B-156013, FEB. 26, 1965

B-156013: Feb 26, 1965

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THE VOUCHER AND OTHER ENCLOSURES REFERRED TO IN YOUR LETTER WERE NOT FORWARDED TO US BY THE OFFICE OF FINANCIAL MANAGEMENT. THE FACTS SUPPLIED BY YOUR LETTER ARE SUFFICIENT TO ENABLE US TO RENDER A DECISION. AS RECITED IN YOUR LETTER THE PERTINENT FACTS ARE AS FOLLOWS: "ON SEPTEMBER 4. TRAVEL AUTHORIZATION NUMBER E-356 (ENCLOSURE 2) WAS ISSUED TO EMPLOYEE PRICE P. POWELL WAS AUTHORIZED TO DRIVE HIS PRIVATELY-OWNED VEHICLE UNDER THE PERSONAL PREFERENCE RATE OF $ .12 PER MILE NOT TO EXCEED COMMON CARRIER COST AND TIME. POWELL WAS INVOLVED IN AN AUTOMOBILE ACCIDENT WHICH DISABLED HIM. THE STATEMENT OF HIS PHYSICIAN IS ENCLOSED (ENCLOSURE 3). HIS INSURANCE COMPANY IS PAYING DAMAGES TO THE OTHER CAR.

B-156013, FEB. 26, 1965

TO MR. EDWARD A. HOWE, AUTHORIZED CERTIFYING OFFICER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

YOUR LETTER CONCERNING A VOUCHER IN FAVOR OF MR. PRICE P. POWELL, A CIVILIAN EMPLOYEE OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, COVERING TRAVEL REIMBURSEMENT FOR EXPENSES INCURRED IN SEPTEMBER 1964, REQUESTS OUR DECISION WHETHER IT PROPERLY MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER AND OTHER ENCLOSURES REFERRED TO IN YOUR LETTER WERE NOT FORWARDED TO US BY THE OFFICE OF FINANCIAL MANAGEMENT, WASHINGTON, D.C., IN ITS TRANSMITTAL LETTER OF JANUARY 26, 1965, AS REQUIRED; HOWEVER, THE FACTS SUPPLIED BY YOUR LETTER ARE SUFFICIENT TO ENABLE US TO RENDER A DECISION.

AS RECITED IN YOUR LETTER THE PERTINENT FACTS ARE AS FOLLOWS:

"ON SEPTEMBER 4, 1964, TRAVEL AUTHORIZATION NUMBER E-356 (ENCLOSURE 2) WAS ISSUED TO EMPLOYEE PRICE P. POWELL, TO COVER DUTY AT THE PACIFIC MISSILE RANGE, POINT ARGUELLO, CALIFORNIA, TO BEGIN ON OR ABOUT SEPTEMBER 21, 1964 AND END ON OR ABOUT NOVEMBER 20, 1964. MR. POWELL WAS AUTHORIZED TO DRIVE HIS PRIVATELY-OWNED VEHICLE UNDER THE PERSONAL PREFERENCE RATE OF $ .12 PER MILE NOT TO EXCEED COMMON CARRIER COST AND TIME.

"IN ACCORDANCE WITH THE AUTHORITY SET FORTH ABOVE, MR. POWELL, HAVING BEEN AUTHORIZED ANNUAL LEAVE PRIOR TO DEPARTURE TO ENABLE HIM TO TAKE A CIRCUITOUS ROUTE AND MAKE A LEISURELY TRIP TO HIS TEMPORARY DUTY STATION, LEFT HIS RESIDENCE IN NEWPORT NEWS, VIRGINIA ON SEPTEMBER 7, 1964 BY PRIVATE CAR. WHILE EN ROUTE IN MURDO, SOUTH DAKOTA ON SEPTEMBER 11, 1964, MR. POWELL WAS INVOLVED IN AN AUTOMOBILE ACCIDENT WHICH DISABLED HIM, DEMOLISHED HIS CAR AND PREVENTED THE CONTINUANCE TO HIS TEMPORARY DUTY STATION. THE STATEMENT OF HIS PHYSICIAN IS ENCLOSED (ENCLOSURE 3). MR. POWELL APPEARED BEFORE A JUSTICE OF THE PEACE AND PAID A FINE OF $38.00 FOR IMPROPER PASSING. HIS INSURANCE COMPANY IS PAYING DAMAGES TO THE OTHER CAR. A STATEMENT FROM THE SOUTH DAKOTA HIGHWAY PATROL IS ENCLOSED (ENCLOSURE 4). ON SEPTEMBER 15, 1964, AT 9:00 AM, MR. POWELL WAS TRANSPORTED BY PRIVATE VEHICLE TO THE AIRPORT AT PIERRE, SOUTH DAKOTA WHERE HE TOOK A PLANE AT 11:00 AM BACK TO NEWPORT NEWS, VIRGINIA, TO RECUPERATE FROM HIS INJURIES. ANOTHER EMPLOYEE WAS SENT TO PACIFIC MISSILE RANGE TO PERFORM THE DUTY ORIGINALLY ASSIGNED TO MR. POWELL.

"IF MR. POWELL HAD TRAVELED BY AIR HE WOULD NOT HAVE LEFT NEWPORT NEWS, VIRGINIA UNTIL 9:20 AM ON SEPTEMBER 20, 1964.'

IF MR. POWELL OTHERWISE IS ENTITLED TO SUBSISTENCE EXPENSES DURING THE PERIOD OF HIS INCAPACITY AND TO TRANSPORTATION EXPENSES TO HIS DESIGNATED POST OF DUTY, THE AUTHORITY THEREFOR IS TO BE FOUND IN SECTION 6.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. IN PERTINENT PART THAT SECTION READS AS FOLLOWS:

"6.5. ILLNESS OR INJURY.--- A. WHENEVER A TRAVELER TAKES LEAVE OF ABSENCE OF ANY KIND BECAUSE OF BEING INCAPACITATED DUE TO HIS ILLNESS OR INJURY, NOT DUE TO HIS OWN MISCONDUCT, THE PRESCRIBED PER DIEM IN LIEU OF SUBSISTENCE, IF ANY, SHALL BE CONTINUED FOR PERIODS NOT TO EXCEED 14 CALENDAR DAYS (INCLUDING FRACTIONAL DAYS) IN ANY ONE PERIOD OF ABSENCE UNLESS, UNDER THE CIRCUMSTANCES IN A PARTICULAR CASE, A LONGER PERIOD IS APPROVED. * * *

"B. TRANSPORTATION EXPENSES TO EMPLOYEE'S DESIGNATED POST OF DUTY AND PER DIEM EN ROUTE SHALL BE ALLOWED WHENEVER THE EMPLOYEE BECOMES INCAPACITATED DUE TO ILLNESS OR INJURY, NOT DUE TO HIS OWN MISCONDUCT, WHILE EN ROUTE TO OR WHILE AT TEMPORARY DUTY STATION PRIOR TO COMPLETION OF TEMPORARY DUTY ASSIGNMENT WHEN AUTHORIZED OR APPROVED.'

SECTION 6.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IS DERIVED FROM THE ACT OF APRIL 26, 1950, CHAPTER 108, 64 STAT. 89, 5 U.S.C. 836. THE ACT IS AS FOLLOWS:

"* * * THAT SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949 (63 STAT. 166) IS HEREBY AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING PROVISO: "PROVIDED, THAT SUCH CIVILIAN OFFICERS AND EMPLOYEES WHO BECOME INCAPACITATED DUE TO ILLNESS OR INJURY, NOT DUE TO THEIR OWN MISCONDUCT, WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED SUCH PER DIEM ALLOWANCES, AND TRANSPORTATION EXPENSES TO THEIR DESIGNATED POSTS OF DUTY, IN ACCORDANCE WITH REGULATIONS PROMULGATED AND APPROVED UNDER THIS ACT.'"

THE PRIMARY QUESTION RAISED BY YOUR SUBMISSION IS WHETHER MR. POWELL WAS TRAVELING ON OFFICIAL BUSINESS WITHIN THE PURVIEW OF THE ACT OF APRIL 26, 1950, WHEN HE WAS INJURED. GENERALLY, THAT QUESTION IS FOR DETERMINATION IN THE LIGHT OF THE FACTS APPLICABLE TO A PARTICULAR CASE. CF. 33 COMP. GEN. 221.

IN THE INSTANT CASE THE RECORD CLEARLY REFLECTS THAT MR. POWELL WAS IN AN EXTENDED ANNUAL LEAVE STATUS AND EN ROUTE TO HIS PLACE OF TEMPORARY DUTY BY A CIRCUITOUS ROUTE SELECTED BY HIM FOR HIS PERSONAL PLEASURE AND CONVENIENCE AT THE TIME OF THE OCCURRENCE OF THE ACCIDENT WHICH CAUSED HIS INJURIES. BY THE TERMS OF HIS TRAVEL ORDER HIS PER DIEM IN LIEU OF SUBSISTENCE WOULD HAVE BEEN LIMITED TO THAT CONSTRUCTIVELY ACCRUING FROM 9:20 A.M., SEPTEMBER 20, 1964, UNTIL HIS RETURN FROM POINT ARGUELLO, CALIFORNIA, TO HIS OFFICIAL STATION, NEWPORT NEWS, VIRGINIA, AFTER COMPLETION OF HIS ASSIGNED DUTIES. CONSEQUENTLY, WE MUST CONCLUDE THAT MR. POWELL WAS NOT IN A TRAVEL STATUS SUCH AS WOULD HAVE ENTITLED HIM TO PER DIEM ON THE DAY ON WHICH HE WAS INJURED, A CONDITION PRECEDENT WHICH IS IMPLICIT IN SECTION 6.5A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS INDICATED BY THE UNDERSCORED LANGUAGE IN OUR FOREGOING QUOTATION OF THE SECTION.

IN THE LIGHT OF THE ABOVE FACTS, VIZ., THAT MR. POWELL WAS ON EXTENDED ANNUAL LEAVE; THAT HE WAS TRAVELING BY A CIRCUITOUS ROUTE FOR PERSONAL CONVENIENCE; AND THAT HE WAS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE ON THE DAY THAT HE WAS INJURED, WE MUST FURTHER CONCLUDE THAT HE WAS NOT TRAVELING ON OFFICIAL BUSINESS AS THAT TERM IS USED IN THE ACT OF APRIL 26, 1950, AT THE TIME OF THE ACCIDENT.

IT FOLLOWS THAT ANY PART OF THE VOUCHER TO WHICH YOUR LETTER REFERS WHICH IS PREDICATED UPON THE ACT OF APRIL 26, 1950, 5 U.S.C. 836, OR SECTIONS 6.5A AND B OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS,MAY NOT BE CERTIFIED FOR PAYMENT.

IN VIEW OF OUR DECISION, ANSWERS TO ALL OF THE OTHER QUESTIONS PRESENTED BY YOUR LETTER ARE NOT REQUIRED. HOWEVER, WE MAY ADD THAT IF MR. POWELL OTHERWISE HAD BEEN ENTITLED TO REIMBURSEMENT UNDER THE ACT OF APRIL 26, 1950, HE WOULD NOT ON THE FACTS IN THIS CASE BE CONSIDERED TO BE INELIGIBLE BECAUSE OF THE "MISCONDUCT" CLAUSE IN THE STATUTE AND REGULATIONS. CONCERNING YOUR QUESTIONS 6 AND 7, RELATING TO PAYMENT OF EXPENSES OF THE TRIP FROM NEWPORT NEWS TO MURDO, THE FACTS BEFORE US INDICATE THAT THE PRIMARY REASON FOR THE TRIP WAS OFFICIAL BUSINESS EVEN THOUGH THE EARLY DEPARTURE WAS FOR LEAVE PURPOSES. THEREFORE, WE WOULD NOT OBJECT TO THE CERTIFICATION OF A VOUCHER ALLOWING MR. POWELL MILEAGE TO MURDO AT THE RATE AUTHORIZED, ON ACCOUNT OF HIS OUTWARD TRAVEL, NOT TO EXCEED THE CONSTRUCTIVE COST OF AIR TRANSPORTATION IN ACCORD WITH SECTION 3.5B (2) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AS ADDED BY BUREAU OF THE BUDGET CIRCULAR NO. A-7, REVISED, TRANSMITTAL LETTER NO. 29, JULY 20, 1964, BETWEEN NEWPORT NEWS, VIRGINIA, AND A POINT ON A USUALLY TRAVELED DIRECT ROUTE, REASONABLY EQUIVALENT IN DISTANCE TO THAT BETWEEN NEWPORT NEWS AND MURDO, SOUTH DAKOTA. SECTION 3.5B (2) OF THE REGULATION REQUIRES THE PER DIEM BE LIMITED TO THE AMOUNT OTHERWISE ALLOWABLE HAD THE TRAVELER USED THE CARRIER UPON WHICH THE CONSTRUCTIVE COSTS MUST BE DETERMINED. IN DETERMINING THE CONSTRUCTIVE COMMON CARRIER COST THE REGULATIONS PROVIDE THAT "THERE SHALL BE INCLUDED THE USUAL TRANSPORTATION COSTS TO AND FROM THE COMMON CARRIER TERMINAL.' ALLOWANCE OF THOSE ITEMS SHOULD BE IN ACCORDANCE WITH THE STATED REQUIREMENTS OF THE REGULATIONS.