B-203123, AUG 4, 1981

B-203123: Aug 4, 1981

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DIGEST: CIVILIAN EMPLOYEE OF DEPARTMENT OF ARMY WHO OCCUPIED COMMERCIAL QUARTERS WHILE ON TEMPORARY DUTY TRAVEL IS NOT ENTITLED TO QUARTERS PORTION OF PER DIEM ALLOWANCE AUTHORIZED BY 5 U.S.C. SEC. 5702(A) (1976) WHERE ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT USED. HAYES - ADDITIONAL PER DIEM FOR LODGING COSTS - GOVERNMENT QUARTERS AVAILABLE: THE ISSUE WE ARE REQUESTED TO DECIDE IS WHETHER AN EMPLOYEE ON TEMPORARY DUTY TRAVEL CAN BE AUTHORIZED ADDITIONAL PER DIEM FOR LODGING COSTS WHEN GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT USED. THIS DECISION IS IN RESPONSE TO A REQUEST FOR DIRECT SETTLEMENT BY THE ACCOUNTING AND FINANCE OFFICER. ON THE ASSUMPTION THAT THERE WERE NO GOVERNMENT QUARTERS AVAILABLE AT EDGEWOOD ARSENAL.

B-203123, AUG 4, 1981

DIGEST: CIVILIAN EMPLOYEE OF DEPARTMENT OF ARMY WHO OCCUPIED COMMERCIAL QUARTERS WHILE ON TEMPORARY DUTY TRAVEL IS NOT ENTITLED TO QUARTERS PORTION OF PER DIEM ALLOWANCE AUTHORIZED BY 5 U.S.C. SEC. 5702(A) (1976) WHERE ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT USED.

R. W. HAYES - ADDITIONAL PER DIEM FOR LODGING COSTS - GOVERNMENT QUARTERS AVAILABLE:

THE ISSUE WE ARE REQUESTED TO DECIDE IS WHETHER AN EMPLOYEE ON TEMPORARY DUTY TRAVEL CAN BE AUTHORIZED ADDITIONAL PER DIEM FOR LODGING COSTS WHEN GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT USED.

THIS DECISION IS IN RESPONSE TO A REQUEST FOR DIRECT SETTLEMENT BY THE ACCOUNTING AND FINANCE OFFICER, DEPARTMENT OF THE ARMY, TOOELE ARMY DEPOT, TOOELE, UTAH, CONCERNING THE CLAIM OF MR. R. W. HAYES, A CIVILIAN EMPLOYEE. MR. HAYES HAS REQUESTED REIMBURSEMENT FOR COMMERCIAL LODGING COSTS WHICH HE INCURRED ON JANUARY 26-28, 1981, WHILE ON TEMPORARY DUTY TRAVEL TO EDGEWOOD ARSENAL. FOR THE REASONS THAT FOLLOW, THE CLAIM MAY NOT BE ALLOWED.

ACCORDING TO MR. HAYES' STATEMENT IN SUPPORT OF HIS CLAIM, HIS SECRETARY MADE RESERVATIONS FOR HIM AT A COMMERCIAL MOTEL, ON THE ASSUMPTION THAT THERE WERE NO GOVERNMENT QUARTERS AVAILABLE AT EDGEWOOD ARSENAL. WHEN, UPON RETURN TO HIS DUTY STATION, MR. HAYES REQUESTED THAT A STATEMENT OF NONAVAILABILITY OF GOVERNMENT QUARTERS BE SENT TO HIM FROM EDGEWOOD, HE WAS INFORMED THAT GOVERNMENT QUARTERS IN FACT HAD BEEN AVAILABLE. MR. HAYES THUS COULD NOT OBTAIN A STATEMENT OF NONAVAILABILITY AND DOES NOT NOW QUESTION THE AVAILABILITY OF ADEQUATE GOVERNMENT QUARTERS AT EDGEWOOD. HOWEVER, MR. HAYES ASSERTS THAT HE SHOULD NOT BE REQUIRED TO BEAR ALL HIS OWN LODGING COSTS WHEN HIS USE OF COMMERCIAL QUARTERS WAS AN UNINTENTIONAL ERROR, DUE TO THE MISTAKEN ASSUMPTION THAT EDGEWOOD ARSENAL, LIKE MOST OF HIS OTHER TEMPORARY DUTY STATIONS, DID NOT HAVE ANY GOVERNMENT QUARTERS.

SECTION 5702(A) OF TITLE 5, U.S.C. (1976), PROVIDES THAT UNDER REGULATIONS PRESCRIBED UNDER 5 U.S.C. SEC. 5707, AN EMPLOYEE, WHILE TRAVELING ON BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, IS ENTITLED TO A PER DIEM ALLOWANCE FOR TRAVEL INSIDE THE CONTINENTAL UNITED STATES.

PARAGRAPH C1055 OF VOLUME 2, JOINT TRAVEL REGULATIONS (CH. 161, EFFECTIVE MARCH 1, 1979), STATES THE CONDITIONS UNDER WHICH AN EMPLOYEE MAY BE REIMBURSED FOR USE OF COMMERCIAL QUARTERS:

"1. GENERAL. ALTHOUGH AN EMPLOYEE MAY NOT BE REQUIRED TO UTILIZE GOVERNMENT QUARTERS, WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE BUT NOT USED, THE PAYMENT OF THE QUARTERS PORTION OF THE PER DIEM OR ACTUAL EXPENSE ALLOWANCES OF ANY EMPLOYEE ON TEMPORARY DUTY AWAY FROM HIS DESIGNATED POST OF DUTY MAY NOT BE MADE EXCEPT UNDER THE FOLLOWING CONDITIONS:

"1. WHEN THE ORDER-ISSUING AUTHORITY, EITHER PRIOR OR SUBSEQUENT TO THE TRAVEL INVOLVED, ISSUES A STATEMENT TO THE EFFECT THAT THE UTILIZATION OF GOVERNMENT QUARTERS AT THE TEMPORARY DUTY STATION OR DELAY POINT WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION ***;

"2. WHEN THE COMMANDING OFFICER (OR DESIGNATED REPRESENTATIVE) RESPONSIBLE FOR GOVERNMENT QUARTERS AT THE TEMPORARY DUTY OR DELAY POINT FURNISHES A STATEMENT TO THE EFFECT THAT UTILIZATION OF GOVERNMENT QUARTERS WAS IMPRACTICABLE;

"2. EFFECT OF ABSENCE OF STATEMENT. IN THE ABSENCE OF A STATEMENT ISSUED UNDER THE PROVISIONS OF SUBPAR. 1 OR UNLESS THE NONAVAILABILITY OF ADEQUATE GOVERNMENT QUARTERS CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION ISSUED BY THE UNIFORMED SERVICE CONCERNED, IT SHALL BE ASSUMED THAT ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE ON ANY DAY FOR WHICH THE EMPLOYEE FAILS TO SUBMIT AN APPROPRIATE STATEMENT *** INDICATING THAT SUCH QUARTERS WERE NOT AVAILABLE OR NOT UTILIZED ON THAT DATE. ***"

IN ADDITION, SECTION 752 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1981, PUB.L. NO. 96-527, DECEMBER 15, 1980, 94 STAT. 3068, 3090, IN EFFECT AT THE TIME THE TRAVEL CONSIDERED HERE WAS PERFORMED, PROVIDES IN PERTINENT PART THAT NONE OF THE FUNDS THERE APPROPRIATED TO THE DEPARTMENT OF DEFENSE ARE AVAILABLE TO PAY LODGING EXPENSES INCURRED BY ANY PERSON ON OFFICIAL BUSINESS AWAY FROM HIS HOME OR REGULAR PLACE OF DUTY, WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE, BUT ARE NOT OCCUPIED BY SUCH PERSON.

THE STATUTE AND REGULATION ARE UNEQUIVOCAL IN PROHIBITING PAYMENT OF THE QUARTERS PORTION OF PER DIEM EXPENSES WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE, BUT NOT USED. BECAUSE GOVERNMENT QUARTERS WERE AVAILABLE AT EDGEWOOD ARSENAL, MR. HAYES IS NOT ENTITLED TO REIMBURSEMENT FOR THE COST OF LODGINGS. SEE VINCENT CALDERON, B-196904, DECEMBER 12, 1980; JERRY CARDINAL, B-191297, AUGUST 2, 1979. THE FACT THAT USE OF COMMERCIAL LODGINGS MAY HAVE BEEN AN UNINTENTIONAL MISTAKE DOES NOT PERMIT A DIFFERENT RESULT; THE PROHIBITION AGAINST PAYMENT OF LODGING COSTS IN THESE CIRCUMSTANCES IS BASED ON STATUTE AS WELL AS REGULATION, AND MAY NOT BE WAIVED.

MR. HAYES MAINTAINS THAT, IN ANY EVENT, HE IS ENTITLED TO REIMBURSEMENT FOR THE COST OF GOVERNMENT QUARTERS. HE USES THE ANALOGY OF A TRAVELER WHO IS ENTITLED TO BE REIMBURSED THE MAXIMUM AUTHORIZED AMOUNT FOR A MOTEL ROOM EVEN IF HE SPENDS MORE THAN THE AUTHORIZED AMOUNT. HOWEVER, THERE IS NO PROVISION IN THE JOINT TRAVEL REGULATIONS AUTHORIZING PAYMENT TO MR. HAYES FOR THE AMOUNT IT WOULD HAVE COST HIM TO USE GOVERNMENT QUARTERS. PARAGRAPH C 1055 OF 2 JTR, QUOTED ABOVE, EXPRESSLY PROVIDES THAT THE QUARTERS PORTION MAY NOT BE PAID TO A TRAVELER IN MR. HAYES' SITUATION.

ACCORDINGLY, MR. HAYES' CLAIM MAY NOT BE ALLOWED.