A-5875, NOVEMBER 21, 1924, 4 COMP. GEN. 469

A-5875: Nov 21, 1924

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BECAME EFFECTIVE WHILE HE WAS ON DUTY AT HIS POST ABROAD IS NOT ENTITLED TO EXPENSES OF SUBSISTENCE DURING THE PERIOD HE REMAINED AT HIS POST OF DUTY AWAITING A STEAMER TO TAKE HIM TO THE UNITED STATES ON RETURN TO HIS HOME. 1924: THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER A FOREIGN SERVICE OFFICER WHOSE RETIREMENT UNDER THE ACT OF MAY 24. BECOMES EFFECTIVE WHILE HE IS ON DUTY ABROAD IS ENTITLED TO SUBSISTENCE EXPENSES DURING THE PERIOD HE REMAINS AT HIS POST OF DUTY AWAITING A STEAMER TO TAKE HIM TO THE UNITED STATES ON HIS RETURN TO HIS HOME. THE CASE GIVING RISE TO THE QUESTION IS THAT OF WILLIAM P. WHO WAS FORMERLY AMERICAN CONSUL AT HAMILTON. THE ITEMS IN QUESTION WERE DISAPPROVED IN AN ADMINISTRATIVE EXAMINATION BY THE STATE DEPARTMENT ON THE GROUND THAT THE APPROPRIATION PROVIDES ONLY FOR EXPENSES INCURRED AFTER LEAVING THE POST.

A-5875, NOVEMBER 21, 1924, 4 COMP. GEN. 469

RETIRED FOREIGN SERVICE OFFICERS - SUBSISTENCE EXPENSES WHILE WAITING STEAMER AN OFFICER OF THE FOREIGN SERVICE WHOSE RETIREMENT, UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1924, 43 STAT. 140, BECAME EFFECTIVE WHILE HE WAS ON DUTY AT HIS POST ABROAD IS NOT ENTITLED TO EXPENSES OF SUBSISTENCE DURING THE PERIOD HE REMAINED AT HIS POST OF DUTY AWAITING A STEAMER TO TAKE HIM TO THE UNITED STATES ON RETURN TO HIS HOME.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 21, 1924:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER A FOREIGN SERVICE OFFICER WHOSE RETIREMENT UNDER THE ACT OF MAY 24, 1924, 43 STAT. 140, BECOMES EFFECTIVE WHILE HE IS ON DUTY ABROAD IS ENTITLED TO SUBSISTENCE EXPENSES DURING THE PERIOD HE REMAINS AT HIS POST OF DUTY AWAITING A STEAMER TO TAKE HIM TO THE UNITED STATES ON HIS RETURN TO HIS HOME.

THE CASE GIVING RISE TO THE QUESTION IS THAT OF WILLIAM P. KENT, WHO WAS FORMERLY AMERICAN CONSUL AT HAMILTON, BERMUDA. IT APPEARS THAT ON JUNE 28, 1924, THE SECRETARY OF STATE CABLED TO MR. KENT, INFORMING HIM THAT HIS RETIREMENT WOULD BECOME EFFECTIVE JULY 1, 1924, DIRECTING HIM TO TURN OVER THE CONSULATE ON THAT DATE TO THE VICE CONSUL, AND STATING THAT TRAVEL AND SUBSISTENCE EXPENSES OF HIMSELF AND FAMILY, AND TRANSPORTATION OF HIS EFFECTS TO HIS HOME IN THE UNITED STATES WOULD BE ALLOWABLE, SUBJECT TO TRAVEL REGULATIONS. IT ALSO APPEARS THAT NO PASSENGER SHIP SAILED FROM HAMILTON, BERMUDA, TO NEW YORK BETWEEN JULY 1 AND 10, 1924, AND THAT DURING SUCH PERIOD MR. KENT AND HIS FAMILY CONTINUED TO OCCUPY THE LIVING QUARTERS PREVIOUSLY OCCUPIED BY THEM AND CARRIED ON THE DOMESTIC ARRANGEMENTS AS BEFORE. MR. KENT REIMBURSED HIMSELF FOR THE RENT AND COST OF FOOD PURCHASED DURING THE PERIOD JULY 1 TO 10, AMOUNTING TO $56.30, AND HAS CLAIMED CREDIT IN HIS ACCOUNTS FOR SUCH REIMBURSEMENT. THE ITEMS IN QUESTION WERE DISAPPROVED IN AN ADMINISTRATIVE EXAMINATION BY THE STATE DEPARTMENT ON THE GROUND THAT THE APPROPRIATION PROVIDES ONLY FOR EXPENSES INCURRED AFTER LEAVING THE POST.

THE STATUTORY AUTHORITY FOR THE ALLOWANCE OF TRANSPORTATION AND SUBSISTENCE EXPENSES OF DIPLOMATIC AND CONSULAR OFFICERS INCIDENT TO THEIR RETURN FROM THEIR POST IS FOUND IN THE ANNUAL ACTS MAKING APPROPRIATION FOR THE VARIOUS ACTIVITIES OF THE DEPARTMENT OF STATE. THE ACT OF MAY 28, 1924, 43 STAT. 209, MAKING APPROPRIATION FOR THE DEPARTMENT OF STATE FOR THE FISCAL YEAR 1925 PROVIDES AS FOLLOWS:

TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS

TO PAY THE ITEMIZED AND VERIFIED STATEMENTS OF THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE, UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF DIPLOMATIC AND CONSULAR OFFICERS AND CLERKS IN EMBASSIES, LEGATIONS, AND CONSULATES, INCLUDING OFFICERS OF THE UNITED STATES COURT FOR CHINA, AND THEIR FAMILIES AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS, OR OF SUCH OFFICERS AND CLERKS WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE, BUT NOT INCLUDING ANY EXPENSE INCURRED IN CONNECTION WITH LEAVES OF ABSENCE * * *.

THE REGULATIONS ISSUED BY THE SECRETARY OF STATE PURSUANT TO SUCH STATUTORY AUTHORITY UNDER THE HEADING "I. TRANSPORTATION OF PERSONS," DEFINE AND LIMITS THE EXPENSES FOR WHICH AN OFFICER OR CLERK IS ENTITLED TO REIMBURSEMENT IN GOING TO AND RETURNING FROM HIS POST, PARAGRAPH 3 THEREOF PROVIDING AS FOLLOWS:

STOPPING OVER AT ANY POINT, OR ANY DETENTION EN ROUTE, WITHOUT PRIOR AUTHORITY THEREFOR, EXCEPT AS HEREINAFTER PROVIDED, WILL NOT BE PERMITTED UNLESS UNAVOIDABLE, AND THE REASONS THEREFOR MUST BE SATISFACTORILY EXPLAINED BY A STATEMENT OF THE FACTS, WHICH MUST ACCOMPANY THE TRAVELING EXPENSE ACCOUNT, BUT SHOULD NOT BE EMBODIED THEREIN. THE EXPENSE OF STOPPING OVER AT ANY POINT EN ROUTE MAY NOT BE CHARGED TO THE GOVERNMENT IF THE STOP-OVER WAS FOR ANY PERSONAL REASON EXCEPT ILLNESS, IN WHICH LATTER EVENT A CERTIFICATE OF THE ATTENDING PHYSICIAN SHOULD BE FURNISHED WITH THE ACCOUNT.

UNDER THE HEADING "II. SUBSISTENCE ON THE JOURNEY," THE REGULATIONS PROVIDE AS FOLLOWS:

15. AN OFFICER OR CLERK ENTITLED TO REIMBURSEMENT FOR THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE IN GOING TO AND RETURNING FROM HIS POST SHALL BE ENTITLED TO REIMBURSEMENT FOR THE AMOUNTS ACTUALLY AND NECESSARILY DISBURSED BY HIM FOR THE EXPENSES OF HIMSELF AND FAMILY AS DEFINED IN THESE REGULATIONS FOR THE FOLLOWING:

16. CHARGES FOR MEALS ON TRAINS AND SHIPS WILL BE ALLOWED ONLY WHEN THE FARE PAID DOES NOT INCLUDE MEALS.

17. SUBSISTENCE AT STOP-OVERS WILL BE ALLOWED ONLY WHEN THEY ARE UNAVOIDABLE AND COME WITHIN THE PROVISIONS OF PARAGRAPH 3 OF THESE REGULATIONS. IN CASES WHERE A LAND JOURNEY OF OVER 24 HOURS IS NECESSARY TO REACH THE PORT OF EMBARKATION, HOWEVER, A MARGIN OF 2 DAYS AT SUCH EMBARKATION PORT, PRIOR TO THE VESSEL'S PUBLISHED SAILING DATE, MAY BE ALLOWED. ASIDE FROM SUCH MARGIN, NO ALLOWANCE WILL BE MADE FOR SUBSISTENCE WHILE AWAITING A STEAMER, UNLESS IT CAN BE SHOWN BY CERTIFICATE OF THE MASTER OR AGENTS OF THE VESSEL THAT HER PUBLISHED SAILING WAS POSTPONED, OR UNLESS SUCH WAIT IS NOT AT THE BEGINNING OF THE JOURNEY OR IN THE UNITED STATES OR CANADA AND CONSTITUTES AN UNAVOIDABLE STOP-OVER EN ROUTE AS DEFINED IN PARAGRAPH 3 OF THESE REGULATIONS.

THE APPROPRIATION IS FOR TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS AND THEIR FAMILIES AND THE SUBSISTENCE AUTHORIZED IS ONLY SUCH AS IS CLEARLY INCIDENTAL TO AND IN CONNECTION WITH TRANSPORTATION. THE CONSIDERATION OF THE LANGUAGE OF THE STATUTE WHICH AUTHORIZES REIMBURSEMENT UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE AND OF THE REGULATIONS THEREUNDER PRESCRIBED LEADS TO THE CONCLUSION THAT EXPENSES OF SUBSISTENCE ARE TO BE REIMBURSED ONLY WHEN AN OFFICER OR CLERK IS IN A TRAVEL STATUS. SUCH STATUS DOES NOT EXIST UNTIL A JOURNEY IS ACTUALLY BEGUN. THE LAW DOES NOT AUTHORIZE REIMBURSEMENT OF EXPENSES INCURRED FOR SUBSISTENCE AT POST OF DUTY AND RELIEF FROM DUTY WITHOUT ACTUAL DEPARTURE FROM THE POST CAN NOT OPERATE TO CHANGE THE STATUS IN SO FAR AS RIGHT TO SUBSISTENCE AT GOVERNMENT EXPENSE IS CONCERNED.

IN THIS CASE THE WAIT WAS BEFORE THE JOURNEY BEGAN. THEREFORE, EVEN THE PROVISIONS OF THE REGULATIONS RELATIVE TO WAITING TIME AT PORT OF EMBARKATION FOR CERTAIN UNAVOIDABLE DELAYS WHILE EN ROUTE HAVE NO APPLICATION HERE.

NOTWITHSTANDING ANY EQUITIES THAT MIGHT APPEAR IN SUCH CASES, I AM CONSTRAINED TO HOLD THAT REIMBURSEMENT OF EXPENSES INCURRED FOR SUBSISTENCE AT POST AFTER RELIEF FROM DUTY WHILE AWAITING AVAILABLE TRANSPORTATION IS NOT AUTHORIZED UNDER EXISTING LAW.