B-125913, DEC. 22, 1955

B-125913: Dec 22, 1955

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NEW YORK NAVAL SHIPYARD: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. THE EMPLOYEES WERE ORDERED TO NORFOLK. THE TRAVEL ORDERS AUTHORIZED PER DIEM AS FOLLOWS: "2. $9.00 PER DIEM IN LIEU OF ACTUAL SUBSISTENCE EXPENSES WITHIN THE UNITED STATES WILL BE ALLOWED EXCEPT UNDER CONDITIONS LISTED BELOW: "B. $6.00 PER DIEM WHEN QUARTERED WITH A CHARGE AT A FACILITY OPERATED UNDER GOVERNMENT CONTROL OR SUPERVISION. PAYMENT WAS MADE ADMINISTRATIVELY FOR THE TIME SPENT IN NORFOLK AT THE RATE OF $6 PER DIEM. THE EMPLOYEES HAVE REFUSED TO ACCEPT PAYMENT AT THAT RATE WHILE ON TEMPORARY DUTY. THAT THEIR TRAVEL ORDERS CALLED FOR $9 PER DIEM SINCE THEY WERE NEITHER QUARTERED NOR SUBSISTED WITH OR WITHOUT CHARGE AT A GOVERNMENT AGENCY WHILE ON TEMPORARY DUTY.

B-125913, DEC. 22, 1955

TO MR. J. R. YOUNG, DISBURSING OFFICER, NEW YORK NAVAL SHIPYARD:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1955, YOUR REFERENCE NO. 660A:BAB L6, FORWARDED HERE BY LETTER DATED OCTOBER 25, 1955, FROM THE JUDGE ADVOCATE GENERAL, REFERENCE G:II:2 PJM:MKS, REQUESTING OUR DECISION AS TO THE PROPER PER DIEM RATE PAYABLE TO CERTAIN EMPLOYEES ON TEMPORARY DUTY DURING THE PERIOD MAY 8 TO 28, 1955.

THE EMPLOYEES WERE ORDERED TO NORFOLK, VIRGINIA, FOR AN ESTIMATED 20 DAYS OF TEMPORARY DUTY. THE TRAVEL ORDERS AUTHORIZED PER DIEM AS FOLLOWS:

"2. $9.00 PER DIEM IN LIEU OF ACTUAL SUBSISTENCE EXPENSES WITHIN THE UNITED STATES WILL BE ALLOWED EXCEPT UNDER CONDITIONS LISTED BELOW:

"B. $6.00 PER DIEM WHEN QUARTERED WITH A CHARGE AT A FACILITY OPERATED UNDER GOVERNMENT CONTROL OR SUPERVISION.

"C. $6.00 PER DIEM WHEN QUARTERED WITHOUT CHARGE BUT NOT WHOLLY SUBSISTED, AT A FACILITY OPERATED UNDER GOVERNMENT CONTROL OR SUPERVISION.'

PARAGRAPH 9 OF THE TRAVEL ORDERS DIRECTED THAT GOVERNMENT QUARTERS BE OCCUPIED IF AVAILABLE.

PAYMENT WAS MADE ADMINISTRATIVELY FOR THE TIME SPENT IN NORFOLK AT THE RATE OF $6 PER DIEM. THE EMPLOYEES HAVE REFUSED TO ACCEPT PAYMENT AT THAT RATE WHILE ON TEMPORARY DUTY, STATING, IN EFFECT, THAT THEIR TRAVEL ORDERS CALLED FOR $9 PER DIEM SINCE THEY WERE NEITHER QUARTERED NOR SUBSISTED WITH OR WITHOUT CHARGE AT A GOVERNMENT AGENCY WHILE ON TEMPORARY DUTY. EACH EMPLOYEE FURNISHES THE FOLLOWING REASONS FOR NOT OCCUPYING AVAILABLE GOVERNMENT QUARTERS AS DIRECTED:

"1. UPON LOOKING OVER B.O.Q. THE FIRST THING I NOTICED WAS LACK OF SECURITY.

A) ALL DOORS WERE WIDE OPEN EXPOSING PERSONAL BELONGINGS.

2. BEDS WERE UNCOMFORTABLE ESPECIALLY WHEN I CONSIDERED THE FACT THAT I WOULD HAVE TO BE THERE FOR THREE WEEKS.

3. EACH ROOM HOUSED TWO PERSONS WITH NO TOILET OR BATH FACILITIES, NOT EVEN A SHOWER STALL, ALL ROOM HAS WAS ONE WASH BASIN.

4. BATHROOM FACILITIES ARE LOCATED IN HALL FOR COMMON USE OF ALL PERSONNEL, THEREFORE I WOULD NOT BE ABLE TO ALWAYS USE BATHROOM FACILITIES AT MY CONVENIENCE AND IMMEDIATE NEEDS.

5. PROBLEMS OF OBTAINING MEALS OVER WEEKEND COMPLICATED.

6. EVEN THO- EVENING MEALS WERE AVAILABLE AT B.O.Q. DURING DAYS OF WORK REGULATIONS REQUIRED THAT SHIRT, TIE AND JACKET BE WORN AT DINNER TABLE REGARDLESS OF WEATHER.

7. MR. ROSS, THE ONLY ONE OF OUR GROUP TO ACCEPT B.O.Q. WAS ROBBED.'

THE PER DIEM ALLOWANCE SPECIFIED IN PARAGRAPH 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REPRESENTS THE MAXIMUM AMOUNT OF PER DIEM, NOT THE MINIMUM. IT IS WITHIN ADMINISTRATIVE DISCRETION, DEPENDING UPON EXISTING FACTS AND CIRCUMSTANCES, WHAT LESSER AMOUNT, IF ANY, SHALL BE PAID. B-33493, APRIL 15, 1943.

THE BASIC QUESTION IS WHETHER, SINCE GOVERNMENT QUARTERS WERE AVAILABLE, THE $6 PER DIEM RATE AS SET OUT IN THE TRAVEL ORDERS, AS EXCEPTIONS TO THE HIGHER RATE STATED THEREIN, IS THE PROPER RATE OR WHETHER THE EMPLOYEES WHO FOR THE PERSONAL REASONS SET OUT ABOVE DID NOT AVAIL THEMSELVES OF SUCH QUARTERS ARE ENTITLED TO BE PAID AT THE HIGHER PER DIEM RATE OF $9.

HAD THE EMPLOYEES BEEN "AUTHORIZED" RATHER THAN "DIRECTED" TO OCCUPY GOVERNMENT QUARTERS, IF AVAILABLE, THERE WOULD SEEM TO BE LITTLE DOUBT THAT BY THE OCCUPANCY OF NONGOVERNMENT QUARTERS THEY WOULD HAVE BEEN ENTITLED TO RECEIVE THE $9 PER DIEM RATE AUTHORIZED BY THEIR ORDERS. THE ORDERS ACTUALLY ISSUED DID NOT PREDICATE THE $6 RATE UPON THE "AVAILABILITY" OF GOVERNMENT QUARTERS BUT RATHER UPON THE PHRASE "WHEN QUARTERED.' WE UNDERSTAND THE EMPLOYEES, IN FACT, DID NOT OCCUPY THE AVAILABLE GOVERNMENT QUARTERS. WE CONCLUDE THAT UNDER THE TERMS OF THE TRAVEL ORDERS THE EMPLOYEES ARE ENTITLED TO THE $9 PER DIEM RATE. WE DO NOT FIND IT NECESSARY TO PASS UPON THE AUTHORITY OF THE ADMINISTRATIVE OFFICIALS TO DIRECT THE USE OF GOVERNMENT QUARTERS BY CIVILIAN EMPLOYEES OR THE QUESTION OF DISCIPLINARY ACTION. RELATIVE THERETO, HOWEVER, WE INVITE YOUR ATTENTION GENERALLY TO SECTION 308, GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1956, 69 STAT. 196.