B-147672, AUG. 9, 1962

B-147672: Aug 9, 1962

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YOU WERE AUTHORIZED TO TRAVEL FROM ROME. YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM ROME TO VIENTIANE. WHILE STILL IN SAN FRANCISCO THEY WERE INSTRUCTED ON AUGUST 11 NOT TO PROCEED TO VIENTIANE UNTIL FURTHER NOTICE. THIS WAS DUE TO CIVIL DISTURBANCES IN LAOS. ON SEPTEMBER 6 THEY WERE INFORMED THAT THE RESTRICTIONS HAD BEEN LIFTED AND THAT THEY MIGHT PROCEED TO LAOS. ON SEPTEMBER 10 THEY WERE AGAIN INFORMED THAT THEY COULD NOT PROCEED UNTIL THE SITUATION THERE HAD IMPROVED. THE AGENCY DETERMINED THAT THEIR TRAVEL UNDER THE AUTHORIZATION OF MAY 23 TERMINATED AS OF AUGUST 11 AND THAT THEREAFTER YOU WERE ENTITLED ONLY TO SEPARATE MAINTENANCE ALLOWANCE. WHILE THE ORDER BY WHICH YOU WERE TRANSFERRED REQUIRED YOU TO COME TO WASHINGTON FOR CONSULTATION IT CONTAINED NO SUCH REQUIREMENT FOR YOUR FAMILY.

B-147672, AUG. 9, 1962

TO MR. ALEXIS E. LACHMAN, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT:

ON JUNE 7, 1962, YOU REQUESTED REVIEW OF THAT PART OF OUR SETTLEMENT OF APRIL 23, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR YOUR DEPENDENTS FROM AUGUST 11, 1960, TO MARCH 28, 1961, INCIDENT TO YOUR SERVICES WITH THE INTERNATIONAL COOPERATION ADMINISTRATION (NOW AGENCY FOR INTERNATIONAL DEVELOPMENT).

BY TRAVEL AUTHORIZATION NO. FO-IT 60-39, DATED MAY 23, 1960, YOU WERE AUTHORIZED TO TRAVEL FROM ROME, ITALY, TO VIENTIANE, LAOS, VIA WASHINGTON, D.C., FOR CONSULTATION INCIDENT TO CHANGE OF STATION. YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM ROME TO VIENTIANE. PURSUANT THERETO YOU DEPARTED ROME ON MAY 31, AND AFTER A BRIEF PERIOD IN WASHINGTON YOU PROCEEDED VIA SAN FRANCISCO, TOKYO, AND BANGKOK TO VIENTIANE WHERE YOU ARRIVED ON JUNE 17.

THE VOUCHER SUBMITTED FOR THE TRAVEL OF YOUR DEPENDENTS SHOWS THAT THEY DEPARTED ROME VIA AIR ON JUNE 1 AND ARRIVED IN WASHINGTON ON JUNE 2. THE NEXT ENTRY SHOWS THAT THEY DEPARTED WASHINGTON BY PERSONALLY OWNED AUTOMOBILE ON JULY 19 AND ARRIVED IN SAN FRANCISCO ON AUGUST 3. WHILE STILL IN SAN FRANCISCO THEY WERE INSTRUCTED ON AUGUST 11 NOT TO PROCEED TO VIENTIANE UNTIL FURTHER NOTICE. THIS WAS DUE TO CIVIL DISTURBANCES IN LAOS. ON SEPTEMBER 6 THEY WERE INFORMED THAT THE RESTRICTIONS HAD BEEN LIFTED AND THAT THEY MIGHT PROCEED TO LAOS. HOWEVER, ON SEPTEMBER 10 THEY WERE AGAIN INFORMED THAT THEY COULD NOT PROCEED UNTIL THE SITUATION THERE HAD IMPROVED. YOUR DEPENDENTS REMAINED IN SAN FRANCISCO UNTIL YOUR RETURN FROM LAOS ON OR ABOUT MARCH 28, 1961, AT WHICH TIME THEY ACCOMPANIED YOU FROM SAN FRANCISCO TO YOUR HOME IN LINCOLN PARK, NEW JERSEY.

FOR THE PERIOD (AUGUST 11, 1960, TO MARCH 28, 1961) DURING WHICH YOUR FAMILY REMAINED IN SAN FRANCISCO YOU CLAIMED PER DIEM IN THE SUM OF $8,280 ON THE BASIS THAT THE AGENCY ORDERED YOUR DEPENDENTS NOT TO PROCEED TO LAOS AND FAILED TO ORDER THEM TO RETURN TO YOUR HOME. THE AGENCY DETERMINED THAT THEIR TRAVEL UNDER THE AUTHORIZATION OF MAY 23 TERMINATED AS OF AUGUST 11 AND THAT THEREAFTER YOU WERE ENTITLED ONLY TO SEPARATE MAINTENANCE ALLOWANCE.

WHILE THE ORDER BY WHICH YOU WERE TRANSFERRED REQUIRED YOU TO COME TO WASHINGTON FOR CONSULTATION IT CONTAINED NO SUCH REQUIREMENT FOR YOUR FAMILY. THEIR DEVIATION FROM THE MOST USUALLY TRAVELED ROUTE BETWEEN THE TWO FOREIGN DUTY STATIONS WAS THE RESULT OF YOUR OR THEIR DECISION AND WAS BASED UPON PERSONAL REASONS. THE SAME IS TRUE OF THEIR STOPOVER IN THE UNITED STATES FOR SEVERAL WEEKS BEFORE ATTEMPTING TO DEPART FOR VIENTIANE. UNDER SUCH CIRCUMSTANCES THE EMPLOYEE AND NOT THE GOVERNMENT MUST ASSUME THE RISK OF ENCOUNTERING UNFORESEEABLE CIRCUMSTANCES WHICH MAY ENTAIL HARDSHIP, ADDITIONAL DELAY, AND EXTRA EXPENSES.

CONCERNING YOUR CONTENTIONS THAT YOUR FAMILY WAS KEPT AWAITING INSTRUCTIONS TO DEPART MOMENTARILY AND THAT THE GOVERNMENT FAILED TO ORDER THEM TO RETURN HOME, WE POINT OUT THAT YOUR DEPENDENTS WERE NOT EMPLOYEES OF THE GOVERNMENT AND WHILE THE AGENCY COULD AND DID REFUSE THEM PERMISSION TO PROCEED TO LAOS BECAUSE THE CIVIL DISTURBANCES THERE CONSTITUTED A MENACE TO THEIR WELL BEING IT COULD NOT EXERCISE CONTROL OVER THEM WHILE IN THE UNITED STATES. UNDER SUCH CIRCUMSTANCES THE AGENCY COULD NOT AND DID NOT REQUIRE THEM TO STAY IN SAN FRANCISCO NOR COULD IT ,ORDER" THEM TO RETURN HOME, ALTHOUGH THEY WERE FREE TO DO SO AT ANY TIME AND COULD HAVE BEEN INFORMED OF ANY CHANGE IN CONDITIONS JUST AS PROMPTLY.

IT IS REGRETTABLE THAT YOUR DEPENDENTS REMAINED IN SAN FRANCISCO FOR EIGHT MONTHS AWAITING IMPROVEMENT IN THE SITUATION IN LAOS AND WERE NEVER ABLE TO JOIN YOU BUT AS STATED HEREIN THEY WERE NOT EMPLOYEES OF THE GOVERNMENT AND THEIR DEVIATION FROM THE DIRECT USUALLY TRAVELED ROUTE BETWEEN ROME AND VIENTIANE, THEIR DELAY EN ROUTE, THEIR SELECTION OF THE DATE FOR DEPARTURE FROM SAN FRANCISCO, AND THEIR REMAINING IN SAN FRANCISCO FOR THE PERIOD FOR WHICH YOU CLAIM WERE THE RESULT OF YOUR ELECTIONS AND NOT THE RESULT OF ANY INSTRUCTIONS OR REQUIREMENTS OF THE GOVERNMENT.

ON THE RECORD WE ARE NOT WARRANTED IN SUBSTITUTING OUR JUDGMENT FOR THE DETERMINATION OF THE AGENCY AND THEREFORE GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 23, 1962, MUST BE AND IS SUSTAINED.