B-199961, JUL 7, 1982

B-199961, JUL 7, 1982

DIGEST: EMPLOYEES OF THE AIR FORCE LOGISTICS COMMAND WHO WERE STATIONED IN SAUDI ARABIA ON TEMPORARY DUTY ASSIGNMENT WERE DENIED ACCESS TO THEIR WORK AREAS FROM AUGUST 15-29, 1979, DUE TO CLOSING OF FACILITY BY ROYAL SAUDI AIR FORCE BECAUSE OF LOCAL RAMADAN HOLIDAY. SIX EMPLOYEES WHO ELECTED TO LEAVE THE COUNTRY DURING THIS PERIOD ARE ENTITLED TO PER DIEM AND ADMINISTRATIVE LEAVE IN THE SAME MANNER AS THOSE EMPLOYEES WHO DID NOT LEAVE COUNTRY. THE SIX EMPLOYEES ARE ENTITLED TO (1) PER DIEM STATION, AND (2) RECREDIT OF ANNUAL LEAVE CHARGED FOR THE NON-DUTY PERIOD.

MARY L. KLATT, ET AL. - LEAVE AND PER DIEM - FOREIGN HOLIDAY:

MS. MARY KLATT (CLAIM NO. Z-2822170), AND 5 OTHER EMPLOYEES OF THE DEPARTMENT OF THE AIR FORCE FN1 SACRAMENTO AIR LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA, HAVE APPEALED THE DETERMINATIONS BY OUR CLAIMS GROUP ON SEPTEMBER 9 AND 11, 1981, DENYING THEIR REQUESTS FOR THE RECREDIT OF ANNUAL LEAVE AND REIMBURSEMENT OF PER DIEM WHILE THEY WERE AWAY FROM THEIR TEMPORARY DUTY STATION, DHAHRAN, SAUDI ARABIA, FROM AUGUST 15 TO AUGUST 29, 1979. THE CLAIMS GROUP FOUND THAT THE EMPLOYEES WERE CORRECTLY PLACED ON ANNUAL LEAVE WHILE AWAY FROM THEIR TEMPORARY DUTY STATION, AND THAT UNDER SUCH CIRCUMSTANCES THE PAYMENT OF PER DIEM WAS PROHIBITED.

FOR THE REASONS STATED BELOW, THE ACTION BY OUR CLAIMS GROUP IS REVERSED. THE CLAIMANTS SHOULD BE RECREDITED WITH ANNUAL LEAVE AND PAID THE APPLICABLE PER DIEM.

THESE SIX CLAIMANTS RECEIVED TEMPORARY DUTY ORDERS DATED MAY 15, 1979, TO PERFORM THE IMPLEMENTATION OF THE ALLIED RECOVERABLE REQUIREMENTS COMPUTATION SYSTEM (ARRCS) IN DHAHRAN, SAUDI ARABIA. THEY WERE SCHEDULED TO PROCEED TO SAUDI ARABIA ON JUNE 28, 1979, FOR APPROXIMATELY 127 DAYS OF TEMPORARY DUTY. THEIR ORDERS, AS AMENDED EFFECTIVE AUGUST 14, 1979, AUTHORIZED ANNUAL LEAVE TO VISIT VARIOUS EUROPEAN COUNTRIES DURING THE SAUDI OBSERVATION OF RAMADAN FROM AUGUST 15, 1979, THROUGH AUGUST 29, 1979. THE AGENCY'S ADMINISTRATIVE REPORT NOW SHOWS THAT ALL ACTIVITIES IN WHICH THE ARRCS TEAM WAS INVOLVED WERE CLOSED DURING THE RAMADAN HOLIDAY PERIOD, AND THAT THE ROYAL SUADI AIR FORCE (RSAF) WAS AWARE THAT THE ARRCS TEAM WOULD REMAIN ON TEMPORARY DUTY STATUS DURING THE HOLIDAY PERIOD AND CONTINUE TO DRAW PER DIEM. THE RECORD ALSO SHOWS THAT OTHER TEAM MEMBERS WHO REMAINED IN SAUDI ARABIA DURING THE RAMADAN HOLIDAY WERE PLACED ON ADMINISTRATIVE LEAVE AND CONTINUED TO DRAW PER DIEM BECAUSE THEY WERE DENIED ACCESS TO THEIR WORK AREAS, AS THEIR PLACE OF WORK WAS CLOSED FROM AUGUST 15 TO 29, 1979. WHEN THESE CASES WERE ORIGINALLY CONSIDERED BY OUR CLAIMS GROUP, IT WAS NOT CLEAR THAT ALL THE FACILITIES WERE CLOSED DURING THE RAMADAN HOLIDAY, NOR WAS IT KNOWN THAT THE TEAM MEMBERS WHO REMAINED IN SAUDI ARRABIA WERE PLACED ON ADMINISTRATIVE LEAVE.

THE AIR FORCE REPORT STATED THAT THERE WAS CONCERN AS TO WHETHER THE RSAF WAS AWARE THAT MEMBERS OF THE ARRCS TEAM WOULD BE PAID PER DIEM DURING THE HOLIDAY PERIOD EVEN IF THEY CHOSE TO VISIT EUROPEAN COUNTRIES DURING THAT TIME. THIS WAS OF CONCERN BECAUSE ALL PER DIEM COSTS WERE BEING REIMBURSED TO THE AIR FORCE BY THE RSAF. BECAUSE OF THIS CONCERN, THE ARRCS TEAM WAS ADVISED BY A MESSAGE DATED AUGUST 14, 1979, THAT "THEY WOULD BE TRAVELLING AT THEIR OWN FINANCIAL RISK SHOULD THEY LEAVE THE COUNTRY, AND THAT ANY QUESTIONABLE PARTS OF THEIR TRAVEL VOUCHERS WOULD NOT BE PAID. ***" ADDITIONALLY, THE TEAM WAS REMINDED THAT A PAPER REQUESTED BY AIR FORCE LOGISTICS COMMAND COMPTROLLER WAS DUE BY SEPTEMBER 15, 1979. THE ARRCS TEAM WAS TOLD THAT THE NUMBER OF AUTHORS FOR THE PAPER WAS FLEXIBLE AND THAT THE TEAM SHOULD CONSIDER PREPARING THE PAPER DURING THE RAMADAN HOLIDAY PERIOD. IT IS THE AIR FORCE POSITION THAT THOSE TEAM MEMBERS WHO WISHED TO LEAVE THE COUNTRY DURING THE HOLIDAY PERIOD SHOULD BE REQUIRED TO TAKE ANNUAL LEAVE WITHOUT DRAWING PER DIEM WHILE THOSE WHO REMAINED IN SAUDI ARABIA WERE ENTITLED TO ADMINISTRATIVE LEAVE AND THE CONTINUATION OF PER DIEM.

AIR FORCE REGULATION 40-631, SECTION A, PARAGRAPH 1C, PROVIDES AS FOLLOWS:

"C. STATE AND LOCAL HOLIDAYS. STATE AND LOCAL HOLIDAYS, INCLUDING LOCAL HOLIDAYS IN FOREIGN AREAS, ARE TREATED AS REGULAR WORKDAYS UNLESS ALL OR PART OF THE ACTIVITY IS CLOSED BY ADMINISTRATIVE ORDER BECAUSE EMPLOYEES ARE ACTUALLY PREVENTED FROM WORKING DUE TO LACK OF TRANSPORTATION SERVICES, EATING FACILITIES, ETC. EMPLOYEES IN ACTIVITIES SO CLOSED CANNOT BE CHARGED LEAVE FOR ABSENCE ON THAT DAY. THIS APPLIES TO EMPLOYEES ON PREVIOUSLY SCHEDULED ANNUAL OR SICK LEAVE AS WELL AS TO THOSE WHO WOULD HAVE BEEN PRESENT FOR DUTY HAD THE ACTIVITY REMAINED OPEN. * * *"

ALTHOUGH NO ADMINISTRATIVE ORDER CLOSING THE ACTIVITY TO WHICH THE ARRCS TEAM WAS ASSIGNED WAS ISSUED AS SET FORTH IN ISSUANCE OF AN ORDER TO BE A PROCEDURAL REQUIREMENT WHICH, UNDER THE CIRCUMSTANCES, WAS NOT NECESSARY TO EFFECTUATE THE INTENT OF THE REGULATION. SINCE THE ACTIVITY IN THIS INSTANCE WAS NOT UNDER AMERICAN CONTROL AS WOULD BE THE SITUATION USUALLY CONTEMPLATED BY THE REGULATION, BUT RATHER WAS A FACILITY OF A FOREIGN OF A FOREIGN COUNTRY UNDER THAT COUNTRY'S CONTROL, IT OULD HAVE BEEN INAPPROPRIATE AND WITHOUT MEANING FOR THE AIR FORCE TO HAVE ISSUED AN ORDER PURPORTING TO CLOSE THE ACTIVITY FOR THE HOLIDAY PERIOD. INSTEAD, THE ACTIVITY WAS CLOSED BY THE HOST COUNTRY AND THE ARRCS TEAM WAS DENIED ACCESS TO THEIR WORK AREAS, AND, THUS, PRECLUDED FROM DOING ANY WORK RELATED TO THEIR MISSION DURING THAT PERIOD. THEREFORE, UNDER THESE CIRCUMSTANCES, THE REGULATION PRECLUDES CHARGING EMPLOYEES FOR ANNUAL LEAVE FOR THE DAYS WHEN THE ACTIVITY WAS IN FACT CLOSED. THIS IS CONSISTENT WITH THE AIR FORCE'S OWN ACTIONS IN PLACING ON ADMINISTRATIVE LEAVE AND PAYING PER DIEM TO THOSE EMPLOYEES WHO DID NOT CHOOSE TO LEAVE THE COUNTRY DURING THE HOLIDAY PERIOD. THE REGULATION SPECIFICALLY PROVIDES FOR THE EQUAL TREATMENT OF EMPLOYEES WHETHER ON ON PREVIOUSLY SCHEDULED ANNUAL LEAVE OR AVAILABLE FOR DUTY HAD THE FACILITY REMAINED OPEN. PARAGRAPH C4554 7 OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS DEALING WITH THE PAYMENT OF PER DIEM ON NONWORKDAYS WOULD BE APPLICABLE. THAT PARAGRAPH THEN PROVIDED AS FOLLOWS:

"7. NONWORKDAYS. A TRAVELER WILL BE CONSIDERED TO BE IN A PER DIEM STATUS ON NONWORKDAYS UNLESS HE IS IN A LEAVE STATUS AT THE END OF THE WORKDAY PRECEDING THE NONWORKDAYS) AND AT THE BEGINNING OF THE WORKDAY FOLLOWING THE NONWORKDAYS) AND THE PERIOD OF LEAVE ON EITHER OF THOSE DAYS EXEEDS ONE-HALF OF THE PRESCRIBED WORKING HOURS FOR THAT DAY. ***"

THE LANGUAGE REQUIRES THE TERMINATION OF PER DIEM STATUS ONLY WHEN THE ABOVE CONDITIONS EXIST. HERE THE EMPLOYEES WERE NOT IN A LEAVE STATUS PRECEDING THE HOLIDAY PERIOD NOR AT THE BEGINNING OF THE WORKDAY FOLLOWING THE NONWORKDAYS. THEREFORE, THEIR ENTITLEMENT TO PER DIEM CONTINUED THROUGHOUT THE HOLIDAY PERIOD NO MATTER WHERE THEY SPENT THE TIME.

PARAGRAPH 14-1(F)(1)(B), CHAPTER 14, OF AIR FORCE REGULATION 177 103(C4), PERTAINING TO THE STATEMENT OF TRAVEL ITINERARY FURNISHED BY TRAVELERS OF ALL TRAVEL PERFORMED PER TRAVEL ORDERS, STATES THAT TRAVEL WHILE ON PASS, DURING WEEKENDS, HOLIDAYS, AND OFF-DUTY DAYS AND HOURS WHEN DUTY IS NOT REQUIRED, NEED NOT BE SHOWN ON THE ITINERARY SINCE THIS TRAVEL DOES NOT AFFECT THE PER DIEM COMPUTATION. THIS REGULATION CLEARLY RECOGNIZES THAT TRAVEL ON HOLIDAYS OR OFF-DUTY DAYS IS CONSISTENT WITH THE SIMULTANEOUS RECEIPT OF PER DIEM PAYMENTS, AND INDICATES THAT THE PER DIEM PAYABLE WOULD BE THE PER DIEM APPLICABLE TO THE TEMPORARY DUTY LOCATION.

ACCORDINGLY, OUR CLAIMS GROUP'S DISALLOWANCE OF THE AIR FORCE EMPLOYEES' REQUESTS FOR RECREDIT OF ANNUAL LEAVE AND PAYMENT OF PER DIEM FOR THE PERIOD AUGUST 15 TO AUGUST 28, 1979, IS REVERSED, AND RECREDIT OF LEAVE AND PAYMENT OF PER DIEM WILL BE MADE IN ACCORDANCE WITH THIS DECISION.

FN1 THE OTHER FIVE EMPLOYEES INVOLVED IN THIS APPEAL AND THE GAO FILE NUMBERS THAT APPLY TO THEM ARE: MS. BOBBIE L. SLEDGE, B-199961 AND Z- 2822171; MR. HAROLD W. HAURY, B-205739, Z-2834664; MR. J. WESLEY ANDERSON, B-205740, Z-2831770; MR. EDWARD E. HUNTER, B-205741, Z 2834665; AND MS. VIRGINIA A. GONZALES, B-205742, Z-2834663.