B-177700, MAR 22, 1973

B-177700, MAR 22, 1973

CIVILIAN EMPLOYEE - PER DIEM - LESS THAN 10 HOURS TRAVEL DECISION ALLOWING THE CLAIM OF JAMES W. BARBER FOR PER DIEM IN LIEU OF SUBSISTENCE FOR TIME SPENT IN AN OFFICIAL TRAVEL STATUS. ALTHOUGH AN AGENCY MAY PROPERLY REFUSE TO AUTHORIZE OR APPROVE PER DIEM FOR ASSIGNMENTS, NOTWITHSTANDING THAT THE ASSIGNMENTS MAY BE OF GREATER THAN 10-HOUR DURATION OR EXCEED 6-HOUR DURATION AND COMMENCE BEFORE 6 A.M. OR TERMINATE AFTER 8 P.M. SINCE THE TRAVEL ORDER IN THIS CASE AUTHORIZED A PER DIEM RATE AND THE TRAVEL PERFORMED SLIGHTLY EXCEEDED 6 HOURS ENDING AFTER 8 P.M., PER DIEM MAY BE AUTHORIZED IN VIEW OF THE REASONS STATED BY THE CLAIMANT FOR HIS DELAY ON THE RETURN TRIP.

TO MR. C. R. MAURER:

THIS REFERS TO YOUR LETTER OF OCTOBER 5, 1972, REFERENCE DDMP-BDA, FORWARDED HERE ON DECEMBER 21, 1972, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, ASSIGNED PDTATAC CONTROL NO. 72-62, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF MR. JAMES W. BARBER REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE UNDER THE CIRCUMSTANCES RELATED BELOW.

THE INFORMATION FURNISHED SHOWS THAT MR. BARBER, A MOTOR VEHICLE OPERATOR, WHOSE PERMANENT DUTY STATION WAS MECHANICSBURG, PENNSYLVANIA, WAS BY TRAVEL ORDER DATED SEPTEMBER 27, 1972, AUTHORIZED TO TRAVEL TO THE PHILADELPHIA INTERNATIONAL AIRPORT, PHILADELPHIA, PENNSYLVANIA, AND RETURN. THE TRAVEL WAS PERFORMED ON SEPTEMBER 25, 1972. A PER DIEM RATE OF $12 WAS AUTHORIZED IN THE TRAVEL ORDER. THE ESTIMATED TRAVEL TIME ON THE TRAVEL ORDER WAS FROM 1745 TO 2350 OR APPROXIMATELY 5 HOURS AND 5 MINUTES. THE EMPLOYEE LEFT MECHANICSBURG AT 5;45 P.M. ARRIVING AT THE PHILADELPHIA INTERNATIONAL AIRPORT AT 8 P.M. HE DEPARTED FROM THE AIRPORT AT 8;30 P.M. ARRIVING AT HIS HEADQUARTERS AT 11;50 P.M. THE TOTAL TIME SPENT ON THE TRIP WAS 6 HOURS AND 5 MINUTES. THE DISTANCE BETWEEN MECHANICSBURG AND PHILADELPHIA INTERNATIONAL AIRPORT IS 107 MILES AND INCLUDES EXTENSIVE TURNPIKE DRIVING. THE CLAIM WAS ADMINISTRATIVELY DISALLOWED ON THE GROUND THAT DUE TO THE DAY OF THE WEEK AND THE TIME OF TRAVEL DURING THE DAY THE LENGTH OF TRAVEL TIME TO PERFORM THE ASSIGNMENT WAS DEEMED UNREASONABLE.

IN SUPPORT OF HIS CLAIM MR. BARBER FURNISHED THE FOLLOWING STATEMENT IN HIS VOUCHER AS THE REASON FOR THE EXTENDED TRAVEL TIME:

TRAFFIC BUILD UP AND ASSUME TRAFFIC TROUBLE ON SCHULYKILL EXPRESSWAY. STOP FOR GAS, FIVE (5) OTHER VEHICLES IN FRONT OF ME. USED REST ROOM. DROVE LEGAL SPEED LIMIT BACK FROM PHILADELPHIA, PA.

RECEIPTS TURNED IN BY MR. BARBER SHOW THAT HE STOPPED AT BOWMANSVILLE (ON THE PENNSYLVANIA TURNPIKE) ON THE WAY TO THE TEMPORARY DUTY STATION AND FILLED THE GOVERNMENT OWNED VEHICLE WITH 10.8 GALLONS OF GASOLINE. ON THE RETURN TRIP MR. BARBER STOPPED AT LAWN (ON THE PENNSYLVANIA TURNPIKE) AND FILLED THE VEHICLE WITH 11.2 GALLONS OF GASOLINE. IT IS STATED THAT THE GOVERNMENT OWNED VEHICLE HOLDS 22 GALLONS OF GASOLINE, AND THAT THE BALANCE OF THE RETURN TRIP TO MECHANICSBURG FROM LAWN (APPROXIMATELY 25 MILES) COULD HAVE BEEN COMPLETED WITHOUT STOPPING FOR GASOLINE.

PARAGRAPH 9 OF SECTION C 8050 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, PROVIDES IN PART AS FOLLOWS:

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. ***

THE ABOVE REGULATION APPARENTLY IS THE DEPARTMENT OF DEFENSE'S IMPLEMENTATION OF SUBSECTION 6.6D(1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THAT SUBSECTION PROVIDES AS FOLLOWS:

COMPUTATION OF BASIC ENTITLEMENT. (1) TRAVEL OF 24 HOURS OR LESS. FOR CONTINUOUS TRAVEL OF 24 HOURS OR LESS, THE TRAVEL PERIOD WILL BE REGARDED AS COMMENCING WITH THE BEGINNING OF THE TRAVEL AND ENDING WITH ITS COMPLETION, AND FOR EACH 6-HOUR PORTION OF THE PERIOD, OR FRACTION OF SUCH PORTION, ONE-FOURTH OF THE PER DIEM RATE FOR A CALENDAR DAY WILL BE ALLOWED: PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE 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 6:00 A.M. OR TERMINATES AFTER 8:00 P.M. (THE PROVISO DOES NOT APPLY IN THE CASE OF TRAVEL INCIDENT TO A CHANGE OF OFFICIAL STATION).

THE EFFECT OF SUBSECTION 6.6D(1), SUPRA, IS TO PRECLUDE PAYMENT OF PER DIEM FOR TRAVEL PERIODS OF 10 HOURS OR LESS DURING THE SAME CALENDAR DAY EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 6 A.M. OR TERMINATES AFTER 8 P.M., AND TO PERMIT PAYMENT OF PER DIEM WHERE NOT SO PRECLUDED. SEE 38 COMP. GEN. 511 (1959); 41 ID. 209 (1961). CF. B- 170291, OCTOBER 21, 1970, COPY ENCLOSED. WHERE PER DIEM IS AUTHORIZED OR APPROVED THAT SUBSECTION HAS THE FURTHER EFFECT OF CREATING A PRESUMPTION THAT AT LEAST SOME OF THOSE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED ARE INCURRED WHEN AN EMPLOYEE'S TRAVEL EXCEEDS 10 HOURS OR WHEN THE PERIOD OF TRAVEL EXCEEDS 6 HOURS AND COMMENCES BEFORE 6 A.M. OR TERMINATES AFTER 8 P.M. AND THAT ONE-QUARTER OF THE DAILY PER DIEM RATE FOR EACH 6 HOURS INVOLVED IS A FAIR RATE OF REIMBURSEMENT.

WE POINT OUT HOWEVER THAT NEITHER SECTION 6.6D(1) NOR PARAGRAPH 9 OF SECTION C8050 OF JTR DIMINISHES AN AGENCY'S DISCRETION IN REGARD TO THE DETERMINATION OF WHETHER A PER DIEM ALLOWANCE IS TO BE AUTHORIZED OR APPROVED IN A PARTICULAR CASE. THAT DISCRETION IS TO BE AUTHORIZED IN ACCORDANCE WITH THE GUIDELINES SET FORTH IN SECTION 6.3, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

6.3 AGENCY RESPONSIBILITY FOR PRESCRIBING INDIVIDUAL RATES. A. GENERAL. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH 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 SUBSISTENCE EXPENSES. ***

THUS, AN AGENCY MAY PROPERLY REFUSE TO AUTHORIZE OR APPROVE PER DIEM FOR ASSIGNMENTS, NOTWITHSTANDING THAT THE ASSIGNMENTS MAY BE OF GREATER THAN 10-HOUR DURATION OR EXCEEDS 6-HOUR DURATION AND COMMENCES BEFORE 6 A.M. OR TERMINATES AFTER 8 P.M.

SINCE THE TRAVEL ORDER AUTHORIZED A PER DIEM RATE AND THE TRAVEL PERFORMED SLIGHTLY EXCEEDED 6 HOURS ENDING AFTER 8 P.M. WE CAN ONLY ASSUME THAT IT WAS ISSUED BY THE DEPARTMENT WITH THE UNDERSTANDING THAT ADDITIONAL EXPENSES WOULD BE INCURRED.

IN THIS PARTICULAR CASE WE NOTE THAT THE EMPLOYEE DEPARTED MECHANICSBURG AT 5;45 P.M. AND ARRIVED AT THE PHILADELPHIA AIRPORT AT 8 P.M. (2 HOURS 15 MINUTES). FOR THE RETURN TRIP HE DEPARTED FROM THE AIRPORT AT 8 P.M. (2 HOURS 15 MINUTES). FOR THE RETURN TRIP HE DEPARTED FROM THE AIRPORT AT 8:30 P.M. AND ARRIVED BACK AT HIS OFFICIAL STATION AT 11:50 P.M. (3 HOURS 20 MINUTES). IN VIEW OF THE REASONS STATED BY THE CLAIMANT FOR HIS DELAY ON THE RETURN TRIP WE DO NOT BELIEVE IT UNREASONABLE TO ASSUME THAT THE TOTAL TRIP CONSUMED UP TO 6 HOURS. THIS WOULD PERMIT THE EMPLOYEE TO QUALIFY FOR ONE-FOURTH DAY PER DIEM. THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR THAT AMOUNT. B-177955, MAR 22, 1973 ..END :