B-162063, AUG. 15, 1967

B-162063: Aug 15, 1967

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WAS TRANSFERRED FROM DOMESTIC TO FOREIGN SERVICE WITH AID AND BRAZIL DESIGNATED AS DUTY STATION AND WHO NOW CLAIMS PER DIEM FOR PERIOD AFTER TRANSFER ON BASIS THAT HE DID NOT KNOW OF CHANGE OF STATION MAY NOT HAVE VOUCHER FOR PAYMENT OR FOR CREDIT AGAINST THE TRAVEL ALLOWANCE CERTIFIED. RE RECOVERY OF TRAVEL ADVANCES SHOULD BE USED INSTEAD AND IF FUNDS FROM WHICH THE EMPLOYEE IS TO BE PAID SALARY ARE AVAILABLE SETOFF TO LIQUIDATE THAT PART OF THE TRAVEL ADVANCE FOR WHICH NO LAWFUL ACCOUNTING HAS BEEN MADE BY THE EMPLOYEE MAY BE EFFECTED. IF OUR ANSWER TO THAT QUESTION IS IN THE NEGATIVE. WAS DETAILED TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT AND IN THAT REGARD WAS ASSIGNED ON FEBRUARY 5.

B-162063, AUG. 15, 1967

PER DIEM - CIVILIAN PERSONNEL - STATION CHANGE TO PERMANENT DECISION TO CERTIFYING OFFICER BUREAU OF LAND MANAGEMENT RE RECOVERY OF OUTSTANDING TRAVEL ADVANCE FROM EMPLOYEE BUREAU OF LAND MANAGEMENT EMPLOYEE WHO DURING DETAIL TO AID AND TEMPORARY DUTY ASSIGNMENT IN RECIFE, BRAZIL, WAS TRANSFERRED FROM DOMESTIC TO FOREIGN SERVICE WITH AID AND BRAZIL DESIGNATED AS DUTY STATION AND WHO NOW CLAIMS PER DIEM FOR PERIOD AFTER TRANSFER ON BASIS THAT HE DID NOT KNOW OF CHANGE OF STATION MAY NOT HAVE VOUCHER FOR PAYMENT OR FOR CREDIT AGAINST THE TRAVEL ALLOWANCE CERTIFIED. AS TO WHETHER RECOVERY OF THE ADVANCE FROM CURRENT SALARY MAY BE UNDER 5 U.S.C. 5514 REGARDING ERRONEOUS PAYMENTS, THE AUTHORITY IN 5 U.S.C. 5707, RE RECOVERY OF TRAVEL ADVANCES SHOULD BE USED INSTEAD AND IF FUNDS FROM WHICH THE EMPLOYEE IS TO BE PAID SALARY ARE AVAILABLE SETOFF TO LIQUIDATE THAT PART OF THE TRAVEL ADVANCE FOR WHICH NO LAWFUL ACCOUNTING HAS BEEN MADE BY THE EMPLOYEE MAY BE EFFECTED.

TO MR. ARNOLD E. PETTY, AUTHORIZED CERTIFYING OFFICER, BUREAU OF LAND MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF JULY 14, 1967, ENCLOSING A TRAVEL VOUCHER FOR $159.75 IN FAVOR OF MR. HAROLD T. JORGENSON, AN EMPLOYEE OF THE BUREAU OF LAND MANAGEMENT DETAILED TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT, REQUESTS OUR DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT. IF OUR ANSWER TO THAT QUESTION IS IN THE NEGATIVE, YOU ASK WHETHER AN OUTSTANDING TRAVEL ADVANCE DUE FROM THE EMPLOYEE MAY BE RECOVERED BY OFFSET AGAINST HIS CURRENT SALARY PAYMENT.

YOUR LETTER REVEALS THAT MR. JORGENSON, WHILE AN EMPLOYEE OF THE BUREAU, WAS DETAILED TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT AND IN THAT REGARD WAS ASSIGNED ON FEBRUARY 5, 1965, TO TEMPORARY DUTY IN RECIFE, BRAZIL. PER DIEM IN LIEU OF SUBSISTENCE WAS AUTHORIZED INCIDENT TO THE TEMPORARY DUTY TRAVEL WHICH TRAVEL AT THE TIME WAS EXPECTED TO TERMINATE ON OR ABOUT MARCH 19, 1965. APPARENTLY A TRAVEL ADVANCE WAS MADE TO MR. JORGENSON IN CONNECTION WITH THAT TEMPORARY DUTY TRAVEL.

YOU SAY THAT DURING THE PERIOD OF TEMPORARY DUTY IN BRAZIL MR. JORGENSON WAS TRANSFERRED FROM THE DOMESTIC SERVICE OF THE BUREAU TO THE FOREIGN SERVICE IN ACCORD WITH AN AGREEMENT WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT. A PERSONNEL ACTION, DATED APRIL 9, 1965, EFFECTIVE APRIL 10, SEPARATED MR. JORGENSON, GS-13, $15,015 PER ANNUM, WHILE A SECOND ACTION, EFFECTIVE APRIL 11, 1965, APPOINTED HIM TO THE POSITION IN THE FOREIGN SERVICE, FC-3/3, $17,435. THE SECOND ACTION DESIGNATED BRAZIL AS THE EMPLOYEE'S DUTY STATION. THE DIRECTOR, BUREAU OF LAND MANAGEMENT, BY MEMORANDUM DATED APRIL 8, 1965, NOTIFIED MR. JORGENSON OF THE CHANGE.

YOUR LETTER RELATES THAT A CHANGE FROM DOMESTIC TO FOREIGN SERVICE IS MADE ONLY AFTER THE EMPLOYEE IS FULLY INFORMED AND CONSENTS TO THE TYPE OF DUTY, LOCATION OF THE FOREIGN ASSIGNMENT, NEW DUTY POST AND DURATION OF THE ASSIGNMENT WHICH, IN THIS INSTANCE, APPEARS TO HAVE BEEN 2 YEARS.

NOTWITHSTANDING THE REPORTED KNOWLEDGE BY MR. JORGENSON OF THE CONTEMPLATED EXTENDED ASSIGNMENT AND THE CHANGE OF HIS DUTY STATION, HE CLAIMED PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD FEBRUARY 11, 1965, THE DATE OF HIS DEPARTURE FROM WASHINGTON, TO MAY 1, 1965, THE DATE OF HIS TEMPORARY RETURN TO WASHINGTON. THE CLAIM VOUCHER REFLECTED CONTINUOUS DUTY IN RECIFE FROM FEBRUARY 17, 1965, THROUGH APRIL 28, 1965. THE PER DIEM CLAIMED FOR THE PERIOD APRIL 11, 1965, EFFECTIVE DATE OF TRANSFER, TO APRIL 28, 1965, REPRESENTING THE AMOUNT OF $159.75, WAS ADMINISTRATIVELY DISALLOWED. THE DISALLOWANCE WAS MADE IN CONSONANCE WITH THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS (6 FAM 100), SECTION 156.6-2 AND OUR DECISIONS 30 COMP. GEN. 94; 24 ID. 593; 23 ID. 711.

THE CLAIM WAS REFERRED HERE FOR CONSIDERATION AND IN THAT REGARD PRESENTS THE TWO QUESTIONS STATED IN OUR OPENING PARAGRAPH.

IT IS EVIDENT FROM THE FILE TRANSMITTED WITH YOUR LETTER THAT MR. JORGENSON DOES NOT AGREE WITH THE ADMINISTRATIVE CONCLUSION THAT HE RECEIVED NOTICE OF HIS CHANGE OF STATION ON OR BEFORE APRIL 11, 1965, AND HE SUGGESTS IN THE REPLY TO THE TWO-WAY MEMORANDUM ORIGINATING SEPTEMBER 1, 1966, THAT JUNE 4, 1965, MIGHT PROPERLY BE VIEWED AS A VALID DATE OF HIS NOTIFICATION THAT RECIFE WOULD BE HIS OFFICIAL STATION.

THE FACTS BEFORE US ARE NOT SUFFICIENTLY COMPLETE TO ENABLE US TO REACH AN INDEPENDENT CONCLUSION AS TO THE ACTUAL DATE OF NOTICE.

THE STATE/AID/USIA REGULATIONS, REFERRED TO ABOVE, PROVIDE:

"156.6-2 DETAIL PENDING APPROVAL OF CHANGE OF STATION

"WHEN AN EMPLOYEE IS DETAILED FROM HIS POST TO A TEMPORARY DUTY POST AND IS SUBSEQUENTLY TRANSFERRED TO THAT POST, THE PER DIEM ALLOWANCE IS PAYABLE COMMENCING WITH THE DAY THE EMPLOYEE LEAVES HIS PERMANENT POST AND CONTINUES THROUGH MIDNIGHT OF THE DAY PRECEDING THE DATE ON WHICH HE RECEIVES OFFICIAL NOTIFICATION OF HIS TRANSFER TO NEW POST, OR CONTINUES TO THE EFFECTIVE DATE OF TRANSFER, WHICHEVER IS SHORTER.'

YOUR LETTER EMPHASIZES THAT TRANSFERS OF THIS NATURE ARE MADE ONLY AFTER AN EMPLOYEE IS FULLY INFORMED, AND THE BUREAU'S MEMORANDUM TO MR. JORGENSON OF APRIL 8, 1965, APPEARS TO CONNOTE PRIOR KNOWLEDGE OF THE TRANSACTION ON THE PART OF THE EMPLOYEE. IN CONSONANCE WITH THE LONG- ESTABLISHED RULE, WHEN THERE ARE DISPUTES OF FACT BETWEEN THE GOVERNMENT AND A CLAIMANT, THE ACCOUNTING OFFICERS ARE REQUIRED TO ACCEPT THE GOVERNMENT'S VERSION IN THE ABSENCE OF PERSUASIVE EVIDENCE THAT SUCH VERSION IS INCORRECT. NO SUCH EVIDENCE IS BEFORE US. THEREFORE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT OR CREDIT FOR THE AMOUNT THEREOF ALLOWED AGAINST THE TRAVEL ADVANCE FOR WHICH MR. JORGENSON HAS NOT FULLY ACCOUNTED.

YOUR SECOND QUESTION SUGGESTS THAT YOU MAY HAVE IN MIND RECOVERY OF THE AMOUNT OF THE OUTSTANDING ADVANCE FROM CURRENT SALARY ACCRUING TO THE CLAIMANT UNDER 5 U.S.C. 5514, RELATING TO RECOVERY OF ERRONEOUS PAYMENTS. WITHOUT DECIDING WHETHER AN UNACCOUNTED AMOUNT FOR TRAVEL ADVANCE MAY BE VIEWED AS AN ERRONEOUS PAYMENT WITHIN THE PURVIEW OF 5 U.S.C. 5514, OUR OPINION IS THAT OTHER AUTHORITY IS AVAILABLE TO ACCOMPLISH YOUR DESIRED PURPOSE.

THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, AS AMENDED, NOW 5 U.S.C. 5707, AUTHORIZED TRAVEL ADVANCES TO EMPLOYEES WITHOUT THE FORMER REQUIREMENT THAT EMPLOYEES FURNISH BOND TO PROTECT THE GOVERNMENT'S INTEREST ON ACCOUNT OF AN ADVANCE OF FUNDS. THAT STATUTE, AS NOW CODIFIED, PROVIDES IN PART AS FOLLOWS:

"* * * A SUM ADVANCED AND NOT USED FOR ALLOWABLE TRAVEL EXPENSES IS RECOVERABLE FROM THE EMPLOYEE * * * BY

"/1) SETOFF AGAINST ACCRUED PAY * * *.'

IF THERE ARE UNDER YOUR ADMINISTRATIVE CONTROL FUNDS FROM WHICH MR. JORGENSON'S SALARY IS PAID, WE WILL INTERPOSE NO OBJECTION ON THE PRESENT RECORD TO THE SETOFF OF SUFFICIENT FUNDS FROM ACCRUED SALARY TO LIQUIDATE THAT PART OF THE TRAVEL ADVANCE FOR WHICH NO LAWFUL ACCOUNTING HAS BEEN MADE BY THE EMPLOYEE.

THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH BUT, AS STATED ABOVE, IT LAWFULLY MAY NOT BE CERTIFIED FOR PAYMENT.