B-169378, JUNE 2, 1970, 49 COMP. GEN. 831

B-169378: Jun 2, 1970

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CONCURRENT PAYMENT OF PER DIEM AND MILEAGE ALLOWANCE THE PAYMENT OF PER DIEM TO A MEMBER OF THE UNIFORMED SERVICES WHO RETURNED TO HIS PERMANENT DUTY STATION FROM A TEMPORARY DUTY ASSIGNMENT ON THE DAY HE IS SEPARATED FROM THE SERVICE IS NOT PROHIBITED BY THE FACT THAT THE MEMBER INCIDENT TO HIS SEPARATION IS ENTITLED TO THE MILEAGE ALLOWANCE PRESCRIBED BY PARAGRAPH M4157-LA OF THE JOINT TRAVEL REGULATIONS. THE MILEAGE ALLOWANCE IS NOT AUTHORIZED FOR ANY SPECIFIC DATE BUT FOR A PRESCRIBED DISTANCE. WHETHER OR NOT TRAVEL IS PERFORMED AND. PARAGRAPH M4151 MAY BE AMENDED TO AUTHORIZE THE PAYMENT OF PER DIEM INCIDENT TO TEMPORARY DUTY ON THE DAY A MEMBER IS SEPARATED OR RELEASED FROM ACTIVE DUTY.

B-169378, JUNE 2, 1970, 49 COMP. GEN. 831

MILITARY PERSONNEL -- SEPARATION -- CONCURRENT PAYMENT OF PER DIEM AND MILEAGE ALLOWANCE THE PAYMENT OF PER DIEM TO A MEMBER OF THE UNIFORMED SERVICES WHO RETURNED TO HIS PERMANENT DUTY STATION FROM A TEMPORARY DUTY ASSIGNMENT ON THE DAY HE IS SEPARATED FROM THE SERVICE IS NOT PROHIBITED BY THE FACT THAT THE MEMBER INCIDENT TO HIS SEPARATION IS ENTITLED TO THE MILEAGE ALLOWANCE PRESCRIBED BY PARAGRAPH M4157-LA OF THE JOINT TRAVEL REGULATIONS, AND DEFINED AS AN ALLOWANCE INTENDED TO COVER THE COST OF TRANSPORTATION, SUBSISTENCE, LODGINGS, AND OTHER RELATED EXPENSES, NOTWITHSTANDING PARAGRAPH M4151 PROHIBITS THE PAYMENT OF MILEAGE AND PER DIEM ON THE SAME DAY. THE MILEAGE ALLOWANCE IS NOT AUTHORIZED FOR ANY SPECIFIC DATE BUT FOR A PRESCRIBED DISTANCE, WHETHER OR NOT TRAVEL IS PERFORMED AND, THEREFORE, PARAGRAPH M4151 MAY BE AMENDED TO AUTHORIZE THE PAYMENT OF PER DIEM INCIDENT TO TEMPORARY DUTY ON THE DAY A MEMBER IS SEPARATED OR RELEASED FROM ACTIVE DUTY.

TO THE SECRETARY OF THE NAVY, JUNE 2, 1970:

BY LETTER OF MARCH 3, 1970, THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTED A DECISION WHETHER PARAGRAPH M4151 OF THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE THAT OTHERWISE PROPER PAYMENT OF PER DIEM TO A MEMBER FOR TRAVEL TO HIS PERMANENT STATION ON THE DAY OF SEPARATION FROM THE SERVICE AT THAT STATION WILL NOT BE PROHIBITED BY REASON OF THE PAYMENT OF MILEAGE INCIDENT TO SUCH SEPARATION. THE REQUEST WAS ASSIGNED CONTROL NO. 70 12 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY SAYS THAT PARAGRAPH M4151-LA OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY WILL BE ENTITLED TO MILEAGE FROM LAST DUTY STATION TO HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY AND THAT PAYMENT OF SUCH MILEAGE MAY BE MADE WITHOUT REGARD TO THE PERFORMANCE OF TRAVEL.

THE ASSISTANT SECRETARY SAYS THAT PARAGRAPH M4151 OF THOSE REGULATIONS DEFINES MILEAGE AS AN ALLOWANCE TO COVER THE AVERAGE COST OF FIRST CLASS TRANSPORTATION INCLUDING SLEEPING ACCOMMODATION, COST OF SUBSISTENCE, LODGING, AND OTHER INCIDENTAL EXPENSES DIRECTLY RELATED TO THE TRAVEL. THAT PARAGRAPH FURTHER SPECIFIES THAT IN NO CASE WILL MILEAGE AND PER DIEM BE ALLOWED FOR THE SAME DAY.

THE ASSISTANT SECRETARY SAYS THAT IN APPLYING THESE TWO PROVISIONS CONFUSION EXISTS CONCERNING A MEMBER'S ENTITLEMENT TO OTHERWISE PROPER PAYMENT OF PER DIEM FOR THE PAY OF ARRIVAL AT HIS LAST DUTY STATION WHEN THE MEMBER IS SEPARATED ON THE SAME DAY AND HENCE PAID MILEAGE INCIDENT TO THE SEPARATION. HE SAYS THAT SINCE SUCH MILEAGE IS PAID WITHOUT REGARD TO PERFORMANCE OF TRAVEL, IT IS UNRELATED TO PER DIEM AND SHOULD HAVE NO BEARING ON THE MEMBER'S ENTITLEMENT TO THE LATTER.

SECTION 404(A) OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES A MEMBER IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER VARIOUS CIRCUMSTANCES INCLUDING WHEN AWAY FROM HIS DESIGNATED POST OF DUTY, AND UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY, FROM LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. SECTION 404(F) OF THE SAME TITLE PROVIDES THAT TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE LATTER TRAVEL MAY BE PAID WHETHER OR NOT THE MEMBER PERFORMS THE TRAVEL INVOLVED.

SECTION 404(D) OF TITLE 37, U.S. CODE, PROVIDES THAT THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED FOR EACH KIND OF TRAVEL "MAY NOT BE MORE THAN ONE OF" THE FOLLOWING:

(1) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE OF THE COST OF TRANSPORTATION AT A RATE THAT IS NOT MORE THAN 7 CENTS A MILE BASED ON DISTANCES ESTABLISHED, OVER THE SHORTEST USUALLY TRAVELED ROUTE, UNDER MILEAGE TABLES PREPARED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY;

(2) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE AS PROVIDED BY CLAUSE (1) OF THIS SUBSECTION, PLUS A PER DIEM IN PLACE OF SUBSISTENCE OF NOT MORE THAN $25 A DAY; OR

(3) A MILEAGE ALLOWANCE OF NOT MORE THAN 10 CENTS A MILE BASED ON DISTANCES ESTABLISHED UNDER CLAUSE (1) OF THIS SUBSECTION.

THAT PROVISION WAS DERIVED WITHOUT SUBSTANTIAL CHANGE FROM SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, WHICH LIKE PRIOR SIMILAR STATUTES DID NOT AUTHORIZE PAYMENT OF BOTH MILEAGE AND PER DIEM TO MEMBERS FOR THE SAME TRAVEL STATUS PERIOD. IT IS FOR THAT REASON THAT WE HAVE HELD THAT MILEAGE AND PER DIEM ARE MUTUALLY EXCLUSIVE METHODS OF PAYMENT FOR TRAVEL AND THAT THE PAYMENT OF MILEAGE AND PER DIEM FOR THE SAME DAY, EVEN THOUGH NOT THE SAME PART OF THE DAY, IS PRECLUDED. COMP. GEN. 753 (1957), AND 47 COMP. GEN. 724 (1968).

SINCE PER DIEM ALLOWANCES INCLUDE COSTS OF QUARTERS, SUBSISTENCE, AND OTHER INCIDENTAL EXPENSES RELATED THERETO, IT IS EVIDENT THAT THE PROVISIONS IN PARAGRAPHS M4151 AND M4201 DENYING AUTHORITY FOR PAYMENT OF PER DIEM AND MILEAGE FOR THE SAME DAY HAVE AS THEIR PURPOSE THE PREVENTION OF DUPLICATION OF ALLOWANCES. 44 COMP. GEN. 751 (1965). TRAVEL TO HIS PERMANENT STATION ON THE DAY OF SEPARATION UNDER ORDERS

IN THE PRESENT SITUATION, AS WE UNDERSTAND IT, THE MEMBER WOULD DIRECTING HIS RETURN FROM TEMPORARY DUTY. UNDER THE PROVISIONS OF PARAGRAPHS M4201- 4 AND M4205 OF THE JOINT TRAVEL REGULATIONS HE WOULD BE ENTITLED TO PER DIEM FOR THE PORTION OF THE DAY INVOLVED IN RETURNING TO THE PERMANENT DUTY STATION EXCEPT FOR THE FACT THAT HE WILL BE PAID MILEAGE INCIDENT TO SEPARATION OR RELEASE FROM ACTIVE DUTY ON THAT DAY. UNDER PARAGRAPH M4157 -1 OF THE JOINT TRAVEL REGULATIONS HE WILL BE ENTITLED TO SUCH MILEAGE FROM HIS LAST STATION TO HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY AND IT IS AUTHORIZED WITHOUT REGARD TO THE PERFORMANCE OF TRAVEL.

IN THESE CIRCUMSTANCES, WHILE SUCH MEMBERS WILL, IN MOST CASES, DEPART FROM THEIR LAST DUTY STATION ON THE DAY OF SEPARATION OR RELEASE FROM ACTIVE DUTY, THE MILEAGE DUE IS NOT PAID FOR THE PERFORMANCE OF TRAVEL ON ANY SPECIFIED DATES, PAYMENT BEING AUTHORIZED FOR THE PRESCRIBED DISTANCE WHETHER OR NOT ANY TRAVEL IS PERFORMED.

THEREFORE, THE PROVISIONS OF SECTION 404 OF THE STATUTE AUTHORIZING THE PAYMENT OF A MILEAGE ALLOWANCE AS ONE OF THE MUTUALLY EXCLUSIVE METHODS OF PAYMENT FOR TRAVEL PERFORMED BY MEMBERS DO NOT APPEAR TO REQUIRE THE CONCLUSION THAT THE PAYMENT OF SUCH AN ALLOWANCE ACCRUING ON THE DAY OF SEPARATION OR RELEASE FROM ACTIVE DUTY, FOR WHICH NO TRAVEL IS REQUIRED, PRECLUDES THE PAYMENT OF PER DIEM INCIDENT TO TEMPORARY DUTY ON THAT DAY.

ACCORDINGLY, WE WOULD NOT OBJECT TO AN AMENDMENT TO PARAGRAPH M4151 OF THE REGULATIONS, AS PROPOSED.