B-144823, FEB. 15, 1961

B-144823: Feb 15, 1961

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THE FACTS SUBMITTED ARE THAT INCIDENT TO HIS REPORTING FOR DUTY AT THE PEARL HARBOR NAVAL SHIPYARD. WHICHEVER IS LESS. IT IS STATED THAT SINCE TRAVEL BY PRIVATELY OWNED AUTOMOBILE WAS AUTHORIZED AT THE REQUEST OF AND FOR THE CONVENIENCE OF MR. TRAVEL TIME PER DIEM AND TRANSPORTATION EXPENSES HAVE BEEN ALLOWED AND PAID IN ACCORDANCE WITH NAVY CIVILIAN PERSONNEL INSTRUCTION 4650.2-6E. THAT THE EMPLOYEE WAS CHARGED LEAVE WITHOUT PAY FOR THE PERIOD AUGUST 1 THROUGH AUGUST 7. "B. IF THE ANSWER TO QUESTION A IS IN THE NEGATIVE. "C. IF THE ANSWERS TO QUESTIONS A AND B ARE IN THE NEGATIVE. PER DIEM AND TRAVEL EXPENSES BY RAIL AS OPPOSED TO CONSTRUCTIVE TIME BY AIR WHICH IS LESS EXPENSIVE TO THE GOVERNMENT?

B-144823, FEB. 15, 1961

TO MR. T. W. KUPFER, DISBURSING OFFICER, PEARL HARBOR NAVAL SHIPYARD:

ON DECEMBER 1, 1960, YOU REQUESTED A DECISION CONCERNING THE CLAIM OF MR. HAROLD F. FOLEY FOR ADDITIONAL REIMBURSEMENT FOR TRAVEL TIME AND PER DIEM FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE INSTEAD OF BY COMMON CARRIER DURING THE PERIOD AUGUST 1, 1960, TO AUGUST 8, 1960.

THE FACTS SUBMITTED ARE THAT INCIDENT TO HIS REPORTING FOR DUTY AT THE PEARL HARBOR NAVAL SHIPYARD, HAWAII, MR. FOLEY, AS A NEWLY HIRED CONTRACT EMPLOYEE REQUESTED AUTHORITY FOR, AND HIS EMPLOYMENT AGREEMENT AUTHORIZED, TRAVEL WITH DEPENDENT WIFE BY PRIVATELY OWNED AUTOMOBILE FROM BOSTON, MASSACHUSETTS, TO SAN FRANCISCO, CALIFORNIA. THE AUTHORITY PROVIDED FOR REIMBURSEMENT IN AN AMOUNT NOT TO EXCEED THE COST TO THE GOVERNMENT OF TRAVEL BY COMMON CARRIER OR AT THE RATE OF TEN CENTS PER MILE, WHICHEVER IS LESS. IT IS STATED THAT SINCE TRAVEL BY PRIVATELY OWNED AUTOMOBILE WAS AUTHORIZED AT THE REQUEST OF AND FOR THE CONVENIENCE OF MR. FOLEY, TRAVEL TIME PER DIEM AND TRANSPORTATION EXPENSES HAVE BEEN ALLOWED AND PAID IN ACCORDANCE WITH NAVY CIVILIAN PERSONNEL INSTRUCTION 4650.2-6E, BASED ON CONSTRUCTIVE TRAVEL BY AIR FROM MALDEN, MASSACHUSETTS, TO SAN FRANCISCO, CALIFORNIA--- THE TOTAL COST BY AIR BEING LESS THAN BY RAIL OR PRIVATELY OWNED AUTOMOBILE; ALSO, THAT THE EMPLOYEE WAS CHARGED LEAVE WITHOUT PAY FOR THE PERIOD AUGUST 1 THROUGH AUGUST 7, 1960, FOR EXCESS TRAVEL TIME BY AUTOMOBILE.

YOU REQUEST OUR DECISION CONCERNING THE QUESTIONS STATED IN YOUR LETTER AS FOLLOWS:

"A. SHOULD THE TRAVELER BE ALLOWED TRAVEL TIME, PER DIEM, AND TRAVEL EXPENSES AT TEN CENTS PER MILE FOR THE 3,282 MILES BETWEEN MALDEN AND SAN FRANCISCO BASED ON A REASONABLE DRIVING TIME OF 11 DAYS NOT TO EXCEED THE ACTUAL DRIVING TIME OF EIGHT DAYS?

"B. IF THE ANSWER TO QUESTION A IS IN THE NEGATIVE, SHOULD TRAVEL TIME BE ALLOWED AS IN QUESTION A AND PER DIEM AND TRAVEL EXPENSES BE ALLOWED BASED ON CONSTRUCTIVE TRAVEL TIME BY COMMON CARRIER?

"C. IF THE ANSWERS TO QUESTIONS A AND B ARE IN THE NEGATIVE, SHOULD THE TRAVELER BE ALLOWED CONSTRUCTIVE TRAVEL TIME, PER DIEM AND TRAVEL EXPENSES BY RAIL AS OPPOSED TO CONSTRUCTIVE TIME BY AIR WHICH IS LESS EXPENSIVE TO THE GOVERNMENT?

"D. IF THE ANSWER TO QUESTION C IS CONSTRUCTIVE TIME BY RAIL, WOULD IT HAVE MADE A DIFFERENCE IF MR. FOLEY HAD TRAVELED FROM SAN FRANCISCO TO HAWAII BY AIR INSTEAD OF BY SURFACE RANSPORTATION?

THE INDORSEMENT BY THE OFFICE OF THE COMPTROLLER OF THE NAVY SUGGESTS THAT OUR DECISIONS--- B-140663, SEPTEMBER 30, 1959, 39 COMP. GEN. 250, AND B-143098, JUNE 27, 1960--- APPEAR AT VARIANCE WITH NAVY CIVILIAN PERSONNEL INSTRUCTIONS 4650.2-6E (1) (C) AND 4650.2-6 (E) (1) (6) WHICH PERTAIN TO THE REIMBURSEMENT OF TRAVEL TIME AND PER DIEM IN CONNECTION WITH TRAVEL BY PRIVATELY OWNED CONVEYANCE WHEN NO DETERMINATION OF ADVANTAGE TO THE GOVERNMENT HAS BEEN MADE. INCLUDED IN THAT INSTRUCTION IS THE PROVISION THAT IF THE TOTAL COST OF TRAVEL FOR THE TRIP BY COMMON CARRIER IS LESS THAN THE COST OF TRAVEL BY PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS, PAYMENT FOR TRAVEL TIME AND PER DIEM SHALL BE MADE ON THE BASIS OF THE TIME CONSUMED BY THE CARRIER. ALSO, THE INSTRUCTIONS INDICATE THAT IN COMPUTING THE TOTAL COST OF TRAVEL BY COMMON CARRIER VERSUS TRAVEL BY PRIVATELY OWNED AUTOMOBILE THERE SHALL BE INCLUDED AMOUNTS FOR SALARY OR COMPENSATION FOR THE TWO MODES OF TRANSPORTATION AND IF SUCH TOTAL COST IS LESS BY COMMON CARRIER THE EMPLOYEE IS TO BE CHARGED ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR TIME CONSUMED IN TRAVEL BY AUTOMOBILE IN EXCESS OF COMMON CARRIER TIME.

WHILE OUR DECISIONS INDICATE THAT WHEN A TRAVEL AUTHORIZATION ALLOWS THE USE OF A PRIVATELY OWNED AUTOMOBILE NOT TO EXCEED THE COST BY COMMON CARRIER IT IS PROPER TO INCLUDE PER DIEM IN THE COMPUTATION OF THE TRAVEL COST BY THE TWO MODES OF TRANSPORTATION (B-143098, JUNE 27, 1960), WE ARE NOT AWARE OF ANY AUTHORITY FOR INCLUDING IN THE COMPARATIVE COST COMPUTATION THE SALARY OR COMPENSATION FOR SUCH TRAVEL TIME. WE NOTE THAT THE CHARGING OF LEAVE WITHOUT PAY OR ANNUAL LEAVE FOR THE EXCESS TRAVEL TIME BY PRIVATELY OWNED AUTOMOBILE IS INCONSISTENT WITH THE INCLUSION OF SALARY OR COMPENSATION FOR SUCH TRAVEL TIME IN THE COMPARATIVE COSTS BECAUSE WHEN LEAVE IS THUS CHARGED THE GOVERNMENT HAS NOT INCURRED ANY COST THEREFOR. OUR VIEW IS THAT THE MATTER OF PER DIEM FOR TRAVEL TIME AND THE CHARGING OF LEAVE FOR TRAVEL TIME CONSIDERED TO BE EXCESSIVE ARE TWO SEPARATE ITEMS AND SHOULD BE SO TREATED BY THE ADMINISTRATIVE OFFICE CONCERNED.

SINCE THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS, REFERRED TO ABOVE, ARE NOT ENTIRELY CONSISTENT WITH OUR DECISIONS WE DO NOT VIEW SUCH INSTRUCTIONS AS APPLICABLE HERE. WE HAVE INFORMALLY CONTACTED AN OFFICIAL OF THE OFFICE OF INDUSTRIAL RELATIONS AND WE UNDERSTAND THAT SUCH INSTRUCTION WILL BE AMENDED TO ACCORD WITH THE VIEWS EXPRESSED IN THIS AND OTHER RECENT DECISIONS.

IN LINE WITH OUR DECISIONS PREVIOUSLY REFERRED TO, THE COMPARATIVE COSTS OF TRAVEL BY COMMON CARRIER VERSUS TRAVEL BY PRIVATELY OWNED AUTOMOBILE IN THIS CASE SHOULD BE RECOMPUTED SO AS TO EXCLUDE SALARY OR COMPENSATION FOR TRAVEL TIME. THE PER DIEM USED IN THE COMPUTATION OF THE CONSTRUCTIVE COMMON CARRIER TRAVEL SHOULD BE THAT APPLICABLE TO RAIL TRAVEL SINCE THERE WAS NO CLEAR INDICATION IN THE EMPLOYEE'S TRAVEL ORDER THAT HE WOULD HAVE BEEN REQUIRED TO TRAVEL BY AIR IN REPORTING TO THE WEST COAST FOR TRANSPORTATION ON TO HAWAII. IF UPON SUCH RECOMPUTATION THE COST BY COMMON CARRIER, INCLUDING PER DIEM AND OTHER ALLOWABLE ITEMS, IS STILL LESS THAN THE TRAVEL BY PRIVATELY OWNED AUTOMOBILE, INCLUDING PER DIEM FOR TRAVEL TIME (APPROXIMATELY 8 DAYS) THE EMPLOYEE WOULD BE ENTITLED ONLY TO ADDITIONAL PER DIEM FOR THE CONSTRUCTIVE TIME FOR RAIL TRAVEL WHICH IS IN EXCESS OF THE CONSTRUCTIVE TIME FOR AIR TRAVEL AS ORIGINALLY ALLOWED. COURSE, IF THE RECOMPUTATION SHOWS THAT THE COMMON CARRIER COST WOULD HAVE BEEN MORE THAN THE COST BY AUTOMOBILE, THE EMPLOYEE WOULD BE ENTITLED TO PER DIEM FOR THE ADDITIONAL TIME CONSUMED IN TRAVEL BY AUTOMOBILE AS REFLECTED IN THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS.

AS TO THE CHARGING OF LEAVE WITHOUT PAY IN THIS CASE FOR THE AUTOMOBILE TRAVEL TIME IN EXCESS OF COMMON CARRIER TIME, OUR VIEW IS THAT THE CHARGING OF SUCH LEAVE IS IMPROPER BECAUSE THE EMPLOYEE'S TRAVEL ORDER AUTHORIZED TRAVEL BY PRIVATELY OWNED AUTOMOBILE, AND CONTAINED NO INDICATION THAT TRAVEL TIME IN EXCESS OF THAT FOR COMMON CARRIER WOULD BE CHARGED TO LEAVE, IT BEING NOTED THAT THE EMPLOYEE TRAVELED A DISTANCE OF 3,282 MILES IN APPROXIMATELY 8 DAYS--- AN AVERAGE OF APPROXIMATELY 410 MILES A DAY.

WE BELIEVE THE FOREGOING ADEQUATELY COVERS THE QUESTIONS PRESENTED WITHOUT THE NECESSITY OF SPECIFIC ANSWERS THERETO EXCEPT TO QUESTION "D" WHICH WE ANSWER HERE BY SAYING THAT THE TRAVEL FROM SAN FRANCISCO TO HAWAII IS TO BE REGARDED AS A SEPARATE SEGMENT OF THE TRAVEL AND, AS SUCH, IS NOT FOR CONSIDERATION UNDER THE CIRCUMSTANCES OF THIS CASE.

THE CLAIM OF THE EMPLOYEE MAY BE PROCESSED FOR PAYMENT IN ACCORDANCE WITH THE CONCLUSIONS HEREIN.