B-145880, JUN. 12, 1961

B-145880: Jun 12, 1961

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EXPENSES INCURRED IN ATTENDING ESSENTIAL RESEARCH AND MEDICAL MEETINGS FOR WHICH NO TRAVEL FUNDS WERE AVAILABLE $ 200.00 "I. 906.00" THE SIGNIFICANT ITEMS LISTED IN YOUR LETTER ARE DISCUSSED IN THE ORDER PRESENTED. ITEM A THE APPOINTMENT OF PHYSICIANS BY THE VETERANS ADMINISTRATION ARE MADE WITHOUT REGARD TO CIVIL SERVICE REQUIREMENTS. HAVE HELD THAT IF THE POSITION IS EXCEPTED FROM THE CIVIL SERVICE LAWS AND REGULATIONS. THE PAYMENT OF SUCH EXPENSES IS DISCRETIONARY WITH THE EMPLOYING AGENCY. THE RECORD DOES NOT INDICATE THAT TRAVEL TO A PRE-EMPLOYMENT INTERVIEW IN THIS CASE WAS AUTHORIZED BY THE AGENCY AT GOVERNMENT EXPENSE. ITEM B THE INFORMATION FURNISHED SHOWS THAT YOU WERE REIMBURSED ON A COMMUTED RATE FOR TRANSPORTATION OF 7.

B-145880, JUN. 12, 1961

TO S. P. WISE, III, M.D.:

THIS REFERS TO YOUR LETTER OF MAY 11, 1961, REFERENCE 5042/151, WITH ENCLOSURES, TO MR. GEORGE M. MOORE, COUNSEL FOR THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, WHICH HE FORWARDED TO US FOR REPLY. YOUR LETTER CONCERNS CERTAIN LOSSES SUSTAINED BY YOU IN ACCEPTING AN APPOINTMENT WITH THE VETERANS ADMINISTRATION.

YOU SAY THAT YOU SUSTAINED THE FOLLOWING FINANCIAL LOSSES IN ACCEPTING A POSITION WITH THE VETERANS ADMINISTRATION:

CHART

"A.EXPENSES FROM HOUSTON TO WASHINGTON AND PERRY POINT FOR INTERVIEWS, ETC., TO SECURE MY PRESENT POSITION (THIS INCLUDES ROUND TRIP PLANE FARE, HOTEL BILL FOR ONE WEEK, MEALS, LOCAL TRAVEL, ETC.) $ 480.00

"B. NET LOSS ON MOVE OF FAMILY AND HOUSEHOLD GOODS FROM HOUSTON TO PERRY POINT

$1,500.00

"C. LOSS OF SALARY FROM SEPTEMBER 1-18, 1960 $ 600.00

"D. LOSS ON SALE OF HOUSE IN HOUSTON $3,500.00

OR MORE.

"E. DIFFERENCE IN PAY OF PROVISED CHIEF GRADE AND CURRENT SENIOR GRADE

$2,000.00

YEARLY

"F. LOSS THROUGH WAIVER OF ARMY RETIRED PAY $3,000.00 (YEARLY--- INCOME TAX FREE AND THUS EQUIVALENT OF ABOUT $6,000 YEARLY.)

"G. DIFFERENCES BETWEEN ALLOWANCES AND ACTUAL EXPENSES IN ATTENDING MEDICAL MEETINGS, RESEARCH MEETINGS AND INTER-VA VISIT TO INSPECT TECHNICAL RESEARCH EQUIPMENT PRIOR TO PURCHASING SIMILAR EQUIPMENT $ 126.00

"H. EXPENSES INCURRED IN ATTENDING ESSENTIAL RESEARCH AND MEDICAL MEETINGS FOR WHICH NO TRAVEL FUNDS WERE AVAILABLE $ 200.00

"I. ANTICIPATED TOTAL CUMULATIVE LOSS FOR PERIOD TO DATE

$11,406.00

"J. ANTICIPATED ADDITIONAL LOSSES THROUGH SEPTEMBER 17, 1961

$ 500.00

"K. TOTAL LOSSES FOR ONE YEAR $ 11,906.00"

THE SIGNIFICANT ITEMS LISTED IN YOUR LETTER ARE DISCUSSED IN THE ORDER PRESENTED.

ITEM A

THE APPOINTMENT OF PHYSICIANS BY THE VETERANS ADMINISTRATION ARE MADE WITHOUT REGARD TO CIVIL SERVICE REQUIREMENTS. SEE 38 U.S.C. 4106. HAVE HELD THAT IF THE POSITION IS EXCEPTED FROM THE CIVIL SERVICE LAWS AND REGULATIONS, THE EXPENSES OF TRAVEL INCURRED IN CONNECTION WITH THE PRE- EMPLOYMENT INTERVIEW FOR THE PURPOSE OF DETERMINING THE QUALIFICATIONS OF AN INDIVIDUAL FOR APPOINTMENT MAY BE PAID BY THE EMPLOYING AGENCY. COMP. GEN. 221; 38 ID. 483; 31 ID. 489. VETERANS ADMINISTRATION, DEPARTMENT OF MEDICINE AND SURGERY CIRCULAR 10-61, DATED MARCH 21, 1960, AUTHORIZES THE PAYMENT OF TRAVEL EXPENSES INCURRED BY PHYSICIANS FOR INTERVIEWS FOR POSITIONS IN SCARCE CATEGORY. HOWEVER, THE PAYMENT OF SUCH EXPENSES IS DISCRETIONARY WITH THE EMPLOYING AGENCY. THE RECORD DOES NOT INDICATE THAT TRAVEL TO A PRE-EMPLOYMENT INTERVIEW IN THIS CASE WAS AUTHORIZED BY THE AGENCY AT GOVERNMENT EXPENSE.

ITEM B

THE INFORMATION FURNISHED SHOWS THAT YOU WERE REIMBURSED ON A COMMUTED RATE FOR TRANSPORTATION OF 7,000 POUNDS OF HOUSEHOLD EFFECTS FROM HOUSTON, TEXAS, TO PERRY POINT, MARYLAND, PURSUANT TO YOUR APPOINTMENT WITH THE VETERANS ADMINISTRATION. YOU ALSO WERE ALLOWED THE ACTUAL COST OF STORAGE FOR ONE MONTH SINCE THE SUM EXPENDED WAS LESS THAN THE COMMUTED RATE FOR STORAGE AND COST FOR WAREHOUSE HANDLING OF 7,000 POUNDS OF HOUSEHOLD EFFECTS. YOU WERE REQUIRED TO PAY FOR TRANSPORTATION AND STORAGE OF HOUSEHOLD EFFECTS IN EXCESS OF 7,000 POUNDS.

PUBLIC LAW 86-587, 74 STAT. 327, EFFECTIVE AUGUST 25, 1960, AND TITLE X OF EXECUTIVE ORDER NO. 9805, AS AMENDED BY BUREAU OF THE BUDGET CIRCULAR NO. A-37, TRANSMITTAL MEMORANDUM NO. 5, EFFECTIVE THE SAME DATE, PROMULGATED THEREUNDER, GOVERN THE ALLOWANCE AND PAYMENT FROM GOVERNMENT FUNDS FOR EXPENSES OF TEMPORARY STORAGE AND TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT UPON APPOINTMENT TO POSITIONS IN THE UNITED STATES FOR WHICH THERE HAS BEEN DETERMINED TO BE A MANPOWER SHORTAGE. BOTH THE STATUTE AND THE REGULATIONS LIMIT THE WEIGHT OF THE GOODS AND EFFECTS OF EMPLOYEES WITH IMMEDIATE FAMILIES WHICH MAY BE TRANSPORTED OR STORED AT GOVERNMENT EXPENSE TO THAT WHICH IS AUTHORIZED TO CIVILIAN EMPLOYEES UPON TRANSFER OF STATION, OR 7,000 POUNDS UNCRATED. THUS, THE RECORD INDICATES THAT YOU HAVE BEEN REIMBURSED THE MAXIMUM AMOUNT ALLOWABLE FOR TRANSPORTATION AND TEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS UNDER THE APPLICABLE STATUTE AND REGULATIONS. THERE IS NO AUTHORITY FOR AN AGENT OR OFFICER OF THE GOVERNMENT, INCLUDING OUR OFFICE, TO WAIVE ANY PROVISION OF THE STATUTE OR REGULATIONS ISSUED PURSUANT THERETO.

SINCE WE ARE UNABLE AT THIS TIME TO OBTAIN A COPY OF YOUR TRAVEL ORDERS, WE CANNOT CATEGORICALLY SAY THAT PER DIEM IN TRAVELING TO YOUR FIRST DUTY STATION WOULD BE LIMITED TO TRAVEL BY COMMON CARRIER. IF YOU FEEL THAT YOU ARE ENTITLED TO PER DIEM FOR TRAVEL TIME IN EXCESS OF TRAVEL BY COMMON CARRIER YOU MAY SUBMIT A CLAIM FOR THE ADDITIONAL PER DIEM TO WHICH YOU BELIEVE YOU ARE ENTITLED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FORWARDING A COPY OF YOUR TRAVEL ORDERS AND ALL PERTINENT INFORMATION.

YOU SAY THAT THE PER DIEM IN ITSELF IS RIDICULOUSLY LOW, AND THAT THE MILEAGE RATE "IS COMPLETELY OUT OF KEEPING OF THE REALITY OF THE SITUATION.' THE MAXIMUM PER DIEM AND MILEAGE RATES ARE FIXED BY STATUTE, AND H.R. 3279, NOW PENDING BEFORE CONGRESS, WOULD INCREASE BOTH THE MAXIMUM PER DIEM AND MILEAGE ALLOWANCES.

ITEM C

CONCERNING YOUR ALLEGED LOSS OF SALARY FROM SEPTEMBER 1, 1960, WHEN YOU ASSUMED THAT YOU WERE PLACED IN A PAY STATUS AND SEPTEMBER 18, 1960, WHICH THE FILE INDICATES AS THE DATE YOU ACTUALLY WERE APPOINTED, IT MAY BE STATED THAT UNDER THE GENERAL RULE OF APPOINTEE IS NOT ENTITLED TO ANY COMPENSATION PRIOR TO THE DATE OF HIS APPOINTMENT WAS ACTUALLY MADE BY PROPER AUTHORITY. 17 COMP. GEN. 323. FURTHERMORE, PARAGRAPH 6202 (E) OF THE VETERANS ADMINISTRATION REGULATIONS, PERSONNEL REGULATIONS FOR PHYSICIANS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY PROVIDES THAT THE EFFECTIVE DATE OF APPOINTMENT FOR A PERSON NOT ALREADY ON THE ROLLS SHALL BE THE DATE OF ENTRY ON DUTY AT THE STATION OF ASSIGNMENT. WE HAVE INFORMALLY ASCERTAINED FROM THE VETERANS ADMINISTRATION THAT THE EFFECTIVE DATE OF YOUR APPOINTMENT AT PERRY POINT, MARYLAND, WAS SEPTEMBER 19, 1960.

ITEM D

WITH RESPECT TO THE LOSS SUSTAINED BY YOU IN SELLING YOUR HOUSE IN HOUSTON, TEXAS, THE PROFIT OR LOSS SUSTAINED AS THE RESULT OF THE SALE OF REAL PROPERTY IS OF A PERSONAL NATURE. YOU EVIDENTLY RECOGNIZE THAT THIS MATTER, WHILE AN ITEM OF FINANCIAL LOSS INCIDENT TO YOUR ACCEPTING THE POSITION, IS NO FAULT OF THE GOVERNMENT.

ITEM E

CONCERNING YOUR STATEMENT WITH RESPECT TO THE LOSS OF COMPENSATION AS THE RESULT OF YOUR APPOINTMENT IN SENIOR GRADE INSTEAD OF CHIEF GRADE, SECTION 6202 (F) OF VETERANS ADMINISTRATION REGULATIONS, PERSONNEL REGULATIONS FOR PHYSICIANS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY, ISSUED PURSUANT TO PUBLIC LAW 293, 59 STAT. 675, ESTABLISHING A DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS ADMINISTRATION, PROVIDES, IN PART, THAT THE CHIEF MEDICAL DIRECTOR MAY ESTABLISH IN SUCH INSTALLATIONS AS HE CONSIDERS APPROPRIATE PROFESSIONAL STANDARDS BOARDS WHICH SHALL DETERMINE THE ELIGIBILITY AND THE APPROPRIATE GRADE FOR APPOINTMENT OF DOCTORS. WE HAVE INFORMALLY ASCERTAINED FROM THE VETERANS ADMINISTRATION THAT SUCH A BOARD WAS IN EXISTENCE AT THE PERRY POINT, VETERANS ADMINISTRATION HOSPITAL AT THE TIME OF YOUR APPOINTMENT. SECTION 6202 (H) (3) OF THE REGULATIONS PROVIDES THAT THE CHIEF MEDICAL DIRECTOR MAY DIRECT THAT THE GRADE OF AN EMPLOYEE BE ADJUSTED IF IT IS DETERMINED UPON REVIEW OF A BOARD ACTION THAT THE EMPLOYEE WAS APPOINTED AT A GRADE NOT COMMENSURATE WITH HIS QUALIFICATIONS. THUS, THE APPROPRIATE GRADE TO WHICH A DOCTOR IS APPOINTED IN THE VETERANS ADMINISTRATION AS WELL AS ANY ADJUSTMENT OF GRADE AS THE RESULT OF A REVIEW IS WITHIN THE JURISDICTION OF THE CHIEF MEDICAL DIRECTOR, VETERANS ADMINISTRATION.

ITEM F

UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, ALL INDIVIDUALS RECEIVING THEIR RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER ARE SUBJECT TO THE $10,000 LIMITATION OF COMBINED RETIRED PAY AND COMPENSATION FROM A FEDERAL OFFICE OR POSITION, EXCEPT AS MAY BE SPECIFICALLY EXEMPTED BY CONGRESS FROM SUCH RESTRICTIONS. THERE IS NO AUTHORITY IN OUR OFFICE TO WAIVE THIS LIMITATION. AS YOU EVIDENTLY ARE AWARE, HOWEVER, BILLS HAVE BEEN INTRODUCED IN THIS SESSION OF THE CONGRESS PROPOSING TO AMEND 5 U.S.C. 59A. FOR EXAMPLE SEE H.R. 4780 AND S. 1103.

ITEMS G AND H

AS STATED ABOVE, THE MAXIMUM PER DIEM RATE IS FIXED BY STATUTE AND IF YOUR ACTUAL EXPENSES IN PERFORMING OFFICIAL TRAVEL ARE GREATER THAN THE PER DIEM RATE AUTHORIZED BY STATUTE, H.R. 3279, IF ENACTED, COULD BE OF MATERIAL ASSISTANCE FOR LATER TRAVEL. IT IS NECESSARY TO NOTE, HOWEVER, THAT IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO AUTHORIZE A PER DIEM ALLOWANCE OF LESS THAN THE MAXIMUM OR NO PER DIEM AS JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. SEE SECTION 6.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. ALSO, WE SHOULD LIKE TO POINT OUT THAT IN INSTANCES IN WHICH IT IS ANTICIPATED THAT THE MAXIMUM PER DIEM WOULD BE MUCH LESS THAN THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP WITHIN THE CONTINENTAL UNITED STATES, REIMBURSEMENT MAY ABE AUTHORIZED ON AN ACTUAL EXPENSE BASIS NOT TO EXCEED $25 PER DAY. 5 U.S.C. 836.

IN SUMMARY, WE FEEL THAT NONE OF THE ITEMS LISTED IN YOUR LETTER IS ALLOWABLE UNDER EXISTING LAW AND REGULATIONS, WITH THE POSSIBLE EXCEPTION OF ADDITIONAL PER DIEM ENROUTE TO FIRST DUTY STATION DISCUSSED UNDER ITEM B.

CONCERNING YOUR REFERENCE TO THE EMPLOYMENT AGREEMENT, PUBLIC LAW 86 587, PROVIDES IN PART, AS FOLLOWS:

"* * * HOWEVER, THE TRAVEL AND TRANSPORTATION EXPENSES AUTHORIZED BY THIS SUBSECTION SHALL NOT BE ALLOWED UNLESS THE PERSON SELECTED OR PROMOTED SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT OF PROMOTION UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES.'