B-225985.2, Nov 24, 1989

B-225985.2: Nov 24, 1989

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Holding that Army employees on temporary duty in Saudi Arabia were not entitled to amounts in excess of the reduced per diem authorized by regulation when government-furnished meals were available. Is sustained. Although the employees contend that the available meals were not adequate. They have not presented compelling evidence contrary to the material facts of record. Employees' claims for full per diem for periods when government furnished meals were available at their temporary duty stations in Saudi Arabia are not appropriate for reporting to Congress under the Meritorious Claims Act. The agency may consider the employees' requests for waiver to the extent payments were made after December 28.

B-225985.2, Nov 24, 1989

CIVILIAN PERSONNEL - Travel - Temporary duty - Per diem rates - Amount determination DIGEST: 1. Upon reconsideration, decision 66 Comp.Gen. 631 (1987), holding that Army employees on temporary duty in Saudi Arabia were not entitled to amounts in excess of the reduced per diem authorized by regulation when government-furnished meals were available, is sustained. Although the employees contend that the available meals were not adequate, they have not presented compelling evidence contrary to the material facts of record. Amendment of the employees' travel orders by officials at the employees' permanent duty station, purporting to authorize higher per diem rates on the basis that use of the government-furnished meals would adversely affect the mission, provides no legal basis for relief since the applicable regulation authorizes only the commanding officer at the temporary duty point to make relevant determinations concerning the availability of government-furnished meals and their impact on the employees' mission. CIVILIAN PERSONNEL - Travel - Travel expenses - Illegal/improper payments - Debt waiver 2. Employees' claims for full per diem for periods when government furnished meals were available at their temporary duty stations in Saudi Arabia are not appropriate for reporting to Congress under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d) (1982). The agency may consider the employees' requests for waiver to the extent payments were made after December 28, 1985, the effective date of the amendment to the waiver statute allowing erroneous travel allowances to be considered for waiver. However, based on the record before us, it does not appear that the equitable standards for waiver are met in this case.

James W. Avent, et al. - Reduced Rate Per Diem for Temporary Duty in Saudi Arabia - Reconsideration:

This responds to a request by a union representative on behalf of several present and former U.S. Army employees who were the subjects of our decision 66 Comp.Gen. 631 (1987). /1/ That decision held that the employees were not entitled to per diem amounts in excess of the authorized reduced rates where government-furnished quarters and meals were available for their temporary duty in Saudi Arabia. The union representative requests that we reconsider and overrule that decision or, in the alternative, either waive the claims of the government against the employees under our authority in 5 U.S.C. Sec. 5584 (Supp. IV 1986) or submit the claims to Congress for consideration under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d) (1982). /2/ For the reasons stated below, we affirm our prior decision and decline to submit the claims to Congress. The agency, however, should consider the requests for waiver under the provisions of 4 C.F.R. parts 91 and 92 (1989).

BACKGROUND

As is explained more fully in the September 3, 1987 decision, this matter concerns claims by the employees, whose permanent station was Redstone Arsenal, Alabama, for increased per diem for meals they consumed while on temporary duty in Saudi Arabia, where meals and quarters were available at government expense. After the employees arrived at the temporary duty sites, they raised questions as to the quality of the meals being furnished them, but they were advised by the local officials that the meals were considered adequate. Subsequently, the employees had their travel orders amended by the Director of Logistics at Redstone Arsenal to provide that, by "VOCO," verbal order of the Commanding Officer, use of government or contractor mess facilities would adversely affect their mission.

Our decision was based on the facts reported by an agency official who investigated the employees' claims and obtained the sworn testimony of several individuals involved, including the U.S. Army officers responsible for determining the adequacy of the messing facilities in Saudi Arabia. The report contained evidence that the commanding officer at the temporary duty point refused to issue a statement of non availability of meals and he or his representative advised the employees that their non-use of the mess facilities would not entitle them to receive the higher per diem rate. The report also indicated that the travel orders were amended at the request of the employees for their convenience, based on their personal evaluation of the food.

DISCUSSION

The union's submission disputes the agency's facts and alleges that an agency policy existed to relieve the employees of the responsibility to use government mess facilities. As evidence of this policy, the submission provides copies of travel orders relating to one employee's temporary duty during several earlier periods in 1982-1984, which state that the use of government or contractor mess would adversely affect his mission.

The submission also argues that orders may properly be amended when errors appear on their face or they are based on errors of law or are inconsistent with policy or law. Although we recognize the validity of this general legal principle, it is not pertinent to the consideration of these claims. As was explained in the prior decision, under the applicable provisions of volume 2 of the Joint Travel Regulations when employees perform temporary duty in Saudi Arabia at specified locations where government-furnished quarters and meals are available, the employees' per diem is to be paid at reduced rates in view of the reduced costs to the employees. As to the determination of whether meals are "available," the regulations provide:

"For the purpose of this footnote, a meal will not be considered available when any one of the following conditions exists: (a) no meal is available for a particular mealtime; (b) the use of an available meal would adversely affect the performance of the employee's mission; (c) the use of a meal facility is impractical. The commanding officer (or his designated representative) at the temporary duty point will issue a statement for each mealtime when one of the conditions exists." /3/

Therefore, the determination of meal availability for per diem purposes is one to be made by the local commander and not by someone issuing travel orders at the employees' permanent station. Here, the commanding officer or his designee refused to issue the certificates that would have entitled the claimants to the higher per diem rates, and that refusal was based on those officials' knowledge of the type and locations of the work being performed by these employees and the quality and availability of government-provided eating facilities. The record also shows that this refusal and its consequences were communicated to the employees.

Thus, it appears from the record that the original orders were correct and the amendments were in conflict with the requirements of the regulations as well as the circumstances of the travel. Administrative error in the preparation of a travel order, which sets a per diem rate contrary to a rate established by regulation, does not provide a basis for paying the incorrect rate. James C. Wilkinson, B-189537, Dec. 11, 1978; and Albert Armendariz, B-212401, April 3, 1984. Accordingly, the September 3, 1987 decision in this matter is affirmed.

We decline to submit the matter to Congress under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d). That Act requires a report to Congress of claims against the government which the Comptroller General believes Congress should consider for legal or equitable reasons. We find no legal or equitable reasons for reporting these claims to Congress.

Regarding the request for waiver, the authority to waive claims of the United States against employees was extended to include erroneous payments of travel allowances made on or after December 28, 1985. 5 U.S.C. Sec. 5584(a) (Supp. IV 1986). It appears from the record that some of these payments may have been made after the effective date of the amendment. Thus, the agency may consider the employees' claims for waiver under the provisions of 4 C.F.R. parts 91 and 92, to the extent the payments were made on or after December 28, 1985. However, based on the record before us as discussed above, it does not appear that waiver would be appropriate in this case.

/1/ B-225985, Sept. 3, 1987.

/2/ The request was made by letter of December 9, 1988, from Stuart A. Kirsh, Staff Counsel, American Federation of Government Employees, AFL- CIO, College Park, Georgia, representing James W. Avent, Albert Charles, James A. Chestnut, Billy M. McWilliams, Fayte Lasley, Charles Chittam, Jerry A. Ballard, Thomas C. Wagstaff, LaVerne Spearman, Charles Tate, Bennie R. Brown, Gene W. Stewart, and Robert E. Kirkpatrick.

/3/ Volume 2, Joint Travel Regulations, Appendix A, footnote 13.