B-180138, MAY 2, 1974

B-180138: May 2, 1974

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WHO WAS DISALLOWED PER DIEM FOR 3 QUARTER DAYS UPON FAILURE TO PROVIDE ADMINISTRATIVELY ACCEPTABLE REASONS FOR CONCLUSION OF TEMPORARY DUTY TRAVEL WITHIN 30 MINUTES AFTER BEGINNING OF QUARTER DAY. CLAIMS THAT ADMINISTRATIVE STATEMENT THAT HE DID NOT FURNISH REASONS IS UNTRUE. DISALLOWANCE OF RECLAIM IS SUSTAINED SINCE IT IS WELL SETTLED THAT WHEN INFORMATION FURNISHED BY EMPLOYEE AND THAT FURNISHED BY ADMINISTRATIVE OFFICE IS CONTRADICTORY. JUSTIFY PAYMENT OF ADDITIONAL QUARTER DAY PER DIEM IS ADMINISTRATIVE DECISION FOR AGENCY CONCERNED AND GAO WILL NOT QUESTION DETERMINATION UNLESS IT IS CLEARLY SHOWN THAT AGENCY'S DETERMINATION WAS ARBITRARY AND CAPRICIOUS. PER DIEM FOR THE LAST QUARTER OF EACH DAY WAS ADMINISTRATIVELY DISALLOWED.

B-180138, MAY 2, 1974

EMPLOYEE, WHO WAS DISALLOWED PER DIEM FOR 3 QUARTER DAYS UPON FAILURE TO PROVIDE ADMINISTRATIVELY ACCEPTABLE REASONS FOR CONCLUSION OF TEMPORARY DUTY TRAVEL WITHIN 30 MINUTES AFTER BEGINNING OF QUARTER DAY, AS PROVIDED BY SECTION 6.6E, SGTR, CLAIMS THAT ADMINISTRATIVE STATEMENT THAT HE DID NOT FURNISH REASONS IS UNTRUE. DISALLOWANCE OF RECLAIM IS SUSTAINED SINCE IT IS WELL SETTLED THAT WHEN INFORMATION FURNISHED BY EMPLOYEE AND THAT FURNISHED BY ADMINISTRATIVE OFFICE IS CONTRADICTORY, GAO ACCEPTS THAT FURNISHED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME PRESUMPTION OF THE CORRECTNESS THEREOF, AND EMPLOYEE HAS NOT FURNISHED SUCH EVIDENCE. A DETERMINATION AS TO WHETHER REASONS PRESENTED BY EMPLOYEE REGARDING OFFICIAL NECESSITY FOR CONCLUDING TRAVEL WITHIN 30 MINUTES AFTER BEGINNING OF QUARTER DAY, AS REQUIRED BY SECTION 6.6E OF SGTR, JUSTIFY PAYMENT OF ADDITIONAL QUARTER DAY PER DIEM IS ADMINISTRATIVE DECISION FOR AGENCY CONCERNED AND GAO WILL NOT QUESTION DETERMINATION UNLESS IT IS CLEARLY SHOWN THAT AGENCY'S DETERMINATION WAS ARBITRARY AND CAPRICIOUS.

TO MR. ISIDORE I. HELLMAN:

THIS MATTER INVOLVES A RECONSIDERATION OF THE DISALLOWANCE BY OUR OFFICE'S TRANSPORTATION AND CLAIMS DIVISION IN A SETTLEMENT CERTIFICATE DATED JULY 31, 1973, OF THE CLAIM OF MR. ISIDORE I. HELLMAN, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION, FOR ADDITIONAL PER DIEM IN CONNECTION WITH TRAVEL PERFORMED INCIDENT TO HIS EMPLOYMENT.

MR. HELLMAN, PURSUANT TO TRAVEL AUTHORIZATION 11700-72-001, DATED JULY 1, 1971, TRAVELED BY GOVERNMENT-OWNED VEHICLE ON A SERIES OF SHORT TEMPORARY DUTY ASSIGNMENTS TO VARIOUS LOCATIONS DURING THE PERIOD FROM FEBRUARY 9 TO FEBRUARY 24, 1972. ON THREE OCCASIONS DURING THIS PERIOD MR. HELLMAN CONCLUDED HIS TRAVEL BY RETURNING TO HIS RESIDENCE BETWEEN 6:00 P.M. AND 6:30 P.M. PER DIEM FOR THE LAST QUARTER OF EACH DAY WAS ADMINISTRATIVELY DISALLOWED. THE RECLAIM OF THE PER DIEM FOR THE 3 QUARTER DAYS WAS SUBSEQUENTLY DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION.

THE ADMINISTRATIVE REPORT, DATED JULY 9, 1973, IN THE MATTER STATES THAT PAYMENT WAS DISALLOWED BECAUSE MR. HELLMAN FAILED TO PROVIDE AN EXPLANATION REGARDING THE OFFICIAL NECESSITY FOR THE TIME OF HIS RETURNS BETWEEN 6:00 AND 6:30 P.M. AS REQUIRED BY APPLICABLE REGULATIONS. MR. HELLMAN CLAIMS THAT THE ADMINISTRATIVE STATEMENT THAT HE WAS UNABLE TO PROVIDE REASONS FOR HIS DELAY "IS NOT TRUE" AND THAT HE WAS ADVISED THAT HE WOULD NOT BE REIMBURSED THE SUSPENDED AMOUNT BECAUSE HE HAD CONCLUDED HIS TRAVEL WITHIN 30 MINUTES AFTER THE BEGINNING OF A QUARTER DAY AND HIS TRAVEL BY GOVERNMENT VEHICLE HAD NOT BEEN IN CONJUNCTION WITH TRAVEL BY A COMMON CARRIER. MR. HELLMAN FURTHER CONTENDS THAT THE APPLICABLE REGULATIONS REGARDING RETURN FROM OFFICIAL TRAVEL WITHIN 30 MINUTES OF THE BEGINNING OF A QUARTER DAY ARE "DISCRIMINATORY" BECAUSE THEY PROVIDE DIFFERENT STANDARDS FOR EMPLOYEES TRAVELING ON OFFICIAL DUTY ENTIRELY BY AUTOMOBILE FROM THOSE APPLIED TO EMPLOYEES USING AUTOMOBILES ONLY FOR TRANSPORTATION TO AND FROM A COMMON CARRIER TERMINAL.

SECTION 6.6E OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR), REVISED EFFECTIVE OCTOBER 10, 1971 (NOW SECTION 1-7.6E OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1, 1973), IN EFFECT AT THE TIME OF THE TRAVEL HERE INVOLVED, PROVIDED AS FOLLOWS:

"E. BEGINNING AND ENDING OF ENTITLEMENT. FOR COMPUTING PER DIEM ALLOWANCES OFFICIAL TRAVEL BEGINS AT THE TIME THE TRAVELER LEAVES HIS HOME, OFFICE, OR OTHER POINT OF DEPARTURE AND ENDS WHEN THE TRAVELER RETURNS TO HIS HOME, OFFICE, OR OTHER POINT AT THE CONCLUSION OF HIS TRIP. HOWEVER, WHEN THE TIME OF DEPARTURE IS WITHIN 30 MINUTES PRIOR TO THE END OF A QUARTER DAY, OR THE TIME OF RETURN IS WITHIN 30 MINUTES AFTER THE BEGINNING OF A QUARTER DAY, PER DIEM FOR EITHER SUCH QUARTER DAY WILL NOT BE ALLOWED IN THE ABSENCE OF A STATEMENT WITH THE TRAVEL VOUCHER EXPLAINING THE OFFICIAL NECESSITY FOR THE TIME OF DEPARTURE OR RETURN."

UNDER THAT SECTION THE ADMINISTRATIVE REQUIREMENT THAT MR. HELLMAN JUSTIFY HIS ARRIVAL TIMES FOR THE DAYS IN QUESTION WAS PROPER. IN THE ABSENCE OF AN ACCEPTABLE EXPLANATION REGARDING SUCH ARRIVAL TIMES DISALLOWANCE OF PER DIEM FOR THE QUARTER DAYS INVOLVED WAS REQUIRED.

MR. HELLMAN STATES THAT THE STATEMENT IN THE ADMINISTRATIVE REPORT THAT HE WAS UNABLE TO PRESENT REASONS FOR HIS DELAYS SO THAT THE AUTHORIZING OFFICIAL COULD CONSIDER THEIR ACCEPTANCE "IS NOT TRUE," BUT HE DOES NOT INDICATE WHAT THE REASONS FOR HIS DELAYS WERE OR STATE SPECIFICALLY THAT HE PROVIDED THOSE REASONS TO THE APPROPRIATE OFFICIALS IN HIS AGENCY. HAS LONG BEEN THE RULE OF THIS OFFICE, IN CIRCUMSTANCES WHERE THE INFORMATION FURNISHED BY THE EMPLOYEE AND THAT FURNISHED BY THE ADMINISTRATIVE OFFICE IS CONTRADICTORY, TO ACCEPT THE STATEMENT OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME A PRESUMPTION OF THE CORRECTNESS THEREOF. 40 COMP. GEN. 178, 180 (1960). NOTHING FURNISHED BY MR. HELLMAN SERVES TO OVERCOME THE EVIDENCE FURNISHED BY THE ADMINISTRATIVE OFFICE. FURTHER, THE FINAL DETERMINATION AS TO THE ACCEPTABILITY OF REASONS PRESENTED FOR ARRIVING WITHIN 30 MINUTES OF THE BEGINNING OF A QUARTER DAY IS A MATTER FOR THE AGENCY CONCERNED AND THIS OFFICE WILL NOT QUESTION THAT DETERMINATION UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY'S DETERMINATION WAS ARBITRARY AND CAPRICIOUS.

AS TO MR. HELLMAN'S CONTENTION THAT THE REGULATIONS IN QUESTION ARE DISCRIMINATORY, HE REFERS TO SECTION 6.6E, SGTR, AND STATES THAT WHEN THAT SECTION IS READ IN CONJUNCTION WITH THE IMPLEMENTING INTERNAL FAA TRAVEL REGULATIONS, A COPY OF WHICH HE ENCLOSES, THEY BECOME DISCRIMINATORY BECAUSE THEY PROVIDE DIFFERENT STANDARDS FOR PAYMENT OF PER DIEM TO EMPLOYEES TRAVELING ON OFFICIAL BUSINESS ENTIRELY BY AUTOMOBILE FROM THOSE APPLIED TO EMPLOYEES USING AN AUTOMOBILE ONLY FOR TRANSPORTATION TO AND FROM A COMMON CARRIER.

PRIOR TO OCTOBER 10, 1971, THE EFFECTIVE DATE OF SECTION 6.6E, SGTR, THE APPLICABLE REGULATIONS REGARDING BEGINNING AND ENDING OF ENTITLEMENT TO PER DIEM WERE CONTAINED IN SECTION 6.9C, SGTR, WHICH PROVIDED THAT IN COMPUTING PER DIEM ALLOWANCES OFFICIAL TRAVEL BEGAN WHEN THE COMMON CARRIER DEPARTED FROM THE TERMINAL AND ENDED WHEN IT ARRIVED AT THE TERMINAL AT THE CONCLUSION OF THE TRIP. AN EXCEPTION WAS AUTHORIZED IN THE CASE OF A TRAVELER USING AN AUTOMOBILE OR OTHER NONSCHEDULED MEANS OF TRANSPORTATION BETWEEN HIS HOME, OFFICE OR OTHER PLACE OF DEPARTURE AND A COMMON CARRIER TERMINAL LOCATED MORE THAN 50 MILES DISTANT. IN SUCH A CASE PER DIEM ENTITLEMENT BEGAN WHEN THE EMPLOYEE LEFT HIS HOME, OFFICE OR OTHER POINT OF DEPARTURE AND ENDED AT THE TIME HE ARRIVED BACK AT HIS HOME, OFFICE OR OTHER POINT. ALSO, UNDER SECTION 6.9C, WHEN AN EMPLOYEE TRAVELED ENTIRELY BY AUTOMOBILE ON A TEMPORARY DUTY ASSIGNMENT HIS PER DIEM ENTITLEMENT BEGAN AT THE TIME HE LEFT HIS HOME, OFFICE OR OTHER POINT AND ENDED WHEN HE ARRIVED AT ONE OF THOSE POINTS AT THE CONCLUSION OF HIS TRIP, PROVIDED THAT DEPARTURES OR ARRIVALS WITHIN 30 MINUTES OF THE BEGINNING OF A QUARTER DAY WERE JUSTIFIED.

SECTION 6.6E, SGTR, AMENDED SECTION 6.9C, SGTR, BY PROVIDING THAT ENTITLEMENT TO PER DIEM BEGINS AT THE TIME THE EMPLOYEE LEAVES HIS HOME WITHOUT REGARD TO THE FACT THAT HE MIGHT BE EN ROUTE TO A COMMON CARRIER TERMINAL. HOWEVER, ANY DEPARTURE, REGARDLESS OF MODE OF TRAVEL, WITHIN 30 MINUTES BEFORE THE BEGINNING OF A QUARTER DAY OR ANY ARRIVAL WITHIN 30 MINUTES AFTER THE BEGINNING OF A QUARTER DAY WAS REQUIRED TO BE EXPLAINED. SECTION 6.6E, SGTR, WAS IN EFFECT AT THE TIME MR. HELLMAN PERFORMED HIS TRAVEL AND, THEREFORE, THE FAA REGULATIONS ENCLOSED BY HIM WHICH HAD IMPLEMENTED THE PREVIOUS SECTION 6.9C OF SGTR, WERE NO LONGER FOR APPLICATION AT THE TIME OF HIS TRAVEL. SINCE MR. HELLMAN'S TRAVEL WAS PERFORMED UNDER THE AMENDED SGTR PROVIDING A UNIFORM BASIS FOR COMPUTING PER DIEM ENTITLEMENT, REGARDLESS OF MODE OF TRAVEL, THE QUESTION OF WHETHER OR NOT THE PREVIOUS REGULATIONS WERE DISCRIMINATORY IS NOT PERTINENT.

THE PREVIOUS DISALLOWANCE OF MR. HELLMAN'S CLAIM IS SUSTAINED.