B-160940, MAR. 15, 1967

B-160940: Mar 15, 1967

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THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR OFFICE SETTLEMENT OF MARCH 18 AND NEED NOT BE REPEATED HERE. YOUR CLAIM WAS DISALLOWED BECAUSE 6 FAM 154.4-3B PROVIDES THAT PER DIEM WILL NOT BE AUTHORIZED FOR MORE THAN 120 DAYS AT ANY ONE LOCATION. YOU CONTEND THAT UNDER 6 FAM 154.4-3C YOU ARE ENTITLED TO PER DIEM IN EXCESS OF 120 DAYS FOR THE TEMPORARY DUTY PERFORMED. 6 FAM 154.4-3C PROVIDES AS FOLLOWS: "AUTHORIZING EXCEPTIONS "NOTWITHSTANDING THE PROVISIONS OF SECTIONS 154.4-3A AND 154.4-3B. THERE IS NOTHING OF RECORD TO SHOW THAT PER DIEM IN EXCESS OF 120 DAYS WHILE YOU WERE PERFORMING TEMPORARY DUTY AT WASHINGTON. WAS AUTHORIZED OR APPROVED. ON THE CONTRARY WE HAVE A LETTER DATED MARCH 11.

B-160940, MAR. 15, 1967

TO MR. HENRY M. HOWE:

THIS REFERS TO YOUR LETTER OF JANUARY 30, 1967, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT OF MARCH 18, 1966, WHICH DISALLOWED YOUR CLAIM FOR $160 REPRESENTING 20 DAYS PER DIEM WHILE ON TEMPORARY DUTY FROM FEBRUARY 20, 1965, THROUGH MARCH 11, 1965, AT THE DEPARTMENT OF STATE, WASHINGTON, D.C.

THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR OFFICE SETTLEMENT OF MARCH 18 AND NEED NOT BE REPEATED HERE. YOUR CLAIM WAS DISALLOWED BECAUSE 6 FAM 154.4-3B PROVIDES THAT PER DIEM WILL NOT BE AUTHORIZED FOR MORE THAN 120 DAYS AT ANY ONE LOCATION. YOU CONTEND THAT UNDER 6 FAM 154.4-3C YOU ARE ENTITLED TO PER DIEM IN EXCESS OF 120 DAYS FOR THE TEMPORARY DUTY PERFORMED.

6 FAM 154.4-3C PROVIDES AS FOLLOWS:

"AUTHORIZING EXCEPTIONS

"NOTWITHSTANDING THE PROVISIONS OF SECTIONS 154.4-3A AND 154.4-3B, AN AUTHORIZING OFFICER OF THE DEPARTMENT, THE USIA CHIEF, PERSONNEL DIVISION, THE AID DIRECTOR OF PERSONNEL ADMINISTRATION, THE AID DIRECTOR OF MANAGEMENT OPERATIONS IN THE REGIONAL BUREAUS, OR THE AID DIRECTOR, OFFICE OF PUBLIC SAFETY, MAY AUTHORIZE OR APPROVE RATES AND PERIODS OF PER DIEM WHEN IN HIS JUDGMENT THE CIRCUMSTANCES WARRANT SUCH DETERMINATION. SUCH CIRCUMSTANCES INCLUDE THE NATURE OF THE DUTY TO BE PERFORMED AND THE COST OF SUITABLE, AVAILABLE LODGING.'

UNDER THE ABOVE-QUOTED PROVISION BEFORE BEING ENTITLED TO PER DIEM IN EXCESS OF 120 DAYS WHILE PERFORMING TEMPORARY DUTY AT ANY ONE LOCATION IN THE UNITED STATES THERE HAS TO BE AN AUTHORIZATION OR APPROVAL BY THE APPROPRIATE OFFICER. THERE IS NOTHING OF RECORD TO SHOW THAT PER DIEM IN EXCESS OF 120 DAYS WHILE YOU WERE PERFORMING TEMPORARY DUTY AT WASHINGTON, D.C., WAS AUTHORIZED OR APPROVED. ON THE CONTRARY WE HAVE A LETTER DATED MARCH 11, 1966, FROM THE ADMINISTRATIVE OFFICE WHICH STATES IN PART THAT:

"THE AREA PERSONNEL OFFICE, CMAD/AF, DID REQUEST EXTENSION OF THE AUTHORITY TO PAY MR. HOWE PER DIEM IN WASHINGTON, D.C., BEYOND THE 120 DAY TIME LIMITATION SPECIFIED IN 6 FAM 154.4-3B (3); BUT THE REQUEST WAS DENIED BY MEMORANDUM DATED FEBRUARY 9, 1965, FROM JOHN A. TIERNEY, PER/PSD/IT, WHO WAS THEN THE OFFICER DELEGATED AUTHORITY TO AUTHORIZE OR APPROVE INTERNATIONAL TRAVEL OF FOREIGN SERVICE EMPLOYEES.

"AFTER ARRIVAL AT HIS POST, MR. HOWE SUBMITTED A CLAIM FOR PER DIEM FOR THE 20 DAYS BEYOND THE AUTHORIZED 120 DAYS WHICH HE SPENT IN WASHINGTON, D.C., AND HIS CLAIM WAS REFERRED BY THE POST TO THE DEPARTMENT FOR APPROVAL. IT WAS RETURNED TO THE POST WITH AN EXPLANATION THAT THE MATTER OF AUTHORIZING PER DIEM FOR MR. HOWE BEYOND 120 DAYS IN WASHINGTON, D.C., HAD ALREADY BEEN CONSIDERED AT THE TIME AND REJECTED FOR REASONS AS SET FORTH IN MR. TIERNEY'S MEMORANDUM * * *"

YOU, ALSO REFER TO A DECISION OF OUR OFFICE B-118525, DATED MARCH 30, 1954, WHICH YOU SAY SUBSTANTIATES YOUR CLAIM. THAT DECISION WOULD NOT BE APPLICABLE SINCE IN THAT CASE THERE WAS NOT INVOLVED A REGULATION SUCH AS HERE WHICH SPECIFICALLY LIMITED THE PERIOD OF TIME DURING WHICH PER DIEM WAS AUTHORIZED.

IN VIEW OF THE FOREGOING, THE PRIOR ACTION IN DISALLOWING YOUR CLAIM MUST BE SUSTAINED.