B-174464, FEB 28, 1972

B-174464, FEB 28, 1972

CIVILIAN EMPLOYEES - MILITARY PERSONNEL - SUBSISTENCE AND INCIDENTAL TRAINING EXPENSES - PER DIEM - REIMBURSEMENT CONCERNING THE PROPRIETY OF DEFRAYING CERTAIN SUBSISTENCE AND INCIDENTAL EXPENSES OF CIVILIAN AND MILITARY PERSONNEL PARTICIPATING IN FORMAL TRAINING PROGRAMS AT NON-GOVERNMENT FACILITIES AS OFFICIAL COSTS OF ATTENDANCE SEPARATE FROM OTHER PER DIEM OR, ALTERNATIVELY, CONSIDERING SUCH EXPENSES IN COMPUTING THE APPROPRIATE RATE OF PER DIEM ALLOWANCE. THE STATUTORY AUTHORITY FOR REIMBURSEMENT OF TRAINING EXPENSES IS CONTAINED IN 5 U.S.C. 4109 FOR CIVILIAN PERSONNEL AND 10 U.S.C. 4301(A) AND 9301(A) FOR MEMBERS OF THE ARMY AND AIR FORCE RESPECTIVELY. REIMBURSEMENT OF NAVY PERSONNEL IS PROVIDED FOR IN THE ANNUAL APPROPRIATION ACTS OF THE DEPARTMENT OF DEFENSE. THE TENOR OF THESE VARIOUS REGULATIONS IS THAT REIMBURSEMENT SHOULD BE AUTHORIZED ONLY FOR EXPENSES WHICH ARE ACTUAL AND NECESSARY. ALTHOUGH THE MAXIMUM RATES OF PER DIEM AND ACTUAL EXPENSES WERE INCREASED BY PUB. L. 91-183, IT IS DOUBTFUL THAT THE CONGRESS INTENDED TO EXPAND REIMBURSEMENT IN THE MANNER PROPOSED. REIMBURSEMENT FOR PARKING FEES, BOOKS AND SUPPLIES, TELEPHONE SERVICE, AND GYM OUTFITS MIGHT BE ALLOWED WHERE DETERMINED TO BE MANDATORY OR NECESSARY IN A PARTICULAR SITUATION. HOWEVER, NO AUTHORITY EXISTS FOR INCLUDING THE COSTS OF ALCOHOLIC BEVERAGES AND DEPENDENT TRAVEL EXPENSES UNDER THESE CIRCUMSTANCES. FURTHER, THE "CAPE COD WEEKEND EXPENSES," "CAN GROUP" DINNER EXPENSE, AND PRO-RATA SHARE FOR ENTERTAINMENT OF FACULTY AND STUDENTS CANNOT BE CONSIDERED "EXTRAORDINARY COSTS OF BANQUETS ATTENDED IN CONNECTION WITH OFFICIAL BUSINESS AS PART OF A CONFERENCE OR MEETING" AS REFERRED TO IN 42 COMP. GEN. 549 (1963). SUCH EXPENSES MAY NOT BE CONSIDERED IN COMPUTING THE RATE OF PER DIEM SINCE THE PURPOSE OF PER DIEM IS TO OFFSET ONLY THE NECESSARY SUBSISTENCE COSTS OF TRAVEL.

TO MR. JAMES E. JOHNSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1971, WITH ENCLOSURES, WHICH WAS ASSIGNED PDTATAC CONTROL NO. 71-44 AND RECEIVED IN OUR OFFICE ON NOVEMBER 4, 1971. THE MATTER PRESENTED CONCERNS SUBSISTENCE AND INCIDENTAL EXPENSES OF MILITARY AND CIVILIAN PERSONNEL PARTICIPATING IN FORMAL TRAINING PROGRAMS AT NON-GOVERNMENT FACILITIES.

YOUR LETTER CALLS OUR ATTENTION TO WHAT YOU DESCRIBE VARIOUSLY AS "EXTRAORDINARY," "SIGNIFICANT AND UNAVOIDABLE" EXPENSES ASSOCIATED WITH THE ATTENDANCE OF MILITARY AND CIVILIAN PERSONNEL AT EXECUTIVE MANAGEMENT COURSES OF ACADEMIC INSTRUCTION OFFERED BY THE HARVARD UNIVERSITY GRADUATE SCHOOL OF BUSINESS ADMINISTRATION AND THE GRADUATE SCHOOL OF BUSINESS, THE UNIVERSITY OF PITTSBURGH. YOU STATE THAT YOU ARE SEEKING AUTHORITY FOR DEFRAYING CERTAIN OF THESE UNUSUAL EXPENSES AS OFFICIAL COSTS OF ATTENDANCE SEPARATE FROM THE PER DIEM WHICH MAY THEN BE SET BASED ON USUAL COST FACTORS. YOU ALTERNATIVELY ASK WHETHER SUCH EXPENSES MAY BE CONSIDERED IN DETERMINING THE APPROPRIATE RATE OF PER DIEM ALLOWANCE.

THE BASIC STATUTORY AUTHORITIES FOR REIMBURSEMENT OF TRAINING EXPENSES AND ALLOWANCES INCIDENT THERETO ARE CONTAINED IN 5 U.S.C. 4109 FOR CIVILIAN PERSONNEL AND 10 U.S.C. 4301(A) AND 9301(A) FOR MILITARY PERSONNEL IN THE ARMY AND AIR FORCE, RESPECTIVELY. AUTHORIZATION FOR TRAINING OF NAVAL PERSONNEL IS INCLUDED IN THE APPROPRIATION ACTS. ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF DEFENSE (DOD) HAVE GENERALLY PROVIDED FUNDS FOR "TUITION, ALLOWANCES, AND FEES INCIDENT TO TRAINING OF MILITARY PERSONNEL AT CIVILIAN INSTITUTIONS *** ." SEE, FOR EXAMPLE, TITLE III OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1971, PUBLIC LAW 91-668, 84 STAT. 2020, APPROVED JANUARY 11, 1971.

IN THE CASE OF CIVILIANS, 5 U.S.C. 4109 AUTHORIZES THE REIMBURSEMENT OF "NECESSARY EXPENSES OF THE TRAINING," INCLUDING SPECIFICALLY THE NECESSARY COSTS OF TRAVEL AND PER DIEM UNDER THE PROVISIONS OF 5 U.S.C. 5701-5708 AND THE IMPLEMENTING REGULATIONS FOUND GENERALLY IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR), AS IMPLEMENTED BY VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) FOR CIVILIAN EMPLOYEES OF DOD. ADDITION, 5 U.S.C. 4109 PROVIDES DIRECT AUTHORITY FOR THE REIMBURSEMENT OF TRAINING EXPENSES IN THE NATURE OF TUITION AND MATRICULATION FEES; PURCHASE OR RENTAL OF BOOKS, MATERIALS, AND SUPPLIES; AND OTHER SERVICES OR FACILITIES DIRECTLY RELATED TO THE TRAINING OF THE EMPLOYEE. TO BE REIMBURSABLE ALL SUCH COSTS MUST MEET THE STANDARD OF "NECESSARY EXPENSES OF THE TRAINING." REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE AUTHORITY OF 5 U.S.C. 4118 PROVIDE THAT THE HEAD OF THE AGENCY SHALL DETERMINE WHICH EXPENSES CONSTITUTE NECESSARY TRAINING EXPENSES. 5 CFR 410.601.

WE NOTE THAT UNDER PARAGRAPH C8051-2E(2) OF VOLUME 2, JTR, UNIFORM PER DIEM ALLOWANCES ARE RECOMMENDED AND AUTHORIZED FOR GROUPS OF EMPLOYEES ATTENDING PROLONGED TRAINING COURSES. PARAGRAPH C8101-2I PRESCRIBES SPECIFIC PER DIEM RATES FOR SUCH EMPLOYEES AT LOCATIONS DESIGNATED IN THE REFERENCED APPENDIX C, PART III. THAT REFERENCE SPECIFICALLY LISTS BOTH OF THE COURSES AT HARVARD AS WELL AS THE COURSE AT THE UNIVERSITY OF PITTSBURGH. A PER DIEM RATE OF $16 IS PRESCRIBED FOR EACH COURSE AND LOCATION.

UNDER SECTION 6.3 OF SGTR (CIRCULAR NO. A-7, REVISED AUGUST 17, 1971, AND EFFECTIVE OCTOBER 10, 1971), EACH DEPARTMENT AND AGENCY HAS RESPONSIBILITY TO AUTHORIZE "ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES" AND TO AVOID "FIXING PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES." CONSIDER THAT THIS RESPONSIBILITY HAS DEVOLVED ON THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TO THE EXTENT THAT IT NOW HAS AUTHORITY TO IMPLEMENT APPLICABLE STATUTORY REGULATIONS FOR ALL DOD PERSONNEL. THE INDICATED RATE-SETTING FACTORS (SECTION 6.3, SGTR) FOR ADMINISTRATIVE CONSIDERATION PROVIDE A BASIS FOR JUDGMENT AS TO THE APPROPRIATE PER DIEM ALLOWANCE UNDER THE LAW AND IMPLEMENTING STATUTORY REGULATIONS.

TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ORDERED TO TEMPORARY DUTY ARE GOVERNED BY VOLUME 1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO 37 U.S.C. 404 AND 411(B). SECTION 404(D)(2) OF TITLE 37 AUTHORIZES THE SECRETARIES TO PRESCRIBE A PER DIEM "IN PLACE OF SUBSISTENCE" OF NOT MORE THAN $25 A DAY. THE RATE CURRENTLY PRESCRIBED IN PARAGRAPH M4205 OF THOSE REGULATIONS FOR MILITARY PERSONNEL DURING PERIODS OF TEMPORARY DUTY UNDER INSTRUCTION IS $16. UNDER THE PROVISIONS OF SECTION 411(B)(2) OF TITLE 37, U.S.C. THE PER DIEM RATES SET BY THE SECRETARIES CONCERNED FOR TRAVEL AND TEMPORARY DUTY UNDER SECTION 404 REPRESENT A COMMUTATION ON A DAILY BASIS OF THE AVERAGE EXCESS SUBSISTENCE COSTS INCURRED BY MEMBERS IN CERTAIN TYPES OF TRAVEL SITUATIONS CONSIDERING "THE COST OF SUBSISTENCE, INCLUDING LODGING AND OTHER NECESSARY INCIDENTAL EXPENSES RELATED THERETO.

SECTION 404(D)(3) OF TITLE 37, U.S.C. PROVIDES THAT WHERE, DUE TO UNUSUAL CIRCUMSTANCES OF A TRAVEL ASSIGNMENT, THE MAXIMUM PER DIEM ALLOWANCE WOULD BE LESS THAN THE AMOUNT REQUIRED TO MEET THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP REIMBURSEMENT FOR SUCH EXPENSES MAY BE AUTHORIZED. SUCH REIMBURSEMENT IS ON AN ACTUAL EXPENSE BASIS UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, BUT MAY NOT EXCEED THE AMOUNT SPECIFIED IN THE TRAVEL AUTHORIZATION UP TO THE MAXIMUM OF $40 FOR EACH DAY IN A TRAVEL STATUS. THE CRITERIA FOR AUTHORIZING OR APPROVING ACTUAL EXPENSE ALLOWANCES IS SET FORTH IN PARAGRAPH M4004 OF THE JOINT TRAVEL REGULATIONS, AND THE ITEMS WHICH THE SECRETARIES AND THIS OFFICE HAVE CONSIDERED ALLOWABLE ARE DETAILED IN PARAGRAPH M4005.

THE MAXIMUM RATES OF PER DIEM ($25) AND ACTUAL EXPENSES ($40) AUTHORIZED BY 37 U.S.C. WERE INCREASED TO THOSE AMOUNTS BY PUBLIC LAW 91-183, APPROVED DECEMBER 30, 1969, 83 STAT. 840. THE LEGISLATIVE HISTORY OF THAT ACT (SENATE REPORT NO. 91-622 TO ACCOMPANY H. R. 944) SHOWS THAT THE "ALLOWABLE TRAVEL EXPENSES" IN SOME CASES WERE NOT FULLY COMPENSATED BY THE $16 PER DIEM ALLOWANCE AND THAT, AS TO ACTUAL EXPENSE, A STUDY INDICATED INCREASED COSTS FOR "HOTELS, MEALS AND MISCELLANEOUS EXPENSES." THERE WAS NO EXPRESSION OF INTENT THAT THE TYPES OF EXPENSES NORMALLY COVERED BY A PER DIEM ALLOWANCE OR ON AN ACTUAL EXPENSE BASIS WERE TO BE EXPANDED IN THE MANNER PROPOSED IN YOUR LETTER.

WITH RESPECT TO SPECIFIC EXPENSES CITED IN YOUR LETTER, WE REFER YOU TO UNPUBLISHED DECISIONS PERTAINING TO PARKING FEES (ALLOWABLE WHEN MANDATORY), TELEPHONE INSTALLATION AND SERVICE CHARGES (NOT ALLOWABLE WHEN FOR PERSONAL CONVENIENCE), AND EXPENSES FOR ALCOHOLIC BEVERAGES (NOT ALLOWABLE). SEE B-160985, MARCH 17, 1967; B-160914, MARCH 20, 1967; AND B -164366, AUGUST 16, 1968; COPIES ENCLOSED. WE ARE NOT AWARE OF ANY STATUTORY BASIS FOR AUTHORIZING TRAVEL AT GOVERNMENT EXPENSE OR PER DIEM ALLOWANCES FOR WIVES OF EITHER MILITARY OR CIVILIAN PERSONNEL IN CONNECTION WITH "GRADUATION (WIVES) WEEK." EXPENSES FOR EXPENDABLES SUCH AS BOOKS AND SUPPLIES NOT COVERED BY TUITION MIGHT BE ALLOWABLE IF DEEMED NECESSARY IN ACCORDANCE WITH 5 U.S.C. 4109. HOWEVER, WE HAVE SOME DOUBT WHETHER GYM OUTFITS COULD BE DETERMINED AS A NECESSARY EXPENSE UNLESS CERTAIN GYM CLASSES ARE A PART OF THE CURRICULUM. THE DECISION PERTAINING TO ALCOHOLIC BEVERAGES AND CITED SUPRA WOULD PRECLUDE REIMBURSEMENT OF SUCH EXPENSE UNDER THE CIRCUMSTANCES YOU HAVE PRESENTED.

IN OUR OPINION THE "CAPE COD WEEKEND EXPENSES," "CAN GROUP" DINNER EXPENSE, AND PRO-RATA SHARE FOR ENTERTAINMENT OF FACULTY AND STUDENTS CANNOT BE CONSIDERED "EXTRAORDINARY COSTS OF BANQUETS ATTENDED IN CONNECTION WITH OFFICIAL BUSINESS AS A PART OF A CONFERENCE OR MEETING" AS REFERRED TO IN 42 COMP. GEN. 549 (1963). MOREOVER, IT IS OUR OPINION THAT SUCH EXPENSES MAY NOT BE CONSIDERED IN DETERMINING THE LEVEL OF PER DIEM SINCE THE PURPOSE OF PER DIEM IS TO OFFSET THE NECESSARY SUBSISTENCE COSTS OF TRAVEL THAT ARE OTHERWISE NOT REIMBURSABLE. SEE DEFINITION IN JTR, PARAGRAPHS C1100 AND M4202-1.