B-185932, MAY 27, 1976

B-185932: May 27, 1976

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THIS DOES NOT ENTITLE EMPLOYEE TO PER DIEM WHEN HE PERFORMS SUBSTANTIAL OFFICIAL DUTY WHICH IS UNRELATED TO HIS ACTING AS PILOT BEFORE FINAL DEPARTURE FROM OFFICE OR ON RETURN THERETO. 3. PER DIEM MAY NOT BE ALLOWED SINCE THE SUBSISTENCE OF CIVILIAN EMPLOYEES AT THEIR OFFICIAL STATION IS PERSONAL TO SUCH EMPLOYEES AND MAY NOT BE REIMBURSED. ALTHOUGH CIVILIAN EMPLOYEE WAS NOT ABSOLUTELY PRECLUDED FROM BEING PAID PER DIEM UNDER FTR PARA. 1-7.6(D)(1). HE IS NOT THEREBY AUTOMATICALLY ENTITLED TO PER DIEM SINCE THAT PARAGRAPH MERELY PRECLUDES PAYMENT IN CERTAIN CIRCUMSTANCES. WHETHER PILOT-EMPLOYEE PERFORMING OFFICIAL TRAVEL OF LESS THAN 24 HOURS AWAY FROM PERMANENT DUTY STATION IS ENTITLED TO PER DIEM DEPENDS ON ADMINISTRATIVE DETERMINATION THAT SUCH EMPLOYEE IN FACT INCURS ADDITIONAL EXPENSE BY VIRTUE OF TRAVEL.

B-185932, MAY 27, 1976

1. CIVILIAN EMPLOYEE, AN AIRPLANE PILOT, PERFORMING OFFICIAL TRAVEL OF LESS THAN 24 HOURS, MADE TOUCHDOWN STOP AT PERMANENT DUTY STATION TO REFUEL OR TO EMPLANE OR DEPLANE PASSENGERS AND CONTINUED JOURNEY, RETURNING THERETO AT END OF MISSION. SUCH TOUCHDOWN DID NOT CONSTITUTE THE "CONCLUSION OF HIS TRIP" WITHIN MEANING OF FEDERAL TRAVEL REGULATION (FPMR 101-7), PARA. 1-7.6E (MAY 1973), SINCE THE INTENT OF THE REGULATIONS WOULD BE MET BY CONSIDERING THE TIME FROM BEGINNING TO END OF TRAVEL, EXCLUSIVE OF TOUCHDOWN TIME AT STATION, ONE CONTINUOUS JOURNEY. 2. CIVILIAN PILOT-EMPLOYEE, MAKING TOUCHDOWN STOP AT PERMANENT STATION INCIDENT TO LONGER JOURNEY MAY, IF OTHERWISE PROPER, BE PAID PER DIEM FOR TIME SPENT IN TRAVEL FROM BEGINNING TO END OF JOURNEY, LESS TIME SPENT FOR TOUCHDOWN AT STATION. THIS DOES NOT ENTITLE EMPLOYEE TO PER DIEM WHEN HE PERFORMS SUBSTANTIAL OFFICIAL DUTY WHICH IS UNRELATED TO HIS ACTING AS PILOT BEFORE FINAL DEPARTURE FROM OFFICE OR ON RETURN THERETO. 3. WHERE, INCIDENT TO LONGER JOURNEY, PILOT-EMPLOYEE MAKES TOUCHDOWN STOP AT PERMANENT DUTY STATION, AND THERE CONSUMES MEAL, PER DIEM MAY NOT BE ALLOWED SINCE THE SUBSISTENCE OF CIVILIAN EMPLOYEES AT THEIR OFFICIAL STATION IS PERSONAL TO SUCH EMPLOYEES AND MAY NOT BE REIMBURSED. FTR PARA. 1-7.6A. 4. ALTHOUGH CIVILIAN EMPLOYEE WAS NOT ABSOLUTELY PRECLUDED FROM BEING PAID PER DIEM UNDER FTR PARA. 1-7.6(D)(1), HE IS NOT THEREBY AUTOMATICALLY ENTITLED TO PER DIEM SINCE THAT PARAGRAPH MERELY PRECLUDES PAYMENT IN CERTAIN CIRCUMSTANCES; IT DOES NOT MANDATE OR REQUIRE PAYMENT IN ABSENCE OF SUCH CIRCUMSTANCES. 5. WHETHER PILOT-EMPLOYEE PERFORMING OFFICIAL TRAVEL OF LESS THAN 24 HOURS AWAY FROM PERMANENT DUTY STATION IS ENTITLED TO PER DIEM DEPENDS ON ADMINISTRATIVE DETERMINATION THAT SUCH EMPLOYEE IN FACT INCURS ADDITIONAL EXPENSE BY VIRTUE OF TRAVEL. IN ABSENCE OF ADDITIONAL EXPENSE, AGENCY MAY AND PROPERLY SHOULD REFUSE TO AUTHORIZE PER DIEM SINCE ALLOWANCE IS ONLY FOR PURPOSE OF REIMBURSING TRAVELER FOR ADDITIONAL COST OF EATING IN PUBLIC PLACE WHILE MAINTAINING OWN TABLE. FTR PARA. 1-7.3A.

W. PAUL WOODARD - LEGALITY OF PAYMENT OF PER DIEM ALLOWANCE FOR TRAVEL OF LESS THAN 24 HOURS:

THIS ACTION IS BEFORE US ON A REQUEST DATED FEBRUARY 13, 1976, FROM BEN T. SUMIDA, AN AUTHORIZED CERTIFYING OFFICER OF THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, FOR A DECISION AS TO THE LEGALITY OF THE PAYMENT TO MR. W. PAUL WOODARD OF $70 FROM IMPREST FUNDS, REPRESENTING PER DIEM ALLOWANCES FOR SUBSISTENCE INCIDENT TO OFFICIAL TRAVEL FOR TRIPS OF LESS THAN 24 HOURS.

THE RECORD INDICATES THAT MR. WOODARD, AN AIRPLANE PILOT STATIONED AT BISMARCK, NORTH DAKOTA, WAS REIMBURSED AT THE PREVAILING RATE OF PER DIEM FOR OFFICIAL TRAVEL OF LESS THAN 24 HOURS PERFORMED ON 10 SEPARATE DAYS DURING THE PERIOD JULY 16, 1975, THROUGH OCTOBER 31, 1975. NONE OF THE TRIPS INVOLVED AN OVERNIGHT STAY AWAY FROM THE PILOT'S DUTY STATION. EACH TRIP INVOLVED AT LEAST ONE TOUCHDOWN PER DAY AT THE BISMARCK AIRPORT TO REFUEL OR TO EMPLANE OR DEPLANE PASSENGERS. THE DURATION OF THE TOUCHDOWN PERIOD VARIED FROM 12 MINUTES TO 2 1/2 HOURS. TRAVEL DIARIES OF THE TRIPS INDICATE, WITH THE EXCEPTION OF AUGUST 14, 1975, THAT DURING THE TRAVEL STATUS, MEALS WERE TAKEN AT LOCATIONS OTHER THAN THE PILOT'S OFFICIAL DUTY STATION. WE HAVE BEEN ASKED TO DECIDE WHETHER, UNDER THESE CIRCUMSTANCES, THE PER DIEM PAYMENTS WERE PROPER.

WITH RESPECT TO THE EMPLOYEE'S TRAVEL ON AUGUST 14, 1975, THE CERTIFYING OFFICER SUGGESTS, ALTHOUGH THE RECORD DOES NOT CONCLUSIVELY ESTABLISH, THAT THE PILOT'S LUNCH WAS TAKEN AT HIS PERMANENT DUTY STATION. IF, AS ADMINISTRATIVELY DETERMINED, THE MEAL WAS SO TAKEN ON THAT DATE, THE PAYMENT OF PER DIEM WAS NOT PROPER AND SHOULD BE RECOVERED FROM THE EMPLOYEE, SINCE THE SUBSISTENCE OF CIVILIAN EMPLOYEES AT THEIR OFFICIAL DUTY STATION IS PERSONAL TO SUCH EMPLOYEES AND, IN THE ABSENCE OF SPECIFIC AUTHORITY, MAY NOT BE PROVIDED AT GOVERNMENT EXPENSE REGARDLESS OF ANY UNUSUAL WORKING CONDITIONS. B-169163, SEPTEMBER 11, 1970.

REGARDING THE REMAINING PERIODS OF TRAVEL FOR WHICH PER DIEM IS CLAIMED, THE THRESHOLD ISSUE IS WHETHER THE PILOT'S TOUCHDOWN AT HIS PERMANENT DUTY STATION CONSTITUTED THE "CONCLUSION OF HIS TRIP" WITHIN THE MEANING OF FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 1-7.6E (MAY 1973), THUS ESTABLISHING THE TIME FRAME UNDER WHICH THE EMPLOYEE'S ENTITLEMENT TO PER DIEM IS COMPUTED PURSUANT TO FTR PARA. 1-7.6D(1).

THE PER DIEM ALLOWANCE IS TYPICALLY APPROVED FOR OFFICERS AND EMPLOYEES EN ROUTE TO AND FROM TEMPORARY DUTY STATIONS, BUT IT IS NOT ABSOLUTELY LIMITED TO SUCH SITUATIONS. B-173978, OCTOBER 12, 1971. WHILE THE NATURE OF AN EMPLOYEE'S DUTY MAY REQUIRE CONSTANT TRAVEL, WE HAVE HELD THAT TRAVEL IN THE VICINITY OF, BUT NOT AT HIS PERMANENT DUTY STATION, MAY BE CONSIDERED AS TRAVEL ON OFFICIAL DUTY UNDER THE CIRCUMSTANCES PRESCRIBED IN FTR PARA. 1-7.6D. B-173978, DECEMBER 20, 1971. THUS, WHERE A CIVILIAN PILOT MADE A 20-HOUR STOPOVER AT HIS PERMANENT DUTY STATION INCIDENT TO A CONTINUOUS JOURNEY INVOLVING 7 3/4 DAYS, WE HELD THAT THE INTENT OF THE REGULATIONS WOULD BE MET BY CONSIDERING THE TIME FROM THE BEGINNING TO THE END OF THE REQUIRED TRAVEL, EXCLUSIVE OF THE STOPOVER TIME AT HIS STATION, AS ONE CONTINUOUS JOURNEY. B-63656, APRIL 11, 1947. ALTHOUGH THE TRAVEL PERIOD IN THAT CASE EXCEEDED 24 HOURS, THE PRINCIPLE THUS STATED IS FULLY APPLICABLE TO TRAVEL OF LESS THAN 24 HOURS FOR THE PURPOSE OF DETERMINING WHEN A GIVEN TRIP IS COMPLETED WITHIN THE MEANING OF FTR PARA. 1-7.6E.

ACCORDINGLY, IN THE INSTANT CASE, THE PILOT MAY BE CONSIDERED AS HAVING COMPLETED HIS TRAVEL UPON THE COMPLETION OF HIS REQUIRED DAILY MISSION AND JOURNEY, AND NOT UPON THE MERE TOUCHDOWN AT HIS OFFICIAL STATION INCIDENT TO THE CONTINUED EXECUTION THEREOF. IF OTHERWISE APPROPRIATE AND PROPER, THE AMOUNT OF ALLOWABLE PER DIEM WOULD BE FOR THE DURATION OF THE TRAVEL, LESS THE TIME SPENT AT THE OFFICIAL STATION DURING THE TOUCHDOWN PERIOD. OF COURSE, THIS DETERMINATION IS NOT TO BE UNDERSTOOD AS ENTITLING AN EMPLOYEE TO PER DIEM WHEN HE PERFORMS SUBSTANTIAL OFFICIAL DUTY (ONE HOUR OR MORE) AT HIS OFFICE WHICH IS UNRELATED TO HIS ACTING AS PILOT OF THE AIRPLANE BEFORE HIS FINAL DEPARTURE FROM HIS OFFICE, OR UPON HIS RETURN THERETO. B-172094, APRIL 12, 1972.

HAVING DETERMINED THAT THE TOUCHDOWN AT THE EMPLOYEE'S PERMANENT DUTY STATION IS NOT NECESSARILY THE CONCLUSION OF HIS TRIP, IT REMAINS FOR OUR CONSIDERATION WHETHER, UNDER THE APPLICABLE RULES AND REGULATIONS, THE PAYMENT OF PER DIEM WAS OTHERWISE PROPER. FOR CONTINUOUS TRAVEL OF LESS THAN 24 HOURS, PER DIEM MAY BE PAID ONLY IF AN EMPLOYEE COMES WITHIN THE CIRCUMSTANCES PRESCRIBED IN FTR PARA. 1-7.6(D)(1), WHICH PROVIDES IN RELEVANT PART THAT:

"*** FOR CONTINUOUS TRAVEL OF 24 HOURS OR LESS, THE TRAVEL PERIOD SHALL 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. HOWEVER, PER DIEM SHALL NOT 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 A.M. OR TERMINATES AFTER 8 P.M. ***"

HOWEVER, FTR PARA. 1-7.3A PROVIDES IN RELEVANT PART THAT:

"*** 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. ***"

THIS REGULATION WAS ISSUED UNDER THE AUTHORITY OF 5 U.S.C. SEC. 5707 TO IMPLEMENT 5 U.S.C. SEC. 5702 WHICH AUTHORIZES A PER DIEM ALLOWANCE TO REIMBURSE A TRAVELER FOR THE ADDITIONAL COSTS OF HAVING TO EAT IN A PUBLIC PLACE OR TO RENT A ROOM IN ANOTHER CITY WHILE STILL MAINTAINING HIS OWN TABLE AT HIS PERMANENT DUTY STATION. IN SITUATIONS WHERE AN EMPLOYEE INCURS NO ADDITIONAL COSTS BY REASON OF HIS TRAVEL, THE BASIS FOR THE SUBSISTENCE ALLOWANCE FAILS, AND, IN THE EXERCISE OF ITS ADMINISTRATIVE RESPONSIBILITY, THE AGENCY MAY AND PROPERLY SHOULD REFUSE TO AUTHORIZE ANY PER DIEM. B-180111, MARCH 20, 1974.

IN THE PRESENT CASE, ALTHOUGH THE PER DIEM ALLOWANCE WAS PAID TO THE EMPLOYEE FROM IMPREST FUNDS, THE AUTHORIZED CERTIFYING OFFICER HAS NOT APPROVED THE TRAVEL VOUCHER AS CORRECT AND PROPER. WE HAVE NOT, HOWEVER, BEEN PRESENTED WITH THE EMPLOYEE'S TRAVEL ORDERS. IF SUCH TRAVEL ORDERS AUTHORIZED PER DIEM, AN ADMINISTRATIVE DETERMINATION WOULD HAVE BEEN MADE THAT ADDITIONAL SUBSISTENCE EXPENSES WOULD BE INCURRED BY REASON OF THE TRAVEL. ACCORDINGLY, WITH THE EXCEPTION OF THE AUGUST 14, 1975 MEAL APPARENTLY TAKEN AT THE OFFICIAL STATION, NO RECOUPMENT OF THE FUNDS WOULD BE IN ORDER. B-173978, DECEMBER 20, 1971. IF, HOWEVER, NO TRAVEL ORDERS ISSUED, THERE HAS APPARENTLY BEEN NO ADMINISTRATIVE DETERMINATION THAT SUCH ADDITIONAL EXPENSES HAVE BEEN INCURRED. IN SUCH CIRCUMSTANCES THE CERTIFYING OFFICER SHOULD REQUIRE EVIDENCE OF SUCH EXPENSES, AND, IN THE ABSENCE THEREOF, MAY PROPERLY REFUSE TO CERTIFY AS CORRECT AND PROPER THE PAYMENTS MADE. WITH RESPECT TO FUTURE TRAVEL, PURSUANT TO FTR PARA. 1-7.3A IT IS THE RESPONSIBILITY OF THE AGENCY TO SCRUTINIZE EACH CASE BEFORE AUTHORIZATION OF PER DIEM TO ENSURE THAT THE EMPLOYEE WILL IN FACT INCUR ADDITIONAL EXPENSES BY VIRTUE OF THE TRAVEL AND SO JUSTIFY THE ALLOWANCE.