B-159507, JUL. 20, 1966

B-159507: Jul 20, 1966

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YOU WERE CALLED TO ACTIVE MILITARY DUTY AND ASSIGNED TO THE ALASKA STATE HEADQUARTERS. YOU WERE PLACED IN A MILITARY FURLOUGH STATUS BY THE FISH AND WILDLIFE SERVICE FOR THAT PURPOSE. BY TELEGRAM THAT YOU WERE TO BE SEPARATED FROM THE MILITARY SERVICE EFFECTIVE JULY 31. IN REPLY YOU WERE ADVISED THAT YOU WOULD BE RETURNED FROM MILITARY FURLOUGH TO THE POSITION OF REFUGE MANAGER. YOU WERE FURNISHED AUTHORIZATION FOR THE TRAVEL OF YOURSELF AND YOUR FAMILY AND FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM JUNEAU TO LAKEVIEW WITH INSTRUCTIONS TO COMMENCE TRAVEL THERETO ON OR ABOUT AUGUST 15 IF YOU ACCEPTED THE ASSIGNMENT. THE REASON GIVEN WAS THAT YOU DID NOT WISH TO LEAVE ALASKA. YOUR CLAIM WAS DISALLOWED BECAUSE THE POSITION TO WHICH YOU WERE ASSIGNED UPON TERMINATION OF YOUR MILITARY SERVICE WAS LOCATED IN THE CONTINENTAL UNITED STATES AND COST OF LIVING ALLOWANCE IS NOT AUTHORIZED FOR EMPLOYEES SO SITUATED.

B-159507, JUL. 20, 1966

TO MR. MAURICE W. KELLY:

THIS REFERS TO YOUR LETTER OF MAY 24, 1966, CONCERNING OUR SETTLEMENT OF MAY 9, 1966, WHICH DISALLOWED YOUR CLAIM FOR COST OF LIVING ALLOWANCE FOR THE PERIOD AUGUST 1-14, 1965, INCIDENT TO YOUR SERVICE WITH THE BUREAU OF SPORT FISHERIES AND WILDLIFE, DEPARTMENT OF THE INTERIOR.

IT APPEARS THAT ON APRIL 1, 1961, WHILE SERVING WITH THE ABOVE-NAMED AGENCY AT JUNEAU, ALASKA, YOU WERE CALLED TO ACTIVE MILITARY DUTY AND ASSIGNED TO THE ALASKA STATE HEADQUARTERS, SELECTIVE SERVICE SYSTEM, ALSO IN JUNEAU. YOU WERE PLACED IN A MILITARY FURLOUGH STATUS BY THE FISH AND WILDLIFE SERVICE FOR THAT PURPOSE.

ON OR BEFORE JULY 23, 1965, YOU INFORMED THE FISH AND WILDLIFE SERVICE AREA OFFICE, PORTLAND, OREGON, BY TELEGRAM THAT YOU WERE TO BE SEPARATED FROM THE MILITARY SERVICE EFFECTIVE JULY 31, 1965, AND WOULD BE AVAILABLE FOR EMPLOYMENT ON AUGUST 1. IN REPLY YOU WERE ADVISED THAT YOU WOULD BE RETURNED FROM MILITARY FURLOUGH TO THE POSITION OF REFUGE MANAGER, SHELDON -HART MOUNTAIN NATIONAL WILDLIFE REFUGE, EFFECTIVE AUGUST 1, 1965, BUT WOULD BE DETAILED TO THE AGENCY'S JUNEAU OFFICE FOR TWO WEEKS BEFORE PROCEEDING TO THE NEW HEADQUARTERS AT LAKEVIEW, OREGON. YOU WERE FURNISHED AUTHORIZATION FOR THE TRAVEL OF YOURSELF AND YOUR FAMILY AND FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM JUNEAU TO LAKEVIEW WITH INSTRUCTIONS TO COMMENCE TRAVEL THERETO ON OR ABOUT AUGUST 15 IF YOU ACCEPTED THE ASSIGNMENT.

YOU REPORTED TO THE JUNEAU OFFICE OF THE BUREAU OF SPORT FISHERIES AND WILDLIFE, SERVED THE DETAIL OF TWO WEEKS AND RESIGNED TO ACCEPT A POSITION WITH THE SELECTIVE SERVICE SYSTEM EFFECTIVE AUGUST 15. THE REASON GIVEN WAS THAT YOU DID NOT WISH TO LEAVE ALASKA.

YOUR CLAIM WAS DISALLOWED BECAUSE THE POSITION TO WHICH YOU WERE ASSIGNED UPON TERMINATION OF YOUR MILITARY SERVICE WAS LOCATED IN THE CONTINENTAL UNITED STATES AND COST OF LIVING ALLOWANCE IS NOT AUTHORIZED FOR EMPLOYEES SO SITUATED.

IN YOUR PRESENT LETTER YOU SAY THAT IF THE COST OF LIVING ALLOWANCE IS NOT PAYABLE BECAUSE YOUR OFFICIAL STATION WAS IN OREGON YOU SHOULD BE CONSIDERED AS HAVING BEEN IN A TRAVEL STATUS AND ALLOWED PER DIEM FOR THE PERIOD IN QUESTION SINCE AN EMPLOYEE "WHILE IN TRAVEL STATUS AWAY FROM THE OFFICIAL STATION IS ENTITLED TO CERTAIN REIMBURSEMENTS IN ACCORDANCE WITH THE STANDARD TRAVEL REGULATIONS.'

THE PER DIEM ALLOWANCE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT AUTHORIZED BY THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 836, IS NOT TO BE CONSIDERED AS ADDITIONAL SALARY OR COMPENSATION ATTACHED TO THE POSITION HELD BY SUCH OFFICERS AND EMPLOYEES BUT IS EXPRESSLY STATED IN THE AUTHORIZING STATUTE TO BE IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE. IT IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN PUBLIC PLACES AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY, ETC., WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF ABODE. SEE BORNHOFT V. UNITED STATES, 137 CT.CL. 134. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES. SEE SECTION 6.2 OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THUS, THE DETERMINATIONS AS TO WHETHER PER DIEM IS TO BE ALLOWED IN A PARTICULAR INSTANCE AND, IF SO, THE RATE THEREOF ARE MATTERS OF AGENCY RESPONSIBILITY AND DISCRETION.

YOU PERFORMED NO TRAVEL UNDER THE ORDER. THE TEMPORARY DUTY WAS PERFORMED AT JUNEAU, YOUR PERMANENT PLACE OF ABODE. SEE 31 COMP. GEN. 264. THE DETAIL THERETO WAS MADE AT YOUR REQUEST. YOUR STATEMENT THAT WHEN TRANSFERRING AN EMPLOYEE, AGENCIES "USUALLY GIVE HIM AT LEAST THAT MUCH TIME IN WHICH TO DISPOSE OF HIS PROPERTY, ARRANGE FOR SHIPMENT OF HOUSEHOLD GOODS AND CLOSE HIS AFFAIRS," SUPPORTS RATHER THAN REFUTES THE AGENCY'S POSITION THAT SUCH DETAIL PRIMARILY WAS FOR YOUR CONVENIENCE. UNDER THE CIRCUMSTANCES THE AGENCY DID NOT AUTHORIZE PER DIEM FOR THE TEMPORARY DUTY AND, THEREFORE, NO PAYMENT MAY BE MADE.

WE ASSUME THE OREGON STATE TAX TO WHICH YOU REFER WAS WITHHELD BECAUSE YOU WERE BEING CARRIED ON THE PAYROLL OF THE OREGON OFFICE WHICH WAS NOT AWARE OF YOUR DECISION TO REMAIN IN ALASKA AT THE TIME THE PAYROLL WAS PROCESSED. IN ANY EVENT THE AMOUNT SO WITHHELD WAS SUBSEQUENTLY TRANSFERRED TO THE PROPER ACCOUNT FOR THE STATE OF ALASKA AND YOU RECEIVED NOTICE THEREOF (FORM W-2) WHICH ENABLED YOU TO TAKE FULL CREDIT WHEN FILING YOUR TAX RETURN FOR THAT STATE. THUS, IT DOES NOT APPEAR THAT YOU SUSTAINED ANY LOSS BY REASON OF THE WITHHOLDING.

UPON REVIEW, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR COST OF LIVING ALLOWANCE IS SUSTAINED. FURTHER, WE FIND NO CLEAR BASIS FOR ALLOWANCE OF PER DIEM FOR THE PERIOD IN QUESTION.