B-27674, AUGUST 8, 1942, 22 COMP. GEN. 129

B-27674, AUGUST 8, 1942, 22 COMP. GEN. 129

SUBSISTENCE - PER DIEMS - PERSONS SERVING IN AN ADVISORY CAPACITY WHILE AWAY FROM THEIR HOMES WHERE THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING IN AN ADVISORY CAPACITY WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IS LIMITED TO PERIODS DURING WHICH THEY ARE AWAY FROM THEIR HOMES, A PERSON SERVING IN SUCH AN ADVISORY CAPACITY WHOSE HOME IS AT BETHESDA, MD.--- A PLACE GENERALLY AND COMMONLY REGARDED AS BEING A SUBURB AND A PART OF THE METROPOLITAN AREA OF WASHINGTON, D.C.--- IS NOT ENTITLED TO A PER DIEM IN LIEU OF SUBSISTENCE FOR DUTY PERFORMED IN WASHINGTON, D.C., WHICH MUST BE REGARDED AS HIS HOME. UNDER THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS "SERVING WHILE AWAY FROM THEIR HOMES" IN AN ADVISORY CAPACITY WITH OTHER COMPENSATION FROM THE UNITED STATES, SUCH A PERSON MAY NOT BE PAID A PER DIEM IN LIEU OF SUBSISTENCE DURING A PERIOD OF DUTY AT THE PLACE WHERE HIS HOME IS LOCATED EVEN THOUGH ANOTHER PLACE HAS BEEN DESIGNATED AS HIS OFFICIAL HEADQUARTERS.

COMPTROLLER GENERAL WARREN TO R. J. LIPPOLT, OFFICE OF PRICE ADMINISTRATION, AUGUST 8, 1942:

REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1942, AS FOLLOWS:

ATTACHED ARE BUREAU VOUCHERS NOS. OPA 1749, 2586, 2585, 252, AND 933 COVERING PER DIEM IN LIEU OF SUBSISTENCE EXPENSES FOR MR. PHILIP A. M. SMITH, WHICH HAVE BEEN SUBMITTED FOR PAYMENT TO THE UNDERSIGNED, AN AUTHORIZED CERTIFYING OFFICER.

MR. SMITH IS A CONSULTANT SERVING WITHOUT COMPENSATION IN THE WASHINGTON OFFICE OF PRICE ADMINISTRATION. HIS OFFICIAL HEADQUARTERS HAVE BEEN DESIGNATED AS BALTIMORE, BUT HIS HOME IS IN BETHESDA, MARYLAND, A SUBURB OF WASHINGTON. DURING THE ENTIRE PERIOD OF THE VOUCHERS, FROM THE DATE OF HIS ENTRANCE ON DUTY ON MAY 4 THROUGH JULY 15 HE HAS BEEN ON DUTY IN WASHINGTON AND IS CLAIMING $10 PER DIEM CONTINUOUSLY DURING THAT TIME. LIVES AT HIS BETHESDA HOME BUT, ACCORDING TO A MEMORANDUM DATED JULY 23, WHICH IS ATTACHED HERETO, HE WAS GENERALLY ABSENT THEREFROM BETWEEN THE HOURS OF 7:30 A.M. AND 7:30 P.M.

SINCE, UNDER THE ACT OF OCTOBER 9, 1940, AND SUBSEQUENT APPROPRIATION ACTS, THE $10 PER DIEM IS PAYABLE ONLY TO INDIVIDUALS SERVING AWAY FROM THEIR HOMES, IT APPEARS THAT REIMBURSEMENT MUST NECESSARILY BE LIMITED IN THE CASE UNDER CONSIDERATION TO A MAXIMUM OF 1/2 PER DIEM DAILY. THE QUESTION THAT ARISES, HOWEVER, IS WHETHER THE CLAIMANT, LIVING IN BETHESDA AND WORKING IN WASHINGTON AS HE DOES, IS ACTUALLY SERVING WHILE AWAY FROM HIS HOME WITHIN THE MEANING OF THE ACTS.

YOUR DECISION IS REQUESTED AS TO THE AMOUNT OF REIMBURSEMENT, IF ANY, TO WHICH MR. SMITH IS ENTITLED.

THE REFERRED-TO VOUCHERS COVER CLAIM FOR $10 PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD MAY 4, 1942, TO JULY 15, 1942, INCLUSIVE. MR. SMITH'S LETTER OF APPOINTMENT AS CONSULTANT IN THE OFFICE OF PRICE ADMINISTRATION READS AS FOLLOWS:

YOU ARE APPOINTED AS CONSULTANT WITHOUT COMPENSATION FOR AN INDEFINITE PERIOD, EFFECTIVE MAY 4, 1942.

DURING THIS PERIOD YOUR SERVICES WILL BE WITHOUT COMPENSATION FROM THE UNITED STATES. HOWEVER, YOU WILL BE REIMBURSED FOR ACTUAL AND NECESSARY TRAVELING EXPENSES IN ACCORDANCE WITH STANDARD GOVERNMENT REGULATIONS AND YOU WILL BE ALLOWED $10.00 PER DIEM, IN LIEU OF SUBSISTENCE, WHEN YOU ARE AWAY FROM YOUR OFFICIAL HEADQUARTERS ON OFFICIAL BUSINESS CONNECTED WITH THE TIRE RATIONING DIVISION, OFFICE OF PRICE ADMINISTRATION.

WILL YOU PLEASE COMPLETE AND RETURN THE ENCLOSED STATEMENT OF ACCEPTANCE? ALSO, IT IS REQUESTED THAT YOU RETURN THE ATTACHED OATH OF OFFICE AND PERSONNEL AFFIDAVIT AFTER PROPER CERTIFICATION BY A NOTARY PUBLIC. TRANSPORTATION REQUEST FORMS WILL BE MAILED TO YOU IMMEDIATELY.

WE APPRECIATE YOUR PATRIOTIC COOPERATION IN THIS VERY IMPORTANT ASPECT OF THE WAR PROGRAM.

MR. SMITH ACCEPTED THE APPOINTMENT UNDER DATE OF MAY 4, 1942, IN THE FOLLOWING TERMS:

I HEREBY ACCEPT THE DESIGNATION OF CONSULTANT IN THE OFFICE OF PRICE ADMINISTRATION, WITH THE UNDERSTANDING THAT I WILL RENDER SUCH SERVICES AS MAY BE NECESSARY IN CONNECTION WITH THIS PROGRAM AND THAT SUCH SERVICES ON MY PART SHALL BE RENDERED WITHOUT COMPENSATION OF ANY NATURE FROM THE UNITED STATES GOVERNMENT. I UNDERSTAND THAT MY OFFICIAL HEADQUARTERS WILL BE BALTIMORE, MARYLAND, AND THAT I WILL BE REIMBURSED FOR ACTUAL AND NECESSARY TRAVELING EXPENSES IN ACCORDANCE WITH STANDARD GOVERNMENT REGULATIONS (APPROVED BY THE PRESIDENT JANUARY 30, 1934; SEPTEMBER 10, 1935; MARCH 27, 1939; AND JULY 18, 1939) WHEN I AM ENGAGED IN OFFICIAL WORK OF THE OFFICE OF PRICE ADMINISTRATION, AND WILL BE ALLOWED $10.00 PER DIEM, IN LIEU OF SUBSISTENCE, WHEN I AM AWAY FROM MY OFFICIAL HEADQUARTERS ON OFFICIAL BUSINESS. I AM NOT RECEIVING OTHER COMPENSATION FROM THE UNITED STATES GOVERNMENT.

ATTACHED TO THE VOUCHERS ARE COPIES OF TRAVEL ORDERS DESIGNATING BALTIMORE, MARYLAND, AS THE OFFICIAL HEADQUARTERS OF MR. SMITH, AUTHORIZING HIM TO " TRAVEL FROM BALTIMORE, MARYLAND, TO WASHINGTON, D.C. AND RETURN, AS OFTEN AS MAY BE NECESSARY," AND PURPORTING TO AUTHORIZE A PER DIEM ALLOWANCE OF $10. MR. SMITH HAS FILED THE FOLLOWING MEMORANDUM IN CONNECTION WITH HIS VOUCHERS:

IN RESPONSE TO YOUR REQUEST OF JULY 22, I SUBMIT THE FOLLOWING INFORMATION.

MY REGULAR PLACE OF WORK IS: UNITED STATES RUBBER COMPANY, 429 SOUTH CHARLES STREET, BALTIMORE, MARYLAND.

MY HOME IS LOCATED AT: 7915 RADNOR ROAD, BETHESDA, MARYLAND.

I HAVE SERVED AS A CONSULTANT IN THE TIRE RATIONING BRANCH, AUTOMOTIVE SUPPLY RATIONING DIVISION, SINCE MAY 4, 1942. I HAVE NOT KEPT A RECORD OF THE TIME OF DEPARTURE FROM MY HOME AND ARRIVAL AT MY HOME EACH DAY I HAVE BEEN ON DUTY IN THE TIRE RATIONING BRANCH BUT, GENERALLY SPEAKING, I LEAVE BETHESDA AT 7:30 A.M. EACH MORNING AND ARRIVE HOME ABOUT 7:30 P.M. EACH EVENING.

VOUCHERS COVERING THE PERIOD MAY 4, 1942, TO JUNE 30, 1942, ARE PROPOSED TO BE CHARGED TO THE APPROPRIATION "112/30006 (25) EMERGENCY FUND FOR THE PRESIDENT, NATIONAL DEFENSE ( ALLOTMENT TO OFFICE FOR EMERGENCY MANAGEMENT, OFFICE OF PRICE ADMINISTRATION) 1942 AND 1943.' THE PRESIDENT'S ALLOCATION LETTER, NO. 42/3-12, DATED MAY 2, 1942, ON THE BASIS OF WHICH THE ABOVE-MENTIONED APPROPRIATION HAS BEEN SET UP, CONTAINS THE FOLLOWING PROVISION:

THE FUNDS HEREBY ALLOCATED SHALL BE AVAILABLE FOR ALL NECESSARY EXPENSES OF THE OFFICE OF PRICE ADMINISTRATION AND MAY BE EXPENDED FOR ALL THE OBJECTS AND BY ALL THE METHODS AUTHORIZED BY THE APPROPRIATION FOR THE OFFICE FOR EMERGENCY MANAGEMENT CONTAINED IN THE " THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942.'

THE " THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942," ACT OF DECEMBER 17, 1941, PUBLIC LAW 353, UNDER THE HEADING " OFFICE FOR EMERGENCY MANAGEMENT" PROVIDES "FOR AN ADDITIONAL AMOUNT FOR THE OFFICE FOR EMERGENCY MANAGEMENT, FISCAL YEAR 1942, INCLUDING OBJECTS FOR WHICH THE APPROPRIATION UNDER THIS HEADING IN THE SECOND DEFICIENCY APPROPRIATION ACT, 1940, IS AVAILABLE, AND SUBJECT TO THE PROVISIONS AND LIMITATIONS THEREOF.' THE SECOND DEFICIENCY APPROPRIATION ACT, 1941, APPROVED JULY 3, 1941, 55 STAT. 543, MAKES FUNDS AVAILABLE TO THE OFFICE FOR EMERGENCY MANAGEMENT FOR "ALL OBJECTS FOR WHICH AND METHODS BY WHICH SAID EMERGENCY FUNDS AND FUNDS AVAILABLE TO SAID COUNCIL OF NATIONAL DEFENSE WERE AND ARE AVAILABLE AND EXPENDABLE.' THE ACT OF OCTOBER 9, 1940, 54 STAT. 1032, CITED BY YOU, UNDER THE HEADING " COUNCIL OF NATIONAL DEFENSE" PROVIDES AS FOLLOWS:

THE APPROPRIATION FOR THE EXPENSES OF THE COUNCIL OF NATIONAL DEFENSE CONTAINED IN THE " FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941," APPROVED JUNE 26, 1940, AND ALLOCATIONS TO THE COUNCIL OF NATIONAL DEFENSE, THE ADVISORY COMMISSION, AND OTHER SUBORDINATE BODIES OF THE COUNCIL FROM THE APPROPRIATIONS ENTITLED " EMERGENCY FUND FOR THE PRESIDENT" CONTAINED IN THE ACTS MAKING APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT AND THE NAVY DEPARTMENT FOR THE FISCAL YEAR 1941, APPROVED JUNE 13 AND JUNE 11, 1940, SHALL BE AVAILABLE FOR THE PAYMENT OF ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES OF MEMBERS OF THE COMMISSION, SUBORDINATE BODIES OF THE COUNCIL, PERSONS SERVING AT $1 PER ANNUM, AND PERSONS SERVING WHILE AWAY FROM THEIR HOMES, WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, IN AN ADVISORY CAPACITY TO THE COUNCIL, THE ADVISORY COMMISSION OR OTHER SUBORDINATE BODIES OF THE COUNCIL, OR IN ATTENDANCE AT MEETINGS CONCERNED WITH THE NATIONAL DEFENSE.

THE APPROPRIATION PROPOSED TO BE CHARGED WITH THE AMOUNT STATED ON THE VOUCHER COVERING THE PERIOD JULY 1 TO 15, 1942, IS NOT INDICATED, BUT IT IS PRESUMED THE AMOUNT OF THAT VOUCHER WAS INTENDED TO BE CHARGED TO THE APPROPRIATION PROVIDED UNDER THE HEADING " OFFICE OF PRICE ADMINISTRATION" CONTAINED IN THE " FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943," APPROVED JULY 25, 1942, PUBLIC LAW 678, WHICH CONTAINS THE FOLLOWING ITEM:

* * * ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING WHILE AWAY FROM THEIR HOMES IN AN ADVISORY CAPACITY WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM.

THE AUTHORITY THUS PROVIDED BY LAW AND THE ACTION OF THE PRESIDENT FOR PAYMENT OF A PER DIEM OF $10 IN LIEU OF SUBSISTENCE TO PERSONS WHO SERVE WITHOUT COMPENSATION FOR THE OFFICE OF PRICE ADMINISTRATION IS EXCLUSIVE OF ALL OTHER AUTHORITY TO PAY A COMMUTATION ALLOWANCE FOR SUBSISTENCE, INCLUDING THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, AS AMENDED BY THE ACT OF JUNE 30, 1932, 47 STAT. 405, AND THE ACT OF JANUARY 30, 1942, PUBLIC LAW 424, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE AUTHORITY TO PAY THE PER DIEM OF $10 TO PERSONS WHO SERVE IN AN ADVISORY CAPACITY IN THE OFFICE OF PRICE ADMINISTRATION, WITHOUT COMPENSATION, IS LIMITED TO PERIODS SUCH PERSONS ARE "SERVING WHILE AWAY FROM THEIR HOMES.' SEE 21 COMP. GEN. 377. COMPARE 21 ID. 409; 610. BETHESDA, MD., WHERE MR. SMITH RESIDES AND MAINTAINS HIS HOME, IS GENERALLY AND COMMONLY REGARDED AS BEING A SUBURB AND A PART OF THE METROPOLITAN AREA OF WASHINGTON, D.C. HENCE, WASHINGTON, D.C., MUST BE REGARDED AS HIS HOME WITHIN THE MEANING OF THE STATUTORY AUTHORITY FOR PAYMENT OF THE PER DIEM OF $10. AS HE WAS ON DUTY IN WASHINGTON DURING THE ENTIRE PERIOD, ON AND AFTER THE EFFECTIVE DATE OF HIS APPOINTMENT COVERED BY THE VOUCHER, IT MUST BE CONCLUDED THAT HE WAS NOT SERVING WHILE AWAY FROM HIS HOME DURING ANY PART OF THE PERIOD INVOLVED. HENCE, HE IS NOT ENTITLED TO PAYMENT OF THE PER DIEM ALLOWANCE OF $10.

IN VIEW OF THE TERMS OF THE ONLY STATUTORY AUTHORITY APPLICABLE IN SUCH A CASE AS HERE PRESENTED, THERE WAS NO AUTHORITY IN THE OFFICE OF PRICE ADMINISTRATION TO AGREE TO PAY MR. SMITH A PER DIEM IN LIEU OF SUBSISTENCE OF $10, OR ANY OTHER RATE OF PER DIEM, WHILE HE WAS AWAY FROM HIS DESIGNATED OFFICIAL HEADQUARTERS AT BALTIMORE, MD. EVEN IF IT COULD BE REGARDED THAT MR. SMITH WAS ENTITLED TO THE BENEFITS OF THE SUBSISTENCE EXPENSE ACT, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NO PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE OF $6 WOULD APPEAR TO BE AUTHORIZED IN THIS INSTANCE FOR THE REASON THAT HE REMAINED AND WAS ON DUTY IN WASHINGTON, D.C., HIS HOME, FROM THE TIME HE WAS APPOINTED AND ENTERED ON DUTY, AND, ACCORDINGLY, WAS NOT IN A TRAVEL STATUS ENTITLING HIM TO A PER DIEM ALLOWANCE WITHIN THE MEANING OF THAT STATUTE AND REGULATION. SEE 21 COMP. GEN. 697.

YOU ARE NOT AUTHORIZED TO CERTIFY THE VOUCHERS FOR PAYMENT. THE VOUCHERS AND PAPERS ENCLOSED WITH YOUR LETTER ARE RETURNED HEREWITH.