B-160027, SEP. 29, 1966

B-160027: Sep 29, 1966

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INASMUCH AS THE FACTS IN YOUR CASE WERE SET FORTH IN DETAIL IN OUR SETTLEMENT OF AUGUST 17 IT WOULD BE NEEDLESS REPETITION TO RESTATE THE ENTIRE CASE HERE. YOU STILL ARE OF THE OPINION THAT THE FAILURE TO PREPARE PERSONNEL ACTION (FORM 50) IN MAY 1958 TRANSFERRING YOUR PERMANENT DUTY STATION WAS NOT AN ADMINISTRATIVE ERROR AND THAT INTENT TO CHANGE YOUR ASSIGNMENT TO NEW YORK. NEW YORK WAS NOT INDICATED TO YOU UNTIL MARCH 7. YOU SAY THAT YOU AGREED TO STAY IN NEW YORK FOR APPROXIMATELY TWO WEEKS WITHOUT BEING REIMBURSED FOR SUBSISTENCE EXPENSES AND AT THE END OF THE TWO WEEKS YOU REQUESTED PER DIEM IN LIEU OF SUBSISTENCE BUT THIS WAS REFUSED. AN EMPLOYEE DOES NOT HAVE A RIGHT TO PER DIEM IN LIEU OF SUBSISTENCE SIMPLY BY REASON OF THE FACT THAT HE HAS BEEN PLACED ON DUTY AWAY FROM HIS HEADQUARTERS.

B-160027, SEP. 29, 1966

TO MR. DANIEL KATCHER:

THIS REFERS TO YOUR LETTER OF AUGUST 29, 1966, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT OF AUGUST 17, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $1,710 SUBSISTENCE EXPENSES INCURRED DURING THE PERIOD MAY 25, 1958, TO MARCH 7, 1959, AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT, NEW YORK, NEW YORK.

YOUR LETTER PRESENTS NO MATERIAL FACTS NOT HERETOFORE CONSIDERED. INASMUCH AS THE FACTS IN YOUR CASE WERE SET FORTH IN DETAIL IN OUR SETTLEMENT OF AUGUST 17 IT WOULD BE NEEDLESS REPETITION TO RESTATE THE ENTIRE CASE HERE.

YOU STILL ARE OF THE OPINION THAT THE FAILURE TO PREPARE PERSONNEL ACTION (FORM 50) IN MAY 1958 TRANSFERRING YOUR PERMANENT DUTY STATION WAS NOT AN ADMINISTRATIVE ERROR AND THAT INTENT TO CHANGE YOUR ASSIGNMENT TO NEW YORK, NEW YORK WAS NOT INDICATED TO YOU UNTIL MARCH 7, 1959. IN YOUR LETTER OF AUGUST 29, 1966, YOU SAY THAT YOU AGREED TO STAY IN NEW YORK FOR APPROXIMATELY TWO WEEKS WITHOUT BEING REIMBURSED FOR SUBSISTENCE EXPENSES AND AT THE END OF THE TWO WEEKS YOU REQUESTED PER DIEM IN LIEU OF SUBSISTENCE BUT THIS WAS REFUSED.

AN EMPLOYEE DOES NOT HAVE A RIGHT TO PER DIEM IN LIEU OF SUBSISTENCE SIMPLY BY REASON OF THE FACT THAT HE HAS BEEN PLACED ON DUTY AWAY FROM HIS HEADQUARTERS. BOTH SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, 5 U.S.C. 836, AND THE TRAVEL REGULATIONS ARE PERMISSIVE AS TO THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE. NO RIGHT TO PER DIEM ACCRUES TO AN EMPLOYEE THEREUNDER WITHOUT PROPER ADMINISTRATIVE ACTION AUTHORIZING OR APPROVING PAYMENT AT A SPECIFIC RATE. THE RECORD SHOWS THAT YOU WERE TOLD THAT YOU WOULD NOT RECEIVE PER DIEM AT NEW YORK AND YOU DO NOT DENY THIS.

THE POST OFFICE DEPARTMENT HAS INFORMED US THAT NO PER DIEM IN LIEU OF SUBSISTENCE WAS AUTHORIZED OR APPROVED AND YOUR CLAIM HAS BEEN ADMINISTRATIVELY DISAPPROVED. MOREOVER, WE HAVE NO INFORMATION HERE WHICH WOULD SUPPORT A FINDING OF ARBITRARY OR CAPRICIOUS ACTION BY THAT DEPARTMENT IN REFUSING TO AUTHORIZE OR APPROVE A PER DIEM ALLOWANCE TO YOU. THEREFORE, ASIDE FROM ANY DIFFERENCE IN VIEWPOINT THAT MAY EXIST CONCERNING YOUR HEADQUARTERS DURING THE PERIOD IN QUESTION, YOUR CLAIM FOR PER DIEM WOULD BE FOR DISALLOWANCE.

YOU ARE OF THE OPINION THAT THE RULING IN B-96669, DATED AUGUST 30, 1950, 30 COMP. GEN. 94, IS APPLICABLE TO YOUR CASE. IN THE CASE REFERRED TO THE EMPLOYEE HAD BEEN AUTHORIZED PER DIEM IN LIEU OF SUBSISTENCE WHILE PERFORMING TEMPORARY DUTY AT LOS ANGELES CALIFORNIA, WHICH LATER BECAME HIS PERMANENT DUTY STATION. THE QUESTION FOR CONSIDERATION WAS WHEN WAS IT DETERMINED BY PROPER AUTHORITY THAT LOS ANGELES HAD BEEN MADE THE EMPLOYEE'S PERMANENT DUTY STATION FOR THE PURPOSE OF DISCONTINUANCE OF PER DIEM IN LIEU OF SUBSISTENCE. IN YOUR CASE NO PER DIEM HAS BEEN AUTHORIZED OR APPROVED, AND THAT IS THE CONTROLLING FACTOR, NOT WHEN YOUR HEADQUARTERS HAD BEEN CHANGED IN ORDER TO DISCONTINUE THE PER DIEM IN LIEU OF SUBSISTENCE. THUS, THE RULING IN 30 COMP. GEN. 94 WOULD NOT BE APPLICABLE TO YOUR CASE.

ON THE BASIS OF THE FOREGOING WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.