B-171420, MAR 3, 1971

B-171420, MAR 3, 1971

CIVILIAN EMPLOYEE - TEMPORARY DUTY - PER DIEM AUTHORIZING FOR PAYMENT CLAIM FOR PER DIEM OF EMPLOYEE OF POSTAL DATA CENTER, DALLAS, TEXAS, WHO WHILE OFFICIALLY STATIONED IN DALLAS UNTIL OCTOBER 31, 1970, RELINQUISHED HIS APARTMENT THERE ON AUGUST 14, 1970, AND MOVED INTO AN APARTMENT IN FORT WORTH WHERE HE HAD BEEN ASSIGNED TO TEMPORARY DUTY. WHILE PER DIEM MAY BE DENIED WHEN TEMPORARY DUTY IS PERFORMED AT A PLACE WHERE THE EMPLOYEE MAINTAINS A RESIDENCE, THE MERE FACT THAT EMPLOYEE RELINQUISHED HIS APARTMENT AT HIS OFFICIAL STATION AND MOVED INTO AN APARTMENT AT HIS TEMPORARY DUTY STATION DOES NOT OPERATE TO DIVEST HIM OF ENTITLEMENT TO PER DIEM.

TO MR. W. G. WILSON:

WE REFER TO YOUR LETTER OF NOVEMBER 23, 1970, REFERENCE 9132:WGW:V, QUESTIONING THE PROPRIETY OF PER DIEM PAYMENTS MADE TO MR. R. ALAN JENKINS UNDER THE FOLLOWING CIRCUMSTANCES:

MR. JENKINS, A BACHELOR, WAS OFFICIALLY STATIONED IN DALLAS, TEXAS, UNTIL OCTOBER 31, 1970. ON AUGUST 14, 1970, WHILE TEMPORARILY ASSIGNED TO DUTY IN FORT WORTH, TEXAS, HE RELINQUISHED HIS APARTMENT IN DALLAS AND MOVED INTO AN APARTMENT IN FORT WORTH. HE REMAINED ON TEMPORARY DUTY THERE UNTIL SEPTEMBER 29, 1970, AT WHICH TIME HE WAS ASSIGNED TO TEMPORARY DUTY IN BETHESDA, MARYLAND. ALTHOUGH AUTHORIZED TO TRAVEL BY AIR, MR. JENKINS CHOSE TO DRIVE TO BETHESDA IN HIS OWN AUTOMOBILE. HE REMAINED IN BETHESDA ON TEMPORARY DUTY UNTIL OCTOBER 31, 1970, AT WHICH TIME BETHESDA WAS OFFICIALLY DESIGNATED AS HIS PERMANENT DUTY STATION.

MR. JENKINS WAS PAID PER DIEM FOR THE ENTIRE PERIOD OF SEPTEMBER 19, 1970, TO OCTOBER 30, 1970, INCLUDING THE TIME SPENT IN DRIVING HIS AUTOMOBILE TO BETHESDA. HOWEVER, SINCE HE DID NOT MAINTAIN A RESIDENCE IN DALLAS SUBSEQUENT TO AUGUST 14, 1970, YOU QUESTION THE PROPRIETY OF ALL OF THE PER DIEM PAYMENTS. ADDITIONALLY, YOU ASK WHETHER ANNUAL LEAVE SHOULD HAVE BEEN CHARGED FOR THE TRAVEL TIME USED IN EXCESS OF THAT WHICH WOULD HAVE BEEN REQUIRED FOR AUTHORIZED AIR TRAVEL.

WE NOTE THAT YOU FAILED TO ENCLOSE APPROPRIATE TRAVEL ORDERS, BUT WE ASSUME THE EMPLOYEE WAS AUTHORIZED A PER DIEM OF $10 PLUS COST OF LODGING NOT IN EXCESS OF $15 PER DAY.

WE HAVE HELD THAT UNDER SECTION 6.2A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AN AGENCY MAY REDUCE OR DENY PER DIEM WHEN TEMPORARY DUTY IS PERFORMED AT A PLACE WHERE THE EMPLOYEE MAINTAINS A RESIDENCE. HOWEVER, IT DOES NOT APPEAR THAT MR. JENKINS MAINTAINED A RESIDENCE IN EITHER FORT WORTH OR BETHESDA PRIOR TO THE TIME HE WAS ASSIGNED TO SUCH PLACES FOR TEMPORARY DUTY. THE MERE FACT THAT HE RELINQUISHED HIS APARTMENT AT DALLAS, HIS OFFICIAL STATION, AND MOVED INTO AN APARTMENT AT DALLAS, HIS OFFICIAL STATION, AND MOVED INTO AN APARTMENT AT HIS TEMPORARY DUTY STATION DOES NOT OPERATE TO DIVEST HIM OF ENTITLEMENT TO PER DIEM. THEREFORE, IN OUR OPINION, THERE IS NO BASIS TO REQUIRE MR. JENKINS TO REFUND THE PER DIEM PAID FOR THE PERIOD SEPTEMBER 19 TO OCTOBER 30, 1970. SEE 35 COMP. GEN. 554 (1956).

WE HAVE HELD THAT WHEN AN EMPLOYEE VOLUNTARILY TRAVELS BY PRIVATELY OWNED AUTOMOBILE IN LIEU OF AVAILABLE AIR TRANSPORTATION, TRAVEL TIME EXCEEDING THAT WHICH WOULD HAVE BEEN REQUIRED BY AIR CARRIER MAY, IN THE DISCRETION OF THE AGENCY, BE CHARGED TO ANNUAL LEAVE. IN THAT REGARD WE POINT OUT THAT SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PRECLUDES PAYMENT OF PER DIEM WHILE AN EMPLOYEE IS IN A LEAVE STATUS. THEREFORE, IF A DETERMINATION IS MADE TO CHARGE MR. JENKINS ANNUAL LEAVE FOR THE EXCESS TRAVEL TIME TO BETHESDA, THE PER DIEM PREVIOUSLY PAID FOR SUCH PERIOD SHOULD BE RECOVERED FROM HIM.