A-50986, OCTOBER 7, 1933, 13 COMP. GEN. 94

A-50986: Oct 7, 1933

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ARE NOT DURING THE FISCAL YEAR 1933 WITHIN THE PROVISIONS OF SECTION 206 (A) OF THE ECONOMY ACT OF JUNE 30. HENCE ARE NOT ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES AND SUBSISTENCE UNDER THE SUBSISTENCE EXPENSE ACT OF JUNE 3. NAVY NURSES ARE ENTITLED. FOR FRACTIONAL PARTS OF A DAY AT THE COMMENCEMENT OR ENDING OF A TRAVEL STATUS PERIOD NAVY NURSES ARE ENTITLED TO ONE FOURTH OF THE RATE FOR A CALENDAR DAY FOR EACH PERIOD OF 6 HOURS OR PORTION THEREOF. ARE AUTHORIZED. 1933: THERE ARE BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIMS OF RUTH J. THE ORDERS STATE THAT A PER DIEM OF $5 IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE DURING TRAVEL WILL BE ALLOWED. TRANSPORTATION WAS FURNISHED ON TRANSPORTATION REQUESTS.

A-50986, OCTOBER 7, 1933, 13 COMP. GEN. 94

TRAVELING EXPENSES - SUBSISTENCE - NAVY NURSES MILEAGE UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, ARE NOT DURING THE FISCAL YEAR 1933 WITHIN THE PROVISIONS OF SECTION 206 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 405, AND HENCE ARE NOT ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES AND SUBSISTENCE UNDER THE SUBSISTENCE EXPENSE ACT OF JUNE 3, 1926, 44 STAT. 688, AS AMENDED. NAVY NURSES ARE ENTITLED, WHEN TRAVELING ON OFFICIAL BUSINESS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, TO REIMBURSEMENT FOR ACTUAL EXPENSES NOT EXCEEDING $5 PER DAY OR TO A PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE OF NOT EXCEEDING $4 UNDER THE ACT OF AUGUST 1, 1914, 38 STAT. 680. FOR FRACTIONAL PARTS OF A DAY AT THE COMMENCEMENT OR ENDING OF A TRAVEL STATUS PERIOD NAVY NURSES ARE ENTITLED TO ONE FOURTH OF THE RATE FOR A CALENDAR DAY FOR EACH PERIOD OF 6 HOURS OR PORTION THEREOF. NAVY NURSES WHEN AUTHORIZED TO TRAVEL BY THEIR PRIVATELY OWNED AUTOMOBILES WHEN ENTITLED TO TRANSPORTATION OR TRANSPORTATION AND SUBSISTENCE, AS DISTINGUISHED FROM MILEAGE, ARE AUTHORIZED, UNDER THE ACT OF MAY 29, 1928, 45 STAT. 975, TO BE PAID A MONEY ALLOWANCE AT THE RATE OF 3 CENTS PER MILE FOR THE DISTANCE INVOLVED VIA THE SHORTEST USUALLY TRAVELED ROUTE. WHEN A CHANGE IN PER DIEM RATES TAKES PLACE DURING A PERIOD OF CONTINUOUS TRAVEL STATUS, ONE RATE BEING PRESCRIBED FOR TRAVEL ON A VESSEL AND ONE RATE FOR TRAVEL ON LAND, THE ONE RATE ENDS AND THE OTHER BEGINS UPON DISEMBARKING OR EMBARKING DURING THE TRAVEL STATUS.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 7, 1933:

THERE ARE BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIMS OF RUTH J. HEDEMARK (O418195) AND LAURA M. GIBSON (O418383), NURSES, UNITED STATES NAVY, FOR REIMBURSEMENT OF TRAVEL EXPENSES AND PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE.

THE CLAIM OF NURSE HEDEMARK ARISES UNDER HER ORDERS OF MARCH 21, 1933, DETACHING HER FROM DUTY ON BOARD THE U.S.S. RELIEF, SAN PEDRO, CALIF; AND DIRECTING HER TO PROCEED TO SAN DIEGO, CALIF; AND REPORT TO THE MEDICAL OFFICER IN COMMAND OF THE UNITED STATES NAVAL HOSPITAL FOR DUTY. THE ORDERS STATE THAT A PER DIEM OF $5 IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE DURING TRAVEL WILL BE ALLOWED. TRANSPORTATION WAS FURNISHED ON TRANSPORTATION REQUESTS. THE CLAIM WHICH COVERS CHARGES FOR TRANSFER OF TRUNK, 75 CENTS, AND TAXI FARE, 75 CENTS, AS WELL AS PER DIEM IN LIEU OF SUBSISTENCE WAS ADMINISTRATIVELY APPROVED (BUREAU OF SUPPLIES AND ACCOUNTS VOUCHER NO. 91032) IN THE TOTAL SUM OF $2.75, INDICATING THAT $1.25 OF SAID APPROVED SUM INVOLVES ONE FOURTH OF THE PRESCRIBED PER DIEM FOR THE NECESSARY TRAVEL TIME.

THE ADMINISTRATIVE ACTION OF PRESCRIBING $5 PER DIEM IN LIEU OF SUBSISTENCE FOR NURSES INDICATES THAT THERE EXISTS DOUBT AS TO THE RIGHTS OF NURSES TO PER DIEM IN LIEU OF SUBSISTENCE WHILE TRAVELING UNDER ORDERS. IT IS EVIDENT THAT THE PRESCRIBED PER DIEM WAS ON THE BASIS OF THE SUPPOSED APPLICATION OF SECTION 206 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 405, TO NAVY NURSES.

THE ACT OF MAY 13, 1908, 35 STAT. 146, PROVIDES THAT NAVY NURSES (FEMALE) SHALL "RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS, AND PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE NURSE CORPS (FEMALE) OF THE ARMY.' AT THE TIME OF THE ENACTMENT OF THIS STATUTE, UNDER SECTION 19 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 753, ARMY NURSES (FEMALE), WHEN TRAVELING UNDER ORDERS, WERE ENTITLED TO "TRANSPORTATION AND NECESSARY EXPENSES.' SEE ALSO SECTION 6, ACT OF JULY 9, 1918, 40 STAT. 879. THE ACT OF APRIL 6, 1914, 38 STAT. 318, LIMITS REIMBURSEMENT OF ACTUAL EXPENSES FOR SUBSISTENCE TO $5 PER DAY. THIS HAS BEEN HELD TO APPLY TO MEMBERS OF THE ARMY NURSE CORPS, A-31829, MAY 28, 1930. THE ARMY NURSE CORPS, AS SUCH, WAS ESTABLISHED BY THE ACT OF JULY 9, 1918, SUPRA, AND SECTIONS 2 AND 10 OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 759, CONSTITUTE IT A PART OF THE MEDICAL DEPARTMENT OF THE ARMY. THE ACT OF JUNE 4, 1920, 41 STAT. 767, GAVE RELATIVE RANK TO MEMBERS OF THE NURSE CORPS, BUT THEY WERE NOT MADE OFFICERS.

MEMBERS OF THE ARMY NURSE CORPS, NOT BEING OFFICERS OF THE ARMY, AND NOT BEING ENTITLED TO MILEAGE UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, ARE NOT WITHIN THE PROVISIONS OF SECTION 206 (A) OF THE ECONOMY ACT.

LIKEWISE, NAVY NURSES ARE NOT WITHIN THE PROVISIONS OF SECTION 206 (A) OF THE ECONOMY ACT AND ARE NOT ENTITLED TO $5 PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE WHILE TRAVELING UNDER ORDERS.

THE ACT OF AUGUST 1, 1914, 38 STAT. 680, PROVIDES:

THAT HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCES NOT EXCEEDING $4 IN LIEU OF SUBSISTENCE TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHEN NOT OTHERWISE FIXED BY LAW. * * *

PER DIEM IN LIEU OF ACTUAL EXPENSES NOT HAVING BEEN "OTHERWISE FIXED BY LAW" FOR ARMY OR NAVY NURSES, THE ACT OF AUGUST 1, 1914, SUPRA, LIMITS THE PAYMENT TO THEM OF PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE TO $4. IN ANY INSTANCE, THEREFORE, WHERE A PER DIEM IN EXCESS OF $4 HAS BEEN PRESCRIBED IN ORDERS, NOT TO EXCEED $4 MAY BE ALLOWED.

THERE ARISES, ALSO, THE QUESTION OF THE AMOUNT OF PER DIEM PAYABLE FOR FRACTIONAL PARTS OF A DAY IN A TRAVEL STATUS. UNITED STATES NAVY TRAVEL INSTRUCTIONS (PAR. 5-2) ARE SILENT ON THE SUBJECT. LIKEWISE ARMY REGULATIONS 35-4910 MAKE NO PROVISION ON THE SUBJECT FOR ARMY NURSES. HOWEVER, ARMY REGULATIONS 35-1340, CHANGES NO. 2, NOVEMBER 29, 1929, PARAGRAPH 14, PROVIDE:

14. FOR ALLOWANCES FOR SUBSISTENCE AND LODGING.--- A. IN COMPUTING THE ALLOWANCES FOR SUBSISTENCE AND LODGING OF MILITARY PERSONNEL OTHER THAN ENLISTED, TIME WILL BE COMPUTED AS FOLLOWS:

(2) PER DIEM ALLOWANCES.--- IN COMPUTING PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE AND LODGING, THE CALENDAR DAY (MIDNIGHT TO MIDNIGHT) WILL BE THE UNIT. FOR THE FRACTIONAL PART OF A DAY AT THE COMMENCEMENT OR ENDING OF A PER DIEM STATUS PERIOD, ONE FOURTH OF THE RATE FOR A CALENDAR DAY WILL BE ALLOWED FOR EACH PERIOD OF SIX HOURS OR PORTION THEREOF.

ALTHOUGH NURSES ARE NOT OFFICERS THEY ARE MILITARY PERSONNEL, 6 COMP. GEN. 543; A-31829, MAY 28, 1930. INASMUCH AS NAVY NURSES ARE ENTITLED TO "RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS, AND PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE NURSE CORPS (FEMALE) OF THE ARMY" (SEE ACT OF MAY 13, 1908, SUPRA), THE ABOVE-QUOTED REGULATION WILL GOVERN THE COMPUTATION OF PER DIEM IN LIEU OF SUBSISTENCE FOR NAVY NURSES AS WELL AS ARMY NURSES.

IN THE CASE OF NURSE HEDEMARK, THE TRAVEL TIME INVOLVED WAS LESS THAN 6 HOURS, ONE FOURTH OF THE LEGAL PER DIEM OF $4 PROVIDED BY THE ACT OF AUGUST 1, 1914, SUPRA, OR $1, MAY BE ALLOWED. INSTEAD OF $2.75, THE AMOUNT FOR WHICH THE VOUCHER IS APPROVED, THE SUM OF $2.50 IS AUTHORIZED TO BE ALLOWED. THE EXCESS PER DIEM, DUE TO THE USE OF THE $5 RATE RATHER THAN THE $4 RATE, IS DISALLOWED.

NURSE GIBSON'S CLAIM IS BASED UPON THE FOLLOWING ORDERS:

1. YOU WILL REGARD YOURSELF DETACHED FROM DUTY AT THE U.S. NAVAL HOSPITAL, PEARL HARBOR, T.H., AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU, IN TIME TO REPORT TO THE COMMANDANT, FOURTEENTH NAVAL DISTRICT, FOR PASSAGE VIA THE ARMY TRANSPORT REPUBLIC SAILING ON 4 APRIL, 1933.

2. UPON ARRIVAL AT SAN FRANCISCO, CALIF., YOU WILL PROCEED TO SAN DIEGO, CALIF., AND REPORT TO THE MEDICAL OFFICER IN COMMAND OF U.S. NAVAL HOSPITAL FOR DUTY; WITH AUTHORITY TO DELAY FOR A PERIOD OF TWENTY-ONE DAYS IN REPORTING, SUCH DELAY TO COUNT AS LEAVE.

3. A PER DIEM OF $2.00 IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE DURING TRAVEL VIA THE ARMY TRANSPORT REPUBLIC AND A PER DIEM OF $5.00 IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE DURING TRAVEL WITHIN THE UNITED STATES WILL BE ALLOWED.

THESE ORDERS WERE AMENDED BY DISPATCH MODIFICATION OF MARCH 28, 1933,QUOTED IN CONFIRMATION ORDERS OF MARCH 30, 1933, AS FOLLOWS:

* * * NURSE LAURA M. GIBSON ORDERS OF ELEVEN JANUARY MODIFIED REPORT COMFORTEEN PASSAGE VIA STEAMSHIP MAUI OF MATSON LINE SAILING FIVE APRIL ARRIVAL PORT PACIFIC COAST. CARRY OUT REMAINDER ORDERS PER DIEM TWO DOLLARS DURING TRAVEL VIA COMMERCIAL STREAMER ALLOWED * * *.

BY ORDERS OF APRIL 14, 1933, NURSE GIBSON WAS AUTHORIZED TO TRAVEL VIA HER OWN AUTOMOBILE IN CARRYING OUT HER ORDERS OF JANUARY 11, 1933, AND THE DISPATCH MODIFICATION OF MARCH 28, 1933, REIMBURSEMENT AT THE RATE OF 5 CENTS PER MILE, NOT TO EXCEED THE COST TO THE GOVERNMENT BY COMMON CARRIER BY THE SHORTEST USUALLY TRAVELED ROUTE, BEING AUTHORIZED AS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES.

AS POINTED OUT ABOVE, NURSES' TRAVEL IS NOT AFFECTED BY THE ECONOMY ACT. IN ADDITION TO THE EXCESS PER DIEM PROVIDED UNDER THE ORDERS THE 5 CENTS PER MILE AUTHORIZED FOR THE USE OF HER OWN AUTOMOBILE IS IMPROPER.

THE ACT OF MAY 29, 1928, 45 STAT. 975, PROVIDES:

INDIVIDUALS BELONGING TO ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, * * * TRAVELING UNDER COMPETENT ORDERS WHICH ENTITLE THEM TO TRANSPORTATION OR TRANSPORTATION AND SUBSISTENCE AS DISTINGUISHED FROM MILEAGE, WHO, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, TRAVEL BY PRIVATELY OWNED CONVEYANCE SHALL BE ENTITLED, IN LIEU OF TRANSPORTATION BY THE SHORTEST USUALLY TRAVELED ROUTE NOW AUTHORIZED BY LAW TO BE FURNISHED IN KIND, TO A MONEY ALLOWANCE AT THE RATE OF 3 CENTS PER MILE FOR THE SAME DISTANCE: PROVIDED, THAT THIS PROVISION SHALL NOT APPLY TO TRAVELING EXPENSES UNDER THE "SUBSISTENCE EXPENSE ACT OF 1926.'

FROM THE VOUCHER SUBMITTED IT APPEARS THAT NURSE GIBSON LEFT HONOLULU, T.H., AT 12 NOON, APRIL 5, 1933, AND ARRIVED IN SAN FRANCISCO, CALIF., AT 12:15 P.M., APRIL 11, 1933. COMMON CARRIER SCHEDULES BETWEEN SAN FRANCISCO, CALIF., AND SAN DIEGO, CALIF., INDICATE THAT SHE COULD HAVE LEFT SAN FRANCISCO AT 6:45 P.M. APRIL 11, 1933, ARRIVING AT SAN DIEGO AT 12:15 P.M., APRIL 12, 1933. WHILE TRAVELING ON COMMERCIAL VESSEL FROM HONOLULU TO SAN FRANCISCO 12 NOON, APRIL 5, 1933, TO 2:15 P.M., APRIL 11, 1933, 6 DAYS AT $2 PER DIEM, $12 ACCRUED FOR PER DIEM IN LIEU OF SUBSISTENCE. FOR THE NECESSARY TRAVEL TIME VIA COMMON CARRIER FROM SAN FRANCISCO TO SAN DIEGO, THE SUM OF $4 ACCRUED, TOTAL $16 FOR PER DIEM. SEE 12 COMP. GEN. 429.

THE OFFICIAL TABLE OF DISTANCES GIVES THE DISTANCE FROM SAN FRANCISCO TO SAN DIEGO AS 602 MILES. AT 3 CENTS PER MILE, $18.06 ACCRUED FOR MILEAGE. THE AMOUNT ALLOWABLE ON THE VOUCHER IS $16 FOR PER DIEM, $18.06 FOR MILEAGE, AND $4.65 FOR OTHER ITEMS; TOTAL $38.71, INSTEAD OF $51.65 AS ADMINISTRATIVELY APPROVED, BUREAU OF SUPPLIES AND ACCOUNTS VOUCHER NO. 91137. THE EXCESS AMOUNT CLAIMED WILL BE DISALLOWED.