B-152658, FEB. 18, 1964

B-152658: Feb 18, 1964

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THE CLAIM FOR PER DIEM IS BASED UPON THE PROVISIONS OF SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. IT WAS IN KAISERSLAUTERN. PAYMENT OF PER DIEM UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT IS PERMISSIVE ONLY. WAS ADMINISTRATIVELY RECOGNIZED AS THE "HOME OR REGULAR PLACE OF BUSINESS" SO AS TO PRECLUDE PAYMENT TO HIM OF PER DIEM INCIDENT TO HIS EMPLOYMENT BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT. BLEVIN'S CLAIM FOR PER DIEM IS SUSTAINED. IT IS TRUE THAT MR. SUCH RIGHT WAS NOT EXERCISED WITHIN THE TIME LIMITATION PRESCRIBED BY THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS (T3.2. PARAGRAPH 2-4C (4) (D) ( AND FOR THAT REASON THIS PORTION OF THE CLAIM ALSO WAS DISALLOWED IN OUR SETTLEMENT OF NOVEMBER 26.

B-152658, FEB. 18, 1964

TO MR. BURTON R. THORMAN:

YOUR LETTER OF JANUARY 29, 1964, REQUESTS REVIEW OF OFFICE SETTLEMENT OF NOVEMBER 26, 1963, DISALLOWING THE CLAIM OF MR. FRANKLIN B. BLEVINS FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD OCTOBER 5, 1962 TO JANUARY 30, 1963, AND THE CONSTRUCTIVE COSTS OF TRANSPORTATION OF HOUSEHOLD EFFECTS (INCLUDING INSURANCE THEREON) AND OF MR. BLEVINS' AUTOMOBILE FROM KAISERSLAUTERN, GERMANY, TO MINNEAPOLIS, MINNESOTA, INCIDENT TO HIS EMPLOYMENT IN KAISERSLAUTERN BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT.

THE CLAIM FOR PER DIEM IS BASED UPON THE PROVISIONS OF SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-2, READING IN PART AS FOLLOWS:

"PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS * * *.'

THE TERM "HOME" AS USED IN THE CLAUSE "HOMES OR REGULAR PLACES OF BUSINESS" APPEARING IN THE QUOTED STATUTORY PROVISION, HAS REFERENCE TO THE HOME IN WHICH THE EMPLOYEE, IN FACT, RESIDED PRIOR TO HIS EMPLOYMENT AS AN EXPERT OR CONSULTANT AND NOT TO A MERE HOME OF RECORD IN THE UNITED STATES IN WHICH THE EMPLOYEE HAD NOT ACTUALLY RESIDED FOR SOME 10 YEARS PRIOR TO HIS EMPLOYMENT AS AN EXPERT OR CONSULTANT. SIMILARLY, THE "REGULAR PLACE OF BUSINESS" OF MR. BLEVINS AT THE TIME OF HIS EMPLOYMENT BY AID REASONABLY COULD NOT BE REGARDED AS HAVING BEEN IN THE UNITED STATES WHEN, IN FACT, IT WAS IN KAISERSLAUTERN, GERMANY.

IN ANY EVENT, PAYMENT OF PER DIEM UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT IS PERMISSIVE ONLY--- ENTITLEMENT NOT HAVING BEEN GRANTED AS A MATTER OF RIGHT--- AND MR. BLEVINS' APPOINTMENT FORM CLEARLY SHOWS THAT KAISERSLAUTERN, GERMANY, WAS ADMINISTRATIVELY RECOGNIZED AS THE "HOME OR REGULAR PLACE OF BUSINESS" SO AS TO PRECLUDE PAYMENT TO HIM OF PER DIEM INCIDENT TO HIS EMPLOYMENT BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT. ACCORDINGLY, THAT PORTION OF THE SETTLEMENT DISALLOWING MR. BLEVIN'S CLAIM FOR PER DIEM IS SUSTAINED.

THE TRAVEL AND TRANSPORTATION BENEFITS PROVIDED UNDER 5 U.S.C. 73B 3, CITED IN YOUR LETTER, DO NOT APPLY TO EXPERTS AND CONSULTANTS SERVING UNDER TEMPORARY APPOINTMENTS OF LESS THAN ONE YEAR MADE UNDER THE AUTHORITY OF SECTION 626 (A) OF PUB.L. 87-195. HENCE, MR. BLEVINS' TEMPORARY EMPLOYMENT UNDER AN APPOINTMENT FOR LESS THAN A YEAR WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT DID NOT ENTITLE HIM TO ANY OF THE BENEFITS ENUMERATED IN 5 U.S.C. 73B-3.

IT IS TRUE THAT MR. BLEVINS ACQUIRED A RIGHT TO TRAVEL AND TRANSPORTATION UNDER 5 U.S.C. 73B-3 INCIDENT TO HIS EMPLOYMENT BY THE DEPARTMENT OF THE ARMY. HOWEVER, SUCH RIGHT WAS NOT EXERCISED WITHIN THE TIME LIMITATION PRESCRIBED BY THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS (T3.2, PARAGRAPH 2-4C (4) (D) ( AND FOR THAT REASON THIS PORTION OF THE CLAIM ALSO WAS DISALLOWED IN OUR SETTLEMENT OF NOVEMBER 26, 1963. ADDITION TO THE REASON GIVEN IN THE SETTLEMENT FOR THE DISALLOWANCE OF THIS PORTION OF MR. BLEVINS' CLAIM, IT MAY NOT BE ALLOWED FOR STILL ANOTHER REASON. THAT IS TO SAY, THERE IS NO AUTHORITY TO MAKE REIMBURSEMENT FOR TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS BETWEEN A POINT OUTSIDE THE UNITED STATES AND A POINT WITHIN THE UNITED STATES EXCEPT UPON AN ACTUAL EXPENSE BASIS. MR. BLEVINS SOLD HIS AUTOMOBILE IN GERMANY THUS PRECLUDING HIS INCURRING ANY ACTUAL EXPENSES FOR THE RETURN TRANSPORTATION OF SUCH VEHICLE. ACCORDING TO THE RECORDS BEFORE US HE HAS NOT YET SHIPPED HIS HOUSEHOLD EFFECTS TO THE UNITED STATES WHICH FACT SIMILARLY PRECLUDES REIMBURSEMENT OF COST OF TRANSPORTATION OF SUCH EFFECTS ON AN ACTUAL EXPENSE BASIS. MOREOVER, MORE THAN 2 YEARS NOW HAVE ELAPSED SINCE HIS RIGHT TO TRANSPORTATION INCIDENT TO HIS SEPARATION FROM THE DEPARTMENT OF THE ARMY POSITION AROSE, AND WE KNOW OF NO BASIS UPON WHICH HE COULD OBTAIN REIMBURSEMENT FOR THE TRANSPORTATION OF SUCH HOUSEHOLD GOODS AND EFFECTS EVEN IF HEREAFTER HE WERE TO SHIP THEM TO THE UNITED STATES AT HIS OWN EXPENSE.