B-159861, AUG. 31, 1966

B-159861: Aug 31, 1966

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TO THE SECRETARY OF THE INTERIOR: THIS IS IN REPLY TO THE LETTER OF THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR OF AUGUST 8. BENFER'S ENTITLEMENT TO REIMBURSEMENT FOR TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD GOODS FOR WHICH HE PREVIOUSLY SUBMITTED A CLAIM THAT WAS DENIED. BENFER WAS ORDERED FOR THE CONVENIENCE OF THE GOVERNMENT FROM HIS OFFICIAL STATION AT CORNING. HIS RESIDENCE AT THIS TIME WAS IN RED BLUFF. EXTENSIONS OF HIS DETAIL TO THE TEMPORARY DUTY STATION AT SOUTH SAN FRANCISCO WERE MADE ON JULY 22. IT WAS ORIGINALLY THOUGHT THAT HIS ASSIGNMENT WOULD BE COMPLETED ABOUT OCTOBER 1. BECAUSE OF DELAYS IN PRODUCTION THE SEVERAL EXTENSIONS WERE REQUIRED. BENFER WAS TRANSFERRED FROM CORNING.

B-159861, AUG. 31, 1966

TO THE SECRETARY OF THE INTERIOR:

THIS IS IN REPLY TO THE LETTER OF THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR OF AUGUST 8, 1966, SUBMITTING FOR ADVANCE DECISION A PER DIEM RECLAIM VOUCHER OF MR. DOUGLAS E. BENFER, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR. THE LETTER ALSO REQUESTED AN ADVANCE DECISION AS TO MR. BENFER'S ENTITLEMENT TO REIMBURSEMENT FOR TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD GOODS FOR WHICH HE PREVIOUSLY SUBMITTED A CLAIM THAT WAS DENIED.

THE RECORD SHOWS THAT ON JULY 16, 1965, MR. BENFER WAS ORDERED FOR THE CONVENIENCE OF THE GOVERNMENT FROM HIS OFFICIAL STATION AT CORNING, CALIFORNIA, TO A 30-DAY DETAIL AS A PIPE PLANT INSPECTOR IN SOUTH SAN FRANCISCO, CALIFORNIA, COMMENCING JULY 22, 1965. HIS RESIDENCE AT THIS TIME WAS IN RED BLUFF, CALIFORNIA. EXTENSIONS OF HIS DETAIL TO THE TEMPORARY DUTY STATION AT SOUTH SAN FRANCISCO WERE MADE ON JULY 22, AUGUST 20, OCTOBER 19, AND DECEMBER 29, 1965. IT WAS ORIGINALLY THOUGHT THAT HIS ASSIGNMENT WOULD BE COMPLETED ABOUT OCTOBER 1, 1965, BUT BECAUSE OF DELAYS IN PRODUCTION THE SEVERAL EXTENSIONS WERE REQUIRED.

WHEN THE ASSIGNMENT BEGAN TO EXTEND LONGER THAN ANTICIPATED MR. BENFER ON SEPTEMBER 15, 1965, MOVED HIS FAMILY AT CONSIDERABLE ADDITIONAL EXPENSE TO HIMSELF FROM RED BLUFF TO AN APARTMENT IN SOUTH SAN FRANCISCO, CALIFORNIA, AND SHORTLY THEREAFTER TO SAN CARLOS, CALIFORNIA.

UNDER TRANSFER ORDERS DATED DECEMBER 27, 1965, SHOWING AN EFFECTIVE DATE OF JANUARY 16, 1966, MR. BENFER WAS TRANSFERRED FROM CORNING, CALIFORNIA, TO FRESNO, CALIFORNIA, FOR ORGANIZATIONAL PURPOSES AND HIS DUTY STATION WAS CHANGED TO SOUTH SAN FRANCISCO. A TRAVEL AUTHORIZATION FOR TRANSPORTATION OF HIS WIFE AND THREE CHILDREN AND HOUSEHOLD EFFECTS FROM CORNING TO SOUTH SAN FRANCISCO WAS ISSUED ON JANUARY 13, 1966. HE WAS PAID PER DIEM THROUGH DECEMBER 31, 1965, UNDER THE ORIGINAL TEMPORARY DUTY ORDERS AND EXTENSIONS THEREOF.

HIS CLAIM ON JANUARY 12, 1966, FOR REIMBURSEMENT FOR TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD EFFECTS TO SOUTH SAN FRANCISCO FROM RED BLUFF WAS DENIED ON THE BASIS THAT HE HAD NOT MOVED IN ANTICIPATION OF TRANSFER. SUBSEQUENTLY, THE DEPARTMENT OF THE INTERIOR'S REGIONAL FINANCE OFFICE IN SACRAMENTO, CALIFORNIA, DETERMINED THAT MR. BENFER WAS NOT ENTITLED TO PER DIEM FROM THE TIME OF MOVING HIS FAMILY TO SOUTH SAN FRANCISCO AROUND SEPTEMBER 15, 1965, ON THE THEORY THAT PER DIEM IS NOT AUTHORIZED AT PLACE OF RESIDENCE UNDER THE TRAVEL EXPENSE ACT OF 1949 (5 U.S.C. 836 AND 840) AND SECTION 6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. LATER THE SUM OF $1,166, REPRESENTING PER DIEM FROM SEPTEMBER 15 TO DECEMBER 31, 1965, WAS WITHHELD FROM MR. BENFER'S PAY UPON HIS RESIGNATION FROM THE SERVICE.

THE PAYMENT OF PER DIEM IS AUTHORIZED UNDER THE PROVISIONS OF 5 U.S.C. 836:

"CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS * * * WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED, IN LIEU OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE * * * A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE DEPARTMENT * * * CONCERNED * * *"

5 U.S.C. 840 PROVIDES THAT PAYMENTS FOR TRAVEL SHALL BE IN ACCORDANCE WITH REGULATIONS ISSUED BY THE DIRECTOR, BUREAU OF THE BUDGET.

IMPLEMENTING REGULATIONS ISSUED BY THE DIRECTOR, BUREAU OF THE BUDGET, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROVIDE IN PERTINENT PART AS FOLLOWS:

"1.4. REIMBURSABLE EXPENSES.--- TRAVELING EXPENSES WHICH WILL BE REIMBURSED ARE CONFINED TO THOSE EXPENSES ESSENTIAL TO THE TRANSACTING OF THE OFFICIAL BUSINESS.

"1.5. OFFICIAL STATION--- POST OF DUTY.--- DESIGNATED POST OF DUTY AND OFFICIAL STATION MEAN ONE AND THE SAME * * *.

"6.8. NO ALLOWANCE AT PERMANENT DUTY STATION.--- PER DIEM IN LIEU OF SUBSISTENCE WILL NOT BE ALLOWED AN EMPLOYEE EITHER AT HIS PERMANENT DUTY STATION OR AT HIS PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION.'

ALTHOUGH MR. BENFER WAS ON TEMPORARY DUTY IN SOUTH SAN FRANCISCO FROM JULY 22, 1965, UNTIL AT LEAST DECEMBER 27, 1965, THE DATE OF HIS TRANSFER ORDERS, HIS OFFICIALLY DESIGNATED DUTY STATION REMAINED AT CORNING. EXTENSIONS OF HIS ORIGINAL AUTHORIZATION FOR TDY IN THE SAN FRANCISCO AREA WERE MADE FOLLOWING EXAMINATIONS OF THE WORK REQUIREMENTS IN THAT AREA THAT NECESSITATED CONTINUATION OF HIS TEMPORARY DUTY. THERE IS NO INDICATION THAT HIS OFFICIAL STATION WAS CONTINUED AT CORNING ON A FICTITIOUS BASIS FOR THE PURPOSE OF CONTINUATION OF HIS PER DIEM IN THE SOUTH SAN FRANCISCO AREA, AND NEITHER DOES THERE APPEAR TO BE ANY FAILURE OF RESPONSIBILITY ON THE PART OF THE ACTIVITY TO MAKE PERIODIC REDETERMINATIONS CONCERNING THE PROPRIETY OF THE TEMPORARY DUTY AND THE PER DIEM ALLOWANCES. SEE SECTION 6.2D, SGTR.

UNDER THE ABOVE-QUOTED STATUTE MR. BENFER, FROM JULY 22, 1965, UNTIL DATE OF RECEIPT OF NOTICE OF HIS TRANSFER UNDER THE TRANSFER ORDERS DATED DECEMBER 27, 1965, WAS TRAVELING ON OFFICIAL BUSINESS IN THE SOUTH SAN FRANCISCO AREA AWAY FROM HIS PERMANENT DUTY STATION AT CORNING, AND THE TEMPORARY PLACE OF ABODE WHICH HE ESTABLISHED IN SOUTH SAN FRANCISCO ON SEPTEMBER 15, 1965, WAS NOT THE ONE FROM WHICH HE COMMUTED DAILY TO HIS OFFICIAL STATION (CORNING) WITHIN THE MEANING OF SECTION 6.8, SGTR. ACCORDINGLY, WE ARE OF THE VIEW THAT MR. BENFER IS ENTITLED TO PER DIEM FOR THE PERIOD FROM SEPTEMBER 15, 1965, UNTIL SUCH TIME AFTER DECEMBER 27, 1965, THE DATE OF HIS TRANSFER ORDERS, THAT NOTICE OF SUCH ORDERS WAS OFFICIALLY COMMUNICATED TO HIM. 30 COMP. GEN. 94. THAT DATE APPARENTLY WAS ON OR PRIOR TO JANUARY 12, 1966, SINCE ON THAT DATE HE SUBMITTED A CLAIM FOR THE PREVIOUSLY INCURRED COSTS OF TRANSPORTATION OF HIS FAMILY AND CERTAIN EFFECTS. IN SUCH CONNECTION, OUR DECISION, 31 COMP. GEN. 264, REFERRED TO IN THE ENCLOSURES TO THE LETTER OF YOUR DEPUTY ASSISTANT SECRETARY IS NOT FOR APPLICATION SINCE THE EMPLOYEE IN THAT CASE WAS COMMUTING FROM HIS REGULAR PLACE OF RESIDENCE TO HIS TEMPORARY DUTY STATION AND INCURRED NO ADDITIONAL EXPENSE.

WITH RESPECT TO MR. BENFER'S ENTITLEMENT TO BE REIMBURSED FOR TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD EFFECTS 5 U.S.C. 73B-1/A) PROVIDES IN PERTINENT PART AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO, IN THE INTEREST OF THE GOVERNMENT, IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER, FOR PERMANENT DUTY, SHALL, EXCEPT AS OTHERWISE PROVIDED HEREIN, WHEN AUTHORIZED OR APPROVED BY SUCH SUBORDINATE OFFICIAL OR OFFICIALS OF THE DEPARTMENT CONCERNED AS THE HEAD THEREOF MAY DESIGNATE FOR THE PURPOSE, BE ALLOWED AND PAID FROM GOVERNMENT FUNDS THE EXPENSES OF TRAVEL OF HIMSELF AND THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY * * * AND THE EXPENSES OF TRANSPORTATION, PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS * * * PROVIDED FURTHER, THAT NO PART OF SUCH EXPENSES (INCLUDING THOSE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, DEPARTMENT OF STATE) SHALL BE ALLOWED OR PAID FROM GOVERNMENT FUNDS WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST: * * *"

THE QUOTED PROVISION CONTEMPLATES REIMBURSEMENT TO AN EMPLOYEE FOR THE COST OF TRANSPORTING HIS FAMILY AND HOUSEHOLD EFFECTS WHEN SUCH TRANSPORTATION IS INCIDENT TO A CHANGE OF OFFICIAL STATION NECESSITATED BY EXIGENCIES OF THE SERVICE. THERE IS NO EXISTING AUTHORITY OF LAW UNDER WHICH AN AGENCY MAY BEAR THE COST OF TRANSPORTATION OF THE FAMILY OR HOUSEHOLD EFFECTS OF AN EMPLOYEE INCIDENT TO A TEMPORARY DUTY ASSIGNMENT. IN ORDER THAT TRANSPORTATION MAY BE DEEMED TO BE INCIDENT TO A CHANGE OF OFFICIAL STATION--- IN CASES WHERE IT OCCURS PRIOR TO THE ISSUANCE OF THE FORMAL WRITTEN TRANSFER--- THERE MUST HAVE BEEN COMMUNICATED TO THE EMPLOYEE VERBAL INSTRUCTIONS TO PERFORM TRAVEL OR, AT THE VERY LEAST, A CLEARLY EXPRESSED ADMINISTRATIVE INTENTION TO EFFECT SUCH TRANSFER. WHEN SUCH CONDITIONS EXIST AND THE TRANSFER OF THE EMPLOYEE THEREAFTER TAKES PLACE, THE EXPENSES OF SUCH TRANSPORTATION ARE REIMBURSABLE IF AUTHORIZED IN THE TRANSFER ORDER OR OTHERWISE ADMINISTRATIVELY APPROVED. SEE 41 COMP. GEN. 582.

IN THE INSTANT CASE IT CLEARLY APPEARS THAT ON SEPTEMBER 15, 1965, WHEN THE TRANSPORTATION IN QUESTION TOOK PLACE THE EMPLOYEE HAD BEEN GIVEN NO NOTICE, VERBAL OR OTHERWISE, OF AN IMPENDING TRANSFER OF STATION AND THAT THE SOLE PURPOSE OF THE MOVE WAS TO HAVE HIS FAMILY WITH HIM DURING AN EXTENDED PERIOD OF TEMPORARY DUTY. UNDER THE CIRCUMSTANCES AND FOR THE REASONS INDICATED ABOVE, REIMBURSEMENT OF THE TRANSPORTATION IN QUESTION IS NOT AUTHORIZED. HOWEVER, EXPENSES IN CONNECTION WITH THE TRANSPORTATION OF HOUSEHOLD EFFECTS HELD IN STORAGE IN RED BLUFF AND MOVED INCIDENT TO THE TRANSFER ON JANUARY 16, 1966, WOULD BE FOR REIMBURSEMENT IF OTHERWISE PROPER.

SUBJECT TO ANY ADJUSTMENT REQUIRED BY THE FOREGOING THE PER DIEM RECLAIM VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.