B-177478, FEB 6, 1973, 52 COMP GEN 493

B-177478: Feb 6, 1973

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NOTWITHSTANDING THE EMPLOYEE WAS NOT ON AUTHORIZED LEAVE WITHOUT PAY. THERE IS NO AUTHORITY TO RETURN THE DECEASED EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE TO HIS HOME. PER DIEM FOR THE PERIOD THE EMPLOYEE WAS ABSENT WITHOUT LEAVE IS NOT PAYABLE UNLESS THE ABSENCE WAS DUE TO ILLNESS OR INJURY AND NOT TO THE EMPLOYEE'S MISCONDUCT. WHILE HE WAS ON TEMPORARY DUTY AWAY FROM HIS OFFICIAL STATION. WHOSE OFFICIAL STATION WAS APPARENTLY IN NEWARK. WAS DETAILED TO THE AGENCY'S OFFICE IN CHICAGO. MCGUIRE WAS RELEASED FROM CUSTODY EARLY ON TUESDAY. HE DID NOT REPORT FOR WORK AND ALL ATTEMPTS TO FIND HIM WERE UNSUCCESSFUL UNTIL IT WAS LEARNED THAT HE HAD BEEN FOUND DEAD BY HIS LANDLADY ON THE MORNING OF AUGUST 18.

B-177478, FEB 6, 1973, 52 COMP GEN 493

OFFICERS AND EMPLOYEES - DEATH OR INJURY - LIABILITY OF GOVERNMENT - EMPLOYEE ON TEMPORARY DUTY THE WIDOW OF AN EMPLOYEE WHO DIED WHILE ON TEMPORARY DUTY AWAY FROM HIS OFFICIAL STATION MAY BE PAID, PURSUANT TO EXECUTIVE ORDER 8557, AS AMENDED BY OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR A-92, ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5742, THE COST OF PREPARING THE REMAINS, LIMITED TO $250, THE CHARGES INCURRED FOR TRANSPORTING THE REMAINS, INCLUDING THE COST OF AN OUTSIDE SHIPPING CASE, AND THE PREPARATION OF THE CASKET FOR SHIPMENT, AS WELL AS THE COST OF NECESSARY COPIES OF THE DEATH CERTIFICATE INCIDENT TO THE TRANSPORTATION OF REMAINS, NOTWITHSTANDING THE EMPLOYEE WAS NOT ON AUTHORIZED LEAVE WITHOUT PAY. HOWEVER, THERE IS NO AUTHORITY TO RETURN THE DECEASED EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE TO HIS HOME, AND IN ACCORDANCE WITH OMB CIRCULAR NO. A-7, PER DIEM FOR THE PERIOD THE EMPLOYEE WAS ABSENT WITHOUT LEAVE IS NOT PAYABLE UNLESS THE ABSENCE WAS DUE TO ILLNESS OR INJURY AND NOT TO THE EMPLOYEE'S MISCONDUCT.

TO STEVE F. HELLER, UNITED STATES DEPARTMENT OF AGRICULTURE, FEBRUARY 6, 1973:

WE REFER TO YOUR LETTER OF OCTOBER 27, 1972, BY WHICH YOU REQUEST OUR ADVANCE DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER TO PAY MRS. MARY MCGUIRE CERTAIN AMOUNTS INCIDENT TO THE DEATH OF HER HUSBAND, RICHARD J. MCGUIRE, JR., AN EMPLOYEE OF THE AGRICULTURAL MARKETING SERVICE, WHILE HE WAS ON TEMPORARY DUTY AWAY FROM HIS OFFICIAL STATION.

MR. MCGUIRE, WHOSE OFFICIAL STATION WAS APPARENTLY IN NEWARK, NEW JERSEY, WAS DETAILED TO THE AGENCY'S OFFICE IN CHICAGO, ILLINOIS, BEGINNING ON MONDAY, JULY 24, 1972. THE FOLLOWING MONDAY, JULY 31, HE FAILED TO REPORT FOR WORK HAVING BEEN DETAINED BY THE POLICE ON A CHARGE OF INTOXICATION. ALTHOUGH MR. MCGUIRE WAS RELEASED FROM CUSTODY EARLY ON TUESDAY, AUGUST 1, HE DID NOT REPORT FOR WORK AND ALL ATTEMPTS TO FIND HIM WERE UNSUCCESSFUL UNTIL IT WAS LEARNED THAT HE HAD BEEN FOUND DEAD BY HIS LANDLADY ON THE MORNING OF AUGUST 18. DURING THE PERIOD OF HIS ABSENCE FROM JULY 31 TO AUGUST 18, MR. MCGUIRE WAS CONSIDERED TO BE ABSENT WITHOUT LEAVE.

THE VOUCHER PRESENTED REPRESENTS REIMBURSEMENT FOR PER DIEM AT THE RATE OF $13 FROM JULY 31 THROUGH AUGUST 17; CHARGES FOR PREPARATION OF THE EMPLOYEE'S BODY FOR BURIAL, TRANSPORTATION THEREOF TO HIS OFFICIAL STATION, DEATH CERTIFICATES, AND THE COST OF SHIPPING THE EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE FROM CHICAGO TO HIS HOME IN NEW JERSEY. THE TOTAL AMOUNT INVOLVED IS $804.23.

REGARDING THE COSTS WHICH WERE INCURRED AS A RESULT OF THE EMPLOYEE'S DEATH WHILE ON TEMPORARY DUTY, EXECUTIVE ORDER 8557, AS AMENDED BY BUREAU OF THE BUDGET (NOW OFFICE OF MANAGEMENT AND BUDGET) CIRCULAR NO. A-92, FEBRUARY 13, 1969, ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5742 AND PRIOR LEGISLATION FROM WHICH THAT SECTION WAS DERIVED, PROVIDES AUTHORITY FOR PAYMENT BY THE GOVERNMENT OF CERTAIN EXPENSES WHEN AN EMPLOYEE DIES WHILE ON TEMPORARY DUTY. SUBSECTION (D) OF SUCH PROVISION OF LAW SPECIFICALLY STATES THAT THE BENEFITS THEREOF SHALL NOT BE DENIED BECAUSE THE DECEASED WAS TEMPORARILY ABSENT FROM DUTY WHEN DEATH OCCURRED. WE HAVE RECOGNIZED THAT ABSENCE IN AN AUTHORIZED LEAVE-WITHOUT-PAY STATUS DOES NOT DEFEAT ELIGIBILITY UNDER THE LAW AND REGULATIONS IN QUESTION. 43 COMP. GEN. 128(1963). WHILE THE EMPLOYEE HERE WAS NOT ON AUTHORIZED LEAVE WITHOUT PAY, WE DO NOT BELIEVE THAT ANY DISTINCTION IS WARRANTED UNDER THE WORDING OF THE STATUTORY PROVISIONS ABOVE. IT APPEARS, THEREFORE, THAT REIMBURSEMENT IN ACCORDANCE WITH EXECUTIVE ORDER 8557, AS AMENDED, IS AUTHORIZED. UNDER THE PROVISION OF SUCH EXECUTIVE ORDER, AS AMENDED, AND CIRCULAR NO. A 92, THE GOVERNMENT'S PAYMENT FOR PREPARATION OF REMAINS IS LIMITED TO $250. THUS, ONLY THAT PART OF THE $350 CHARGED FOR THOSE SERVICES IS REIMBURSABLE. SECTION 4 OF THE EXECUTIVE ORDER AUTHORIZES REIMBURSEMENT OF CHARGES FOR TRANSPORTING THE REMAINS INCLUDING THE COST OF AN "OUTSIDE CASE FOR SHIPMENT" AND PREPARATION OF THE CASKET FOR SHIPMENT. UNDER THAT SECTION THE SHIPPING CHARGES OF $103.23 AND THE $30 "C.M.A.S." CHARGE - A CHARGE BY THE CMAS COMPANY FOR RENTAL OF PADDING TO PROTECT THE CASKET AND PREPARE IT FOR AIR SHIPMENT - WOULD BE ALLOWABLE IF OTHERWISE CORRECT. THE COST OF COPIES OF THE DEATH CERTIFICATE, $7, WOULD ALSO BE REIMBURSABLE TO THE EXTENT SUCH CERTIFICATES WERE NECESSARY IN CONNECTION WITH TRANSPORTATION OF THE REMAINS.

EXECUTIVE ORDER 8557 DOES NOT AUTHORIZE REIMBURSEMENT OF THE COST OF RETURNING THE EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE TO HIS HOME AT HIS OFFICIAL STATION AND WE ARE NOT AWARE OF ANY OTHER AUTHORITY FOR REIMBURSEMENT OF THAT COST. ACCORDINGLY, THE $80 CLAIMED FOR THAT SERVICE MAY NOT BE ALLOWED.

THE REIMBURSEMENT OF PER DIEM FOR THE PERIOD THE EMPLOYEE WAS ABSENT WITHOUT LEAVE MUST ALSO BE DISALLOWED UNDER THE PROVISIONS OF SECTION 6.5 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-7, REVISED AUGUST 17, 1971, UNLESS IT IS DETERMINED BY PROPER AUTHORITIES IN YOUR AGENCY THAT THE EMPLOYEE'S ABSENCE RESULTED FROM ILLNESS OR INJURY NOT DUE TO THE EMPLOYEE'S OWN MISCONDUCT. SEE SECTION 6.5B OF THE CITED REGULATION. SINCE YOU HAVE PROVIDED NO INFORMATION AS TO THE REASON FOR MR. MCGUIRE'S ABSENCE FROM WORK FROM AUGUST 1 THROUGH AUGUST 17 OR THE CIRCUMSTANCES SURROUNDING HIS DEATH, WE ARE UNABLE TO DETERMINE WHETHER PER DIEM WOULD BE ALLOWABLE FOR THAT PERIOD.

ACTION ON THE VOUCHER PRESENTED, WHICH IS RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS, SHOULD BE IN ACCORDANCE WITH THE ABOVE.