B-155948, MAR. 1, 1965

B-155948: Mar 1, 1965

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THE FIRST ITEM OF YOUR CLAIM IS FOR COMPENSATION FOR SEPTEMBER 21 AND 22. ON WHICH DAYS YOU WERE PLACED ON LEAVE WITHOUT PAY BY THE DEPARTMENT OF THE ARMY. THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE MILITARY CLOTHING AND TEXTILE QUALITY CONTROL OFFICE IN MEMPHIS. AFTER A BRIEF PERIOD OF ORIENTATION YOU WERE ASSIGNED TO TEMPORARY DUTY FOR TRAINING AT PHILADELPHIA. YOU WERE CHARGED LEAVE WITHOUT PAY. - APPARENTLY YOU WERE NOT ENTITLED TO ANNUAL LEAVE. - FOR SEPTEMBER 21 AND 22 BECAUSE YOU TRAVELED BY AUTOMOBILE FOR YOUR OWN CONVENIENCE REQUIRING FOUR DAYS TRAVEL TIME WHEREAS YOU COULD HAVE TRAVELED FROM MEMPHIS TO PHILADELPHIA BY COMMON CARRIER ON SEPTEMBER 24. WE CONSISTENTLY HAVE TAKEN THE POSITION THAT THE MATTER OF CHARGING ANNUAL LEAVE TO EMPLOYEES IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY.

B-155948, MAR. 1, 1965

TO MR. LOWELL D. SHARRETT:

WE REFER TO YOUR LETTER OF DECEMBER 31, 1964, CONCERNING THE SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE DATED SEPTEMBER 22, 1964, WHICH DISALLOWED YOUR CLAIM FOR VARIOUS AMOUNTS OF ADDITIONAL COMPENSATION, PER DIEM IN LIEU OF SUBSISTENCE, AND MILEAGE FOR USE OF YOUR PRIVATELY-OWNED VEHICLE INCIDENT TO YOUR EMPLOYMENT WITH THE DEFENSE CLOTHING AND TEXTILE QUALITY CONTROL OFFICE, DEFENSE SUPPLY AGENCY AND ITS PREDECESSOR THE MILITARY CLOTHING AND TEXTILE QUALITY CONTROL OFFICE, DEPARTMENT OF THE ARMY.

THE FIRST ITEM OF YOUR CLAIM IS FOR COMPENSATION FOR SEPTEMBER 21 AND 22, 1961, ON WHICH DAYS YOU WERE PLACED ON LEAVE WITHOUT PAY BY THE DEPARTMENT OF THE ARMY. THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE MILITARY CLOTHING AND TEXTILE QUALITY CONTROL OFFICE IN MEMPHIS, TENNESSEE, IN SEPTEMBER 1961, AND AFTER A BRIEF PERIOD OF ORIENTATION YOU WERE ASSIGNED TO TEMPORARY DUTY FOR TRAINING AT PHILADELPHIA, PENNSYLVANIA. YOU LEFT MEMPHIS BY PRIVATELY-OWNED AUTOMOBILE ON SEPTEMBER 21, A THURSDAY, ARRIVING IN PHILADELPHIA IN TIME TO BEGIN A TRAINING COURSE WHICH COMMENCED ON MONDAY, SEPTEMBER 25. YOU WERE CHARGED LEAVE WITHOUT PAY--- APPARENTLY YOU WERE NOT ENTITLED TO ANNUAL LEAVE--- FOR SEPTEMBER 21 AND 22 BECAUSE YOU TRAVELED BY AUTOMOBILE FOR YOUR OWN CONVENIENCE REQUIRING FOUR DAYS TRAVEL TIME WHEREAS YOU COULD HAVE TRAVELED FROM MEMPHIS TO PHILADELPHIA BY COMMON CARRIER ON SEPTEMBER 24.

IN B-144215, OCTOBER 31, 1960, WE SAID:

"REGARDING THE QUESTION OF CHARGING ANNUAL LEAVE TO THESE EMPLOYEES, WE CONSISTENTLY HAVE TAKEN THE POSITION THAT THE MATTER OF 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.'

WE NOTE THAT YOUR TRAVEL ORDER IN ADDITION TO COMMON CARRIER TRAVEL AUTHORIZED TRAVEL BY PRIVATELY-OWNED AUTOMOBILE ONLY WITH OTHER GOVERNMENT PERSONNEL AT NO ADDITIONAL COST, THERE BEING NO INDICATION THEREIN THAT YOU WERE AUTHORIZED TO USE AN AUTOMOBILE FOR YOUR INDIVIDUAL TRAVEL. MOREOVER, IT APPEARS TO US THAT YOU MAY HAVE ELECTED TO TRAVEL IN YOUR OWN AUTOMOBILE SO YOU COULD VISIT YOUR HOME IN NORTH CAROLINA EN ROUTE TO PHILADELPHIA, PENNSYLVANIA. UNDER THE CIRCUMSTANCES WE DO NOT BELIEVE THERE IS A SUFFICIENT BASIS TO QUESTION THE CHARGE OF LEAVE WITHOUT PAY FOR YOUR ABSENCE FROM DUTY ON SEPTEMBER 21 AND 22, 1961. WE FIND NO INDICATION IN YOUR ORIGINAL TRAVEL ORDER THAT YOUR TEMPORARY DUTY WAS TO EXTEND MORE THAN THE 31 DAYS SPECIFIED THEREIN OR THAT YOU WOULD NOT BE RETURNED TO MEMPHIS AT THE TERMINATION OF SUCH PERIOD.

THE SECOND ITEM OF YOUR CLAIM REPRESENTS ADDITIONAL PER DIEM AND MILEAGE INCIDENT TO YOUR TRAVEL FROM MEMPHIS TO UTICA, NEW YORK, ON THE BASIS THAT UTICA WAS DESIGNATED YOUR PERMANENT DUTY STATION BY THE TRAVEL AUTHORIZATION OF JANUARY 26, 1962, NUMBER DC AND T-62-18. AT THE TIME YOU WERE NOTIFIED OF THAT ORDER (APPARENTLY JANUARY 28, 1962) YOU WERE NOT IN MEMPHIS BUT TRAVELING IN NEW YORK UNDER TEMPORARY DUTY TRAVEL AUTHORITY. YOU WERE ALLOWED REIMBURSEMENT OF EXPENSES IN ACCORDANCE WITH THE PERMANENT CHANGE OF STATION ORDERS AFTER JANUARY 28, 1962, FOR DUTY IN AMSTERDAM, NEW YORK, AND FOR TRAVEL ON TO UTICA, NEW YORK ON FEBRUARY 2, 1962. HOWEVER, YOU BELIEVE YOU ARE ENTITLED TO THE DIFFERENCE BETWEEN THE LOWER TEMPORARY DUTY RATES AND THE HIGHER CHANGE OF STATION RATES FOR TRAVEL YOU PERFORMED TO PHILADELPHIA IN SEPTEMBER 1961 AND SUBSEQUENTLY FROM PHILADELPHIA TO AMSTERDAM, NEW YORK, PRIOR TO JANUARY 29, 1962.

RATES OF PER DIEM AND MILEAGE WHICH ARE AUTHORIZED BY LAW ARE MAXIMUM RATES AND WITHIN SUCH MAXIMUM RATES THE AGENCY CONCERNED IS REQUIRED TO SET SPECIFIC RATES WHICH WILL REIMBURSE THE TRAVELER AS NEARLY AS POSSIBLE FOR EXPENSES HE INCURS IN OFFICIAL TRAVEL. SEE TRAVEL EXPENSE ACT OF 1949, APPROVED JUNE 9, 1949, CH. 185, 63 STAT. 166, AS AMENDED, 5 U.S.C. 835-842. UNDER DEPARTMENT OF THE ARMY, CIVILIAN PERSONNEL REGULATION T3.4 IN FORCE AT THE TIME IN QUESTION THE RATES SET BY YOUR TRAVEL AUTHORIZATIONS WERE PROPER FOR THE TRAVEL AS PERFORMED. SINCE A TRAVEL AUTHORIZATION MAY NOT BE RETROACTIVELY CHANGED TO INCREASE OR DECREASE THE EMPLOYEE'S RIGHT TO REIMBURSEMENT THEREUNDER (24 COMP. GEN. 439; 23 ID. 713) AND, SINCE YOU WERE REIMBURSED FOR TRAVEL FROM MEMPHIS TO AMSTERDAM AT RATES WHICH WERE CORRECT WHEN THE TRAVEL WAS PERFORMED YOU ARE ENTITLED TO NO ADDITIONAL PAYMENT ON ACCOUNT OF SUCH TRAVEL. IN THAT CONNECTION WE REFER YOU TO DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION CPR T3.3 -4 IN EFFECT AT THE TIME WHICH STATES, IN PERTINENT PART, AS FOLLOWS:

"MILEAGE REIMBURSEMENT FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE OR AIRPLANE INCIDENT TO A PERMANENT CHANGE OF STATION WILL BE SUBJECT TO THE LIMITATION OF EXPENSE TO THE GOVERNMENT FOR THE USUAL MODE OF TRANSPORTATION, INCLUDING PER DIEM, BUT WILL NOT EXCEED 12 CENTS A MILE. WHERE DEPENDENTS TRAVEL BY PRIVATELY-OWNED CONVEYANCE WITH THE EMPLOYEE, OR IN A SEPARATE CONVEYANCE ON THE SAME OR A LATER DATE, THE COST OF DEPENDENTS' TRANSPORTATION SHOULD BE CONSIDERED IN DETERMINING EXPENSE TO THE GOVERNMENT FOR THE USUAL MODE OF TRANSPORTATION.'

YOU ALSO CLAIM ADDITIONAL COMPENSATION FOR VARIOUS DAYS ON WHICH YOU PERFORMED OFFICIAL TRAVEL OUTSIDE YOUR NORMAL DUTY HOURS--- IN THE EVENING, ON WEEKENDS AND ON HOLIDAYS. SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, CH. 212, AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, CH. 1208, 68 STAT. 1110,5 U.S.C. 912B PROVIDES:

"FOR THE PURPOSES OF THIS CHAPTER, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'

SINCE THERE IS NO INDICATION THAT ANY OF THE TRAVEL ON ACCOUNT OF WHICH YOU CLAIM ADDITIONAL COMPENSATION WAS PERFORMED UNDER ARDUOUS CONDITIONS OR INVOLVED ACTUAL WORK YOU ARE NOT ENTITLED TO THE ADDITIONAL COMPENSATION YOU CLAIM. SEE 34 COMP. GEN. 248. WE NOTE IN THAT CONNECTION THAT AN EMPLOYEE MAY NOT REFUSE TO TRAVEL ON A WEEKEND MERELY BECAUSE HE WILL NOT BE PAID OVERTIME COMPENSATION WHILE TRAVELING. COMP. GEN. 278.

AS TO YOUR CLAIM FOR PER DIEM FOR THE TEMPORARY DUTY TRAVEL PERFORMED IN JULY 1962, FROM UTICA TO GOLDSBORO, THE TRAVEL AUTHORITY UNDER WHICH YOU PERFORMED THAT TRAVEL SPECIFIED THAT NO PER DIEM WAS TO BE ALLOWED. HAVE BEEN ADVISED THAT PER DIEM WAS NOT AUTHORIZED BECAUSE THE TRAVEL TO GOLDSBORO WAS AT YOUR REQUEST AND PRIMARILY FOR YOUR BENEFIT. THE GRANTING OF PER DIEM IN LIEU OF SUBSISTENCE IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED. THEREFORE, WE ARE WITHOUT AUTHORITY TO QUESTION THE ACTION OF YOUR AGENCY IN DENYING PER DIEM UNDER THE RELATED CIRCUMSTANCES.

IN VIEW OF THE FOREGOING THE ACTION TAKEN IN OUR SETTLEMENT DATED SEPTEMBER 22, 1964, IN DISALLOWING ALL PARTS OF YOUR CLAIM MUST BE SUSTAINED.