A-51341, MAY 4, 1934, 13 COMP. GEN. 321

A-51341: May 4, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A FOREIGN-SERVICE OFFICER IS ENTITLED. AS FOLLOWS: REFERENCE IS MADE TO DISALLOWANCES IN THE ACCOUNTS OF MR. WHEREIN IT IS NOTED THAT EXCEPTION HAS BEEN TAKEN TO PER DIEM FOR TIME OCCUPIED IN AWAITING THE SAILING OF THE VESSEL FROM NEW YORK TO NAPLES. IT IS REQUESTED THAT CONSIDERATION BE GIVEN TO THE FOLLOWING: 1. DORSEY WAS INSTRUCTED TO DEPART FOR HIS POST AT THE TERMINATION OF HIS LEAVE OF ABSENCE. UNDER ORDERS AND IN A TRAVEL STATUS HE IS ENTITLED TO PER DIEM EN ROUTE TO HIS POST. DEC. 61) WAS ISSUED AUGUST 10. IT WILL BE APPRECIATED IF THE PER DIEM INCIDENT TO THIS PERIOD WERE ALSO ALLOWED AND THE SUSPENSION REMOVED. PROVIDES: THAT THE SECRETARY OF STATE IS AUTHORIZED. THE SECRETARY OF STATE IS AUTHORIZED.

A-51341, MAY 4, 1934, 13 COMP. GEN. 321

FOREIGN SERVICE - PER DIEM IN LIEU OF SUBSISTENCE UPON TERMINATION OF LEAVE UNDER SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, A FOREIGN-SERVICE OFFICER IS ENTITLED, UPON TERMINATION OF LEAVE OF ABSENCE WITHIN THE UNITED STATES, TO A PER DIEM IN LIEU OF SUBSISTENCE ONLY FOR TIME IN TRANSIT AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING IN RETURNING TO HIS STATION ABROAD, AND NOT DURING ADDITIONAL TIME BETWEEN TERMINATION OF LEAVE AND DATE OF SAILING, THERE BEING NO REQUIREMENT THAT THE OFFICER BE PLACED IN A TRAVEL STATUS IMMEDIATELY AFTER TERMINATION OF LEAVE IF NOT NECESSARY TO CONNECT WITH THE NEXT AVAILABLE VESSEL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 4, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 26, 1934, AS FOLLOWS:

REFERENCE IS MADE TO DISALLOWANCES IN THE ACCOUNTS OF MR. W. RODERICK DORSEY FOR TRAVEL FROM TSINGTAO, CHINA, TO GENOA, ITALY, AS INDICATED IN YOUR LETTER OF NOVEMBER 20, 1933 (A-51341), WHEREIN IT IS NOTED THAT EXCEPTION HAS BEEN TAKEN TO PER DIEM FOR TIME OCCUPIED IN AWAITING THE SAILING OF THE VESSEL FROM NEW YORK TO NAPLES.

IN ASKING THAT YOU KINDLY REVIEW THIS DECISION, IT IS REQUESTED THAT CONSIDERATION BE GIVEN TO THE FOLLOWING:

1. MR. DORSEY WAS INSTRUCTED TO DEPART FOR HIS POST AT THE TERMINATION OF HIS LEAVE OF ABSENCE, AND HE CARRIED OUT THOSE INSTRUCTIONS.

2. UNDER ORDERS AND IN A TRAVEL STATUS HE IS ENTITLED TO PER DIEM EN ROUTE TO HIS POST, FROM THE TIME HE PLACES HIMSELF IN TRANSIT.

3. THE DECISION WHICH YOU QUOTE, AS THE BASIS OF THE SUSPENSION (14 COMP. DEC. 61) WAS ISSUED AUGUST 10, 1907, WHEREAS SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, PROVIDES FOR TIME AWAITING SAILING.

IN VIEW OF THE CIRCUMSTANCES AND THE PROVISIONS OF THE LAW WHICH ALLOWS THE PERIOD OF AWAITING SAILING, IT WILL BE APPRECIATED IF THE PER DIEM INCIDENT TO THIS PERIOD WERE ALSO ALLOWED AND THE SUSPENSION REMOVED.

SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, PROVIDES:

THAT THE SECRETARY OF STATE IS AUTHORIZED, WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST, TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABROAD: PROVIDED, THAT THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF SUCH OFFICERS AND THEIR IMMEDIATE FAMILIES, IN TRAVELING FROM THEIR POSTS TO THEIR HOMES IN THE UNITED STATES AND RETURN, SHALL BE PAID UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS GOING TO AND RETURNING FROM THEIR POSTS UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE: AND PROVIDED FURTHER, THAT WHILE IN THE UNITED STATES THE SERVICES OF SUCH OFFICERS SHALL BE AVAILABLE FOR TRADE CONFERENCE WORK OR FOR SUCH DUTIES IN THE DEPARTMENT OF STATE AS THE SECRETARY OF STATE MAY PRESCRIBE, BUT THE TIME OF SUCH WORK OR DUTIES SHALL NOT BE COUNTED AS LEAVE.

THE SECRETARY OF STATE IS AUTHORIZED, IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE NOT TO EXCEED SIXTY DAYS ANNUAL LEAVE OF ABSENCE WITH PAY. IF SUCH OFFICER OR EMPLOYEE RETURNS TO THE UNITED STATES, THE LEAVE OF ABSENCE GRANTED UNDER THE PROVISIONS OF THIS SECTION SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING. * * *

THERE IS NOTHING IN THE QUOTED ACT OF FEBRUARY 23, 1931, CITED BY YOU,AUTHORIZING A FOREIGN SERVICE OFFICER TO PLACE HIMSELF IN A TRAVEL STATUS, OR AUTHORIZING THE DEPARTMENT OF STATE TO ORDER THE OFFICER IN A TRAVEL STATUS, IMMEDIATELY UPON TERMINATION OF LEAVE IN THE UNITED STATES AND PRIOR TO THE DATE ON WHICH IT IS NECESSARY FOR HIM TO DEPART FROM THE PLACE WHERE HIS LEAVE TERMINATES IN ORDER TO RETURN TO HIS FOREIGN DUTY STATION BY THE FIRST AVAILABLE VESSEL, SOLELY FOR THE PURPOSE OF AWAITING SAILING IN ORDER THAT THE OFFICER MAY DRAW A PER DIEM IN LIEU OF SUBSISTENCE. THE PROVISION IN THE STATUTE EXCLUDING FROM LEAVE "SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING," WAS INTENDED TO CONTINUE THE OFFICER IN A DUTY STATUS TO PREVENT LOSS OF SALARY, AND NOT TO AUTHORIZE OR REQUIRE A TRAVEL STATUS IMMEDIATELY UPON TERMINATION OF A LEAVE STATUS OR FOR A PERIOD LONGER THAN IS NECESSARY FOR THE OFFICER TO RETURN FROM THE PLACE WHERE HIS LEAVE EXPIRES TO HIS DUTY STATION. CONSEQUENTLY, THE OFFICER IS ENTITLED TO A PER DIEM ONLY WHILE NECESSARILY IN A TRAVEL STATUS BETWEEN THE PLACE WHERE HE WAS ON LEAVE AND HIS STATION --- WHICH WOULD INCLUDE, NOT ALL TIME OCCUPIED IN AWAITING SAILING, BUT ONLY SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING.

MR. DORSEY LEFT BALTIMORE JANUARY 9 AND 10 A.M. AND ARRIVED AT NEW YORK AT 5:30 P.M. THE SAME DAY BUT DID NOT SAIL FROM NEW YORK UNTIL 4 P.M. JANUARY 12. HAD HE LEFT BALTIMORE AT 10 A.M. JANUARY 11, OR EVEN LATER, HE COULD HAVE ARRIVED IN NEW YORK CITY IN TIME FOR THE SAILING OF THE VESSEL. ACCORDINGLY, IT CANNOT BE SAID THAT THE EXTRA TWO DAYS IN NEW YORK CITY CONSTITUTED "TIME * * * NECESSARILY OCCUPIED IN AWAITING SAILING.'

UPON RECONSIDERATION, THE DECISION OF NOVEMBER 20, 1933, MUST BE AND IS AFFIRMED.