B-168203, DEC. 16, 1969

B-168203: Dec 16, 1969

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WAS CHARGED 1 DAY'S LEAVE AND LOST 1 DAY'S PER DIEM UNDER AID MANUAL ORDER. WAS RECONSTRUCTED ON BASIS OF 22-HOUR TOKYO STOPOVER AND 6 HOUR SAN FRANCISCO WAIT. DISALLOWANCE OF CLAIM FOR ADDITIONAL PER DIEM AND LEAVE ADJUSTMENT IS SUSTAINED SINCE RECONSTRUCTIONS WERE IN ACCORD WITH MANUAL ORDERS AND BOTH CHARGING OF LEAVE AND TRAVEL DURING REGULARLY SCHEDULED WORKWEEK ARE DISCRETIONARY WITH EMPLOYING AGENCY. BECAUSE YOUR REST STOP IN ANCHORAGE WAS IN EXCESS OF THE 24 HOURS AUTHORIZED BY AID MANUAL ORDER (M.O.) 563.1. YOUR TRAVEL FROM WASHINGTON TO HONG KONG WAS RECONSTRUCTED BY THE ADMINISTRATIVE OFFICE TO BEGIN AT 8:35 A.M. AS A RESULT YOU LOST ONE DAY'S PER DIEM ENTITLEMENT AND WERE CHARGED ONE DAY'S LEAVE.

B-168203, DEC. 16, 1969

SUBSISTENCE--PER DIEM--DELAYS--PERSONAL CONVENIENCE DURING TEMPORARY DUTY WHERE EMPLOYEE, LEAVING WASHINGTON, D.C; 8 A.M; FRIDAY, JAN. 3, 1969, ARRIVING 3:30 P.M; ANCHORAGE, ALASKA, SAME DAY AND DEPARTING 4 P.M; JAN. 5, FOR HONG KONG, WAS CHARGED 1 DAY'S LEAVE AND LOST 1 DAY'S PER DIEM UNDER AID MANUAL ORDER, 563.1, SEC. V B.3 AUTHORIZING 24- HOUR REST STOP, AND RETURN FROM SAIGON VIA 20-HOUR TOKYO STOPOVER AND 49- HOUR ANCHORAGE WEEKEND, ARRIVING WASHINGTON, 3:30 P.M; MAR. 3, WAS RECONSTRUCTED ON BASIS OF 22-HOUR TOKYO STOPOVER AND 6 HOUR SAN FRANCISCO WAIT, ARRIVING WASHINGTON, 10:05 P.M; FRIDAY, FEB. 28, EMPLOYEE LOSING 3 DAYS' PER DIEM AND BEING CHARGED 1 DAY'S LEAVE, DISALLOWANCE OF CLAIM FOR ADDITIONAL PER DIEM AND LEAVE ADJUSTMENT IS SUSTAINED SINCE RECONSTRUCTIONS WERE IN ACCORD WITH MANUAL ORDERS AND BOTH CHARGING OF LEAVE AND TRAVEL DURING REGULARLY SCHEDULED WORKWEEK ARE DISCRETIONARY WITH EMPLOYING AGENCY.

TO MR. NATHAN FISHER:

WE REFER TO YOUR LETTER REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF SEPTEMBER 26, 1969, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE AND ADJUSTMENT OF YOUR LEAVE RECORD RESULTING FROM TEMPORARY DUTY TRAVEL AS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT UNDER A TRAVEL AUTHORIZATION DATED DECEMBER 3, 1968. YOU ALSO INDICATE THAT SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 16 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUBLIC LAW 89-301, APPROVED OCTOBER 29, 1965, 5 U.S.C. 6101(B)(2)(SUPP.IV), MAY BE FOR APPLICATION.

YOUR TRAVEL AUTHORIZATION ALLOWED A ROUND TRIP FROM WASHINGTON, D. C; TO SAIGON, VIETNAM, FOR 60 DAYS TEMPORARY DUTY WITH 2 DAYS STOPOVER IN HONG KONG FOR CONSULTATION. YOU DEPARTED WASHINGTON AT 8 A.M; FRIDAY, JANUARY 3, 1969, ARRIVING AT ANCHORAGE, ALASKA, AT 3:30 P.M. THE SAME DAY. YOU DEPARTED ANCHORAGE AT 4 P.M. ON JANUARY 5, 1969, ARRIVING AT HONG KONG AT 9 P.M. JANUARY 6. AFTER CONSULTATION, YOU DEPARTED HONG KONG AT 7 A.M. JANUARY 9 AND ARRIVED IN SAIGON AT 9:15 A.M. THE SAME DAY. YOU RETURNED TO WASHINGTON VIA AN INDIRECT ROUTE, DEPARTING SAIGON FEBRUARY 27, 1969, AT 1:30 P.M.

BECAUSE YOUR REST STOP IN ANCHORAGE WAS IN EXCESS OF THE 24 HOURS AUTHORIZED BY AID MANUAL ORDER (M.O.) 563.1, SECTION V B.3; REFERRED TO IN YOUR TRAVEL AUTHORIZATION, YOUR TRAVEL FROM WASHINGTON TO HONG KONG WAS RECONSTRUCTED BY THE ADMINISTRATIVE OFFICE TO BEGIN AT 8:35 A.M. ON SATURDAY, JANUARY 4, 1969. THIS RECONSTRUCTION PRESERVED A 26 HOUR REST STOP AND GOT YOU TO HONG KONG IN TIME FOR YOUR CONSULTATION, BUT AS A RESULT YOU LOST ONE DAY'S PER DIEM ENTITLEMENT AND WERE CHARGED ONE DAY'S LEAVE.

SINCE YOU RETURNED TO WASHINGTON BY AN INDIRECT ROUTE, YOU ATTEMPTED TO RECONSTRUCT FOR YOURSELF A RETURN ROUTE. YOUR SELECTION SHOWED CONSTRUCTIVE TRAVEL FROM SAIGON TO TOKYO TO ANCHORAGE WITH AN ARRIVAL IN WASHINGTON AT 3:30 P.M. ON MARCH 3, 1969. THIS ROUTE WOULD HAVE GIVEN YOU A 20 HOUR STOPOVER IN TOKYO AND APPROXIMATELY A 49 HOUR STOPOVER IN ANCHORAGE FOR THE WEEKEND. HOWEVER, THE ADMINISTRATIVE OFFICE RECONSTRUCTED THE ROUTE FROM SAIGON TO WASHINGTON VIA TOKYO AND SAN FRANCISCO WITH AN ARRIVAL IN WASHINGTON AT 10:05 P.M; FRIDAY, FEBRUARY 28, 1969, AFTER A 22 HOUR STOPOVER IN TOKYO AND A 6 HOUR WAIT IN SAN FRANCISCO. AS A RESULT OF THE ADMINISTRATIVE CONSTRUCTION YOU LOST AN ADDITIONAL 3 DAYS PER DIEM ENTITLEMENT AND WERE CHARGED ANOTHER DAY OF LEAVE FOR MARCH 3, 1969.

WE FIND NO BASIS FOR DISTURBING THE ADMINISTRATIVE OFFICE'S RECONSTRUCTION OF YOUR TRAVEL FROM WASHINGTON TO HONG KONG OR FROM TOKYO TO WASHINGTON. SUCH ACTION WAS CLEARLY IN ACCORD WITH SECTION V B.3. M.O. 563.1, AND WITH SECTION 115 OF M.O. 560.2, REFERRED TO IN YOUR TRAVEL AUTHORIZATION, WHICH REQUIRES TRAVELERS TO TAKE THE MOST EXPEDITIOUS AND DIRECT ROUTES CONSISTENT WITH ECONOMY AND REASONABLE COMFORT AND SAFETY.

CONCERNING THE CHARGING OF ANNUAL LEAVE, WE HAVE HELD UNDER SIMILAR CIRCUMSTANCES THAT THE CHARGING OF ANNUAL LEAVE IS PRIMARILY A MATTER OF ADMINISTRATIVE CONSIDERATION. SEE 46 COMP. GEN. 425 (1966). WE FIND NO BASIS TO DISAGREE WITH THE AGENCY'S ACTION IN THAT RESPECT.

WE ARE AWARE THAT A CONSIDERABLE PART OF THE ADMINISTRATIVE OFFICE'S RECONSTRUCTED TRAVEL OCCURRED OUTSIDE OF NORMAL DUTY HOURS OR ON WEEKENDS. IN THAT CONNECTION 5 U.S.C. 6101(B)(2)(SUPP.IV), AS ADDED BY PUBLIC LAW 89-301, PROVIDES:

"TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE."

ALTHOUGH IT IS CLEAR THAT GENERALLY TRAVEL SHOULD BE SCHEDULED WITHIN THE EMPLOYEE'S WORKWEEK, CONGRESS LEFT TO THE DISCRETION OF THE EMPLOYING AGENCY AUTHORITY TO DETERMINE WHEN IT IS IMPRACTICABLE TO SCHEDULE OFFICIAL TRAVEL WITHIN THE SCHEDULED WORKWEEK OF AN EMPLOYEE AND EVEN THOUGH CONGRESS EXPRESSED DISSATISFACTION WITH AGENCY LACK OF FULL COMPLIANCE WITH SECTION 6101(B)(2) TWO YEARS AFTER ITS ENACTMENT IN S. REPT. NO. 801, 90TH CONG; 1ST SESS. 31, IT PROVIDED NO REMEDY BUT ONLY EXPANDED THE NUMBER OF SITUATIONS IN WHICH AN EMPLOYEE'S TIME IN A TRAVEL STATUS COULD BE CONSIDERED AS HOURS OF EMPLOYMENT FOR OVERTIME PAY PURPOSES. SEE SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, APPROVED SEPTEMBER 1, 1954, CH. 1208, 68 STAT. 1110, AS AMENDED BY SECTION 222(A) OF THE POSTAL REVENUE AND FEDERAL SALARY ACT OF 1967, APPROVED DECEMBER 16, 1967, 5 U.S.C. 5542(B)(2)(SUPP. IV). CONGRESS SPECIFICALLY LEFT TO THE CIVIL SERVICE COMMISSION THE RESPONSIBILITY OF MAKING REGULATIONS FOR THE ADMINISTRATION OF SECTION 6101(B)(2), AND TO DATE THE REGULATIONS, FOUND IN 5 CFR 610.123, MERELY REQUIRE THAT WHEN IT IS CONSIDERED ESSENTIAL THAT AN EMPLOYEE IS IN A TRAVEL STATUS DURING NONDUTY HOURS AND THE TIME IS NOT CLASSIFIED AS HOURS OF EMPLOYMENT, THE OFFICIAL CONCERNED RECORD HIS REASONS FOR ORDERING TRAVEL AT THOSE HOURS AND FURNISH A COPY OF HIS STATEMENT, UPON REQUEST, TO THE EMPLOYEE CONCERNED. WE HAVE HELD THAT SECTION 6101(B)(2) DOES NOT OPERATE TO PERMIT AN EMPLOYEE TO DELAY HIS RETURN TO HIS OFFICIAL HEADQUARTERS OVER A WEEKEND SO AS TO INCREASE HIS ENTITLEMENT TO PER DIEM IN LIEU OF SUBSISTENCE. 46 COMP. GEN. 425 (1966). LIKEWISE, WITH AN EARLY DEPARTURE. B-165854, FEBRUARY 4, 1969.

THEREFORE, THE ACTION TAKEN IN OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE AND ADJUSTMENT OF YOUR LEAVE RECORD MUST BE SUSTAINED.