B-168338, JANUARY 28, 1970, 49 COMP. GEN. 453

B-168338: Jan 28, 1970

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EVEN THOUGH THE DISTANCE TRAVELED TO THE FUNERAL SITE IS OVER 55 MILES. PER DIEM FOR TEMPORARY DUTY IS PAYABLE ONLY WHEN A MEMBER IS AWAY FROM HIS DESIGNATED DUTY STATION. 1970: FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 21. WHO ARE ASSIGNED TO DUTY AS ESCORTS FOR DECEASED PERSONNEL. WHERE THE FUNERAL SITE IS WITHIN THE CORPORATE LIMITS OF THE CITY OF LOS ANGELES. HE REFERS TO THE RULING OF OUR OFFICE THAT MEMBERS PERFORMING TEMPORARY DUTY WITHIN THE SAME CITY OR TOWN IN WHICH THE PERMANENT DUTY STATION IS LOCATED ARE NOT DEEMED TO BE IN A TRAVEL STATUS FOR THE PURPOSE OF PAYMENT OF PER DIEM. SUCH PERSONNEL ARE NOT ENTITLED TO ANY PER DIEM FOR PERFORMING TEMPORARY DUTY AS ESCORTS FOR DECEASED PERSONNEL WITHIN THE CORPORATE LIMITS OF LOS ANGELES.

B-168338, JANUARY 28, 1970, 49 COMP. GEN. 453

SUBSISTENCE -- PER DIEM -- MILITARY DUTY -- ESCORT DUTY -- AT PERMANENT DUTY STATION MEMBERS OF THE UNIFORMED SERVICES WHILE PERFORMING TEMPORARY DUTY AS ESCORTS FOR DECEASED MEMBERS WITHIN THE CORPORATE LIMITS OF THEIR PERMANENT DUTY STATION MAY NOT BE PAID PER DIEM, EVEN THOUGH THE DISTANCE TRAVELED TO THE FUNERAL SITE IS OVER 55 MILES. THE ALLOWANCES PRESCRIBED IN 10 U.S.C. 1482 FOR ESCORT DUTY MAY ONLY BE CONSIDERED IN CONJUNCTION WITH 37 U.S.C. 404 AND SECTION 408, REGARDING ENTITLEMENT GENERALLY FOR TRAVEL PERFORMED ON PUBLIC BUSINESS UNDER COMPETENT ORDERS. UNDER SECTION 404, PER DIEM FOR TEMPORARY DUTY IS PAYABLE ONLY WHEN A MEMBER IS AWAY FROM HIS DESIGNATED DUTY STATION, AND FOR TRAVEL WITHIN THE LIMITS OF HIS PERMANENT DUTY STATION, A MEMBER UNDER SECTION 408 MAY ONLY BE PAID TRANSPORTATION COSTS. THEREFORE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PROVIDE PER DIEM FOR ESCORT DUTY AT A PERMANENT DUTY STATION.

TO THE SECRETARY OF THE ARMY, JANUARY 28, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 21, 1969, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE PAYMENT OF PER DIEM TO MILITARY MEMBERS ON DUTY AS ESCORTS FOR DECEASED MEMBERS UNDER THE CIRCUMSTANCES PRESENTED. THIS REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 69-41, BY THE PER DIEM, TRAVEL AND TRANSPORTAION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY PRESENTS THE PROBLEM OF A PROPER REIMBURSEMENT OF EXPENSES INCURRED BY MEMBERS STATIONED AT FORT MACARTHUR, CALIF., WHO ARE ASSIGNED TO DUTY AS ESCORTS FOR DECEASED PERSONNEL, WHERE THE FUNERAL SITE IS WITHIN THE CORPORATE LIMITS OF THE CITY OF LOS ANGELES, CALIF., WHICH ALSO ENCOMPASSES THAT STATION. HE REFERS TO THE RULING OF OUR OFFICE THAT MEMBERS PERFORMING TEMPORARY DUTY WITHIN THE SAME CITY OR TOWN IN WHICH THE PERMANENT DUTY STATION IS LOCATED ARE NOT DEEMED TO BE IN A TRAVEL STATUS FOR THE PURPOSE OF PAYMENT OF PER DIEM. ON THE BASIS OF THAT RULING AND UNDER THE PROVISIONS OF PARAGRAPHS M1150-10 AND M4201-4, VOLUME 1, JOINT TRAVEL REGULATIONS, SUCH PERSONNEL ARE NOT ENTITLED TO ANY PER DIEM FOR PERFORMING TEMPORARY DUTY AS ESCORTS FOR DECEASED PERSONNEL WITHIN THE CORPORATE LIMITS OF LOS ANGELES, EVEN THOUGH IT IS SAID THAT IT MAY INVOLVE THE PERFORMANCE OF SUCH TEMPORARY DUTY AT A DISTANCE OF OVER 55 MILES FROM FORT MACARTHUR.

THE ASSISTANT SECRETARY SAYS THAT THE APPLICABLE STATUTE, 10 U.S.C. 1482, DOES NOT APPEAR TO BAR THE PAYMENT OF PER DIEM IN THE CIRCUMSTANCES INVOLVED. HE CITES OUR DECISION B-161048, DATED APRIL 11, 1967, IN WHICH THE PAYMENT OF A PER DIEM WAS AUTHORIZED FOR TEMPORARY DUTY PERFORMED BY A CIVILIAN EMPLOYEE WITHIN THE DESIGNATED BOUNDARIES OF A MISSILE RANGE WHERE HE WAS STATIONED, IT BEING RECOGNIZED THAT THE EMPLOYEE INCURRED ADDITIONAL EXPENSE IN THE PERFORMANCE OF OFFICIAL DUTY DUE TO THE DISTANCES TRAVELED BETWEEN VARIOUS LOCATIONS WITHIN THAT AREA.

THE ASSISTANT SECRETARY STATES THAT ESCORT DUTY BY ITS VERY NATURE REQUIRES THE ESCORT TO BE AVAILABLE AT ALL TIMES TO THE BEREAVED FAMILY OF THE DECEDENT TO PROPERLY FULFILL HIS RESPONSIBILITY. IT WAS INDICATED THAT SUCH DUTY REQUIREMENTS PRECLUDE THE MEMBER'S TRAVELING FROM THE FUNERAL SITE TO HIS PERMANENT DUTY STATION AS WOULD BE THE CASE IN NORMAL CIRCUMSTANCES. IT WAS THEREFORE SAID TO BE THE VIEW OF THE DEPARTMENT OF THE ARMY THAT MEMBERS ASSIGNED TO ESCORT DUTY SHOULD NOT BE PUT TO ADDITIONAL EXPENSE BECAUSE OF THE NATURE OF THEIR DUTY AND A PER DIEM ALLOWANCE IS JUSTIFIED, WARRANTED AND IN THE BEST INTEREST OF THE GOVERNMENT AND SHOULD BE PAID IF NOT LEGALLY OBJECTIONABLE.

TO ACCOMPLISH THE DESIRED RESULT, A DRAFT OF PROPOSED REVISIONS TO VOLUME 1, JOINT TRAVEL REGULATIONS, WAS ENCLOSED. THE PROPOSED REVISIONS WOULD AMEND THE REGULATIONS TO PROVIDE THAT A MEMBER ASSIGNED TO DUTY AS AN ESCORT FOR THE REMAINS OF A DECEASED MEMBER WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4 OF THE REGULATIONS WHILE PERFORMING SUCH DUTY AND, WHEN THE ORDER-ISSUING AUTHORITY DETERMINES THAT THE ESCORT WILL INCUR ADDITIONAL SUBSISTENCE AND QUARTERS EXPENSES INCIDENT TO SUCH DUTY ASSIGNMENTS, THE ESCORT MAY BE PAID THESE ALLOWANCES NOTWITHSTANDING THAT THE TRAVEL OR DUTY IS PERFORMED WITHIN THE LIMITS OF HIS PERMANENT DUTY STATION.

SECTION 1482(A)(8) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

(A) INCIDENT TO THE RECOVERY, CARE AND DISPOSITION OF THE REMAINS OF ANY DECEDENT COVERED BY SECTION 1481 OF THIS TITLE, THE SECRETARY CONCERNED MAY PAY THE NECESSARY EXPENSES OF--

(8) TRANSPORTATION OF THE REMAINS, AND ROUND-TRIP TRANSPORTATION AND PRESCRIBED ALLOWANCES FOR AN ESCORT OF ONE PERSON, TO THE PLACE SELECTED BY THE PERSON DESIGNATED TO DIRECT DISPOSITION OF THE REMAINS OR, IF SUCH SELECTION IS NOT MADE, TO A NATIONAL OR OTHER CEMETERY WHICH IS SELECTED BY THE SECRETARY AND IN WHICH BURIAL OF THE DECEDENT IS AUTHORIZED.

TRAVEL AND TRANSPORTATION ALLOWANCES ARE PRESCRIBED IN SECTION 404(A)(1) OF TITLE 37, U.S. CODE, WHICH PROVIDES AUTHORITY UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE FOR TRAVEL PERFORMED "UNDER ORDERS" AND "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY." SUBSECTION (D) THEREOF LIMITS THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SUBSECTION (A)(1) TO NOT MORE THAN ONE OF THE FOLLOWING: (1) TRANSPORTATION IN KIND, A REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN LIEU THEREOF; (2) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE, PLUS A PER DIEM IN PLACE OF SUBSISTENCE; OR (3) A MILEAGE ALLOWANCE.

SECTION 408 OF TITLE 37 PROVIDES THAT FOR TRAVEL WITHIN THE LIMITS OF A DUTY STATION, A MEMBER OF A UNIFORMED SERVICE MAY BE DIRECTED BY ADMINISTRATIVE REGULATIONS OF THE HEAD OF THE DEPARTMENT IN WHICH THE MEMBER IS SERVING, TO PROCURE TRANSPORTATION NECESSARY FOR CONDUCTING OFFICIAL BUSINESS WITHIN THE LIMITS OF HIS STATION. SUCH EXPENSES MAY BE DEFRAYED IN ADVANCE OR THE MEMBER MAY BE REIMBURSED. HOWEVER, NO PROVISIONS ARE MADE FOR REIMBURSEMENT FOR MEALS OR LODGING.

PARAGRAPH M4205-7, JOINT TRAVEL REGULATIONS, CURRENTLY IN EFFECT, PROVIDES FOR PAYMENT OF PER DIEM ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY OF MEMBERS ESCORTING REMAINS OF DECEASED PERSONNEL AS PRESCRIBED FOR ALL OTHER TEMPORARY DUTY AND TRAVEL. IMPLEMENTING DEPARTMENTAL REGULATIONS PROVIDE GENERALLY THAT MEMBERS ORDERED TO DUTY AS ESCORTS FOR DECEASED PERSONNEL WILL BE PAID ALLOWANCES AS PRESCRIBED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M1150-10(A) OF THE JOINT TRAVEL REGULATIONS DEFINES A PERMANENT STATION IN PERTINENT PART AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED.

SECTION 1482(A)(8), TITLE 10, U.S. CODE, IS A RECODIFICATION OF PART OF SECTION 2, PUBLIC LAW 495, 83D CONGRESS, DATED JULY 15, 1954, 68 STAT. 478. THE LEGISLATIVE HISTORY OF THE 1954 ACT MAKES NO SPECIFIC REFERENCE TO THE NATURE OF THE "PRESCRIBED ALLOWANCES" AUTHORIZED FOR THE EXPENSES OF AN ESCORT TRAVELING WITH THE REMAINS OF A DECEASED MEMBER. THE HEARINGS AND REPORTS ON THE BILL ENACTED AS PUBLIC LAW 495 STATE GENERALLY THAT THE VARIOUS FUNCTIONS SPECIFIED IN SECTION 2 DID NOT BROADEN EXISTING AUTHORITY. IT SEEMS EVIDENT THEREFORE THAT THE TERM "PRESCRIBED ALLOWANCES" AUTHORIZED FOR THE PAYMENT OF TRAVEL EXPENSES OF ESCORTS IN THAT SECTION WAS INTENDED BY THE CONGRESS TO BE USED IN CONJUNCTION WITH THE STATUTORY PROVISIONS PRESCRIBING ENTITLEMENT GENERALLY FOR TRAVEL PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES UNDER COMPETENT ORDERS.

A MEMBER OF A UNIFORMED SERVICE DIRECTED TO PERFORM TRAVEL AND TEMPORARY DUTY AS AN ESCORT FOR A DECEASED MEMBER IS THEREFORE ENTITLED TO THE "PRESCRIBED ALLOWANCES" AS AUTHORIZED PURSUANT TO SECTION 404(A) (1) AND (D) AND SECTION 408 OF TITLE 37, U.S.C. SECTION 404 PRESCRIBES ENTITLEMENT TO PER DIEM ONLY WHEN THAT MEMBER IS IN A TEMPORARY DUTY STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. SECTION 408 PROVIDES ONLY FOR PAYMENT OF TRANSPORTATION EXPENSES FOR DUTY PERFORMED WITHIN THE LIMITS OF HIS STATION.

PARAGRAPH M1150-10(A) OF THE JOINT TRAVEL REGULATIONS DEFINES A MEMBER'S PERMANENT DUTY STATION AS HIS DESIGNATED POST OF DUTY AND PARAGRAPH M3051- 1 OF THOSE REGULATIONS PROVIDES ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE A MEMBER IS IN A TRAVEL STATUS AND SUCH MEMBER IS IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM HIS PERMANENT DUTY STATION ON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS. ACCORDINGLY, IT IS OUR VIEW THAT MEMBERS ON PERMANENT DUTY AT FORT MACARTHUR, CALIF., WHICH IS LOCATED WITHIN THE CITY LIMITS OF LOS ANGELES, CALIF., COULD NOT BECOME ENTITLED TO A PER DIEM INCIDENT TO TEMPORARY DUTY WITHIN THESE CITY LIMITS WHETHER IT BE AS AN ESCORT FOR THE REMAINS OF A DECEASED MEMBER OR FOR OTHER OFFICIAL BUSINESS.

IT MUST BE CONCLUDED, THEREFORE, THAT THERE IS NO AUTHORITY UNDER PRESENT STATUTORY PROVISIONS FOR THE PROMULGATION OF THE PROPOSED CHANGES IN THE JOINT TRAVEL REGULATIONS WHICH WOULD AUTHORIZE THE PAYMENT OF A PER DIEM TO A MEMBER PERFORMING TEMPORARY DUTY AS AN ESCORT FOR THE REMAINS OF A DECEASED MEMBER WITHIN THE LIMITS OF THE ESCORT'S PERMANENT DUTY STATION, EVEN THOUGH HE MAY INCUR ADDITIONAL SUBSISTENCE AND QUARTERS EXPENSES INCIDENT TO SUCH DUTY ASSIGNMENT. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

THE CIRCUMSTANCES INVOLVED IN OUR DECISION DATED APRIL 11, 1967, B 161048, CITED BY THE ASSISTANT SECRETARY, ARE DISTINGUISHABLE FROM THOSE INVOLVED HERE, SINCE IN THAT CASE THE TEMPORARY DUTY WAS PERFORMED AT VARIOUS LOCATIONS WITHIN A LARGE MISSILE RANGE WHERE THE CORPORATE LIMITS OF A CITY OR TOWN WERE NOT INVOLVED. WHILE THERE APPARENTLY WERE NO FORMAL SUBDIVISIONS OF THE RANGE, THE POST AREA OF THE RANGE WAS THE LOCATION WHERE THE EMPLOYEE PERFORMED HIS DUTIES AND THE LOCATION FROM WHICH HE BEGAN THE TEMPORARY DUTY AND TO WHICH HE RETURNED UPON COMPLETION THEREOF. SINCE THAT LOCATION WAS IN FACT WELL DEFINED, WE CONCLUDED THAT IT WAS TO BE REGARDED AS HIS PERMANENT DUTY STATION. IN THE SITUATION PRESENTED, HOWEVER, THE MEMBER WOULD BE PERFORMING THE ASSIGNED DUTY WITHIN THE DEFINED CORPORATE LIMITS OF THE CITY IN WHICH STATIONED. SEE, ALSO, 38 COMP. GEN. 656 (1959); 39 ID. 753 (1960).