GROUNDS THAT THE 3-DAY RULE IN 50 COMP. GEN. 388 (1970), UPON WHICH THE ADVERSE DETERMINATION IN YOUR CASE WAS BASED, IS AT VARIANCE WITH 5 U.S.C. 5911(E) AND DECISION B-170618, OCTOBER 15, 1970.

5 U.S.C. 5911(E) PROVIDES AS FOLLOWS:

"(E) THE HEAD OF AN AGENCY MAY NOT REQUIRE AN EMPLOYEE OR MEMBER OF A UNIFORMED SERVICE TO OCCUPY QUARTERS ON A RENTAL BASIS, UNLESS THE AGENCY HEAD DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED, OR THAT PROPERTY OF THE GOVERNMENT CANNOT ADEQUATELY BE PROTECTED, OTHERWISE."

IN DECISION 50 COMP. GEN. 388 WE HELD THAT EMPLOYEES PERFORMING TEMPORARY DUTY ABOARD GOVERNMENT VESSELS AND RECEIVING A REDUCED PER DIEM RATE ARE ENTITLED TO THE FULL PER DIEM RATE APPLICABLE TO DUTY ASHORE (IF THEY ELECT TO STAY IN COMMERCIAL QUARTERS ASHORE) AFTER A VESSEL HAS BEEN IN PORT 3 DAYS. IN EFFECT WE CONCLUDED ALSO THAT THE NORMAL STOPOVER PERIOD OF NOT EXCEEDING 3 DAYS REASONABLY IS TO BE CONSIDERED A PART OF THE EXTENDED PERIOD OF TEMPORARY DUTY ABOARD THE VESSEL. SUCH PERIOD THEREFORE WAS NOT VIEWED AS SUBJECT TO THE PROVISIONS OF 5 U.S.C. 5911(E). IN OUR PRIOR REVIEW OF YOUR CASE WE EXAMINED THE VARIOUS POINTS PRESENTED BY YOU BUT FOUND NO BASIS FOR MODIFYING OUR DETERMINATION THAT THE PAYMENT OF A REDUCED PER DIEM RATE FOR THE FIRST 3 DAYS OF A STOPOVER IN A PORT WAS NOT UNREASONABLE. YOU HAVE NOT SUBMITTED ANY ADDITIONAL EVIDENCE TO JUSTIFY A REVERSAL OF OUR PRIOR DETERMINATION.

DECISION B-170618, OCTOBER 15, 1970, TO WHICH YOU REFER, CONCERNED THE PROPRIETY OF A REGULATION THAT WOULD PROVIDE THE SAME PER DIEM RATE FOR UNLIMITED PERIODS WHILE EMPLOYEES ATTENDED TRAINING COURSES REGARDLESS OF WHETHER THEY OCCUPIED GOVERNMENT OR COMMERCIAL QUARTERS. WE HELD THAT SUCH A REGULATION WOULD TEND TO COERCE EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS AND WOULD BE UNAUTHORIZED SINCE IT CIRCUMVENTED THE PROVISIONS OF 5 U.S.C. 5911(E). IN YOUR CASE THE REDUCED PER DIEM RATE IS FOR A LIMITED REASONABLE PERIOD. ACCORDINGLY, DECISION B-170618 IS INAPPLICABLE TO YOUR SITUATION.

IN VIEW OF THE ABOVE WE AFFIRM OUR PRIOR DETERMINATIONS DISALLOWING YOUR CLAIM.