B-3358, APRIL 9, 1940, 19 COMP. GEN. 846

B-3358: Apr 9, 1940

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1940: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 4 AND 12. YOUR CLAIM WAS DISALLOWED FOR REASONS STATED IN THE SETTLEMENT AS FOLLOWS: THE RECORD BEFORE THIS OFFICE DISCLOSES YOU PERFORMED TRAVEL DURING THE PERIOD DECEMBER 1 TO DECEMBER 31. REIMBURSEMENT OF THE EXPENSE THEREOF WAS ALLOWED IN THE SUM OF $120.09. THE AMOUNT OF $13.50 BEING SUSPENDED FOR ADVICE AS TO WHETHER OFFICIAL DUTIES WERE PERFORMED DURING THE PERIOD DECEMBER 24 TO 26. SINCE IT APPEARED YOU WERE NOT AT YOUR TEMPORARY DUTY STATION. IT HAS BEEN ESTABLISHED THAT YOU WERE ON DUTY AT LEACHVILLE UNTIL 5 P.M. IT IS PROVIDED IN PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THAT: "UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.'.

B-3358, APRIL 9, 1940, 19 COMP. GEN. 846

SUBSISTENCE - HEADQUARTERS - PER DIEMS PER DIEM IN LIEU OF SUBSISTENCE MAY NOT BE PAID AN EMPLOYEE, UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, FOR TIME SPENT AT HIS OFFICIAL HEADQUARTERS UPON TEMPORARY RETURN THERETO WHILE IN AN OFFICIAL TRAVEL STATUS, WHETHER THE RETURN BE FOR OFFICIAL OR PERSONAL REASONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO A. C. PATTERSON, APRIL 9, 1940:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 4 AND 12, 1940, REQUESTING REVIEW OF OFFICE ACTION OF JANUARY 30, 1940, DISALLOWING YOUR CLAIM NO. 10426131 FOR $13.50, REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $4.50 ALLEGED TO BE DUE FOR THE PERIOD DECEMBER 24 TO 26, 1937. YOUR CLAIM WAS DISALLOWED FOR REASONS STATED IN THE SETTLEMENT AS FOLLOWS:

THE RECORD BEFORE THIS OFFICE DISCLOSES YOU PERFORMED TRAVEL DURING THE PERIOD DECEMBER 1 TO DECEMBER 31, 1937, AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, UNDER AUTHORITY NO. 190 DATED JULY 1, 1937, AND REIMBURSEMENT OF THE EXPENSE THEREOF WAS ALLOWED IN THE SUM OF $120.09, THE AMOUNT OF $13.50 BEING SUSPENDED FOR ADVICE AS TO WHETHER OFFICIAL DUTIES WERE PERFORMED DURING THE PERIOD DECEMBER 24 TO 26, 1937, SINCE IT APPEARED YOU WERE NOT AT YOUR TEMPORARY DUTY STATION, LEACHVILLE, ARKANSAS, FOR SUCH TIME. IT HAS BEEN ESTABLISHED THAT YOU WERE ON DUTY AT LEACHVILLE UNTIL 5 P.M. DECEMBER 23, RETURNING THERETO AT 8 A.M. DECEMBER 27, THE INTERVENING TIME BEING SPENT AT LITTLE ROCK, ARKANSAS, DESIGNATED AS YOUR OFFICIAL STATION IN YOUR TRAVEL ORDERS AND SO RECOGNIZED BY YOU.

IT IS PROVIDED IN PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THAT: "UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.' SINCE YOU WERE AT YOUR OFFICIAL STATION DURING THE PERIOD FOR WHICH PER DIEM IN LIEU OF SUBSISTENCE IS CLAIMED THE QUOTED PROVISIONS OF THE TRAVEL REGULATIONS CLEARLY PROHIBIT THE ALLOWANCE TO YOU OF THE SUM CLAIMED OR ANY PORTION THEREOF.

I THEREFORE CERTIFY THAT NO BALANCE IS FOUND DUE YOU FROM THE UNITED STATES.

IN YOUR LETTER OF FEBRUARY 4, 1940, YOU STATE, IN PERTINENT PART, AS FOLLOWS:

IN MAKING THIS REVIEW, IT IS EARNESTLY REQUESTED THAT CERTAIN FACTS APPARENTLY NOT ACCORDED MUCH CONSIDERATION HERETOFORE BE CAREFULLY EXAMINED AND WEIGHED. I WAS TWO HUNDRED MILES FROM HOME AND HEADQUARTERS, WITHOUT OFFICIAL INSTRUCTIONS THAT WOULD PERMIT ME TO RETURN. AS A FATHER, I DO NOT BELIEVE I WAS EXPECTED TO REMAIN AWAY FROM MY FAMILY OVER THE CHRISTMAS HOLIDAYS. I RETURNED TO HEADQUARTERS ON MY OWN TIME AND AT MY OWN EXPENSE, THIS COST APPROXIMATING THE AMOUNT OF PER DIEM I EXPECTED TO BE PAID. I HAVE NEVER SHOWN THIS TRIP AS OFFICIAL TRAVEL, HAVE NEVER FILED CLAIM FOR REIMBURSEMENT OF THE EXPENSE INCURRED, NOR WAS IT A MATTER OF OFFICIAL KNOWLEDGE THAT I WAS IN LITTLE ROCK AT ALL. IT HAS ALREADY BEEN CLEARLY ESTABLISHED THAT ONE'S PRESENCEAT POINT OF DUTY OR THE PERFORMANCE OF OFFICIAL DUTIES DURING SUNDAYS AND HOLIDAYS ARE NOT NECESSARY TO ENTITLE AN EMPLOYEE TO PER DIEM FOR SUCH PERIODS. THE ONLY FACT, THEN, FOR CONSIDERATION IS THAT THROUGH FREE-TO-THE 1GOVERNMENT, PERSONAL, AND PURELY UNOFFICIAL TRAVEL I WAS IN LITTLE ROCK A PORTION OF THE THREE DAYS FOR WHICH PER DIEM HAS BEEN DENIED. THIS DISALLOWANCE WAS BASED ON GOVERNMENT TRAVEL REGULATION 46: "UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.' HOWEVER, IF WE REFER TO THE GENERAL PURPOSE CLAUSE OF ALL REGULATIONS, WE FIND THIS WORDING: THEY "ARE ISSUED FOR THE GUIDANCE OF EMPLOYEES * * * WHILE TRAVELING ON OFFICIAL BUSINESS FOR THE GOVERNMENT.' MY TRIP INTO LITTLE ROCK, BEING WITHOUT COST TO THE GOVERNMENT AND ENTIRELY PERSONAL AND UNOFFICIAL, DOES NOT COME UNDER THE SCOPE OF PARAGRAPH 46 OR ANY OTHER REGULATION. I AM THEREFORE FORCED TO THE CONCLUSION THAT THIS CLAIM IS JUST AND PAYABLE, AND THAT IF THERE IS ANY LAXITY ANYWHERE IN THE INCIDENT IT WAS IN THE FAILURE TO FURNISH INSTRUCTIONS THAT WOULD HAVE PERMITTED ME TO RETURN TO LITTLE ROCK BY GOVERNMENT TRANSPORTATION.

YOUR LETTER OF FEBRUARY 12, 1940, IS IN PERTINENT PART AS FOLLOWS:

IN THIS LETTER (LETTER OF FEBRUARY 4, 1940) I STATED A SATISFACTORY DECISION IN LINE WITH THE INTENT OF REGULATIONS WOULD "DO MUCH TO SOLVE AND ELIMINATE OTHER POINTS OF CONTENTION DERIVED FROM THIS SOURCE.' THE STRENGTH OF THE PRESENT RULING, WE ARE HAVING ADMINISTRATIVE SUSPENSION OF PER DIEM WHENEVER IT IS FOUND THAT AN EMPLOYEE IS IN HIS OFFICIAL STATION, REGARDLESS OF WHAT METHOD OF TRAVEL, PERSONAL OR OFFICIAL, IS USED IN GETTING THERE. A SUPERVISOR MAY HAVE FELT IT HIS DUTY TO ASCERTAIN IF THE MEN WERE REPORTING THEIR WHEREABOUTS CORRECTLY AND CAUSED SOME ,SPYING" TO BE DONE AFTER OFFICIAL HOURS. THE MEN WERE EQUALLY SURE THERE WAS ONE THING THEY COULD COUNT AS THEIR VERY OWN, TO BE USED AS THEY SAW FIT, CONSISTENT OF COURSE WITH HONORABLE CONDUCT, AFTER- DUTY HOURS. THIS HAS RESULTED IN SOMETHING VERY CLOSE TO UNDERHAND SPYING, AND MEN IN THEIR EFFORTS TO AVOID THIS, SLIPPING INTO THEIR HOMES IN THE DEAD HOURS OF NIGHT TO SPEND A FEW PRECIOUS HOURS WITH THEIR FAMILIES. THIS IS A VERY UGLY SITUATION INDEED, BUT ONE WHICH AN OFFICIAL INTERPRETATION OF REGULATION 46 IN ACCORDANCE WITH THE EXPRESSED PURPOSE WILL PROMPTLY ELIMINATE. BECAUSE OFFICIAL ACTION ATTEMPTS TO CONTROL SOMETHING VERY DEFINITELY UNOFFICIAL AND PERSONAL, THE PRESENT SITUATION IS LIKELY TO LEAD TO SERIOUS DIFFICULTY. IT IS BECAUSE OF THIS FEAR THAT I EARNESTLY REQUEST A CAREFUL AND CONSIDERATE REVIEW OF THIS CLAIM.'

SECTIONS 207 AND 208 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, PROVIDE AS FOLLOWS:

SEC. 207. SECTION 3 OF THE SUBSISTENCE EXPENSE ACT OF 1926, APPROVED JUNE 3, 1926 (44 STAT. 688, 689), IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 3. CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS, WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED, IN LIEU OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE AND ALL FEES OR TIPS TO PORTERS AND STEWARDS, A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, NOT TO EXCEED THE RATE OF $5 WITHIN THE LIMITS OF CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $6 BEYOND THE LIMITS OF CONTINENTAL UNITED STATES.'

SEC. 208. SECTIONS 4, 5, AND 6 OF THE SAID SUBSISTENCE EXPENSE ACT OF 1926 ARE HEREBY REPEALED, AND SECTION 7 THEREOF IS HEREBY AMENDED BY STROKING OUT THE REFERENCE THEREIN TO ACTUAL EXPENSES SO THAT THE SECTION, AS AMENDED, WILL READ AS FOLLOWS:

"SEC. 7. THE FIXING AND PAYMENT, UNDER SECTION 3, OF PER DIEM ALLOWANCE, OR PORTIONS THEREOF, SHALL BE IN ACCORDANCE WITH REGULATIONS WHICH SHALL BE PROMULGATED BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS AND WHICH SHALL BE STANDARDIZED AS FAR AS PRACTICABLE AND SHALL NOT BE EFFECTIVE UNTIL APPROVED BY THE PRESIDENT OF THE UNITED STATES.'

PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, APPROVED BY THE PRESIDENT PURSUANT TO THE ABOVE-QUOTED STATUTE (SEC. 208), CONTAINS THE FOLLOWING PROVISION:

* * * UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION. SEE, ALSO, PARAGRAPH 2 OF SAID REGULATIONS.

AS STATED IN A PRIOR COMMUNICATION TO YOU (LETTER OF MAY 9, 1939, B 3358) THE TERMS OF THE QUOTED REGULATIONS (PAR. 46):

* * * ARE CLEAR AND UNAMBIGUOUS AND ADMIT OF NO CONSTRUCTION * * * . PRESUMABLY THIS REGULATION WAS BASED ON THE FACT THAT THE SOLE PURPOSE OF THE PER DIEM IN LIEU OF SUBSISTENCE IS TO REIMBURSE THE EMPLOYEE FOR THE INCREASED EXPENSE NECESSITATED BY REASON OF HIS BEING AWAY FROM HIS OFFICIAL STATION. THERE APPEARS NOTHING IN THE REGULATION OR OTHERWISE TO JUSTIFY LIMITING THE DENIAL OF A PER DIEM IN LIEU OF SUBSISTENCE WHILE AT THE OFFICIAL STATION OF AN EMPLOYEE TO PERIODS SPENT THERE ON OFFICIAL BUSINESS, AS YOU APPEAR TO SUGGEST. OBVIOUSLY, UNDER THE PLAIN TERMS OF THE STATUTE AND APPLICABLE REGULATIONS, PER DIEM IS NOT PAYABLE TO AN EMPLOYEE WHILE AT HIS OFFICIAL STATION, IRRESPECTIVE OF WHETHER HIS PRESENCE THERE BE FOR OFFICIAL OR PERSONAL REASONS. CONSEQUENTLY, WHERE THE FACTS PRESENTED TO THIS OFFICE SHOW THAT AN EMPLOYEE CLAIMS OR HAS BEEN PAID PER DIEM IN LIEU OF SUBSISTENCE WHILE AT HIS OFFICIAL STATION, THIS OFFICE IS REQUIRED TO DISALLOW THE ITEM EITHER UPON SETTLEMENT OF THE CLAIM OR UPON SETTLEMENT OF THE ACCOUNT INVOLVED.

ACCORDINGLY, ON THE PRESENT RECORD OF THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD YOU SPENT AT LITTLE ROCK, ARKANSAS, DESIGNATED AS YOUR OFFICIAL STATION, MUST BE, AND IS, SUSTAINED.

IT CANNOT BE ASCERTAINED FROM THE PRESENT RECORD BEFORE THIS OFFICE WHEN YOU ARRIVED AT YOUR OFFICIAL STATION, LITTLE ROCK, ARKANSAS, AND WHEN YOU DEPARTED THEREFROM. IF YOU WILL ADVISE THIS OFFICE THE EXACT TIME YOU ARRIVED AT LITTLE ROCK AFTER HAVING LEFT YOUR TEMPORARY DUTY STATION, LEACHVILLE, ARKANSAS, AT 5 P.M., DECEMBER 23, AND THE TIME YOU LEFT LITTLE ROCK TO ARRIVE BACK AT LEACHVILLE AT 8 A.M., DECEMBER 27, FURTHER CONSIDERATION WILL BE GIVEN TO YOUR CLAIM FOR PER DIEM DURING THE PERIOD YOU WERE IN A TRAVEL STATUS WHOLLY SEPARATE AND APART FROM THE TIME YOU ACTUALLY SPENT AT YOUR OFFICIAL STATION.