B-193542, JUN 19, 1979

B-193542: Jun 19, 1979

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BOATS AND PORT ARE EMPLOYEES' OFFICIAL STATION AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS. THE COMPTROLLER GENERAL IS REQUIRED TO RENDER A DECISION TO A CERTIFYING OFFICER ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIED VOUCHER THAT HAS BEEN PRESENTED TO HIM FOR CERTIFICATION PRIOR TO PAYMENT OF THE VOUCHER. IN THIS CASE WE HAVE BEEN FURNISHED WITH COPIES OF VOUCHERS THAT HAVE ALREADY BEEN PAID. SINCE WE HAVE BEEN INFORMALLY ADVISED THAT THE PROBLEM INVOLVED IS OF A RECURRING NATURE. WE ARE RENDERING OUR DECISION TO THE SECRETARY OF THE NAVY UNDER THE BROAD AUTHORITY OF 31 U.S.C.

B-193542, JUN 19, 1979

DIGEST: EMPLOYEES ASSIGNED TO WORK MAJORITY OF TIME ABOARD BOATS IN AREA OF FORT LAUDERDALE, FLORIDA, THE BOATS' PORT, MAY NOT BE PAID PER DIEM. BOATS AND PORT ARE EMPLOYEES' OFFICIAL STATION AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS, OFFICIAL DUTY STATION, OR PLACE OF ABODE, REGARDLESS OF ANY UNUSUAL CONDITIONS INVOLVED.

NAVAL SURFACE WEAPONS CENTER - PER DIEM ENTITLEMENT WHILE ABOARD ACTIVITY -OWNED BOATS:

THE COMMANDER, NAVAL SURFACE WEAPONS CENTER, DAHLGREN, VIRGINIA, HAS REQUESTED OUR OPINION ON THE PROPRIETY OF PAYING PER DIEM TO CERTAIN EMPLOYEES WORKING ABOARD GOVERNMENT VESSELS. THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE HAS ASSIGNED THIS CASE NUMBER PDTATAC- 79-15.

UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. SEC. 82D (1976), THE COMPTROLLER GENERAL IS REQUIRED TO RENDER A DECISION TO A CERTIFYING OFFICER ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIED VOUCHER THAT HAS BEEN PRESENTED TO HIM FOR CERTIFICATION PRIOR TO PAYMENT OF THE VOUCHER. IN THIS CASE WE HAVE BEEN FURNISHED WITH COPIES OF VOUCHERS THAT HAVE ALREADY BEEN PAID. HOWEVER, SINCE WE HAVE BEEN INFORMALLY ADVISED THAT THE PROBLEM INVOLVED IS OF A RECURRING NATURE, WE ARE RENDERING OUR DECISION TO THE SECRETARY OF THE NAVY UNDER THE BROAD AUTHORITY OF 31 U.S.C. SEC. 74 (1976), WHICH AUTHORIZES US TO PROVIDE DECISIONS TO THE HEADS OF DEPARTMENTS ON ANY QUESTION REGARDING PAYMENTS WHICH MAY BE MADE BY THAT DEPARTMENT. 53 COMP.GEN. 71 (1973); 51 ID. 79 (1971); GENERAL SERVICES ADMINISTRATION, B-182586, DECEMBER 17, 1974.

THE RECORD SHOWS THAT THE NAVAL SURFACE WEAPONS CENTER, FORT LAUDERDALE, FLORIDA, OWNS AND OPERATES THE FOLLOWING THREE VESSELS: (1) RANGE SUPPORT BOAT-1 (RSB-1), A HEAVY DUTY OCEAN-GOING WORK BOAT, 157 FEET IN LENGTH; (2) MODIFIED LCPL WORK BOAT; AND (3) 45-FOOT UTILITY BOAT. THE BOATS, THEIR CREWS, AND OTHER FACILITY PERSONNEL ARE ENGAGED IN VARIOUS RESEARCH, DEVELOPMENT, AND RECOVERY PROJECTS, OPERATING WITHIN A RADIUS OF 25 MILES OF THEIR HOME PORT, AND RETURNING WITHIN A 24-HOUR PERIOD ON THE SAME DAY. OCCASIONALLY, THE RSB-1 OPERATES BEYOND THE 25-MILE RADIUS AND IS AT SEA FOR PERIODS IN EXCESS OF 24 HOURS. THE SAMPLE TRAVEL VOUCHERS FURNISHED BY THE WEAPONS CENTER INDICATE THAT THE EMPLOYEES SPENT APPROXIMATELY 12 HOURS ON THE BOATS FOR THE DAYS IN QUESTION.

THE AGENCY SAYS FURTHER THAT A REVIEW OF THE JOB DESCRIPTIONS INDICATES THAT THE FACILITY PERSONNEL WORKING ON THE BOATS ARE GENERALLY ASSIGNED TO THE AFLOAT GROUP WITH THE MAJORITY OF THEIR EFFORTS EXPENDED ON THE BOATS. THE JOB POSITION DESCRIPTIONS CONTAIN SUCH PHRASES AS:

"(1) THE INCUMBENT, WHILE NORMALLY ASSIGNED TO THE AFLOAT GROUP, WILL FROM TIME TO TIME BE ASSIGNED TO PERFORM DUTIES IN THE ASHORE GROUP, OR

"(2) THE INCUMBENT IS IN CHARGE OF ALL PROJECT OPERATIONS THAT TAKE PLACE ON THE MAJOR WORK BOAT, THE RSB-1, OR

"(3) THE INCUMBENT WILL BE REQUIRED TO WORK ON BOARD THE VESSEL BETTER THAN 90% OF THE TIME."

THE VOUCHERS FURNISHED BY THE AGENCY INDICATE THAT TRAVEL ORDERS WERE ISSUED APPARENTLY FOR TEMPORARY DUTY TRAVEL, AND THE EMPLOYEES WERE PAID VARYING AMOUNTS OF SUBSISTENCE FOR BREAKFAST, LUNCH, OR DINNER. BASED ON THIS INFORMATION, THE AGENCY HAS REQUESTED A DECISION CONCERNING THE FOLLOWING ISSUES:

"(1) ARE THE BOATS CREW AND FACILITY EMPLOYEES ENTITLED TO SUBMIT A CLAIM FOR PER DIEM, TEMPORARY DUTY, FOR PERIODS WHILE ON THE BOATS TO COVER THE COST OF MEALS CONSUMED? THE BOATS HAVE NON-FUNCTIONING GALLEYS, THAT IS, FOOD IS SELF-PROVIDED AND IF PREPARATION IS REQUIRED, IT IS DONE BY THE INDIVIDUAL. NO COOKS ARE ON BOARD.

"(2) IF REIMBURSEMENT IS AUTHORIZED, WHAT IS THE AMOUNT THAT CAN BE CLAIMED FOR EACH MEAL?

"(3) ON LONG TRIPS IN EXCESS OF 10 HOURS, WOULD REIMBURSEMENT BE ALLOWED FOR ALL THREE MEALS?

"(4) THE CREW MEMBERS AND FACILITY EMPLOYEES ARE PAID OVERTIME AND APPROPRIATE DIFFERENTIALS. SINCE THE CREW AND SOME OF THE FACILITY PERSONNEL ARE ASSIGNED TO THE AFLOAT GROUP, IS THE 6 AND 10 HOUR RULE APPLICABLE IF PER DIEM CAN BE CLAIMED?"

SECTION 5702 OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY IS ENTITLED TO A PER DIEM ALLOWANCE. IMPLEMENTING REGULATIONS IN THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 1-7.6A (MAY 1973), AND 2 JOINT TRAVEL REGULATIONS, PARA. C4550-3 (CHANGE 148, FEBRUARY 1, 1978), PROVIDE THAT PER DIEM MAY NOT BE ALLOWED AN EMPLOYEE AT HIS PERMANENT DUTY STATION. EMPLOYEE'S OFFICIAL DUTY STATION IS THE PLACE WHERE HE ORDINARILY EXPECTS, AND IS EXPECTED TO SPEND A GREATER PART OF HIS TIME. 31 COMP.GEN. 289 (1952).

THE EMPLOYEES' JOB DESCRIPTION INDICATES THAT NEARLY ALL THE WORK IS PERFORMED ON THE BOATS AND THAT THE EMPLOYEES COMMUTE TO THIS JOB SITE FROM THEIR PLACE OF RESIDENCE. THIS INDICATES THAT THE BOATS AND FORT LAUDERDALE, THE BOATS' PORT, ARE EMPLOYEES' PERMANENT DUTY STATION. THIS CONNECTION, WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS, OFFICIAL DUTY STATION, OR PLACE OF ABODE, REGARDLESS OF ANY UNUSUAL CONDITIONS INVOLVED. 57 COMP.GEN. 778, 781 (1978); 42 ID. 149 (1962); CHARLES R. KERICK, B-118638.104, FEBRUARY 5, 1979; FRANCIS J. DOOLEY, B-192027, NOVEMBER 28, 1978; THOMAS R. SMITH, B-186090, NOVEMBER 8, 1976; WILLIS L. ADAMS, ET AL., B-186045, NOVEMBER 4, 1976. SEE ALSO BORNHOFT V. UNITED STATES, 137 CT.CL. 134 (1956), WHERE IT WAS HELD THAT THE PURPOSE OF A SUBSISTENCE ALLOWANCE IS TO COVER THE EXTRA EXPENSES INCIDENT TO TRAVELING.

THEREFORE, PER DIEM AND SUBSISTENCE WOULD NOT BE AUTHORIZED UNDER THE CIRCUMSTANCES IN THIS CASE. SINCE THE AGENCY'S FIRST QUESTION IS ANSWERED IN THE NEGATIVE, WE NEED NOT CONSIDER THE OTHER QUESTIONS RAISED.

ACCORDINGLY, THE ISSUANCE OF TRAVEL ORDERS, AND THE SUBSEQUENT PAYMENTS TO THE EMPLOYEES FOR SUBSISTENCE, WERE IMPROPER AND COLLECTION ACTION SHOULD BE EFFECTED TO RECOUP THE ERRONEOUS PAYMENTS.

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