B-177189, FEB 21, 1973

B-177189, FEB 21, 1973

CIVILIAN EMPLOYEE - ADDITIONAL PER DIEM - PREVAILING EXPENSES AT TEMPORARY DUTY LOCATION DECISION SUSTAINING THE DISALLOWANCE OF A CLAIM BY THOMAS G. HAMMANS FOR ADDITIONAL PER DIEM WHILE ON TEMPORARY DUTY AS AN EMPLOYEE OF THE U.S. NAVAL OCEANOGRAPHIC OFFICE. SINCE A DETERMINATION OF PER DIEM RATES, TAKING INTO ACCOUNT THE PREVAILING COST-OF-LIVING RATES AT THE TEMPORARY DUTY LOCATION, WAS MADE BY THE TRAVEL AUTHORIZING OFFICIAL OF THE CLAIMANT'S AGENCY IN ACCORDANCE WITH JTR PARA. C 8051-3, THE $18 RATE OF PER DIEM PRESCRIBED IN CLAIMANT'S TRAVEL ORDERS WAS PROPER. ACCORDINGLY, THE DISALLOWANCE OF ADDITIONAL PER DIEM IS SUSTAINED.

TO MR. THOMAS G. HAMMANS:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 28, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM FOR ADDITIONAL PER DIEM WHILE ON TEMPORARY DUTY AS AN EMPLOYEE OF THE U.S. NAVAL OCEANOGRAPHIC OFFICE.

AS INDICATED BY A SETTLEMENT CERTIFICATE DATED AUGUST 4, 1972, THE RECORD SHOWS THAT UNDER TRAVEL ORDER NO. T-1856-70, ISSUED FEBRUARY 10, 1970, AS AMENDED, YOU DEPARTED FROM YOUR HOME AT ALEXANDRIA, VIRGINIA, ON FEBRUARY 14, 1970, FOR THE PURPOSE OF ATTENDING A TRAINING COURSE AT FORT WALTON BEACH, FLORIDA, WHICH WAS SPONSORED BY VITRO, INC. AT THE CONCLUSION OF SUCH COURSE YOU RETURNED TO YOUR HOME ON APRIL 5, 1970.

DURING THE PERIOD OF THE TEMPORARY DUTY HERE INVOLVED (FEBRUARY 14 - APRIL 5, 1970) YOU WERE AUTHORIZED A PER DIEM ALLOWANCE OF $18. IT IS APPARENTLY YOUR POSITION THAT THE PROPER RATE OF PER DIEM TO WHICH YOU WERE ENTITLED WAS $25.

IN SUPPORT OF YOUR CONTENTION YOU HAVE REFERRED TO A SETTLEMENT OF THIS OFFICE INVOLVING MR. BRENTLEY J. YOUMANS, WHEREIN MR. YOUMANS WAS ALLOWED HIS CLAIM FOR PAYMENT OF A PER DIEM RATE OF $25 WHILE ATTENDING THE SAME TRAINING COURSE WITH YOU AT FORT WALTON BEACH, FLORIDA. MR. YOUMANS ALSO HAD ORIGINALLY BEEN AUTHORIZED PER DIEM AT THE $18 RATE.

THE RECORD FURTHER INDICATES THAT THE $18 PER DIEM RATE PRESCRIBED IN YOUR TRAVEL ORDER WAS BASED UPON PREVAILING MOTEL RATES IN THE FORT WALTON BEACH, FLORIDA, AREA AS WELL AS THE DAILY COST OF MEALS. A STATEMENT TO THIS EFFECT WAS PROVIDED BY A LETTER DATED JANUARY 11, 1971, TO THIS OFFICE, FROM MR. O. J. FUKA, JR., OF THE U.S. NAVAL OCEANOGRAPHIC OFFICE. THIS LETTER STATED PERTINENTLY AS FOLLOWS:

"1. IN ACCORDANCE WITH REFERENCE (A), IT IS THE RESPONSIBILITY OF THE TRAVEL AUTHORIZING OFFICIAL TO DETERMINE PER DIEM RATES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL AND THE TYPE OF ASSIGNMENT.

"2. ON THE BASIS OF THE ABOVE, IT WAS DETERMINED THAT THE AUTHORIZED PER DIEM RATE FOR MR. HAMMANS WOULD BE $18.00 PER DAY. THIS DETERMINATION WAS BASED ON PREVAILING FORT WALTON BEACH, FLORIDA AREA MOTEL RATES WHICH RANGE, DURING OFF TOURIST SEASON, FROM $7.00 TO $10.00 PER DAY FOR SINGLE ROOMS, WEEKLY RATES FROM $42.00 TO $60.00, DAILY COST OF MEALS, $8.00."

PARAGRAPH C8051-3, CHANGE 52, DATED JANUARY 1, 1970, OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR), THE CONTROLLING REGULATIONS FOR THE SUBJECT TEMPORARY DUTY ASSIGNMENT, PROVIDED THAT -

"3. REDUCED PER DIEM RATE. REDUCED PER DIEM RATES FOR CERTAIN CONDITIONS OF TRAVEL ARE AS PRESCRIBED IN PAR. C8101. THE RATES PRESCRIBED ARE MANDATORY EXCEPT THAT A LESSER RATE THAN THE LEGAL MAXIMUM RATES REFERRED TO IN PAR. C8101-2A AND 3A WILL BE PRESCRIBED WHEN IT IS KNOWN THAT THE COST OF LIVING AT A PLACE OF TEMPORARY DUTY ASSIGNMENT DOES NOT JUSTIFY THE MAXIMUM PER DIEM ALLOWANCE. ACCORDINGLY, COMMANDING OFFICERS OR OTHER OFFICIALS WILL TAKE ACTION TO DETERMINE AND PRESCRIBE APPROPRIATE PER DIEM RATES UNDER THE FOLLOWING CONDITIONS:

"1. WHEN SPECIAL QUARTERS AND/OR MEAL FACILITY ARRANGEMENTS ARE MADE, OR ARE FACTUALLY KNOWN (OTHER THAN GOVERNMENT FACILITIES) IN ADVANCE TO BE AVAILABLE AT NOMINAL EXPENSE TO THE TRAVELER, SUCH AS IN CONNECTION WITH ATTENDANCE AT MEETINGS, CONFERENCES, TRAINING COURSES, OR SIMILAR ACTIVITIES;

"2. WHEN REPEATED OR FREQUENT TEMPORARY DUTY ASSIGNMENTS ARE AT THE SAME PLACE UNDER THE SAME CONDITIONS AND IT IS KNOWN THAT LESS COSTLY ARRANGEMENTS CAN BE MADE;

"3. WHEN A TEMPORARY DUTY ASSIGNMENT IS FOR AN EXTENDED PERIOD OF TIME AND LESS THAN THE MAXIMUM PER DIEM RATE IS FACTUALLY JUSTIFIED FOR ALL OR A PORTION OF THE TIME;

"4. WHEN TEMPORARY DUTY IS PERFORMED AT THE PLACE OF FAMILY DOMICILE WHICH IS OTHER THAN THE PLACE OF ABODE FROM WHICH AN EMPLOYEE COMMUTES TO WORK EACH DAY AT HIS PERMANENT DUTY STATION."

WE HAVE BEEN ADVISED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE THAT THE ABOVE-QUOTED PROCEDURE USED BY YOUR ADMINISTRATIVE AGENCY IN LIMITING YOUR PER DIEM ENTITLEMENT TO $18 WAS IN ACCORDANCE WITH THE CONTROLLING PROVISIONS OF JTR. FOLLOWS THEREFORE THAT THE $18 RATE OF PER DIEM PRESCRIBED IN YOUR TRAVEL ORDERS WAS REACHED IN COMPLIANCE WITH THE COGNIZANT REGULATIONS, AND, ALSO WAS PROPER.

IT APPEARS THAT THE REASON MR. YOUMANS WAS SUCCESSFUL IN SEEKING THE $25 PER DIEM RATE WAS THAT AT THE TIME OF CONSIDERATION OF HIS CLAIM THERE WAS ABSENT FROM THE RECORD (ATTACHED TO HIS FILE) A STATEMENT FROM COGNIZANT ADMINISTRATIVE OFFICIALS JUSTIFYING THE LESSER (18) RATE OF PER DIEM. SUCH A STATEMENT WAS, AS INDICATED ABOVE, INCLUDED WITH YOUR CLAIM FILE AND WAS DETERMINATIVE OF THE OUTCOME IN YOUR CASE.

IT IS OUR VIEW THAT THE OMISSION OF THE STATEMENT JUSTIFYING THE $18 PER DIEM RATE FROM MR. YOUMANS' CLAIM FILE WAS AN ADMINISTRATIVE OVERSIGHT. IN SUCH LIGHT, THE DETERMINATION REACHED THEREON WAS NOT BASED UPON THE COMPLETE RECORD AND ACTION WILL BE TAKEN TO RECOVER THE ADDITIONAL AMOUNT ALLOWED TO MR. YOUMANS.

ACCORDINGLY, AND ON THE BASIS OF THE FOREGOING THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL PER DIEM BY THE ABOVE-REFERENCED SETTLEMENT CERTIFICATE OF AUGUST 4, 1972, WAS PROPER AND IS HEREBY SUSTAINED.