B-176450, SEP 8, 1972

B-176450: Sep 8, 1972

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PROVIDES THAT WHERE A POV IS USED FOR OFFICIAL PURPOSES AS A MATTER OF PERSONAL PREFERENCE. THE COMPUTATION OF PER DIEM IS REQUIRED TO BE BASED ON THE USE OF APPROPRIATE COMMON CARRIER RATES. SINCE THE ORIGINAL COMPUTATION OF THE PER DIEM DUE CLAIMANT WAS MADE SUBJECT TO THIS LIMITATION. THE PRIOR SETTLEMENT IS HEREBY AFFIRMED. THIS DECISION IS BEING FORWARDED THROUGH YOUR AGENCY INASMUCH AS WE UNDERSTAND THAT YOUR PREVIOUS POST OFFICE BOX IS NOW CLOSED. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF MARCH 1. WAS LIMITED BY REGULATION TO THE AMOUNT ALLOWABLE HAD THE TRAVEL BEEN PERFORMED BY AIR. WHEN THE EMPLOYEE PREFERS TO USE A PRIVATELY OWNED AUTOMOBILE OR AIRPLANE FOR TEMPORARY DUTY TRAVEL EVEN THOUGH TRANSPORTATION BY COMMON CARRIER IS AVAILABLE AND ADEQUATE.

B-176450, SEP 8, 1972

CIVILIAN EMPLOYEE - TRAVEL BY POV - PER DIEM - COMPUTATION DECISION DENYING THE CLAIM OF EUGENE V. ARAGON FOR ADDITIONAL PER DIEM INCIDENT TO OFFICIAL TRAVEL PERFORMED FROM PUEBLO, COLO., TO OKLAHOMA CITY, OK., BY PRIVATELY-OWNED VEHICLE (POV). SECTION 3.5C(2), SGTR, PROVIDES THAT WHERE A POV IS USED FOR OFFICIAL PURPOSES AS A MATTER OF PERSONAL PREFERENCE, THE COMPUTATION OF PER DIEM IS REQUIRED TO BE BASED ON THE USE OF APPROPRIATE COMMON CARRIER RATES. SINCE THE ORIGINAL COMPUTATION OF THE PER DIEM DUE CLAIMANT WAS MADE SUBJECT TO THIS LIMITATION, THE PRIOR SETTLEMENT IS HEREBY AFFIRMED.

TO MR. EUGENE V. ARAGON:

YOUR LETTER OF MARCH 7, 1972, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO OFFICIAL TRAVEL PERFORMED FROM PUEBLO, COLORADO, TO OKLAHOMA CITY, OKLAHOMA, AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA). THIS DECISION IS BEING FORWARDED THROUGH YOUR AGENCY INASMUCH AS WE UNDERSTAND THAT YOUR PREVIOUS POST OFFICE BOX IS NOW CLOSED.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF MARCH 1, 1972, ON THE BASIS THAT YOUR ENTITLEMENT TO PER DIEM WHILE TRAVELING IN YOUR PRIVATELY OWNED VEHICLE, USE OF WHICH HAD BEEN AUTHORIZED AS A MATTER OF PERSONAL PREFERENCE, WAS LIMITED BY REGULATION TO THE AMOUNT ALLOWABLE HAD THE TRAVEL BEEN PERFORMED BY AIR.

PARAGRAPH 821, FAA HANDBOOK 1500.13, TRAVEL, PROVIDES IN PERTINENT PART AS FOLLOWS:

"821. PERSONAL PREFERENCE.

"A. GENERAL. WHEN THE EMPLOYEE PREFERS TO USE A PRIVATELY OWNED AUTOMOBILE OR AIRPLANE FOR TEMPORARY DUTY TRAVEL EVEN THOUGH TRANSPORTATION BY COMMON CARRIER IS AVAILABLE AND ADEQUATE, REIMBURSEMENT FOR MILEAGE AND PER DIEM AND CHARGE FOR LEAVE WILL BE MADE IN ACCORDANCE WITH THE FOLLOWING PROVISIONS:

"(1) TRIPS OF 1,500 MILES OR LESS. FOR ROUND TRIP TRAVEL OF 1,500 MILES OR LESS, REIMBURSEMENT MAY NOT EXCEED 6 CENTS PER MILE (MILEAGE RATE (2)).

"(2) TRIPS IN EXCESS OF 1,500 MILES. FOR ROUND TRIP TRAVEL OF MORE THAN 1,500 MILES, THE TRAVELER WILL BE REIMBURSED AT RATE (15), TEN CENTS PER MILE NOT TO EXCEED CONSTRUCTIVE COMMON CARRIER COSTS AS PRESCRIBED IN SUBPARAGRAPH B. FOLLOWING. PER DIEM WILL BE LIMITED TO THE PROVISIONS OF SUBPARAGRAPH C. FOLLOWING.

"C. CONSTRUCTIVE PER DIEM AND LEAVE.

"(1) IN ANY CASE, WHEN AN EMPLOYEE USES A PRIVATELY OWNED CONVEYANCE STRICTLY AS A MATTER OF PERSONAL PREFERENCE, THE PER DIEM ALLOWED WILL BE ON A CONSTRUCTIVE TIME BASIS. PER DIEM IS LIMITED TO THAT WHICH WOULD HAVE BEEN ALLOWED HAD TRAVEL BEEN PERFORMED BY AIR, UNLESS THE POINTS OF TRAVEL ARE NOT CONNECTED BY SCHEDULED AIR SERVICE, IN WHICH CASE PER DIEM ALLOWANCE IS COMPUTED ON THE BASIS OF RAIL SERVICE OR ON BUS SERVICE IF RAIL SERVICE IS NOT PROVIDED, OR ON COMBINATIONS OF MODES OF TRAVEL AS APPROPRIATE."

YOU TAKE EXCEPTION TO APPLICATION OF THE LIMITATION CONTAINED IN SUBPARAGRAPH 821C(1) QUOTED ABOVE TO YOUR TRAVEL UNDER THE PROVISIONS OF SUBPARAGRAPH 821A(1) WHICH INVOLVED A DISTANCE LESS THAN 1,500 MILES. YOU STATE THAT IF EITHER PARAGRAPH 821B OR PARAGRAPH 821C WERE APPLICABLE TO TRAVEL PERFORMED UNDER SUBPARAGRAPH 821A(1), THOSE PARAGRAPHS WOULD HAVE BEEN REFERENCED IN SUBPARAGRAPH 821A(1). THIS YOU SUGGEST IS THE NECESSARY IMPLICATION OF THE FACT THAT SUBPARAGRAPH 821A(2) DOES IN FACT REFERENCE BOTH PARAGRAPHS B AND C.

THE FACT THAT PARAGRAPHS B AND C ARE NOT SPECIFICALLY REFERENCED IN SUBPARAGRAPH 821A(1) WOULD NOT SEEM TO BE PARTICULARLY RELEVANT IN VIEW OF THE FACT THAT SUBPARAGRAPH 821C(1) IS, BY ITS VERY TERMS, APPLICABLE "IN ANY CASE" WHERE AN EMPLOYEE USES A PRIVATELY OWNED VEHICLE AS A MATTER OF PERSONAL PREFERENCE.

THE ABOVE-QUOTED REGULATION IS AN IMPLEMENTATION OF SECTION 3.5C(2) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS REVISED BY TRANSMITTAL MEMORANDUM NO. 6 OF FEBRUARY 7, 1967, WHICH ARE PARAMOUNT TO THE REGULATIONS OF FAA AND PROVIDE IN PART AS FOLLOWS:

"(2) WHENEVER A PRIVATELY OWNED CONVEYANCE IS USED FOR OFFICIAL PURPOSES AS A MATTER OF PERSONAL PREFERENCE, IN LIEU OF COMMON CARRIER TRANSPORTATION, PAYMENT ON A MILEAGE BASIS SHALL BE LIMITED TO THE CONSTRUCTIVE COST OF APPROPRIATE COMMON CARRIER TRANSPORTATION OR THE STATUTORY MAXIMUM, WHICHEVER IS LESS, AND ANY RELATED PER DIEM, DETERMINED AS FOLLOWS:

"(B) THE CONSTRUCTIVE PER DIEM WILL BE LIMITED TO THE AMOUNT OTHERWISE ALLOWABLE IF THE TRAVELER HAD USED THE CARRIER UPON WHICH THE CONSTRUCTIVE TRANSPORTATION COSTS ARE DETERMINED."

THUS, REGARDLESS OF THE INTERPRETATION OF FAA REGULATIONS THE COMPUTATION OF PER DIEM IN A SITUATION SUCH AS YOURS IS REQUIRED TO BE BASED UPON USE OF APPROPRIATE COMMON CARRIER TRANSPORTATION, THAT IS, AIRPLANE TRANSPORTATION IN YOUR CASE SINCE THAT WAS THE MODE OF TRANSPORTATION AUTHORIZED IF PRIVATELY OWNED AUTOMOBILE HAD NOT BEEN UTILIZED FOR THE TRAVEL.

THE ACTION TAKEN IN THE SETTLEMENT CERTIFICATE OF MARCH 1, 1972, IS HEREBY AFFIRMED.