A-17662, MARCH 28, 1927, 6 COMP. GEN. 639

A-17662: Mar 28, 1927

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PER DIEM IN LIEU OF - FRACTIONAL DAYS - ARMY OFFICER AN OFFICER OF THE ARMY TRAVELING ON DUTY IN CONNECTION WITH THE NATIONAL GUARD IS NOT ENTITLED TO A PER DIEM IN LIEU OF SUBSISTENCE FOR TRIPS MADE IN HIS PRIVATELY OWNED AUTOMOBILE WHERE HE LEFT HIS STATION AT 7 P.M. REQUESTING DECISION WHETHER PAYMENT OF ITEMS FOR FRACTIONAL PER DIEM ALLOWANCE OF $1.50 FOR EACH TRIP IS AUTHORIZED. THE INSPECTIONS WERE DIRECTED BY ORDERS ISSUED JANUARY 1. REFERENCE IS MADE TO DECISION OF NOVEMBER 21. QUOTING FROM THE SYLLABUS AS FOLLOWS: OFFICERS AND EMPLOYEES ARE NOT ENTITLED TO A PER DIEM IN LIEU OF SUBSISTENCE FOR SHORT TRIPS BETWEEN THE HOURS OF 6 P.M. OF THE FOLLOWING DAY WHEN THE ABSENCE IS OF SUCH SHORT DURATION OR BETWEEN SUCH HOURS AS TO PRECLUDE THE PRESUMPTION OF A NECESSITY FOR INCURRING ANY EXPENSES FOR SUBSISTENCE DURING SAID PERIOD.

A-17662, MARCH 28, 1927, 6 COMP. GEN. 639

SUBSISTENCE, PER DIEM IN LIEU OF - FRACTIONAL DAYS - ARMY OFFICER AN OFFICER OF THE ARMY TRAVELING ON DUTY IN CONNECTION WITH THE NATIONAL GUARD IS NOT ENTITLED TO A PER DIEM IN LIEU OF SUBSISTENCE FOR TRIPS MADE IN HIS PRIVATELY OWNED AUTOMOBILE WHERE HE LEFT HIS STATION AT 7 P.M. OR LATER AND RETURNED BEFORE MIDNIGHT OF THE SAME DAY.

COMPTROLLER GENERAL MCCARL TO MAJ. C. M. EXLEY, UNITED STATES ARMY, MARCH 28, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 11, 1927, TRANSMITTING A VOUCHER IN FAVOR OF CAPT. T. L. MCMURRARY, INFANTRY (D.O.L.), UNITED STATES ARMY, FOR REIMBURSEMENT OF TRAVELING EXPENSES INCURRED IN CONNECTION WITH TRAVEL IN MAKING VISITS OF INSTRUCTION TO VARIOUS UNITS OF THE NATIONAL GUARD, JANUARY 17 TO FEBRUARY 2, 1927, AND REQUESTING DECISION WHETHER PAYMENT OF ITEMS FOR FRACTIONAL PER DIEM ALLOWANCE OF $1.50 FOR EACH TRIP IS AUTHORIZED.

THE INSPECTIONS WERE DIRECTED BY ORDERS ISSUED JANUARY 1, 1927, PURSUANT TO AUTHORIZATION CONTAINED IN SECTION 67 OF THE NATIONAL DEFENSE ACT, 39 STAT. 166, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1034, AND REGULATIONS THEREUNDER PROMULGATED BY WAR DEPARTMENT CIRCULAR NO. 19, DATED APRIL 13, 1925, AND INVOLVED TRAVEL IN CAPTAIN MCMURRAY'S PRIVATELY OWNED AUTOMOBILE ON DIFFERENT DATES FROM BALTIMORE TO LAUREL, BEL AIR, WESTMINSTER, AND ANNAPOLIS, ALL IN MARYLAND, EACH TRIP COMMENCING AT 7 P.M. OR LATER AND ENDING BEFORE MIDNIGHT OF THE SAME DAY. OR LATER AND ENDING BEFORE MIDNIGHT OF THE SAME DAY.

REFERENCE IS MADE TO DECISION OF NOVEMBER 21, 1924, 4 COMP. GEN. 467,WHICH STATES THE RULE FOR PAYMENT OF PER DIEM ALLOWANCE FOR FRACTIONAL PARTS OF DAYS, QUOTING FROM THE SYLLABUS AS FOLLOWS:

OFFICERS AND EMPLOYEES ARE NOT ENTITLED TO A PER DIEM IN LIEU OF SUBSISTENCE FOR SHORT TRIPS BETWEEN THE HOURS OF 6 P.M. ONE DAY AND 8 A.M. OF THE FOLLOWING DAY WHEN THE ABSENCE IS OF SUCH SHORT DURATION OR BETWEEN SUCH HOURS AS TO PRECLUDE THE PRESUMPTION OF A NECESSITY FOR INCURRING ANY EXPENSES FOR SUBSISTENCE DURING SAID PERIOD.

IT IS URGED THAT THIS CASE HAS APPLICATION TO CIVIL OFFICERS AND EMPLOYEES AND DOES NOT APPLY TO OFFICES IN THE MILITARY SERVICE WHOSE TRAVEL IS AUTHORIZED UNDER DIFFERENT LEGISLATION.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 634, AS AMENDED BY THE ACT OF JUNE 1, 1926, 44 STAT. 680, PROVIDES:

* * * UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.

A CAREFUL CONSIDERATION OF THE ACTS CITED UNDER WHICH THE TRAVEL HERE IN QUESTION WAS DIRECTED FAILS TO DISCLOSE THAT THE AUTHORITY GRANTED THEREUNDER IS ANY GREATER OR DIFFERENT IN EFFECT THAN THAT CARRIED IN THE ACTS AUTHORIZING PAYMENT OF SUBSISTENCE EXPENSES FOR TRAVEL BY CIVIL OFFICERS AND EMPLOYEES. THE ESSENTIAL FEATURE OF ALL SUCH ACTS IS TO PROVIDE FOR THE PAYMENT OF INCREASED EXPENSES BECAUSE OF TRAVEL ON PUBLIC BUSINESS AWAY FROM THE OFFICIAL STATION AND SUCH PAYMENT UNDER EACH ACT IS SUBJECT TO THE BASIC REQUIREMENT THAT THE EXPENSE BE NECESSARY IN THE PUBLIC SERVICE. THERE APPEARING NOTHING IN THE ACTS AUTHORIZING THE PAYMENT OF EXPENSES OF SUBSISTENCE TO OFFICERS AND NONCOMMISSIONED OFFICERS OF THE ARMY TRAVELING ON DUTY IN CONNECTION WITH THE NATIONAL GUARD WHICH WOULD REQUIRE OR JUSTIFY ANY DIFFERENT TREATMENT, THE CITED DECISION IS APPLICABLE TO THE TRAVEL IN QUESTION.

YOU ARE ADVISED THAT AS THE TRAVEL HERE IN QUESTION PRECLUDES THE PRESUMPTION OF A NECESSITY FOR INCURRING ANY EXPENSES FOR SUBSISTENCE, PAYMENT OF THE PER DIEM ALLOWANCE ON THE VOUCHER IS NOT AUTHORIZED.