B-155965, MAR. 17, 1965

B-155965: Mar 17, 1965

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WANG WAS PAID $224 OF PER DIEM REPRESENTING 14 DAYS AT THE $16 RATE COVERING THE PERIOD SEPTEMBER 16 TO 29. WE HAVE NOTED THE PROVISIONS IN DM 383. WANG RECEIVED FROM THE NATIONAL INSTITUTE OF PUBLIC AFFAIRS AS A PART OF THE AWARD WAS "TO PROVIDE SOME SLACK FOR EXPENSES WHICH GOVERNMENT AGENCIES DO NOT PAY" AND THUS WOULD NOT APPEAR TO INVOLVE A DUPLICATION OF EXPENSE REIMBURSEMENT. THE BASIS OF THE AWARD IS EXPLAINED IN DETAIL ON PAGE 3 OF THE INSTITUTE'S PAMPHLET ENTITLED "CAREER EDUCATION AWARDS. SPECIFIC DEPARTMENTAL GUIDELINES ARE NEEDED TO ASSURE FAIR AND EQUITABLE PAYMENTS TO ALL EMPLOYEES.'. WE DO NOT BELIEVE ANY SUCH PROVISION WOULD HAVE BEEN PROPER. OUR ANSWER TO YOUR FIRST QUESTION REGARDING CERTIFYING THE FULL AMOUNT OF $480 AS STATED ON THE SUBMITTED VOUCHER IS IN THE NEGATIVE.

B-155965, MAR. 17, 1965

TO MR. J. E. FOWLER, JR., BUREAU OF MINES, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF JANUARY 18, 1965, WITH ENCLOSURES REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED TRAVEL VOUCHER FOR $480 IN FAVOR OF MR. KUNG-LEE WANG. THE DOCUMENTARY INFORMATION WHICH YOU FURNISHED US ON FEBRUARY 23, 1965, ALSO PERTAINS TO THIS CASE.

THE AMOUNT OF THE VOUCHER REPRESENTS 30 DAYS PER DIEM AT THE RATE OF $16 FROM DECEMBER 10, 1964, TO JANUARY 8, 1965, UNDER BUREAU OF MINES TRAVEL AUTHORIZATION NO. WO-PRO-41 DATED AUGUST 31, 1964, AS AMENDED ON JANUARY 8, 1965. WITH YOUR LETTER YOU ALSO ENCLOSED A COPY OF VOUCHER NO. 531 WHEREON MR. WANG WAS PAID $224 OF PER DIEM REPRESENTING 14 DAYS AT THE $16 RATE COVERING THE PERIOD SEPTEMBER 16 TO 29, 1964, INCLUSIVE, AS ORIGINALLY AUTHORIZED IN ITEM 11 OF NO. WO PRO-41 DATED AUGUST 31, 1964. HOWEVER, IN VIEW OF THE ESTABLISHED RULE AGAINST RETROACTIVE ADMINISTRATIVE INCREASE OF PER DIEM RATES, YOU REQUEST OUR VIEWS, FIRST ON WHETHER THE SUBMITTED VOUCHER MAY BE CERTIFIED FOR THE FULL AMOUNT OF $480 AND, IF NOT, WHETHER THIS VOUCHER AND SUBSEQUENT VOUCHERS MAY BE CERTIFIED IN ACCORDANCE WITH THE RATES AND FOR THE PERIODS INDICATED IN TRAVEL AUTHORIZATION NO. WO PRO-41A COMMENCING WITH JANUARY 8, 1965.

THE DEPARTMENTAL MANUAL (DM), PART 383, CHAPTER 4,"TRAINING IN NON GOVERNMENT FACILITIES," PARAGRAPH 383.4.4B, REFERS TO CERTAIN FACTORS TO THE EFFECT THAT AN EMPLOYEE, GENERALLY, SHOULD BE EXPECTED TO ASSUME A PORTION OF THE EXPENSES OF A LONG PERIOD OF TRAINING, AND THAT THE EMPLOYEES ASSIGNED TO SUCH TRAINING SHOULD NORMALLY EXPECT TO RECEIVE A REDUCED RATE OF PER DIEM OR NONE.

ALSO, WE HAVE NOTED THE PROVISIONS IN DM 383, CHAPTER 6, "CONTRIBUTIONS, AWARDS AND PAYMENTS FROM NON-GOVERNMENT SOURCES," WHEREIN PARAGRAPH 383.6.3 CONCERNING REDUCTION IN GOVERNMENT PAYMENTS REFERS TO SECTION 19 (C) OF THE GOVERNMENT EMPLOYEES' TRAINING ACT, 5 U.S.C. 2318 (C), AND TO BUREAU OF THE BUDGET REGULATIONS, CIRCULAR NO. A-48, BOTH OF WHICH COVER THAT AREA. PARAGRAPH 2B (2) OF CIRCULAR NO. A-48 PROVIDES THAT AGENCY HEADS SHALL PROVIDE ADEQUATE SAFEGUARDS TO ASSURE THAT THE PROVISIONS (A) TO (E) OF SUBPARAGRAPH (2), SETTING STANDARDS TO PREVENT DUPLICATION OF EXPENSE PAYMENTS FROM THE GOVERNMENT AND OUTSIDE SOURCES, SHALL BE CARRIED OUT. HOWEVER, IT APPEARS THAT THE PURPOSE OF THE $1,000 WHICH MR. WANG RECEIVED FROM THE NATIONAL INSTITUTE OF PUBLIC AFFAIRS AS A PART OF THE AWARD WAS "TO PROVIDE SOME SLACK FOR EXPENSES WHICH GOVERNMENT AGENCIES DO NOT PAY" AND THUS WOULD NOT APPEAR TO INVOLVE A DUPLICATION OF EXPENSE REIMBURSEMENT. THE BASIS OF THE AWARD IS EXPLAINED IN DETAIL ON PAGE 3 OF THE INSTITUTE'S PAMPHLET ENTITLED "CAREER EDUCATION AWARDS," AND IN ENCLOSURE WITH THE INSTITUTE'S LETTER OF MARCH 16, 1964, TO MR. WANG.

SUBSEQUENT TO THE DATE (ON OR ABOUT SEPTEMBER 15, 1964) THAT MR. WANG ARRIVED AT AND ENTERED INTO HIS TRAINING ASSIGNMENT AT HARVARD UNIVERSITY, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR ISSUED PERSONNEL MANAGEMENT LETTER NO. 64-16 DATED DECEMBER 10, 1964, SUPPLEMENTING THE POLICIES SET FORTH IN THE DEPARTMENTAL MANUAL WITH REGARD TO THE COSTS TO BE PAID BY THE GOVERNMENT (DEPARTMENT OF THE INTERIOR), AND DISCUSSED THE EXTENT TO WHICH EMPLOYEES SHOULD ASSUME A PART OF THE EXPENSE OF TRAINING IN NON-GOVERNMENT FACILITIES. THE LETTER NO. 64-16 MENTIONS SOME INDICATIONS OF INEQUITIES IN THE ESTABLISHMENT OF COST CONSIDERATIONS, AND STATES THAT ,SPECIFIC DEPARTMENTAL GUIDELINES ARE NEEDED TO ASSURE FAIR AND EQUITABLE PAYMENTS TO ALL EMPLOYEES.' THAT LETTER SAYS "EACH CASE MUST BE INDIVIDUALLY APPRAISED, BOTH AS TO THE COST AND PERSONAL BENEFIT DERIVED.' HOWEVER, WE DO NOT FIND IN THE LETTER NO. 64-16, OR IN THE OTHER AUTHORITIES REFERRED TO, THAT ANY RETROACTIVE EFFECT SHOULD BE GIVEN TO AN OTHERWISE VALID DETERMINATION RESPECTING PER DIEM RATES FOR SUCH TRAINEES. MOREOVER, WE DO NOT BELIEVE ANY SUCH PROVISION WOULD HAVE BEEN PROPER.

THEREFORE, OUR ANSWER TO YOUR FIRST QUESTION REGARDING CERTIFYING THE FULL AMOUNT OF $480 AS STATED ON THE SUBMITTED VOUCHER IS IN THE NEGATIVE.

YOUR SECOND QUESTION APPEARS TO CONCERN THE APPLICABILITY OF THE PROVISIONS UNDER PARAGRAPH 4 AND THE "POLICY" STATED IN THE LETTER NO. 64- 16, IN PERTINENT PART, AS FOLLOWS:

"B.PAYMENT OF EMPLOYEE TRANSPORTATION COSTS AND PER DIEM.

"/1) IF THE PERIOD OF TRAINING IS 120 DAYS OR LESS, PER DIEM MAY BE PAID AT THE RATE OF $16 FOR THE FIRST 30 DAYS, INCLUDING ALLOWABLE TRAVEL-TIME TO THE TRAINING POINT; $8 FOR THE NEXT 30 DAYS, AND $6 THEREAFTER FOR THE DURATION OF THE TRAINING, INCLUDING RETURN TRAVEL AT THE RATE IN EFFECT AT THE TIME OF SUCH TRAVEL.

"/2) IF THE PERIOD OF TRAINING IS MORE THAN 120 DAYS, PER DIEM MAY BE PAID AT THE RATE OF $16 FOR THE FIRST 30 DAYS, INCLUDING ALLOWABLE TRAVEL TIME TO THE TRAINING POINT; $8 FOR THE NEXT 30 DAYS, AND $4 THEREAFTER FOR THE DURATION OF THE TRAINING, INCLUDING RETURN TRAVEL AT THE RATE IN EFFECT AT THE TIME OF SUCH TRAVEL.

"THE ABOVE DESIGNATED PER DIEM ALLOWANCES ARE PREMISED ON THE FACT THAT SHORT-PERIOD TRAINING ASSIGNMENTS OF 120 DAYS OR LESS, PRESENT AN EMPLOYEE WITH MORE OF A DISLOCATION PROBLEM AND TEND TO INCREASE HIS EXPENSES MORE THAN DO TRAINING ASSIGNMENTS WHICH ARE LONGER THAN 120 DAYS. ESTIMATED EMPLOYEE COSTS WILL BE INDIVIDUALLY DEVELOPED FOR EACH CASE AS A BASIS FOR THE PER DIEM ALLOWANCE TO BE AUTHORIZED WITHIN ABOVE MAXIMUM RATES.

"IT IS THE POLICY OF THE DEPARTMENT TO PROVIDE FOR FLEXIBILITY IN THE APPLICATION OF ALL REGULATIONS. THIS PERMITS DEVIATION FROM ABOVE ALLOWANCES WHEN IT IS DETERMINED THAT SUCH DEVIATION IS IN THE BEST INTEREST OF THE DEPARTMENT. WHEN CIRCUMSTANCES SO INDICATE, A BUREAU MAY SUBMIT A REQUEST FOR INCREASING, DECREASING, OR REARRANGING THE PATTERN OF PAYMENT OF EXPENSES OF TRAINING TO FIT THE INDIVIDUAL CASE. ANY SUCH REQUEST MUST BE SUBMITTED ONE MONTH IN ADVANCE TO PERMIT ORDERLY REVIEW AND APPROVAL ACTION.'

THE ABOVE-QUOTED PROVISIONS, IN OUR VIEW, ARE APPLICABLE PROSPECTIVELY ONLY SO FAR AS CONCERNS ANY TRAVEL ORDERS TO BE ISSUED IN THE INDIVIDUAL CASE.

HOWEVER, AS MR. WANG WAS PAID 14 DAYS PER DIEM ON VOUCHER NO. 531 AND THOSE 14 DAYS APPEAR TO FALL WITHIN THE PURVIEW OF THE "FIRST 30 DAYS" CONCEPT OF THE QUOTED PARAGRAPHS B (1) AND (2), OUR VIEW IS THAT MR. WANG IS NOT ENTITLED TO AN ADDITIONAL 30 DAYS AT THE $16 RATE, AS IS SEEMINGLY PROVIDED IN ITEM 11 OF NO. WO-PRO-41A. IF HE WERE ALLOWED A TOTAL OF 44 DAYS AT THE $16 RATE AFTER HE ARRIVED AT HIS POINT OF TRAINING--- WHEREAS TRAINEES QUALIFYING ON OR AFTER DECEMBER 10, 1964, WOULD BE ALLOWED ONLY 30 DAYS AT THE $16 RATE--- A PREFERENTIAL INEQUITY WOULD ARISE IN HIS FAVOR. WE DO NOT BELIEVE THE PERSONNEL MANAGEMENT LETTER NO. 64-16 OF DECEMBER 10, 1964, WAS INTENDED TO SO OPERATE.

THEREFORE, AS TO YOUR SECOND QUESTION WE HOLD ON THE PRESENT RECORD THAT THE $16 RATE SPECIFIED IN ITEM 11 OF NO. WO-PRO-41A DATED JANUARY 8, 1965, MAY BE APPLIED PROSPECTIVELY FOR ONLY 16 DAYS INCLUDING JANUARY 8, 1965.

SUBJECT TO THE ABOVE QUALIFICATION, AND IF OTHERWISE PROPER, A VOUCHER OR VOUCHERS COVERING SUBSEQUENT PERIODS MAY BE CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE RATES AND FOR THE PERIODS INDICATED IN TRAVEL AUTHORIZATION NO. WO-PRO-41A, DATED JANUARY 8, 1965.

ACTION IN THE CASE SHOULD BE TAKEN IN ACCORDANCE WITH THE FOREGOING. THE VOUCHER SUBMITTED WITH YOUR LETTER, WHICH IN ITS PRESENT FORM MAY NOT BE CERTIFIED FOR PAYMENT, IS RETURNED.