B-40496, APRIL 5, 1944, 23 COMP. GEN. 753

B-40496: Apr 5, 1944

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OF PERSONS SERVING IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY CONSTITUENT AGENCY UNDER THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 3. WHERE THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY CONSTITUENT AGENCY UNDER THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IS LIMITED TO PERIODS DURING WHICH THEY ARE AWAY FROM THEIR HOMES. A PERSON EMPLOYED BY SUCH AGENCY UNDER SAID AUTHORITY WHOSE HOME IS IN GLEN RIDGE.

B-40496, APRIL 5, 1944, 23 COMP. GEN. 753

SUBSISTENCE - PER DIEMS - PERSONS "EMPLOYED BY" GOVERNMENT WITHOUT COMPENSATION WHILE SERVING AWAY FROM THEIR HOMES A PERSON APPOINTED TO SERVE WITHOUT COMPENSATION AS DEPUTY CHAIRMAN AND EXECUTIVE DIRECTOR OF THE WAR MANPOWER COMMISSION UNDER THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY CONSTITUENT AGENCY UNDER THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 3, 1933, PROHIBITING PAYMENT TO OFFICERS AND EMPLOYEES OF ACTUAL EXPENSES OF TRAVEL IN EXCESS OF THE LOWEST FIRST- CLASS RATE FOR THE TRANSPORTATION FACILITY USED. WHERE THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY CONSTITUENT AGENCY UNDER THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IS LIMITED TO PERIODS DURING WHICH THEY ARE AWAY FROM THEIR HOMES, A PERSON EMPLOYED BY SUCH AGENCY UNDER SAID AUTHORITY WHOSE HOME IS IN GLEN RIDGE, NEW JERSEY--- A PART OF THE METROPOLITAN DISTRICT OF NEW YORK CITY--- IS ENTITLED TO PER DIEM COMPUTED FROM THE TIME HE LEFT NEW YORK TO THE TIME OF HIS ARRIVAL BACK IN NEW YORK, RATHER THAN FROM AND TO GLEN RIDGE, NEW JERSEY.

COMPTROLLER GENERAL WARREN TO HAROLD DOTTERER, WAR MANPOWER COMMISSION, APRIL 5, 1944:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1944, AS FOLLOWS:

THE ATTACHED VOUCHER COVERING TRAVEL PERFORMED BY LAWRENCE A. APPLEY, WHO IS SERVING WITHOUT COMPENSATION AS DEPUTY CHAIRMAN AND EXECUTIVE DIRECTOR OF THE WAR MANPOWER COMMISSION, HAS BEEN SUBMITTED TO ME FOR CERTIFICATION AND PAYMENT BY THE DIVISION OF DISBURSEMENTS OF THE TREASURY DEPARTMENT.

MR. APPLEY WAS APPOINTED TO SERVE WITHOUT COMPENSATION UNDER THE FOLLOWING PROVISION OF PUBLIC LAW 139, 78TH CONGRESS, APPROVED JULY 12, 1943:

"* * * AND ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES.'

THE LETTER OF APPOINTMENT FROM THE CHAIRMAN OF THE WAR MANPOWER COMMISSION TO MR. APPLEY STATES THAT HIS SERVICES WILL BE WITHOUT COMPENSATION BUT," YOU WILL BE REIMBURSED FOR ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES AND YOU WILL BE ALLOWED $10.00 PER DIEM, IN LIEU OF SUBSISTENCE, IN ACCORDANCE WITH PROVISIONS OF THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, WHEN YOU ARE AWAY FROM HOME ( GLEN RIDGE, NEW JERSEY) ON OFFICIAL BUSINESS CONNECTED WITH THE WAR MANPOWER COMMISSION.'

TRAVEL ORDER WMC-2028 DATED DECEMBER 31, COPY OF WHICH IS ATTACHED, AUTHORIZES MR. APPLEY TO TRAVEL FROM GLEN RIDGE, N.J. TO ANY AND ALL POINTS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AND THE DOMINION OF CANADA AND RETURN TO GLEN RIDGE, N.J., VISITING THESE POINTS IN SUCH ORDER AND AS OFTEN AS MAY BE NECESSARY. ON THIS TRAVEL ORDER ALL REFERENCE TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE FISCAL REGULATIONS OF THE WAR MANPOWER COMMISSION HAS BEEN ELIMINATED.

AN EXAMINATION OF THIS VOUCHER INDICATES THAT MR. APPLEY IN TRAVELING FROM GLEN RIDGE, N.J. TO WASHINGTON, D.C. AND RETURN HAS USED ACCOMMODATIONS OTHER THAN STANDARD LOWER BERTHS. IN VIEW OF THE FACT THAT MR. APPLEY IS TRAVELING UNDER THE PROVISION WHICH ALLOWS "ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES," AND UNDER A TRAVEL ORDER WHICH ELIMINATES ALL REFERENCE TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AM I AS CERTIFYING OFFICER AUTHORIZED TO APPROVE SUCH TRAVEL OR SHOULD A DEDUCTION BE MADE FROM THE VOUCHER FOR THE DIFFERENCE BETWEEN STANDARD AND SUPERIOR ACCOMMODATIONS?

THE VOUCHER ALSO DISCLOSES THAT MR. APPLEY CLAIMS PER DIEM FROM THE TIME OF LEAVING HIS HOME, GLEN RIDGE, N.J., UNTIL HIS RETURN. GLEN RIDGE IS 16 MILES FROM NEW YORK CITY AND IT REQUIRES APPROXIMATELY ONE HOUR TO TRAVEL FROM GLEN RIDGE, N.J. TO NEW YORK CITY. IN VIEW OF THE DISTANCE FROM NEW YORK CITY AND THE TRAVEL TIME INVOLVED, I AM INCLINED TO BELIEVE THAT GLEN RIDGE, N.J. SHOULD NOT BE CONSIDERED AS A PART OF THE METROPOLITAN AREA OF NEW YORK CITY. IF MY ASSUMPTION IS CORRECT, THEN PER DIEM SHOULD BE ALLOWED MR. APPLEY FROM THE TIME OF HIS DEPARTURE FROM GLEN RIDGE, N.J. (HIS HOME) UNTIL HIS RETURN THERE. HOWEVER, I AM AWARE OF 22 C.G. 512; ID. 129 AND BEFORE CERTIFYING THE VOUCHER FOR PAYMENT WOULD LIKE TO KNOW WHETHER PER DIEM SHOULD BE ALLOWED AS CLAIMED OR ONLY FROM THE TIME MR. APPLEY LEAVES NEW YORK CITY.

SECTION 10 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, PROVIDES:

WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCES, IN THE CASE OF TRAVEL ORDERED AFTER THE DATE OF ENACTMENT OF THIS ACT, SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.

IT IS STATED IN YOUR LETTER THAT MR. APPLEY HOLDS THE POSITION OF DEPUTY CHAIRMAN AND EXECUTIVE DIRECTOR OF THE WAR MANPOWER COMMISSION, AND THAT STATEMENT IS CORROBORATED BY THE FACT THAT MR. APPLEY HAS SIGNED THE VOUCHER IN SAID CAPACITY. IN OTHER WORDS, IT APPEARS THAT HE IS "EMPLOYED Y" THE WAR MANPOWER COMMISSION IN THAT CAPACITY AND THAT HE IS NOT ONE OF THE "PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY" (QUOTING FROM THE APPROPRIATION PROVISION QUOTED IN YOUR LETTER). HENCE, IT IS REASONABLE TO CONCLUDE THAT MR. APPLEY IS ONE OF THE "OFFICERS OR EMPLOYEES OF THE UNITED STATES" AUTHORIZED TO RECEIVE REIMBURSEMENT OF ACTUAL EXPENSES FOR TRAVEL TO WHOM SECTION 10 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, IS DIRECTED. IN THAT CONNECTION, SEE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 377, 378, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A NONSALARIED NATIONAL DEFENSE MEDIATION BOARD MEMBER IS NOT ENTITLED TO ENGAGE SUPERIOR RAIL ACCOMMODATIONS, SUCH AS A BED ROOM, THE PROHIBITION IN SECTION 10 OF THE ACT OF MARCH 3, 1933, AGAINST PAYING OFFICERS AND EMPLOYEES OF THE UNITED STATES ACTUAL EXPENSES OF TRAVEL IN EXCESS OF THE LOWEST FIRST-CLASS RATE FOR THE TRANSPORTATION FACILITY USED BEING FOR APPLICATION TO SUCH MEMBERS.

ACCORDINGLY, REFERRING TO YOUR FIRST QUESTION, THERE SHOULD BE DEDUCTED FROM THE VOUCHER THE DIFFERENCE BETWEEN THE COST OF A LOWER BERTH AND THE COST OF SUPERIOR ACCOMMODATIONS ACTUALLY USED BY THE TRAVELER.

IN DECISION OF AUGUST 8, 1942, 22 COMP. GEN. 129, CITED IN YOUR LETTER, IT WAS HELD (QUOTING FROM THE SYLLABUS):

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. COMPARE 22 COMP. GEN. 512, ALSO CITED IN YOUR LETTER--- THE FOLLOWING PORTION OF SAID DECISION (PAGE 515) BEING PARTICULARLY APPOSITE HERE:

* * * THE RULE STATED IN SAID DECISION (ABOVE QUOTED) WOULD BE APPLICABLE HERE ONLY IF GRANOGUE, DELAWARE, IS CONSIDERED A PART OF THE METROPOLITAN AREA OF WILMINGTON, DELAWARE. REFERENCES TO THE RAND MCNALLY ATLAS DOES NOT DISCLOSE THAT THE TWO PLACES NAMED ARE ADJACENT, OR THAT THE FORMER IS REGARDED AS A PART OF THE METROPOLITAN AREA OF THE LATTER. IT IS NOT THE DISTANCE TO BE TRAVELED THAT NECESSARILY CONTROLS--- EXCEPT AS TO THE TWO MILE LIMITATION PRESCRIBED IN PARAGRAPH 3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS--- BUT RATHER THE FACT OF WHETHER THE HOME OR RESIDENCE OF A PERSON IS AT A POINT GENERALLY AND COMMONLY REGARDED AS A PART OF THE OFFICIAL STATION TO WHICH HE HAS BEEN ASSIGNED. THE PURPOSE OF APPROPRIATION PROVISIONS SUCH AS HERE INVOLVED IS TO REIMBURSE A TRAVELER FOR ANY ADDITIONAL COST OF TRANSPORTATION, SUBSISTENCE, AND OTHER EXPENSES TO WHICH HE MAY BE PUT BY REASON OF HIS TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIM HOME. IF HIS HOME OR RESIDENCE BE LOCATED AT A POINT GENERALLY REGARDED AS PART OF THE CITY OR TOWN WHERE HE IS REQUIRED TO PERFORM OFFICIAL BUSINESS AND HE WOULD ORDINARILY COMMUTE FROM HIS RESIDENCE TO PERFORM OFFICIAL BUSINESS IN THAT CITY THERE IS NO JUSTIFICATION OR AUTHORITY FOR MAKING REIMBURSEMENT TO HIM FOR TRANSPORTATION ON PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES. * *

WHILE THOSE DECISIONS RELATE TO PERSONS OTHER THAN OFFICERS AND EMPLOYEES SERVING WHILE AWAY FROM THEIR HOMES IN AN ADVISORY CAPACITY WITHOUT ANY OTHER COMPENSATION FROM THE UNITED STATES, THE SAME RULE NOW IS APPLICABLE UNDER THE APPROPRIATION PROVISION QUOTED IN YOUR LETTER TO PERSONS ,EMPLOYED BY ANY OF SUCH AGENCIES" TO WHOM THE SPECIAL AUTHORITY TO PAY PER DIEM IN LIEU OF SUBSISTENCE NOT TO EXCEED $10 HAS BEEN EXTENDED.

THE RAND-MCNALLY ATLAS DISCLOSES THAT GLEN RIDGE, NEW JERSEY, IS A PART OF THE METROPOLITAN DISTRICT OF NEW YORK CITY, AND IT IS UNDERSTOOD THAT PERSONS WORKING IN NEW YORK AND LIVING IN GLEN RIDGE COMMUTE DAILY TO AND FROM WORK. ACCORDINGLY, REFERRING TO YOUR SECOND QUESTION, NEW YORK CITY SHOULD BE REGARDED AS THE HOME OF MR. APPLEY AND HIS PER DIEM COMPUTED FROM THE TIME HE LEFT NEW YORK TO THE TIME OF HIS ARRIVAL BACK IN NEW YORK, RATHER THAN FROM AND TO GLEN RIDGE, NEW JERSEY.

IN VIEW OF THE FOREGOING, THE SUBMITTED VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT IN THE AMOUNT CLAIMED.