B-39287, FEBRUARY 12, 1944, 23 COMP. GEN. 586

B-39287: Feb 12, 1944

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COMMENCED A PERIOD OF LEAVE OF ABSENCE OF MORE THAN ONE DAY AFTER HIS PRESCRIBED HOURS OF DUTY AND RETURNED TO DUTY AT THE BEGINNING OF A WORKDAY FOLLOWING THE EXPIRATION OF SUCH PERIOD OF LEAVE IS TO BE REGARDED. IS NOT AFTER THE OFFICE HOURS UNDER YOUR DECISION IN VOLUME 18. THE SUPERVISING OFFICER HAS QUESTIONED THIS PROCEDURE IN THE FOLLOWING STATEMENT: "THIS PARTICULAR PHASE IS VERY DIFFICULT TO UNDERSTAND AND I WOULD APPRECIATE ADDITIONAL INFORMATION THAT I CAN SUBMIT TO THE OTHER PLANTS TO AID THEM IN THE PREPARATION OF TRAVEL VOUCHERS. IT WOULD SEEM TO ME THAT IF A PERSON WAS OFF ON ANNUAL LEAVE AND THEY TOOK OFF AFTER THE OFFICE HOURS ON MONDAY AND DID NOT RETURN TO WORK UNTIL WEDNESDAY MORNING AT 8:45 THEY SHOULD BE PAID FOR A FULL DAY ON THE 15TH AND A FULL DAY ON THE 17TH.

B-39287, FEBRUARY 12, 1944, 23 COMP. GEN. 586

SUBSISTENCE - PER DIEMS - LEAVES OF ABSENCE DURING TRAVEL STATUS AN EMPLOYEE WHO, WHILE IN A TRAVEL STATUS, COMMENCED A PERIOD OF LEAVE OF ABSENCE OF MORE THAN ONE DAY AFTER HIS PRESCRIBED HOURS OF DUTY AND RETURNED TO DUTY AT THE BEGINNING OF A WORKDAY FOLLOWING THE EXPIRATION OF SUCH PERIOD OF LEAVE IS TO BE REGARDED, UNDER PARAGRAPH 45 (A) OF THE STANDARD GOVERNMENT TRAVEL REGULATIONS, AS IN A SUBSISTENCE STATUS UNTIL MIDNIGHT OF THE DAY ON WHICH HIS LEAVE COMMENCED, AS WELL AS FROM 12:01 A.M. OF THE DAY ON WHICH HE RETURNED TO DUTY, SO AS TO ENTITLE HIM TO A FULL PER DIEM IN LIEU OF SUBSISTENCE FOR EACH OF THOSE DAYS.

ACTING COMPTROLLER GENERAL YATES TO J. D. SECREST, DEPARTMENT OF THE INTERIOR, FEBRUARY 12, 944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 1, 1944, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO THE UNDERSIGNED AUTHORIZED CERTIFYING OFFICER THE CLAIM OF MR. ELDIE L. KING, HELIUM PLANT OPERATOR, AMARILLO, TEXAS, FOR REIMBURSEMENT OF TRAVEL EXPENSES INVOLVING ACLAIM FOR FULL PER DIEM SEPTEMBER 9, LEAVING OFFICIAL DUTY FOR ANNUAL LEAVE AT 5 P.M. AND ALSO A CLAIM FOR FULL PER DIEM SEPTEMBER 13, RETURNING TO OFFICIAL DUTY FROM ANNUAL LEAVE AT :30 A.M. TO 5 P.M. AND, THEREFORE, DEPARTURE ON SEPTEMBER 9, IS NOT AFTER THE OFFICE HOURS UNDER YOUR DECISION IN VOLUME 18, PAGE 320, NOR WOULD THE RETURN TO DUTY AT 8:30 A.M., SEPTEMBER 13, CONSTITUTE A RETURN PRIOR TO PRESCRIBED HOURS.

IT HAS ALWAYS BEEN THE RULE IN THIS BUREAU THAT FULL PER DIEM FOR THE DAY PRECEDING LEAVE OF ABSENCE SHOULD BE BASED ON PERFORMANCE OF DUTY SUBSEQUENT TO PRESCRIBED HOURS AND THAT PER DIEM ON RETURN TO DUTY STATUS SHOULD BE ALLOWED ON THE BASIS OF THE HOUR OF RETURN TO ACTUAL (NOT THEORETICAL) DUTY. AT AMARILLO WE WOULD ALLOW 3/4 OF A DAY'S PER DIEM FOR SEPTEMBER 9 AND 3/4 FOR SEPTEMBER 13. HOWEVER, THE SUPERVISING OFFICER HAS QUESTIONED THIS PROCEDURE IN THE FOLLOWING STATEMENT:

"THIS PARTICULAR PHASE IS VERY DIFFICULT TO UNDERSTAND AND I WOULD APPRECIATE ADDITIONAL INFORMATION THAT I CAN SUBMIT TO THE OTHER PLANTS TO AID THEM IN THE PREPARATION OF TRAVEL VOUCHERS. IT WOULD SEEM TO ME THAT IF A PERSON WAS OFF ON ANNUAL LEAVE AND THEY TOOK OFF AFTER THE OFFICE HOURS ON MONDAY AND DID NOT RETURN TO WORK UNTIL WEDNESDAY MORNING AT 8:45 THEY SHOULD BE PAID FOR A FULL DAY ON THE 15TH AND A FULL DAY ON THE 17TH. IT IS, OF COURSE, IMPOSSIBLE TO SHOW OFFICIAL DUTIES AFTER THE PRESCRIBED OFFICE HOURS BEFORE AND AFTER THE OFFICE IS CLOSED. I KNOW FROM PERSONAL EXPERIENCE THAT WHENEVER A TRAVELER IS IN ANOTHER TOWN WORKING WITH SOME COMPANY AND THE OFFICE CLOSES, NO WORK IS DONE AFTER THAT TIME; NEITHER DO THEY WORK BEFORE THE OFFICE OPENS THE NEXT MORNING. IN CASE OF PEOPLE TRAVELING TO THE AMARILLO PLANT, THEY COULD NOT REACH THE OFFICE PRIOR TO 8:45 UNLESS THEY DROVE THEIR OWN CAR OR HIRED A TAXI. THE PLANT BUS DOES NOT GET TO THE PLANT UNTIL 8:45 IN THE MORNING. THEN AGAIN, THEY COULD NOT DO ANY OFFICIAL DUTIES AFTER 5:15 IN THE AFTERNOON, DUE TO THE FACT THAT THE BUS GOES IN AT 5:20 AND THEY WOULD HAVE NO WAY OF RETURNING TO THE PLANT UNLESS THEY WERE LOANED ONE OF OUR CARS OR HIRED A TAXI TO RETURN TO DUTY. IT WOULD, THEREFORE, SEEM IF THE EMPLOYEE HAS WORKED THE FULL NUMBER OF HOURS IN THE OFFICE, THAT WHAT THAT PERSON DID AFTER OFFICE HOURS WOULD BE OF NO CONCERN TO THE GENERAL ACCOUNTING OFFICE. IT ALSO SEEMS THAT IF THE EMPLOYEE RETURNED TO DUTY AT THE BEGINNING OF THE OFFICE HOURS, WHAT THAT EMPLOYEE DID PRIOR TO THE BEGINNING OF THE OFFICIAL WORK DAY WOULD BE OF NO CONCERN TO THE GENERAL ACCOUNTING OFFICE.'

WHILE SUNDAY, PRECEDING LEAVE, DOES NOT ENTER INTO THE QUESTION IN THIS VOUCHER, IT IS A FACTOR IN MANY ACCOUNTS AND THE BUREAU OF MINES HAS ADHERED TO THE PRACTICE OF DENYING PER DIEM IN LIEU OF SUBSISTENCE WHERE SUNDAY FOLLOWS THE LAST WORK DAY OR PRECEDES THE DAY ON WHICH WORK AGAIN IS RESUMED.

FOR EXAMPLE, AN EMPLOYEE WORKS UNTIL 6 P. M. SATURDAY BUT REMAINS AT HIS TEMPORARY DUTY STATION SUNDAY WITHOUT PERFORMING DUTY. MONDAY HE IS ON ANNUAL LEAVE AND RESUMES ACTUAL DUTY THE FOLLOWING MONDAY AT 8 A.M. IF THE PRESCRIBED HOURS WERE 8 A.M. TO 6 P.M., 3/4 OF A DAY'S PER DIEM WOULD BE ALLOWED FOR SATURDAY--- NONE FOR SUNDAYS AT THE BEGINNING AND ENDING OF THE LEAVE PERIOD. THREE-FOURTHS OF A DAY WOULD BE ALLOWED FOR MONDAY WHERE EMPLOYEE REPORTED AT 8 A.M.

THESE QUESTIONS ARE ARISING SO FREQUENTLY THAT I WILL APPRECIATE YOUR CONSIDERATION OF THE INSTANT CLAIM, WHICH IS HEREWITH TRANSMITTED, AS WELL AS AN ADVISORY ANSWER ON PER DIEM FOR SUNDAY, BEFORE AND SUBSEQUENT TO LEAVE.

ON THE SUBMITTED VOUCHER, WHICH COVERS THE PERIOD FROM SEPTEMBER 1, TO 15, 1943, DURING WHICH PERIOD MR. KING WAS ABSENT FROM HIS HEADQUARTERS, AMARILLO, TEXAS, ON TEMPORARY DUTY IN KANSAS, CLAIM IS MADE FOR $60 PER DIEM FOR 12 DAYS AT $5, FROM SEPTEMBER 1 TO 9, AND 13 TO 15. THE EMPLOYEE STATES THAT HE WENT ON LEAVE AT 5 P.M. THURSDAY, SEPTEMBER 9, FROM DUTY AT OTIS HELIUM PLANT, OTIS, KANSAS, AND RETURNED TO DUTY FROM LEAVE AT 8:30 A.M. MONDAY, SEPTEMBER 13, AT WHICH TIME HE LEFT THE PLANT IN A PRIVATE AUTOMOBILE AT NO EXPENSE TO THE GOVERNMENT, ARRIVING AT CUNNINGHAM HELIUM PLANT, CUNNINGHAM, KANSAS, AT 10:30 A.M. OF THAT DAY. HE STATES THAT THE HOURS OF OFFICIAL DUTY AT THE OTIS PLANT ARE FROM 8:30 A.M. TO 5 P.M. AND THAT HE IS CLAIMING A FULL DAY OF SUBSISTENCE SEPTEMBER 9 AND 13 PURSUANT TO PARAGRAPH 45 (A) OF STANDARD GOVERNMENT TRAVEL REGULATIONS AS LEAVE DID NOT BEGIN OR TERMINATE DURING HIS PRESCRIBED HOURS OF DUTY. THE EMPLOYEE'S STATEMENT AS TO HIS PRESCRIBED HOURS OF DUTY IS CORROBORATED IN YOUR LETTER.

THE DECISION OF OCTOBER 7, 1938, 18 COMP. GEN. 319, CITED IN YOUR LETTER, IS AN INTERPRETATION OF THE SPECIFIC WORDING OF PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN THE LIGHT OF PRIOR DECISIONS OF THIS OFFICE REGARDING ABSENCES FROM OFFICIAL STATION OF 10 HOURS OR LESS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. AND SHOULD NOT BE USED AS A BASIS FOR COMPUTING PER DIEM ALLOWANCES OF AN EMPLOYEE WHO TAKES LEAVE OF ABSENCE WHILE IN A TRAVEL STATUS AWAY FROM OFFICIAL STATION, WHOSE PER DIEM ALLOWANCE IS GOVERNED BY THE PROVISIONS OF PARAGRAPH 45 (A) OF THE REGULATIONS, THE FIRST AND SECOND SENTENCES OF WHICH READ AS FOLLOWS:

IF LEAVE OF ABSENCE OF ANY KIND BEGINS OR TERMINATES WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, SUBSISTENCE ALLOWANCE WILL TERMINATE OR BEGIN AT THE SAME TIME. IF THE LEAVE OF ABSENCE DOES NOT BEGIN OR TERMINATE WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY THE TRAVELER WILL BE REGARDED AS BEING IN A SUBSISTENCE STATUS UNTIL MIDNIGHT OF THE LAST DAY ON WHICH ACTUAL SERVICE IS RENDERED PRECEDING THE LEAVE OF ABSENCE AND FROM 12:01 O-CLOCK A.M., OF THE DAY ON WHICH ACTUAL SERVICE IS RESUMED.

IN DECISION OF AUGUST 23, 1929, 9 COMP. GEN. 87, IN WHICH THE ABOVE PROVISIONS (THEN PARAGRAPH 45 (B) OF THE REGULATIONS) WERE APPLIED, THERE WAS CONSIDERED THE CASE OF AN EMPLOYEE ON LEAVE OF ABSENCE FOR MORE THAN ONE DAY WHILE IN A TRAVEL STATUS WHO RETURNED TO DUTY AT THE BEGINNING OF A WORKDAY, AND IT WAS HELD THAT HE WAS ENTITLED TO A FULL PER DIEM FOR THE CALENDAR DAY ON WHICH HE RETURNED TO DUTY. IN DECISION OF JUNE 18, 1943, B-34552, IT WAS STATED:

THE PER DIEM IN LIEU OF SUBSISTENCE IS COMPUTED ON THE BASIS OF THE CALENDAR DAY BEGINNING AND ENDING AT MIDNIGHT WHEREAS LEAVE OF ABSENCE IS COMPUTED ON THE BASIS OF THE NUMBER OF HOURS IN THE WORK DAY BEGINNING AND ENDING ACCORDINGLY. THE FIRST AND SECOND SENTENCES OF PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, ABOVE QUOTED, RELATE TO ABSENCE WHILE IN A TRAVEL STATUS ON MORE THAN ONE WORK DAY, WHEREAS THE LAST SENTENCE OF THE REGULATIONS RELATES TO ABSENCE WHILE IN A TRAVEL STATUS ONLY FOR A PART OF ONE WORK DAY. REFERRING TO THE LAST SENTENCE OF THE REGULATIONS, IF THE ABSENCE ONLY FOR A PART OF ONE WORK DAY DOES NOT EXCEED ONE-HALF OF THE WORK DAY, WHETHER OR NOT THE BEGINNING OR TERMINATION OF THE LEAVE COINCIDES WITH THE BEGINNING OR ENDING OF THE WORK DAY, THE EMPLOYEE DOES NOT LOSE HIS PER DIEM FOR THAT DAY, IF THE EMPLOYEE ENTERS ON DUTY AT THE BEGINNING HOUR OF THE NEXT WORK DAY. THAT IS TO SAY, IT IS ONLY WHERE THE ABSENCE ON ONE WORK DAY EXCEEDS ONE-HALF OF THE WORK DAY THAT NO PER DIEM MAY BE CLAIMED FOR THAT CALENDAR DAY.

MR. KING WORKED THE FULL PRESCRIBED HOURS OF DUTY ON SEPTEMBER 9, AND SINCE LEAVE OF ABSENCE IS COMPUTED ON THE BASIS OF THE NUMBER OF HOURS IN THE WORKDAY BEGINNING AND ENDING ACCORDINGLY, IT CANNOT BE SAID THAT LEAVE BEGAN WITHIN THE PRESCRIBED WORKING HOURS OR, IN FACT, BEGAN ON THAT DAY. THEREFORE, HE SHOULD BE REGARDED AS IN A SUBSISTENCE STATUS UNTIL MIDNIGHT OF SEPTEMBER 9, AND ENTITLED TO $5 PER DIEM. LIKEWISE, SINCE HE STATED THAT HE RETURNED TO DUTY ON SEPTEMBER 13 AT :30 A.M., THE BEGINNING OF HIS WORKDAY, HE WAS IN A SUBSISTENCE STATUS FROM 12:01 A.M. OF THAT DAY, AND SHOULD BE ALLOWED A FULL PER DIEM FOR THAT DAY. THERE IS NO BASIS UNDER THE REGULATION (PARAGRAPH 45 (A) ( FOR A REQUIREMENT OF PERFORMANCE OF DUTY BEFORE OR AFTER OFFICE HOURS, IN ADDITION TO THE PRESCRIBED HOURS OF WORK, IN ORDER THAT AN EMPLOYEE MAY BE ENTITLED TO THE FULL PER DIEM ALLOWANCE.

SINCE, IN THE LIGHT OF THE FOREGOING THE EMPLOYEE HERE INVOLVED IS ENTITLED TO PER DIEM FOR 12 DAYS, AS CLAIMED, THE SUBMITTED VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.

AS THE QUESTION POSED IN THE ANTEPENULTIMATE AND PENULTIMATE PARAGRAPHS OF YOUR LETTER IS NOT INVOLVED IN THE VOUCHER PRESENTED WITH YOUR LETTER, I AM WITHOUT AUTHORITY TO RENDER YOU A DECISION ON THAT QUESTION IN YOUR CAPACITY AS A CERTIFYING OFFICER. SEE 21 COMP. GEN. 1128; AND B-28501, DATED SEPTEMBER 5, 1942 (PARTICULARLY WITH REFERENCE TO THE SECOND QUESTION THEREIN).