B-141418, MAY 12, 1960

B-141418, MAY 12, 1960

TO MR. CHARLES E. NICLAS, JR.:

ON MARCH 10, 1960, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF FEBRUARY 17, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTING YOUR PRIVATELY OWNED AUTOMOBILE FROM BALTIMORE, MARYLAND, TO MANILA, PHILIPPINES, IN CONNECTION WITH YOUR TRAVEL FROM WASHINGTON, D.C., TO MANILA IN JUNE 1959, AS AN EMPLOYEE OF THE INTERNATIONAL COOPERATION ADMINISTRATION. IN THE ALTERNATIVE, IF REIMBURSEMENT OF THE COST OF TRANSPORTING YOUR AUTOMOBILE IS NOT ALLOWABLE, YOU CLAIM PER DIEM FROM JANUARY 15 TO JUNE 7, 1959, WHEN YOU WERE IN WASHINGTON, D.C., FOR THAT PERIOD.

IT SEEMS THAT TRAVEL AUTHORIZATION DATED OCTOBER 27, 1958, AUTHORIZED YOU TO TRAVEL FROM MANILA TO WASHINGTON FOR THE PURPOSE OF HOME LEAVE AT HYATTSVILLE, MARYLAND, AND TRANSFER, AND, ALSO, 15 DAYS' CONSULTATION IN WASHINGTON; THAT AT THE TIME YOU DEPARTED FROM MANILA THE POSITION YOU HAD HELD THERE WAS DISCONTINUED AND YOUR RETURN TO THAT POST WAS NOT CONTEMPLATED; THAT YOU WERE PLACED ON DETAIL FOR 5 1/2 MONTHS IN WASHINGTON BY A PERSONNEL ACTION; AND THAT, SHORTLY AFTER SUCH ACTION, YOUR OLD POSITION IN MANILA WAS REVIVED AND THE TRAVEL AUTHORIZATION OF OCTOBER 27, 1958, AND AMENDED TO SHOW THAT THE PURPOSE OF THE TRAVEL AUTHORIZED THEREIN WAS "HOME LEAVE AND RETURN.' WHILE IN THE UNITED STATES YOU PURCHASED AN AUTOMOBILE TO REPLACE THE ONE SHIPPED OVERSEAS AT GOVERNMENT EXPENSE AT THE TIME OF YOUR INITIAL ASSIGNMENT TO MANILA AND WHICH WAS SOLD BY YOU PRIOR TO YOUR DEPARTURE THEREFROM. YOUR CLAIM COVERS THE COST OF SHIPMENT OF THE AUTOMOBILE TO MANILA INCIDENT TO YOUR RETURN TO THAT POST OF DUTY.

THE RECORD CONTAINS NO EVIDENCE THAT AT THE TIME OF YOUR DEPARTURE FOR THE UNITED STATES YOU HAD KNOWLEDGE THAT YOU WOULD BE IN THIS COUNTRY FOR A PERIOD IN EXCESS OF THE TIME NECESSARY FOR HOME LEAVE AND CONSULTATION OR THAT YOU HAD ANY INFORMATION INDICATING THE LOCATION OF YOUR NEW POST OF DUTY OVERSEAS. THE ADMINISTRATIVE OFFICE DETERMINED THAT YOUR SUBSEQUENT LIMITED ASSIGNMENT IN WASHINGTON WAS A "DETAIL.' UPON THE FACTS BEFORE US OUR OFFICE REASONABLY CANNOT SAY THAT THAT DETERMINATION WAS ERRONEOUS. WHILE IT IS TRUE THAT, GENERALLY, WHEN A TRAVEL ORDER OF ICA AUTHORIZES THE SHIPMENT OF EFFECTS TO A POST OF DUTY OVERSEAS, IT IS TO BE CONSTRUED AS AUTHORIZING THE SHIPMENT OF AN AUTOMOBILE, WE DO NOT BELIEVE THAT RULE IS APPLICABLE HERE BECAUSE THE ORDER ISSUED TO YOU BY ITS TERMS LIMITS THE AUTHORIZATION TO THE UNUSED WEIGHT UNDER YOUR ORDERS AT TIME OF INITIAL ASSIGNMENT TO MANILA. THAT CONCEPT IS CONSISTENT WITH THE ADMINISTRATIVE DETERMINATION OF A "DETAIL" IN WASHINGTON.

THEREFORE, THE SETTLEMENT OF FEBRUARY 17 IS SUSTAINED.

REGARDING YOUR CLAIM TO PER DIEM WHILE IN WASHINGTON, YOU ARE INFORMED THAT GENERALLY, AUTHORIZATION OR APPROVAL OF PER DIEM IS NOT A MANDATORY RIGHT, THE PERIOD AND RATE BEING DISCRETIONARY WITH THE AGENCY, WITHIN THE MAXIMUM RATES AUTHORIZED BY LAW. SECTIONS II, G, 3, B AND C OF ICA MANUAL ORDER NO. 560.2 AUTHORIZE PER DIEM AT THE MAXIMUM RATE FOR 60 DAYS AND THREE-FOURTHS OF THE MAXIMUM RATE THEREAFTER ONLY WHEN OVERSEAS EMPLOYEES ARE "BROUGHT BACK TO THE UNITED STATES PRIMARILY OR SOLELY" FOR THE PURPOSE OF PERFORMING A DETAIL, TEMPORARY DUTY ASSIGNMENT, OR FOR CONSULTATION. YOU WERE BROUGHT BACK TO THE UNITED STATES FOR HOME LEAVE AND TRANSFER, AND, ALTHOUGH THE PURPOSE WAS LATER CHANGED TO HOME LEAVE AND RETURN, IT CANNOT BE SAID, BY REASON OF SUCH CHANGE, THAT THE PURPOSE OF YOUR TRAVEL TO THE UNITED STATES WAS PRIMARILY TO PERFORM A DETAIL. THEREFORE, YOU ARE NOT ENTITLED TO PER DIEM FOR THE PERIOD OF YOUR DETAIL IN WASHINGTON UNDER SECTIONS II, G, 3, B AND C OF ICA MANUAL ORDER NO. 560.2.

WE NOTE THAT SECTION III, G, 6 OF THAT MANUAL ORDER PROVIDES FOR THE PAYMENT OF PER DIEM TO EMPLOYEES WHO ARE ON DETAIL UNDER TEMPORARY DETAIL ORDERS. WHILE THE TERM "TEMPORARY DETAIL ORDERS," IS NOT DEFINED IN THE REGULATIONS, WE UNDERSTAND THAT YOUR AGENCY HAS ALWAYS REQUIRED AS PREREQUISITE TO PAYMENT OF PER DIEM UNDER THAT SECTION THE ISSUANCE OF SOME FORM OF TRAVEL ORDER OR AUTHORIZATION WHICH CREATES AN OBLIGATION ON TRAVEL FUNDS, AND IS OF THE VIEW, THEREFORE, THAT THE PERSONNEL ACTION UNDER WHICH YOU WERE PLACED ON DETAIL IN WASHINGTON CANNOT PROPERLY BE CONSIDERED AS AUTHORIZING THE PAYMENT OF PER DIEM UNDER THAT SECTION.

ADDITIONALLY, IN ITS REPORT TO US DATED APRIL 22, 1960, YOUR ADMINISTRATIVE OFFICE SAYS AS FOLLOWS:

"* * * IN THIS CASE, CONSISTENT WITH ICA GENERAL POLICY, THE AGENCY DID NOT AUTHORIZE THE PAYMENT OF PER DIEM IN CONNECTION WITH THE DETAIL OF MR. NICLAS TO THE PUBLIC ADMINISTRATION DIVISION. IT IS THE GENERAL POLICY OF THE AGENCY NOT TO AUTHORIZE PER DIEM IN CASES WHERE AN EMPLOYEE TRAVELS ON HOME-LEAVE-AND-TRANSFER ORDERS AND IS GIVEN A TEMPORARY DUTY ASSIGNMENT IN WASHINGTON PENDING DETERMINATION OF NEXT OVERSEAS POST.

"FOLLOWING RECEIPT OF YOUR LETTER, WE DISCOVERED THAT THE ACTION IN AMENDING THE ORIGINAL ORDERS WAS INCORRECT SINCE THE BASIS AND AUTHORITY FOR THE TRAVEL WERE CORRECT AS OF THE DATE OF THE ORIGINAL ORDER. FOLLOWING THE ADMINISTRATIVE JUDGMENT TO RETURN MR. NICLAS TO POST IN APRIL 1959, A NEW TRAVEL ORDER SHOULD HAVE BEEN ISSUED AS OF THAT DATE IN ORDER THAT APPROPRIATE ACTION COULD BE TAKEN TO RETURN THE EMPLOYEE AND HIS DEPENDENTS TO THAT POST.

"MR. NICLAS HAS BEEN PAID $96.00 PER DIEM TO COVER THE PERIOD OF FIVE WORKING DAYS' CONSULTATION IN WASHINGTON IN DECEMBER 1958 PRIOR TO HIS HOME LEAVE PERIOD.'

FOR THE REASONS STATED, YOUR CLAIM FOR PER DIEM FOR THE PERIOD JANUARY 15 TO JUNE 7, 1959, WHILE IN WASHINGTON IS DISALLOWED.