B-169099, APRIL 21, 1970, 49 COMP. GEN 709

B-169099, APRIL 21, 1970, 49 COMP. GEN 709

SUBSISTENCE -- PER DIEM -- MILITARY PERSONNEL -- TEMPORARY DUTY -- NEAR PERMANENT DUTY STATION AN OFFICER OCCUPYING QUARTERS ON POST AT QUANTICO WHO IS ORDERED TO PERFORM TEMPORARY DUTY AT MARINE CORPS HEADQUARTERS, WASHINGTON, D.C., AND TO TRAVEL DAILY BY PRIVATELY OWNED CAR BETWEEN THE TWO POINTS, A DISTANCE OF 70 MILES, IS SUBJECT TO PARAGRAPH M4201-14 OF THE JOINT TRAVEL REGULATIONS (JTR), WHICH PRECLUDES THE PAYMENT OF PER DIEM TO A MEMBER TRAVELING DAILY FROM HIS RESIDENCE TO A TEMPORARY DUTY STATION ON THE BASIS THE MEMBER INCURS NO CHANGE IN LIVING CONDITIONS OR ADDITIONAL SUBSISTENCE EXPENSES, AND THE RESTRICTION IS FOR APPLICATION EVEN THOUGH THE MARINE OFFICER IS ABSENT FROM HIS PERMANENT DUTY STATION IN EXCESS OF 10 HOURS AND WOULD BUT FOR PARAGRAPH M4201-14 RECEIVE A PARTIAL PER DIEM UNDER CHAPTER 4, PART E, OF THE JTR. HOWEVER, PURSUANT TO PARAGRAPH M4203 -3, THE OFFICER IS ENTITLED TO THE RATE PER MILE PRESCRIBED FOR THE REQUIRED TRAVEL.

TO MAJOR F. R. HASLER, UNITED STATES MARINE CORPS, APRIL 21, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1969, FILE REFERENCE FRH/SDN, AND ENCLOSURES, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE ENTITLEMENT OF COLONEL T. T. GENTRY, 023 926, TO PER DIEM UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 70-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

ORDERS DATED AUGUST 26, 1969, HEADQUARTERS, MARINE CORPS DEVELOPMENT AND EDUCATION COMMAND, QUANTICO, VIRGINIA, DIRECTED COLONEL GENTRY TO PROCEED AND REPORT ON SEPTEMBER 8 OR 9, 1969, TO THE COMMANDANT OF THE MARINE CORPS, HEADQUARTERS MARINE CORPS, WASHINGTON, D.C., FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF ABOUT 2 WEEKS IN CONNECTION WITH BEING A MEMBER OF THE MAJOR SELECTION BOARD. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT. THE ORDERS ALSO PROVIDED THAT "IN ACCORDANCE WITH PAR M4201, ITEM 14 JTR YOU ARE DIRECTED TO COMMUTE DAILY BETWEEN YOUR PLACE OF TEMPORARY ADDITIONAL DUTY AND YOUR PERMANENT DUTY STATION/QUARTERS AND YOU ARE HEREBY NOTIFIED THAT YOU WILL INCUR NO ADDITIONAL SUBSISTENCE EXPENSES UNDER THESE ORDERS." COLONEL GENTRY OCCUPIED QUARTERS ON POST AT QUANTICO.

IN YOUR LETTER OF NOVEMBER 26, 1969, YOU SAY THAT THE CLAIM OF COLONEL GENTRY FOR PER DIEM WAS DISAPPROVED ON THE BASIS OF PARAGRAPH M4201-14 OF THE JOINT TRAVEL REGULATIONS. YOU FURTHER SAY THAT HIS ORDERS FOR TEMPORARY DUTY REQUIRED HIM TO REPORT TO HEADQUARTERS, MARINE CORPS, LOCATED IN ARLINGTON, VIRGINIA, AN AREA NOT ADJACENT TO THE MARINE CORPS BASE, QUANTICO, VIRGINIA, NOR SERVICED BY LOCAL COMMON CARRIER. COMMUTED DAILY BETWEEN HIS QUARTERS AT QUANTICO AND HIS PLACE OF TEMPORARY ADDITIONAL DUTY. ON 18 OF THE 22 DAYS INVOLVED, YOU CONTINUE, COLONEL GENTRY WAS ABSENT FROM HIS PERMANENT DUTY STATION IN EXCESS OF 10 HOURS AND WOULD NORMALLY HAVE BEEN AUTHORIZED A PARTIAL PER DIEM ALLOWANCE FOR SUCH DAYS UNDER THE PROVISIONS OF CHAPTER 4, PART E, OF THE JOINT TRAVEL REGULATIONS.

IN VIEW OF THESE FACTS, YOU ASK THE FOLLOWING QUESTIONS:

A. DOES THE RESTRICTION CONTAINED IN PARAGRAPH M4500-2 APPLY WHEN THE PROVISIONS OF PARAGRAPH M4201-14 OF THE JOINT TRAVEL REGULATIONS ARE APPLIED AS THEY ARE IN THE CLAIM OF COLONEL GENTRY, AND SHOULD REIMBURSEMENT BE LIMITED TO THE APPROPRIATE RATE PER MILE FOR THE REQUIRED TRAVEL?

B. IF THE RESTRICTION DOES APPLY, IS IT PERMISSIBLE TO DENY PER DIEM THROUGH THE USE OF PARAGRAPH M4201-14 IN CASES SIMILAR TO THE CLAIM OF COLONEL GENTRY WHEN THE MEMBER WOULD OTHERWISE BE AUTHORIZED PER DIEM UNDER THE PROVISIONS OF CHAPTER 4, PART E OF THE REGULATIONS ON THOSE DAYS HE WAS REQUIRED TO BE ABSENT FROM HIS PERMANENT DUTY STATION FOR MORE THAN 10 HOURS?

THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IN TRANSMITTING YOUR LETTER OF NOVEMBER 26, 1969, AND ENCLOSURES, TO OUR OFFICE, COMMENTED THAT THE PURPOSE OF PARAGRAPH M4201-14 OF THE JOINT TRAVEL REGULATIONS IS TO PRECLUDE PAYMENT OF PER DIEM IN THOSE CASES WHERE THE MEMBER PROCEEDS FROM HIS RESIDENCE TO THE TEMPORARY DUTY STATION AND RETURNS TO HIS RESIDENT DAILY WITH NO CHANGE OCCURRING IN HIS LIVING CONDITIONS. THE COMMITTEE SAYS THAT THIS PARAGRAPH WAS SPECIFICALLY DESIGNED TO COVER THE CASE OF A MEMBER STATIONED AT QUANTICO, VIRGINIA, WHO LIVES SOMEWHERE BETWEEN QUANTICO AND ARLINGTON OR WASHINGTON AND PERFORMS TRAVEL DAILY BETWEEN HIS RESIDENCE AND THE TEMPORARY DUTY STATION AT THE PENTAGON OR NAVY ANNEX, A DISTANCE WHICH IS APPROXIMATELY THE SAME AS OR LESS THAN THE DISTANCE BETWEEN HIS RESIDENCE AND QUANTICO.

THE COMMITTEE ALSO SAYS THAT SINCE COLONEL GENTRY OCCUPIED QUARTERS ON POST AT QUANTICO, HIS ORDERS SHOULD NOT HAVE CITED PARAGRAPH M4201 14 OF THE JOINT TRAVEL REGULATIONS AS A CHANGE IN HIS LIVING CONDITIONS (TRAVEL) DID OCCUR BECAUSE OF THE REQUIREMENT FOR TRAVEL BETWEEN QUANTICO AND HEADQUARTERS, MARINE CORPS.

THE COMMITTEE EXPRESSES THE VIEW THAT THE PROVISIONS OF CHAPTER 4, PART K, OF THE JOINT TRAVEL REGULATIONS ARE NOT FOR APPLICATION IN COLONEL GENTRY'S CASE SINCE THE LOCATION OF HIS TEMPORARY DUTY STATION IN RELATION TO HIS PERMANENT DUTY STATION AND QUARTERS IS NOT WITHIN THE AREA DESCRIBED THEREIN FOR WHICH TRANSPORTATION EXPENSES MAY BE AUTHORIZED AND, THEREFORE, HE IS ENTITLED TO PER DIEM AS PROVIDED IN PARAGRAPH M4205-5 AND TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AS PROVIDED IN PARAGRAPH M4203-3 OF THE REGULATIONS.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS AWAY FROM HIS DESIGNATED POST OF DUTY REGARDLESS OF THE LENGTH OF TIME HE IS AWAY FROM THAT POST.

SECTION 408 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES MAY BE DIRECTED, BY REGULATIONS OF THE DEPARTMENT IN WHICH HE IS SERVING, TO PROCURE TRANSPORTATION NECESSARY IN CONDUCTING OFFICIAL BUSINESS WITHIN THE LIMITS OF HIS STATION AND BE REIMBURSED FOR THE EXPENSES INCURRED OR PAID A MILEAGE ALLOWANCE FOR THE USE OF A PRIVATELY OWNED VEHICLE. THIS SECTION STEMS FROM SECTION 211(M) OF THE ACT OF JUNE 30, 1949, 63 STAT. 378, AS ADDED BY SECTION 2 OF THE ACT OF SEPTEMBER 1, 1954, CH. 1211, 68 STAT. 1129. IN VIEW OF THE LEGISLATIVE HISTORY OF THE SECTION, IT HAS BEEN CONSTRUED, WHERE THE DUTY STATION IS LOCATED IN A METROPOLITAN AREA, AS EXTENDING TO TRAVEL WITHIN THE GENERAL AREA SURROUNDING THE OFFICIAL STATION THAT IS SERVED BY LOCAL CARRIERS. 35 COMP. GEN. 677 (1956); 41 COMP. GEN. 588 (1962).

PARAGRAPH M4201-14 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTIONS 404 AND 408, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR PERIODS OF TEMPORARY DUTY AWAY FROM THE MEMBER'S PERMANENT DUTY STATION AT A LOCATION NEAR HIS PERMANENT DUTY STATION AND HIS PERMANENT QUARTERS FROM WHICH HE MAY COMMUTE DAILY TO THE TEMPORARY DUTY STATION AND HIS COMMANDING OFFICER FINDS, AND SPECIFICALLY STATES IN THE ORDERS, THAT THE MEMBER WILL INCUR NO ADDITIONAL SUBSISTENCE EXPENSES. IT IS FURTHER PROVIDED IN PARAGRAPH M4201-14 THAT TRANSPORTATION EXPENSES INCIDENT TO THIS TYPE OF TEMPORARY DUTY ASSIGNMENT MAY BE CONSIDERED UNDER THE PROVISIONS OF PART K OF THE REGULATIONS.

PART K, CHAPTER 4 OF THE REGULATIONS, ISSUED UNDER AUTHORITY OF SECTION 408, RELATES TO REIMBURSEMENT FOR TRAVEL WITHIN AND ADJACENT TO PERMANENT AND TEMPORARY DUTY STATIONS.

PARAGRAPH M4500-2 INCLUDED IN PART K OF THE REGULATIONS PROVIDES THAT THE AREA IN WHICH TRANSPORTATION EXPENSES MAY BE AUTHORIZED OR APPROVED UNDER THAT PART FOR CONDUCTING OFFICIAL BUSINESS WILL BE WITHIN THE LIMITS OF PERMANENT AND TEMPORARY DUTY STATIONS, AND THE METROPOLITAN AREAS SURROUNDING THOSE STATIONS WHICH ARE ORDINARILY SERVICED BY LOCAL COMMON CARRIERS OF THE CITIES OR TOWNS IN WHICH SUCH STATIONS ARE LOCATED, OR IN THE COMPARABLE SURROUNDING AREAS IF THE POSTS OF DUTY ARE NOT LOCATED WITHIN RECOGNIZED METROPOLITAN AREAS. PARAGRAPH M4502 OF THE REGULATIONS PROVIDES THAT WHEN AUTHORIZED OR APPROVED UNDER THE CONDITIONS OF PART K, MEMBERS WHO TRAVEL BY PRIVATELY OWNED CONVEYANCE ARE ENTITLED TO REIMBURSEMENT AT A RATE OF 10 CENTS PER MILE FOR THE USE OF A PRIVATELY OWNED CONVEYANCE.

THERE IS NOTHING IN PARAGRAPH M4201-14 OF THE REGULATIONS WHICH RESTRICTS ITS APPLICATION TO MEMBERS RESIDING BETWEEN THEIR PERMANENT AND TEMPORARY DUTY STATIONS EVEN THOUGH, AS STATED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, IT MAY HAVE BEEN SPECIFICALLY DESIGNED FOR SUCH CASES. AND WE ARE NOT AWARE OF ANY ADMINISTRATIVE DIRECTIVE WHICH PURPORTS TO LIMIT ITS APPLICATION TO SUCH CASES. PARAGRAPH M4201-14 PROVIDES THAT IT IS APPLICABLE WHEN THE COMMANDING OFFICER FINDS THAT THE MEMBER WILL INCUR NO ADDITIONAL SUBSISTENCE EXPENSES IN CONNECTION WITH HIS TEMPORARY DUTY, WHICH IS TO BE PERFORMED AT A LOCATION NEAR HIS PERMANENT STATION AND HIS PERMANENT QUARTERS FROM WHICH HE MAY COMMUTE DAILY.

COLONEL GENTRY'S TRAVEL VOUCHER SHOWS THAT HE TRAVELED A ROUND-TRIP DISTANCE OF 70 MILES ON THE DAYS HE PERFORMED TEMPORARY DUTY, INDICATING THAT HIS TEMPORARY DUTY STATION WAS APPROXIMATELY 35 MILES FROM HIS PERMANENT STATION WHERE HE RESIDED. THAT DOES NOT APPEAR TO HAVE BEEN AN UNREASONABLE DISTANCE TO COMMUTE DAILY AND, IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR QUESTIONING THE DETERMINATION IN EFFECT MADE BY THE ORDER- ISSUING AUTHORITY THAT THE PLACE OF TEMPORARY DUTY WAS NEAR THE MEMBER'S PERMANENT STATION AND QUARTERS WITHIN THE CONTEMPLATION OF ITEM 14, PARAGRAPH M4201 OF THE REGULATIONS, AND THAT NO ADDITIONAL SUBSISTENCE EXPENSES WOULD BE INCURRED.

AS STATED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, COLONEL GENTRY'S TRAVEL FROM QUANTICO TO HIS TEMPORARY DUTY STATION AND RETURN WAS NOT LIMITED TO THE AREA SURROUNDING SUCH TEMPORARY DUTY STATION AS DEFINED IN PARAGRAPH M4500-2 OF THE REGULATIONS, BUT CONSTITUTED INTER- STATION TRAVEL AND PAYMENT OF A TRAVEL ALLOWANCE IS GOVERNED BY 37 U.S.C. 404 AND THE REGULATIONS ISSUED PURSUANT THERETO. 45 COMP. GEN. 30 (1965).

THUS, THE TWO QUESTIONS INCLUDED IN QUESTION A STATED IN YOUR LETTER ARE BOTH ANSWERED IN THE AFFIRMATIVE, AND COLONEL GENTRY IS ENTITLED TO REIMBURSEMENT FOR TRAVEL AT THE RATE OF 7 CENTS PER MILE UNDER THE PROVISIONS OF PARAGRAPH M4203-3 OF THE REGULATIONS (WHICH IT APPEARS HE HAS BEEN PAID) BUT HE IS NOT ENTITLED TO PER DIEM FOR HIS TEMPORARY DUTY. QUESTION B IS ALSO ANSWERED IN THE AFFIRMATIVE.

COLONEL GENTRY'S TRAVEL VOUCHERS AND SUPPORTING DOCUMENTS WILL BE RETAINED BY OUR OFFICE.