B-187662, JUNE 14, 1977

B-187662, JUNE 14, 1977

EMPLOYEE OF AID CLAIMS PER DIEM WHILE ON TEMPORARY DUTY IN SAIGON, VIETNAM, FROM PERMANENT DUTY STATION IN CAM RANH CITY, VIETNAM. DISALLOWANCE OF CLAIM IS SUSTAINED WHERE AGENCY DETERMINES EMPLOYEE INCURS NO ADDITIONAL EXPENSES AT TDY POST.

EDWARD J. SHEA - PER DIEM - TEMPORARY DUTY SOUTH VIETNAM:

BY LETTER OF SEPTEMBER 7, 1976, MR. EDWARD J. SHEA QUESTIONS THE DISALLOWANCE OF HIS CLAIM FOR PER DIEM FROM SEPTEMBER 10, 1970, TO SEPTEMBER 19, 1971, DURING HIS ASSIGNMENT AT THE U.S. EMBASSY IN SAIGON, VIETNAM, AS EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT WITH CERTAIN EXCEPTIONS WHEN CLAIM FOR PER DIEM IS NOT MADE. OUR CLAIMS DIVISION BY SETTLEMENT CERTIFICATE DATED AUGUST 26, 1976, DISALLOWED MR. SHEA'S CLAIM BECAUSE THERE WAS NO EVIDENCE THAT HIS ASSIGNMENT WAS TEMPORARY OR THAT HE WAS AWAY FROM HIS PERMANENT DUTY STATION. THE APPLICABLE REGULATIONS CITED-- SECTION 156.1 OF VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL-- AUTHORIZES PER DIEM ONLY WHEN AN EMPLOYEE IS AWAY FROM HIS PERMANENT DUTY STATION.

IN SUPPORT OF HIS CLAIM THAT HE WAS ON TEMPORARY DUTY IN SAIGON DURING THE PERIOD OF THIS CLAIM, MR. SHEA HAS SUBMITTED A COPY OF A PERSONNEL ACTION EFFECTIVE VIETNAM - CORDS REGION 11, NHA TRANG, VIETNAM" TO "VIETNAM - CORDS HEADQUARTERS, SAIGON, VIETNAM." THUS HE URGES THAT THE TIME HE WORKED IN SAIGON FROM SEPTEMBER 10, 1970, AFTER RETURN FROM HOME LEAVE, TO SEPTEMBER 19, 1971, THE EFFECTIVE DATE OF THE CHANGE OF OFFICIAL DUTY STATION TO SAIGON FROM NHA TRANG, WAS TEMPORARY DUTY.

THE AGENCY ADMINISTRATIVE REPORT AND THE SETTLEMENT CERTIFICATE STATE THAT DURING HIS ENTIRE ASSIGNMENT IN VIETNAM MR. SHEA WAS PROVIDED GOVERNMENT LIVING AND FURNISHED QUARTERS AND THAT HE DID NOT MAINTAIN A SEPARATE RESIDENCE IN CAM RANH CITY DURING THE PERIOD OF HIS CLAIM. MR. SHEA AFFIRMS THAT WHILE HE WAS IN SAIGON HE WAS PROVIDED GOVERNMENT LIVING QUARTERS AS ALL PERSONNEL ARE PROVIDED WITH WHEN THEY ARE ON TEMPORARY DUTY ANYWHERE IN SOUTH VIETNAM. THE ADMINISTRATIVE REPORT STATES THAT IN THE USAID/MISSION IN VIETNAM EMPLOYEES WERE PROVIDED WITH GOVERNMENT- LEASED LIVING QUARTERS. ALL RENTS AND UTILITIES WERE PAID BY THE GOVERNMENT AND THE LIVING QUARTERS WERE COMPLETELY FURNISHED BY THE GOVERNMENT WITH FURNITURE, APPLIANCES, DISHES, UTENSILS, AND THE LIKE. THUS FROM THE AGENCY POINT OF VIEW NO PER DIEM ALLOWANCE COULD BE JUSTIFIED UNDER THE CIRCUMSTANCES. THE AGENCY STATES THAT ITS TRAVEL REGULATIONS PROVIDE AS FOLLOWS:

"AUTHORIZING OFFICERS SHALL ASSURE THAT TRAVEL AUTHORIZATION PERMIT, WITHIN THE MAXIMUM APPLICABLE RATE, OR ANY LESSER AMOUNTS THE AGENCIES MAY PRESCRIBE, ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES SURROUNDING THE TRAVEL." (M.O. 562.2, SECTION 154.1). SEE ALSO FOREIGN AFFAIR MANUAL, 6 FAM 154.1.

THUS THE AGENCY RECOMMENDS AGAINST ALLOWANCE OF THE CLAIM SINCE MR. SHEA HAD NO EXPENSES IN SAIGON THAT HE WOULD NOT HAVE HAD IN ANY OTHER DUTY POST IN VIETNAM AND THAT HE HAD NO OTHER OFFICIAL RESIDENCE IN VIETNAM WHILE HE WAS PERFORMING DUTIES IN SAIGON FROM SEPTEMBER 1970 UPON HIS RETURN FROM HOME LEAVE. IT IS WELL SETTLED THAT THE PURPOSE OF A PER DIEM ALLOWANCE IS TO REIMBURSE AN EMPLOYEE FOR ADDITIONAL EXPENSES ATTENDANT TO OFFICIAL TRAVEL AND THAT WHERE NO ADDITIONAL EXPENSES ARE INCURRED, NO PER DIEM ALLOWANCES SHOULD BE AUTHORIZED. BORNHOFT V. UNITED STATES, 137 CT.CL. 134 (1946). WE DEEM IT REASONABLE FOR THE AGENCY TO CONCLUDE THAT MR. SHEA INCURRED NO ADDITIONAL EXPENSES IN SAIGON AND CONSEQUENTLY IS NOT ENTITLED TO A PER DIEM.

ACCORDINGLY, THE DISALLOWANCE OF MR. SHEA'S CLAIM IS SUSTAINED.