B-173537, SEP 2, 1971

B-173537, SEP 2, 1971

CIVILIAN EMPLOYEES - TEMPORARY DUTY - PER DIEM ADVISING THAT 5 U.S.C. 5724A, WHICH AUTHORIZES SUBSISTENCE EXPENSES OF EMPLOYEES FOR A THIRTY-DAY PERIOD WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A CHANGE OF STATION, IN NO WAY AFFECTS THE RULE THAT AN EMPLOYEE ASSIGNED TO A TEMPORARY DUTY STATION CANNOT RECEIVE PER DIEM AFTER HE RECEIVES KNOWLEDGE THAT SUCH PLACE IS TO BECOME HIS PERMANENT DUTY STATION.

TO MR. THOMAS S. KLEPPE:

WE REFER FURTHER TO YOUR LETTER OF JULY 6, 1971, CONCERNING ENTITLEMENT OF AN EMPLOYEE TO PER DIEM OR REIMBURSEMENT FOR SUBSISTENCE EXPENSES WHO, WHILE ON TEMPORARY DUTY, WAS NOTIFIED THAT THE STATION AT WHICH HE WAS PERFORMING TEMPORARY DUTY WOULD BECOME HIS PERMANENT DUTY STATION.

YOU STATE THAT AN EMPLOYEE WHO HAD BEEN TRANSFERRED (ASSIGNED) TO A TEMPORARY DUTY STATION ON OCTOBER 18, 1970, WAS NOTIFIED ON NOVEMBER 30, 1970, THAT SUCH STATION WAS TO BECOME HIS OFFICIAL STATION AND THAT THE FORMS NECESSARY TO EFFECT A CHANGE IN OFFICIAL DUTY STATION WERE EXECUTED. SHORTLY THEREAFTER YOU SAY THE EMPLOYEE WAS INFORMED THAT THE CHANGE WOULD NOT BE EFFECTIVE UNTIL A SECURITY CLEARANCE WAS COMPLETED. THE OFFICIAL TRANSFER WAS NOT CONSUMMATED UNTIL JANUARY 27, 1971.

YOU NOTE YOUR AWARENESS OF SEVERAL DECISIONS - 22 COMP. GEN. 1 (1942), 23 ID. 342 (1943), 24 ID. 593 (1945) - WHICH HELD THAT PER DIEM IN LIEU OF SUBSISTENCE WILL NOT BE ALLOWED AT A PLACE WHERE AN EMPLOYEE IS ON TEMPORARY DUTY AFTER HE RECEIVES KNOWLEDGE THAT SUCH PLACE IS TO BECOME HIS PERMANENT DUTY STATION, EVEN THOUGH THERE MAY BE AN ADMINISTRATIVE DELAY IN THE PROCESSING OF A FORMAL TRANSFER ORDER.

YOU ASK OUR OPINION AS TO WHETHER THE EMPLOYEE IS ENTITLED TO 30 DAYS SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS AFTER NOVEMBER 30, 1970, IN ACCORDANCE WITH 5 U.S.C. 5724A AND IF AFFIRMATIVE WOULD PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE BE AUTHORIZED. IT APPEARS TO BE YOUR VIEW, AND YOUR QUESTION IS SO PRESENTED, THAT 5 U.S.C. 5724A LIBERALIZED THE GENERAL AUTHORITY FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE.

SECTION 5724A OF TITLE 5, U.S.C. PROVIDES IN PART:

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724(A) OF THIS TITLE:

"(3) SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY FOR A PERIOD OF 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS WHEN THE NEW OFFICIAL STATION IS LOCATED WITHIN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. *** "

THE APPLICABLE REGULATIONS ARE FOUND IN SECTION 2 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969.

THE ABOVE PROVISIONS OF LAW AND THE CITED REGULATIONS PERTAIN TO RELOCATION EXPENSES OF EMPLOYEES TRANSFERRED OR RELOCATED, AS DISTINGUISHED FROM EXPENSES RELATED TO TEMPORARY DUTY ASSIGNMENTS AND PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE INCIDENT THERETO. HENCE WE FIND NO BASIS TO CONCLUDE THAT SUCH LAW OR REGULATIONS IN ANY WAY AFFECT DECISIONS CITED ABOVE PRECLUDING PAYMENT OF PER DIEM IN THE CIRCUMSTANCES DESCRIBED. ACCORDINGLY, ON THE BASIS OF THE FACTS PRESENTED IN YOUR LETTER, THE EMPLOYEE'S ENTITLEMENT TO PER DIEM IN CONNECTION WITH HIS TEMPORARY DUTY WOULD TERMINATE ON NOVEMBER 30, 1970, WHEN HE WAS NOTIFIED THAT THE TEMPORARY DUTY STATION WAS TO BECOME HIS PERMANENT DUTY STATION.

WE CANNOT DETERMINE FROM THE DATA IN YOUR LETTER WHETHER THE EMPLOYEE IS ENTITLED TO SUBSISTENCE EXPENSES FOR 30 DAYS AS AUTHORIZED BY 5 U.S.C. 5742AA)(3) INCIDENT TO THE TRANSFER. HOWEVER, SECTION 2.5 OF CIRCULAR NO. A-56 SETS FORTH THE CONDITIONS AND LIMITATIONS FOR ELIGIBILITY TO RECEIVE REIMBURSEMENT FOR EXPENSES IN LIEU OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, AND REIMBURSEMENT MAY BE MADE BY YOUR OFFICE IF SUCH CONDITIONS HAVE BEEN MET AND WITHIN THE PRESCRIBED LIMITATIONS.