B-226863, Jan 26, 1989

B-226863: Jan 26, 1989

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The employee claimed and was paid travel expenses and per diem. The agency later determined that reimbursement was inappropriate since the travel to Boston was for personal health purposes and the work there was an accommodation to the employee to enable him to work while receiving medical treatment. Since the employee's travel was for medical treatment and not for official business. There is no authority for payment of travel expenses and per diem. Collection of the erroneous payments from the employee is subject to waiver consideration under 5 U.S.C. Knapp - Temporary Duty Travel and Subsistence Expenses: This decision is in response to a joint request from the General Counsel. One of its employees for an advance decision concerning the legality of reimbursements made to the employee for per diem and transportation expenses incurred while the employee was in a duty status away from his permanent duty station. conclude the employee is not entitled to reimbursement for the following reasons.

B-226863, Jan 26, 1989

CIVILIAN PERSONNEL - Travel - Temporary duty - Travel expenses - Reimbursement CIVILIAN PERSONNEL - Travel - Travel expenses - Official business - Determination - Burden of proof DIGEST: An employee stationed near Washington, D.C., traveled to Boston, Massachusetts, for major surgery and worked there for approximately 8 weeks following discharge from the hospital concomitant with receiving out -patient therapy there. The employee claimed and was paid travel expenses and per diem. The agency later determined that reimbursement was inappropriate since the travel to Boston was for personal health purposes and the work there was an accommodation to the employee to enable him to work while receiving medical treatment. We uphold the agency. Since the employee's travel was for medical treatment and not for official business, there is no authority for payment of travel expenses and per diem. However, collection of the erroneous payments from the employee is subject to waiver consideration under 5 U.S.C. Sec. 5584, as amended (1982 & Supp. IV 1986).

Harold A. Knapp - Temporary Duty Travel and Subsistence Expenses:

This decision is in response to a joint request from the General Counsel, Defense Communications Agency (DCA), and one of its employees for an advance decision concerning the legality of reimbursements made to the employee for per diem and transportation expenses incurred while the employee was in a duty status away from his permanent duty station. conclude the employee is not entitled to reimbursement for the following reasons.

BACKGROUND

Dr. Harold A. Knapp, Jr., Scientific Advisor for Operations Research for the National Communications System, Defense Communications Agency, was stationed near Washington, D.C. In May 1985, Dr. Knapp was assigned duties with a Technology Assessment Group (TAG). The mission of the TAG is classified, but the record indicates that Dr. Knapp's special expertise made his work a unique contribution which no one else in the TAG could perform, and that work was critical for the mission of the TAG. The TAG for which Dr. Knapp was working had its main offices at the Mitre Corporation in McLean, Virginia. Mitre also has offices in Bedford, Massachusetts, which were directly involved in the TAG's project. conjunction with his official duties Dr. Knapp was issued blanket travel orders covering the period October 1, 1985, through September 30, 1986.

Upon learning that he needed a major operation in Boston, Massachusetts, along with extensive post-operative therapy in Boston, Dr. Knapp submitted a memorandum to his supervisor, Colonel Gordon Bounds, advising Colonel Bounds that he had to go to Boston on March 18, 1986, to deliver his medical records and that he would be admitted to the hospital there on March 24 for evaluation, with surgery to follow. He also indicated his desire to work at Mitre/Bedford when he was discharged from the Boston hospital. The memo, which was submitted on March 17, 1986, in anticipation of his trips to Boston, and prior to his surgery on April 10, 1986, concluded: "The purpose of this memorandum is to let you know where things now stand with me, and to make sure that what I would like to do is all right with you." This memorandum did not mention his intention to travel at government expense or that he would consider himself to be entitled to per diem while in Boston. Colonel Bounds returned this memorandum with the handwritten marginal comment: "Dr. Knapp Press on] Thanks. GSB."

Following this response from Colonel Bounds, Dr. Knapp requested Colonel Bounds' secretary to make necessary arrangements for travel to Boston, Massachusetts, at various times beginning March 18, 1986, before his surgery, and returning to Mitre/McLean following his release from the hospital on April 24, 1986. He placed himself on sick leave beginning when he entered the hospital and ending when he was discharged after his operation. Dr. Knapp returned to work at Mitre/McLean for several weeks and then, with Colonel Bounds' approval, traveled back to Boston and resumed work at Mitre/Bedford near Boston on May 13, 1986, where he worked until July 14, 1986. He received daily therapy at a hospital in Boston at 7:30 a.m. followed by a day's work at Mitre/Bedford.

Dr. Knapp submitted travel vouchers for per diem for these time periods (excluding the period he was hospitalized), which were paid. Thereafter, however, DCA reviewed this matter and concluded that payments made for travel to and from Boston and for per diem totaling $5,045.83 were improper and should be refunded to the government.

There is no dispute that Dr. Knapp worked full time during the periods in question. Dr. Knapp's supervisor, Colonel Bounds, was aware that he was working, and Colonel Bounds accepted his work. Also, Colonel Bounds requested that Dr. Knapp return several times to Mitre/McLean for meetings which involved Dr. Knapp's specific contributions to the TAG. Dr. Knapp was paid his full salary for the days he worked at Mitre/Bedford and DCA does not question those payments.

On October 16, 1986, DCA requested an advisory opinion from the Per Diem, Travel and Transportation Allowance Committee in the Department of Defense. The Committee concluded that Dr. Knapp was not entitled to any allowances because the travel in question was solely for personal reasons and had no official government purpose. Dr. Knapp strongly disagrees with this analysis and conclusion. He maintains that, while he was required to be in Boston during the time in question for medical reasons, it was also necessary for the agency's purposes that he work while there because his work could not be done by anyone else. From Dr. Knapp's perspective, he had two options when he realized that he needed an operation. He could have placed himself on sick leave for the entire period, or he could have continued to work at a temporary duty site in Boston. He did not place himself on sick leave, except for the period he was hospitalized, because the project on which he was working had a very high priority and he was faced with impending deadlines. If he went on sick leave, that contribution would have been delayed for at least 2 full months and probably longer, with an adverse effect on the project. With his supervisor's concurrence, he continued to work under extremely trying physical circumstances. Dr. Knapp states that his purpose in working in Massachusetts was to further the agency's mission.

OPINION

Under 5 U.S.C. Secs. 5702 and 5706 (1982) and implementing regulations, a government employee traveling on official business may be reimbursed for his or her actual and necessary travel expenses and paid per diem. The Federal Travel Regulations (FTR), FPMR 101-7, September 1981, incorp. ref., 41 C.F.R. Sec. 101-7.003 (1986), issued pursuant to 5 U.S.C. Sec. 5707 (1982), implement these provisions and provide for agency reimbursement of employee travel for only those expenses "essential to the transacting of official business." FTR, para. 1-1.3b. It has long been held, therefore, that to be entitled to travel expenses under these provisions the employee must be traveling on "official business.' See 55 Comp.Gen. 1332, 1334 (1976). /1/

The decision by Dr. Knapp to go to Boston to seek medical treatment, although medically necessary, must be regarded as his personal choice, notwithstanding the importance of the work that Dr. Knapp accomplished with his supervisor's knowledge while receiving medical treatment at that location. This arrangement resulted in a benefit to the agency in that Dr. Knapp was able to continue to contribute to the TAG project while receiving medical treatment. As the agency and the Per Diem, Travel and Transportation Allowance Committee determined, however, his travel to Boston may not be characterized as travel for the purpose of transacting or performing official business within the meaning of the FTR. Thus, we agree with the agency's conclusion that Dr. Knapp's presence in Massachusetts during the times in question was for personal reasons for which travel allowances are not payable.

Accordingly, we cannot authorize the reimbursement Dr. Knapp seeks. However, collection of the erroneous payments from Dr. Knapp is subject to waiver consideration under 5 U.S.C. Sec. 5584, as amended (1982 & Supp. IV 1986), since the payments were made subsequent to December 28, 1985, when the waiver statute was amended to include travel, transportation, and relocation expense overpayments.

/1/ We note that, pursuant to 5 U.S.C. Sec. 5702(b), FTR, para. 1 7.5b(1) specifically provides for the continuation of per diem payments to a traveler who becomes ill or injured while on temporary duty. See James A. Sisler, B-220540, Mar. 31, 1986. However, that authority does not extend to travel for the purpose of seeking medical attention or for a preexisting medical condition. See Dwight G. Garretson, B-191190, Mar. 16, 1979.