B-176477, FEB 1, 1973

B-176477, FEB 1, 1973

CIVILIAN PERSONNEL - PER DIEM - TEMPORARY DUTY CLOSE TO PERMANENT STATION - AGENCY POLICY - SUBSEQUENT CORRECTION OF ORDERS DECISION DENYING THE CLAIM OF DONALD C. BARRESI, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR PER DIEM FOR TEMPORARY DUTY IN THE VICINITY OF WASHINGTON, D.C. NO PER DIEM IS AUTHORIZED FOR TEMPORARY DUTY AT PLACES OUTSIDE THE PERMANENT DUTY STATION AREA IF THEY ARE NEAR THAT STATION, JTR, SECTION 8050-4, IF IT IS THE POLICY OF THE EMPLOYING AGENCY TO PAY NO PER DIEM FOR SUCH DUTY BECAUSE IT CAN BE ACCOMPLISHED WITHIN THE NORMAL WORKDAY, JTR, SECTION 8051-1, AND IF THE EMPLOYEE IS AWARE OF THIS POLICY. MOREOVER, UNDER THESE CIRCUMSTANCES, ANY ORDERS AUTHORIZING PER DIEM ARE ERRONEOUS AND SUBSEQUENT ORDERS DENYING THE EMPLOYEE'S ENTITLEMENT TO PER DIEM CAN BE APPLIED TO THE BEGINNING OF THE EMPLOYEE'S TEMPORARY DUTY BECAUSE HE WAS AWARE OF THE AGENCY'S POLICY IN THIS REGARD. SEE GENERALLY BORNHOFT V. UNITED STATES, 137 CT. CL. 134 (1956).

TO MR. RICHARD D. HATTERSLEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 30, 1972, REFERENCE SCCNJ -COMPT, CONCERNING THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION OF MAY 11, 1972, IN ADVISING THAT MR. DONALD C. BARRESI, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, SHOULD BE REGARDED AS ENTITLED TO PER DIEM IN THE AMOUNT OF $246.40, FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD AUGUST 9 - SEPTEMBER 8, 1971, UNDER THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE RECORD SHOWS THAT MR. BARRESI WAS ASSIGNED TO PERMANENT DUTY AT FORT DETRICK, MARYLAND. BY ORDERS DATED JULY 29, 1971, HE WAS ASSIGNED TO TEMPORARY DUTY IN OLNEY, MARYLAND, AND IN OTHER AREAS IN AND NEAR THE DISTRICT OF COLUMBIA, BEGINNING ON AUGUST 9, 1971. PER DIEM WAS AUTHORIZED AND A TRAVEL ADVANCE MADE TO THE EMPLOYEE. ON AUGUST 30, 1971, THE ORDERS WERE MODIFIED TO EXTEND THE PERIOD OF TEMPORARY DUTY. SEPTEMBER 9, 1971, THE ORDERS WERE MODIFIED TO PROVIDE THAT PER DIEM WAS NOT AUTHORIZED "DUE TO PROXIMITY OF RESIDENCE TO PLACES OF DUTY." MR. BARRESI DURING THE ENTIRE PERIOD OF SUCH TEMPORARY DUTY RESIDED IN WASHINGTON, D.C.

AS A RESULT OF THE ABOVE-NOTED MODIFICATION OF ORDERS, MR. BARRESI WAS INFORMED THAT PREVIOUS PAYMENTS OF PER DIEM TO HIM WERE IMPROPER AND THAT HE MUST REFUND THE AMOUNT ADVANCED. A DEBT CHARGE WAS ESTABLISHED AGAINST HIS ACCOUNT. AS A RESULT OF THIS DEBT CHARGE, AMOUNTS WERE WITHHELD FROM MR. BARRESI'S REGULAR PAY, AND THE REMAINING AMOUNT DUE WAS WITHHELD FROM HIS FINAL PAY. MR. BARRESI THEN REQUESTED THIS OFFICE TO DETERMINE IF THE DEBT CHARGE WAS PROPER.

UPON CONSIDERATION OF THE CLAIM OUR TRANSPORTATION AND CLAIMS DIVISION HELD THAT MR. BARRESI WAS ENTITLED TO PER DIEM IN THE AMOUNT OF $246.40, BASED UPON A DAILY ENTITLEMENT OF $11.80, FOR THE PERIOD AUGUST 9 - SEPTEMBER 8, 1971. NO PER DIEM ALLOWANCE WAS GRANTED FOR THE BALANCE OF THE TEMPORARY DUTY PERFORMED (SEPTEMBER 9-21, 1971) BECAUSE OF PROSPECTIVE APPLICATION OF THE AMENDMENT TO MR. BARRESI'S TRAVEL ORDERS DATED SEPTEMBER 9, 1971, WHICH REVOKED HIS ENTITLEMENT TO PER DIEM. WE NOTE THAT THE $11.80 WAS A DAILY RATE OF PER DIEM. THUS EVEN IF MR. BARRESI'S ORDERS AUTHORIZING PER DIEM BE REGARDED AS PROPER, HE WOULD BE ENTITLED TO ONE-HALF OF SUCH DAILY RATE FOR MOST OF THE DAYS INVOLVED. SEE SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN EFFECT AT THE TIME.

BY LETTER DATED MAY 23, 1972, MR. BARRESI REQUESTED FURTHER ALLOWANCE OF PER DIEM FOR THE PERIOD SEPTEMBER 9-21, 1971, ON THE BASIS THAT THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED MAY 11, 1972, WHICH LIMITED HIS PER DIEM ALLOWANCE UP TO SEPTEMBER 8, 1971, AND NOT THE END OF HIS TEMPORARY DUTY ON SEPTEMBER 21, 1971, WAS ERRONEOUS.

IT IS APPARENTLY YOUR POSITION THAT THE SEPTEMBER 9, 1971, AMENDMENT TO MR. BARRESI'S TRAVEL ORDERS WAS NOT A RETROACTIVE MODIFICATION OF HIS ORIGINAL TRAVEL AUTHORIZATION, BUT RATHER A CORRECTION OF ADMINISTRATIVE ACTION ERRONEOUSLY TAKEN IN CONTRAVENTION OF ESTABLISHED INSTALLATION POLICY AT THE TIME OF ISSUANCE OF THE ORIGINAL ORDERS.

THIS OFFICE HAS CONSISTENTLY RULED THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDER AND ALL FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); AND 48 ID. 119 (1968).

PARAGRAPH C8101, CHANGE 68, OF THE JOINT TRAVEL REGULATIONS (JTR) PROVIDES THAT:

"A. PER DIEM RATES WITHIN THE CONTINENTAL UNITED STATES. A PER DIEM RATE OF $25 IS PRESCRIBED FOR ALL TRAVEL AND TEMPORARY DUTY WITHIN THE CONTINENTAL UNITED STATES OF REGULAR SALARIED EMPLOYEES, EXCEPT AS OTHERWISE PROVIDED HEREIN, OR WHEN A REDUCED PER DIEM RATE IS PRESCRIBED UNDER THE PROVISIONS OF PAR. C8051.

"C. ROUND TRIP IN LESS THAN 24 HOURS. WHEN TEMPORARY DUTY IS COMPLETED IN LESS THAN 24 HOURS FROM TIME OF DEPARTURE TO TIME OF RETURN TO THE PERMANENT STATION AND THE USE OF LODGING IS NOT REQUIRED, A PER DIEM RATE OF $11.80 IS PRESCRIBED. FOR CASES WHEN THE ROUND TRIP IS PERFORMED ENTIRELY WITHIN A 10-HOUR PERIOD OF THE SAME CALENDAR DAY, SEE PAR. C8050- 9."

JTR SECTION C8050, CHANGE 56, PROVIDES AS FOLLOWS:

"4. TEMPORARY DUTY AT NEARBY PLACES OUTSIDE THE PERMANENT DUTY STATION AREA. PER DIEM ALLOWANCE WILL NOT BE AUTHORIZED WHEN AN EMPLOYEE DOES NOT INCUR ADDITIONAL SUBSISTENCE EXPENSES BECAUSE OF A TEMPORARY DUTY ASSIGNMENT IN THE VICINITY OF, BUT OUTSIDE, THE PERMANENT DUTY STATION AREA REGARDLESS OF WHETHER OR NOT TRAVEL BEGINS OR ENDS AT HIS REGULAR PLACE OF DUTY OR HIS RESIDENCE. SUBJECT TO THE LIMITATION IN SUBPAR. AND TO THE EXTENT THAT ADDITIONAL SUBSISTENCE EXPENSES WILL BE INCURRED, AN APPROPRIATE PER DIEM ALLOWANCE MAY BE AUTHORIZED.

"9. TRAVEL FOR 10 HOURS OR LESS DURING SAME CALENDAR DAY. PER DIEM IS NOT ALLOWABLE FOR TEMPORARY DUTY TRAVEL WHEN A TRAVEL PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 0600 HOURS OR TERMINATES AFTER 2000 HOURS. PERMANENT DUTY TRAVEL (SEE PAR. C4000) OF AN EMPLOYEE BY ANY MODE OF TRANSPORTATION IS NOT SUBJECT TO THIS LIMITATION."

JTR SECTION C8051, CHANGE 56, ALSO STATES THAT:

"1. GENERAL. EXCEPT AS OTHERWISE PROVIDED IN PART C, OR WHEN A REDUCED PER DIEM RATE IS PRESCRIBED UNDER THE PROVISIONS OF THIS PARAGRAPH, THE MAXIMUM PER DIEM RATES IN PAR. C8101-2A AND 3A WILL BE PRESCRIBED. EXCEPT UNDER THE CONDITIONS IN SUBPAR. 2E, NO DEPARTMENT OF DEFENSE COMPONENT WILL PRESCRIBE A REDUCED RATE FOR GENERAL APPLICATION AS A MAXIMUM PER DIEM ALLOWANCE FOR ALL PERSONNEL WITHIN THE DEPARTMENT OF DEFENSE COMPONENT. IT IS, HOWEVER, THE RESPONSIBILITY OF EACH TRAVEL APPROVING AND AUTHORIZING OFFICIAL TO AUTHORIZE PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. CARE SHOULD BE EXERCISED TO PREVENT FIXING PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES.

"B. CONSIDERATION OF EXPENSES. CONSIDERATION WILL BE GIVEN TO FIXING A PER DIEM RATE COMMENSURATE WITH THE EXPENSES TO BE INCURRED, WHEN THE COSTS OF LODGING AND MEALS AT THE PLACE WHERE TEMPORARY DUTY IS TO BE PERFORMED ARE FACTUALLY KNOWN OR CAN REASONABLY BE ESTIMATED IN ADVANCE. CONSIDERATION WILL BE GIVEN TO THE COSTS OF LODGING, MEALS, AND INCIDENTAL EXPENSES INCLUDED IN THE PER DIEM ALLOWANCE."

THE EFFECT OF THE FOREGOING QUOTED REGULATORY PROVISIONS IS THAT GENERALLY, EMPLOYEES PERFORMING TEMPORARY DUTY ARE ENTITLED TO A PER DIEM RATE OF $25 (SECTION C8101-2A). HOWEVER, WHERE THE TEMPORARY DUTY INVOLVES ROUND TRIPS OF GREATER THAN 10 BUT LESS THAN 24-HOUR DURATION, A REDUCED PER DIEM RATE OF $11.80 IS PRESCRIBED. SECTIONS C8050-9 AND C8101 -2C, SUPRA. MOREOVER, AS INDICATED BY SECTION C8050-4, WHEN THE TEMPORARY DUTY IS AT NEARBY PLACES OUTSIDE THE PERMANENT DUTY STATION (ALTHOUGH SUCH DUTY MAY BE OF GREATER THAN 10-HOUR DURATION) PER DIEM IS AUTHORIZED ONLY TO THE EXTENT THAT ADDITIONAL SUBSISTENCE EXPENSES ARE INCURRED. HERE THE EMPLOYEE'S PERMANENT DUTY STATION WAS FT. DETRICK, FREDERICK, MARYLAND, WHEREAS THE TRAVEL WAS PERFORMED IN AND AROUND THE VICINITY OF WASHINGTON, D. C., WHERE HE RESIDED. THE DISTANCE BETWEEN FREDERICK, MARYLAND, AND WASHINGTON, D. C., IS APPROXIMATELY 40 MILES.

WITH REGARD TO THE TYPE AND LOCALITY OF THE TRAVEL ENGAGED IN BY MR. BARRESI, WE HAVE BEEN FORMALLY ADVISED BY HIS ADMINISTRATIVE AGENCY BY LETTER OF NOVEMBER 30, 1972, AS FOLLOWS:

"A. AN ESTABLISHED POLICY AND INTERNAL PROCEDURE WITHIN STRATCOM CEEIA AUTHORIZED NO PER DIEM FOR 'LOCAL' TYPE TRAVEL SINCE THE ASSIGNED TEMPORARY DUTY COULD NORMALLY BE ACCOMPLISHED WITHIN THE TIME FRAME OF THE NORMAL WORKDAY. TRAVEL OF THIS TYPE WOULD, IN EFFECT, CONSTITUTE NORMAL COMMUTING TO AND FROM RESIDENCE AND THE PLACE OF DUTY WITH NO ADDITIONAL EXPENSES CONTEMPLATED.

"B. DUE TO THE LARGE NUMBER OF TRAVELERS AFFECTED, THE NATURE OF THE TRAVEL AND THE ABSENCE OF GOVERNMENT TRANSPORTATION, IT WAS DIRECTED THAT POV BE AUTHORIZED AS THE MOST ECONOMICAL MEANS FOR CONDUCTING OFFICIAL BUSINESS. PAYMENT OF MILEAGE WAS, THEREFORE, AUTHORIZED.

"C. THE PURPOSE OF THE ESTABLISHED POLICY GOVERNING TRAVEL AS PERFORMED BY MR. BARRESI WAS TO MINIMIZE TRAVEL COSTS ASSOCIATED WITH OFFICIAL ASSIGNMENTS WHEREIN RESIDENCE AND TDY POINTS WERE IN CLOSE PROXIMITY. SUCH MANAGEMENT DECISION IS CONSIDERED NOT ONLY IN THE BEST INTERESTS OF THE GOVERNMENT BUT ALSO MUTUALLY CONVENIENT TO EMPLOYEES RESIDING IN THE COMMUTING AREA OF THE TEMPORARY DUTY.

"3. WE HAVE BEEN ADVISED THAT ALL STRATCOM-CONUS TRAVELLING PERSONNEL (INCLUDING MR. BARRESI) WERE AWARE OF THE ABOVE POLICY AND THE INTENT OF SUCH POLICY. IT SHOULD BE NOTED NO FIXED PER DIEM RATE WAS CONTEMPLATED NOR AUTHORIZED IN CONJUNCTION WITH THIS TYPE TRAVEL."

THE INSTALLATION POLICY QUOTED ABOVE IN EFFECT DURING THE PERIOD REPRESENTED BY MR. BARRESI'S CLAIM INDICATES THAT A DETERMINATION WAS MADE IN ACCORDANCE WITH THE CONTROLLING REGULATIONS THAT NO PER DIEM WOULD BE AUTHORIZED FOR TEMPORARY DUTY ASSIGNMENTS OF THE TYPE ENGAGED IN BY MR. BARRESI. IN SUCH LIGHT IT IS OUR VIEW THAT THE AUTHORIZATION FOR A PER DIEM ENTITLEMENT IN MR. BARRESI'S TRAVEL ORDERS WAS AN ERROR AND SHOULD HAVE BEEN APPARENT TO HIM BY REASON OF HIS KNOWLEDGE OF SUCH POLICY AT THE TIME THE ORDERS WERE ISSUED. ALSO, SEE GENERALLY BORNHOFT V. UNITED STATES, 137 CT. CL. 134 (1956).

IN LINE WITH THE ABOVE, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IS HEREBY REVERSED AND THE ACTION TAKEN IN COLLECTING THE TRAVEL ADVANCE FROM MR. BARRESI IS NOW REGARDED AS CORRECT.

A COPY OF THIS LETTER IS BEING FURNISHED TO MR. BARRESI.