B-144215, OCT. 31, 1960

B-144215: Oct 31, 1960

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THE AMOUNTS THAT WOULD BE ALLOWED IF CONSTRUCTIVE COSTS WERE TO BE COMPUTED ON THE BASIS OF PART AIR AND PART RAIL TRAVEL. MALONEY WAS AUTHORIZED TO COMMERCE HIS TRAVEL ON OR ABOUT JULY 31. HIS TRAVEL WAS TO END ON OR ABOUT AUGUST 7. THE MODE OF TRANSPORTATION AUTHORIZED WAS COMMON CARRIER. THE BASIS FOR THAT SUSPENSION WAS THAT HIS DUTIES IN WASHINGTON ENDED ON AUGUST 3. SINCE THE TRIP TO NEWARK WAS FOR THE PURPOSE OF TAKING LEAVE. PER DIEM AND THE COST OF TRAVEL WAS HELD TO THE COSTS THAT WOULD HAVE BEEN INCURRED HAD HE DEPARTED WASHINGTON. IN SUBMITTING RECLAIM CONTENDS THAT HE COULD HAVE LEFT WASHINGTON. KIRBY WAS ORDERED TO TEMPORARY DUTY IN WASHINGTON. WAS AUTHORIZED TO TRAVEL BY COMMON CARRIER.

B-144215, OCT. 31, 1960

TO MISS MATILDA UDOFF, AUTHORIZED CERTIFYING OFFICER, NATIONAL BUREAU OF STANDARDS:

ON OCTOBER 10, 1960, YOUR REFERENCE 40.04, YOU REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT RECLAIM VOUCHERS SUBMITTED BY ROBERT S. KIRBY AND LEO J. MALONEY, TWO EMPLOYEES OF THE BUREAU OF STANDARDS. THE AMOUNTS CLAIMED BY THEM REPRESENT THE DIFFERENCE BETWEEN THE AMOUNTS ALLOWED BY THE ADMINISTRATIVE OFFICE, COMPUTED ON THE BASIS OF DIRECT AIR TRAVEL FROM BOULDER, COLORADO, TO WASHINGTON, D.C., AND RETURN, AND THE AMOUNTS THAT WOULD BE ALLOWED IF CONSTRUCTIVE COSTS WERE TO BE COMPUTED ON THE BASIS OF PART AIR AND PART RAIL TRAVEL.

LEO J. MALONEY WAS AUTHORIZED TO COMMERCE HIS TRAVEL ON OR ABOUT JULY 31, 1960, AND HIS TRAVEL WAS TO END ON OR ABOUT AUGUST 7, 1960. THE MODE OF TRANSPORTATION AUTHORIZED WAS COMMON CARRIER, PRIVATELY OWNED AUTOMOBILE FROM BOULDER, COLORADO, TO DENVER, COLORADO AND RETURN, AND GOVERNMENT VEHICLE. MR. MALONEY STARTED HIS JOURNEY AT 11:15 A.M., JULY 31, 1960, BY PRIVATE AUTOMOBILE. HE DROVE TO DENVER FROM BOULDER AND AT 1:00 P.M., THE SAME DAY HE DEPARTED DENVER BY AIR FOR WASHINGTON. HE ARRIVED IN WASHINGTON AT 11:20 P.M., AFTER CHANGING AIRPLANES EN ROUTE AT CHICAGO, ILLINOIS. ON AUGUST 3, 1960, MR. MALONEY DEPARTED WASHINGTON BY RAIL FOR NEWARK, NEW JERSEY, AT 5:00 P.M. HE ARRIVED IN NEWARK AT 8:30 P.M. HE TOOK ANNUAL LEAVE ON AUGUST 4, 1960, AND AT 7:00 A.M., ON AUGUST 5, 1960, HE LEFT NEWARK FOR BOULDER VIA PRIVATE AUTOMOBILE. HE ARRIVED IN BOULDER AT 8:00 P.M., ON AUGUST 7, 1960.

THE ADMINISTRATIVE OFFICE SUSPENDED $43.55 OF THE AMOUNT CLAIMED BY MR. MALONEY. THE BASIS FOR THAT SUSPENSION WAS THAT HIS DUTIES IN WASHINGTON ENDED ON AUGUST 3, 1960, AND SINCE THE TRIP TO NEWARK WAS FOR THE PURPOSE OF TAKING LEAVE, PER DIEM AND THE COST OF TRAVEL WAS HELD TO THE COSTS THAT WOULD HAVE BEEN INCURRED HAD HE DEPARTED WASHINGTON, D.C., BY AIR ON AUGUST 3, 1960. MR. MALONEY, IN SUBMITTING RECLAIM CONTENDS THAT HE COULD HAVE LEFT WASHINGTON, D.C., BY RAIL AT 4:30 P.M., ON AUGUST 4 AND ARRIVED IN DENVER AT 8:30 A.M., ON AUGUST 6, AND THAT CONSTRUCTIVE COSTS SHOULD BE COMPUTED ON SUCH BASIS.

ROBERT S. KIRBY WAS ORDERED TO TEMPORARY DUTY IN WASHINGTON, D.C., AND WAS AUTHORIZED TO TRAVEL BY COMMON CARRIER, PRIVATELY OWNED AUTOMOBILE TO DENVER AND RETURN TO BOULDER, AND BY GOVERNMENT VEHICLE. APPARENTLY, HE WAS TO PERFORM DUTY AT THE NATIONAL ACADEMY OF SCIENCE ON JUNE 27, AND THE MORNING OF JUNE 28, 1960. MR. KIRBY PURCHASED A ROUND TRIP AIR LINE TICKET FROM DENVER TO WASHINGTON AND RETURN. HE FLEW TO WASHINGTON BUT, INSTEAD OF USING THE UNUSED PORTION OF HIS RETURN TICKET HE DROVE HIS MOTHER'S CAR TO DETROIT. HE DEPARTED WASHINGTON BY PRIVATE AUTOMOBILE FOR DETROIT ON JUNE 28 AT 12:30 P.M. AND ARRIVED IN DETROIT AT 11:00 P.M. ON THE SAME DAY. HE LEFT DETROIT BY AIR AT 2:15 P.M., ON JUNE 29 AND ARRIVED IN DENVER THE SAME DAY AT 4:30 P.M. HE HAS FILED RECLAIM FOR $17.65 WHICH HE SAYS WOULD BE ALLOWABLE UNDER CONSTRUCTIVE COSTS HAD HE LEFT WASHINGTON BY RAIL AT 5:00 P.M. ON JUNE 28 FOR CHICAGO. BY SUCH MODE HE WOULD HAVE ARRIVED IN CHICAGO IN TIME FOR HIM TO CATCH THE SAME FLIGHT OUT OF CHICAGO WHICH HE ACTUALLY TOOK FROM DETROIT. HE HAS RETURNED THE UNUSED PORTION OF HIS ROUND TRIP AIRPLANE TICKET.

YOU SUBMIT FOR OUR CONSIDERATION THE QUESTION WHETHER THE CONSTRUCTIVE COSTS COMPUTED ON THE BASIS OF MIXED MODES OF TRAVEL WOULD BE CONSIDERED AS NECESSARY TRAVEL WITHOUT DELAY AND IN AN ECONOMICAL MANNER AS REQUIRED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. YOU ALSO QUESTION WHETHER THE EMPLOYEE SHOULD HAVE BEEN CHARGED WITH ANNUAL LEAVE FOR THE EXCESS TRAVEL TIME INVOLVED. BOTH EMPLOYEES CONTEND IN EFFECT THAT NO ANNUAL LEAVE SHOULD BE CHARGED BECAUSE THE TRAVEL AUTHORIZATION WAS FOR TRAVEL BY COMMON CARRIER WHICH INCLUDES RAIL AS WELL AS AIR TRAVEL AND, THEREFORE, INASMUCH AS THEIR AUTHORIZATION INCLUDED TRAVEL BY RAIL WHICH WOULD HAVE TAKEN LONGER THAN AIR TRAVEL, NO TIME IN ADDITION TO THAT AUTHORIZED WAS TAKEN EN ROUTE. THEY ALSO CLAIM ADDITIONAL PER DIEM ON THE BASIS THAT SUCH WOULD HAVE BEEN ALLOWED HAD THEY MADE THEIR RETURN TRIP, OR PART OF THE RETURN TRIP, BY RAIL RATHER THAN BY AIR.

WHILE OUR OFFICE HAS CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT BE FORCED TO FLY IN AN AIRPLANE ON GOVERNMENT BUSINESS, NEITHER OF THE EMPLOYEES HERE SEEMED TO HAVE OBJECTED TO THAT MODE OF TRANSPORTATION. ONCE HAVING ELECTED THAT MODE, WE FEEL THAT THEY SHOULD BE HELD TO THAT AMOUNT OF SUBSISTENCE THAT AIR TRAVEL WOULD HAVE ENTAILED. THEREFORE, THE ADDITIONAL TRANSPORTATION COSTS AND PER DIEM RECLAIMED BY THE EMPLOYEES SHOULD NOT BE CERTIFIED FOR PAYMENT.

REGARDING THE QUESTION OF CHARGING ANNUAL LEAVE TO THESE EMPLOYEES, WE CONSISTENTLY HAVE TAKEN THE POSITION THAT THE MATTER CHARGING ANNUAL LEAVE TO EMPLOYEES IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY. HOWEVER, IN 39 COMP. GEN. 250 WE POINTED OUT THAT "* * * OUR OFFICE WILL IN AN APPROPRIATE FACTUAL SITUATION DISAPPROVE THE GRANTING OF EXCESSIVE TIME OFF WITHOUT A CHARGE TO ANNUAL LEAVE, AS WELL AS AN UNWARRANTED CHARGE FOR ANNUAL LEAVE.'

WE FEEL THAT WHEN, AS HERE, THE ADDITIONAL TIME AWAY FROM DUTIES WAS OCCASIONED SOLELY BECAUSE OF MATTERS PERSONAL TO THE EMPLOYEES, THEY SHOULD BE CHARGED ANNUAL LEAVE FOR SUCH PERIODS. THEREFORE, THE ADMINISTRATIVE ACTION IN CHARGING THE EXCESS LEAVE TO ANNUAL LEAVE WAS PROPER.

REGARDING MR. MALONEY'S RECLAIM VOUCHER, WE HAVE NO EVIDENCE THAT APPROVAL WAS GRANTED FOR HIS RETURN BY PRIVATE AUTOMOBILE ON A MILEAGE BASIS. BEFORE CONSTRUCTIVE COSTS CAN BE APPLIED, SUCH APPROVAL MUST BE OBTAINED. ALSO, WE ARE UNABLE TO DETERMINE WHETHER IN FIXING THE COST OF AIR TRANSPORTATION BETWEEN DENVER AND WASHINGTON IN MR. MALONEY'S CASE THE FIGURE USED IS THE AMOUNT THAT WOULD HAVE BEEN ASSESSED THE GOVERNMENT FOR A ROUND TRIP FARE. SEE SECTION 3.9 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. IN ANY EVENT, IN THE ABSENCE OF OFFICIAL JUSTIFICATION FOR NONUSE OF A ROUND TRIP AIR TICKET, THE CONSTRUCTIVE COST TO BE ALLOWED BOTH OF THESE EMPLOYEES SHOULD BE COMPUTED ON THE BASIS OF THE COST OF A ROUND TRIP TICKET BY AIR FROM DENVER TO WASHINGTON, IF ROUND TRIP RATES WERE AVAILABLE ON THE FLIGHTS INVOLVED.

ON THE BASIS OF THE FACTS SUBMITTED IN THE ACCOMPANYING VOUCHER, WE DO NOT UNDERSTAND HOW 3 1/4 DAYS PER DIEM HAS BEEN AUTHORIZED MR. KIRBY. THE PER DIEM HAS CORRECTLY BEEN COMPUTED ON THE BASIS OF A RETURN FLIGHT WHICH ARRIVED IN DENVER AT 6:55 P.M. ON JUNE 28, 1960. APPARENTLY, THE 3 1/4 DAYS PER DIEM HAS BEEN COMPUTED ON THE BASIS OF HIS DEPARTURE FROM DENVER AT 11:40 P.M. ON JUNE 25, 1960. IF SUCH IS THE CASE THE PER DIEM ALLOWED IS IN EXCESS OF THAT WHICH SHOULD BE ALLOWED. MR. KIRBY ADMITS THAT HE COULD HAVE ARRIVED IN WASHINGTON ON TIME HAD HE DEPARTED DENVER AT 10:45 A.M. ON JUNE 26, 1960, AND HE HAS COMPUTED HIS PER DIME ON THE BASIS OF DEPARTURE FROM DENVER AT THAT TIME. IN SUCH CASE, THE PER DIEM ALLOWABLE IS 2 3/4 DAYS RATHER THAN 3 1/4. IT MAY BE THAT THE 3 1/4 DAYS PER DIEM HAS BEEN ALLOWED ON THE BASIS OF FACTS NOT OF RECORD HERE. HOWEVER, IF THE FACTS REPORTED HERE ARE COMPLETE, ONLY 2 3/4 DAYS PER DIEM SHOULD BE ALLOWED MR. ..END :