A-98273, OCTOBER 7, 1938, 18 COMP. GEN. 319

A-98273: Oct 7, 1938

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IS ABSENCE AFTER 8 A.M. WITHIN THE MEANING OF PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDING "THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M. THE RETURN ON THE SAME DAY IS PRIOR TO 6 P.M. BY YOUR ADMINISTRATIVE ASSISTANT IS AS FOLLOWS: THERE IS RETURNED HEREWITH PREAUDIT SCHEDULE NO. IS AN ABSENCE BETWEEN THE HOURS OF 8 A.M. IS APPARENTLY NOT APPLICABLE INASMUCH AS THAT DECISION IS BASED ENTIRELY UPON REGULATIONS OF THE BUREAU OF INTERNAL REVENUE AND PRIOR TO THE PROMULGATION OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IS LIKEWISE NOT APPLICABLE INASMUCH AS THAT PARAGRAPH SPECIFICALLY STATES THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M.

A-98273, OCTOBER 7, 1938, 18 COMP. GEN. 319

SUBSISTENCE - PER DIEMS - FRACTIONAL DAYS - ABSENCE FROM HEADQUARTERS AT EXACTLY 8 A.M. ABSENCE FROM HEADQUARTERS AT EXACTLY 8 A.M. IS ABSENCE AFTER 8 A.M. WITHIN THE MEANING OF PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDING "THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M., AND THE RETURN ON THE SAME DAY IS PRIOR TO 6 P.M., OR FOR ANY ABSENCE NOT EXCEEDING THREE HOURS.' 4 COMP. GEN. 331, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, OCTOBER 7, 1938:

THE LETTER OF SEPTEMBER 15, 1938, BY YOUR ADMINISTRATIVE ASSISTANT IS AS FOLLOWS:

THERE IS RETURNED HEREWITH PREAUDIT SCHEDULE NO. P.A. 1068, CONTAINING VOUCHER OF NORMAN A. ADLER, SPECIAL ATTORNEY OF THIS DEPARTMENT, FOR REIMBURSEMENT OF EXPENSES INCURRED BY HIM ON AUGUST 22, 1938.

THE GENERAL ACCOUNTING OFFICE, BY ITS PREAUDIT DIFFERENCE STATEMENT DATED SEPTEMBER 12, 1938, HAS SUSPENDED AN ITEM OF $2.50, REPRESENTING A FRACTIONAL PER DIEM IN LIEU OF SUBSISTENCE INVOLVING ABSENCE FROM HEADQUARTERS BEGINNING AT 8 A.M. AND TERMINATING AT 12:39 P.M. IS AN ABSENCE BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. THE PREAUDIT DIFFERENCE STATEMENT CITES PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND 4 COMP. GEN. 331.

THE DECISION OF THE COMPTROLLER GENERAL, 4 COMP. GEN. 331, IS APPARENTLY NOT APPLICABLE INASMUCH AS THAT DECISION IS BASED ENTIRELY UPON REGULATIONS OF THE BUREAU OF INTERNAL REVENUE AND PRIOR TO THE PROMULGATION OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IS LIKEWISE NOT APPLICABLE INASMUCH AS THAT PARAGRAPH SPECIFICALLY STATES THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M., ET CETERA. THE NUMEROUS DECISIONS OF THE COMPTROLLER GENERAL ON THIS SUBJECT HAVE STATED THAT A FRACTIONAL PER DIEM CANNOT BE ALLOWED FOR SHORT ABSENCES BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. A DEPARTURE AT 8 A.M. IS NOT AN ABSENCE BETWEEN 8 A.M.

THE DECISIONS OF THE COMPTROLLER GENERAL CONSISTENTLY USE THE WORD "BETWEEN.' IN A DECISION OF THE COMPTROLLER OF THE TREASURY DATED JANUARY 14, 1915 (21 COMP. DEC. 449), IT WAS HELD THAT THE WORD "BETWEEN" WHEN USED IN SPEAKING OF THE PERIOD OF TIME BETWEEN TWO CERTAIN DAYS EXCLUDES THE DAYS DESIGNATED AS THE COMMENCEMENT AND TERMINATION OF SUCH PERIOD. THIS DECISION CONTAINS NUMEROUS REFERENCES TO DECISIONS OF THE COURTS IN SUPPORT THEREOF. EXTENDING THAT DECISION TO THE PRESENT CASE THE TERM "BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.' WOULD EXCLUDE THE 8 AND THE 6 AND INCLUDE 8:01 A.M. TO 5:59 P.M.

IN THE CASE OF THE ATTACHED VOUCHER THE TRAVELLER LEFT AT 8 A.M.IT WOULD APPEAR, THEREFORE, THAT A FRACTIONAL PER DIEM IN LIEU OF SUBSISTENCE IS PROPERLY ALLOWABLE.

PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES:

* * * PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M., AND THE RETURN ON THE SAME DAY IS PRIOR TO 6 P.M., OR FOR ANY ABSENCE NOT EXCEEDING THREE HOURS.

THIS PROVISION IN THE TRAVEL REGULATIONS WAS FOR THE PURPOSE OF CARRYING INTO EFFECT THE DECISIONS OF THIS OFFICE WHICH HAVE CONSISTENTLY HELD THAT ABSENCES OF TEN HOURS OR LESS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. DO NOT CONSTITUTE A TRAVEL STATUS. THE DECISION IN 4 COMP. GEN. 331 WAS NOT BASED UPON INTERNAL REVENUE REGULATIONS BUT UPON A LINE OF PRIOR DECISIONS THEREIN CITED. ANY RULES OF CONSTRUCTION WITH RESPECT TO THE COMPUTATION OF TIME IN DAYS BY EXCLUDING THE FIRST DAY AND INCLUDING THE LAST DAY CANNOT BE APPLIED TO THE COMPUTATION OF TIME BETWEEN STATED HOURS. A.M.' DOES NOT CONSTITUTE ANY PERIOD OF TIME BUT INDICATES A MERE INSTANT MARKING THE TERMINATION OF THE PRECEDING AND THE BEGINNING OF THE FOLLOWING HOUR. CONSEQUENTLY, THE ABSENCE OF ANYONE LEAVING HEADQUARTERS AT EXACTLY 8 A.M. IS NECESSARILY AFTER 8 A.M. ACCORDINGLY, THE REFUSAL TO CERTIFY FOR PAYMENT THAT PORTION OF THE VOUCHER IN FAVOR OF MR. ADLER WHICH CLAIMED PER DIEM FOR ONE-HALF DAY FOR AN ABSENCE FROM 8 A.M. TO 12:39 P.M. WAS CORRECT AND UPON REVIEW MUST BE AND IS SUSTAINED.

THE VOUCHER IS RETURNED HEREWITH FOR PAYMENT IN ACCORDANCE WITH ITS PRIOR CERTIFICATION.