B-44500, OCTOBER 12, 1944, 24 COMP. GEN. 299

B-44500, OCTOBER 12, 1944, 24 COMP. GEN. 299

OFFICERS AND EMPLOYEES STATIONED IN FOREIGN COUNTRIES - QUARTERS, ETC. ALLOWANCE AT PERMANENT STATION DURING ABSENCE ON TEMPORARY DUTY THE RIGHT OF AN EMPLOYEE STATIONED IN A FOREIGN COUNTRY TO THE ALLOWANCE FOR LIVING QUARTERS, HEAT, FUEL, AND LIGHT PROVIDED FOR BY THE ACT OF JUNE 26, 1930, AND THE STANDARDIZED REGULATIONS THEREUNDER ( BUREAU OF THE BUDGET CIRCULAR NO. 298, AS AMENDED), CONTINUES, UNDER PARAGRAPH 9 (G) OF THE REGULATIONS, WHILE THE EMPLOYEE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION PROVIDED HE CERTIFIES THAT HE MAINTAINED AND PAID FOR LIVING QUARTERS AT HIS PERMANENT STATION DURING SUCH ABSENCE, EVEN THOUGH HE IS PAID PER DIEM IN LIEU OF SUBSISTENCE FOR THE SAME PERIOD AS FOR TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 12, 1944 ( JAG:II:WJG:Z, L20-1/11) AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE DISBURSING OFFICER, U.S. NAVAL OPERATING FACILITY, NAVY 120, C/O FLEET POST OFFICE,NEW YORK, N.Y., DATED AUGUST 21, 1944, WITH ENCLOSURE AND ACCOMPANYING ENDORSEMENT, RELATIVE TO THE RIGHT OF ALEX S. WARD, ACCOUNTANT, CAF-9 ( EXCEPTED STATUS), OFFICE OF THE SENIOR CIVIL ENGINEER, COMMANDER FOURTH FLEET, RECIFE, BRAZIL, TO PAYMENT OF PER DIEM UNDER THE CONDITIONS THEREIN STATED AND, IF SUCH PAYMENT IS AUTHORIZED, THE FISCAL YEAR APPROPRIATION PROPERLY CHARGEABLE THEREWITH.

IT APPEARS THAT WARD WAS APPOINTED TO THE CIVILIAN POSITION IN QUESTION WITH PAY AT THE RATE OF $4,625 PER ANNUM, CHARGEABLE TO THE APPROPRIATION " MAINTENANCE, BUREAU OF YARDS AND DOCKS," AND, IN ADDITION TO HIS SALARY, WAS GRANTED "AN ALLOWANCE OF $700 PER ANNUM, CHARGEABLE TO THE APPROPRIATION "MISCELLANEOUS EXPENSES ( ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL AND LIGHT, EFFECTIVE ON THE FIRST OR SIXTEENTH OF THE MONTH NEAREST SUBSEQUENT TO THE DATE OF YOUR ARRIVAL IN RECIFE, BRAZIL.'

IT FURTHER APPEARS THAT WARD REPORTED TO THE COMMANDER FOURTH FLEET ON DECEMBER 24, 1943, WHO ON THE SAME DATE ORDERED HIM TO FURTHER REPORT TO THE COMMANDING OFFICER, NAVAL OPERATING BASE, RIO DE JANEIRO, BRAZIL,"FOR SUCH TEMPORARY DUTIES UNDER THE SENIOR CIVIL ENGINEER,COMMANDER FOURTH FLEET, AS MAY BE ASSIGNED" AND AUTHORIZED PAYMENT OF A PER DIEM OF $6 IN THE EXECUTION OF SUCH ORDERS, CHARGEABLE TO THE APPROPRIATION " MISCELLANEOUS EXPENSES, NAVY, SUBHEAD (1); " THAT THE PERIOD OF TEMPORARY DUTY UNDER SUCH ORDERS WAS FROM DECEMBER 28, 1943, TO AUGUST 5, 1944; AND THAT NO SUBSISTENCE OR QUARTERS WERE FURNISHED WARD WHILE ON SUCH TEMPORARY DUTY, BUT HE "WAS PAID A RENTAL ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL AND LIGHT IN THE AMOUNT OF $700 PER ANNUM IN ACCORDANCE WITH HIS BASIC ORDERS.'

FROM THE FACTS DISCLOSED IN THIS CASE, IT APPEARS THAT THE "ALLOWANCE OF $700 PER ANNUM GRANTED WARD IN ADDITION TO HIS SALARY WAS INTENDED TO MEET ALL EXPENSES" FOR LIVING QUARTERS, INCLUDING HEAT,FUEL, AND LIGHT, WHILE EMPLOYED AT HIS REGULAR DUTY STATION IN THE OFFICE OF THE SENIOR CIVIL ENGINEER AT RECIFE, BRAZIL, AND THAT FOR THE PERIOD OF ABSENCE FROM HIS REGULAR STATION ON TEMPORARY DUTY AS AFORESAID, HE WAS ENTITLED TO PAYMENT OF THE PER DIEM OF $6 AS SPECIFICALLY AUTHORIZED IN HIS ORDERS, CHARGEABLE TO THE 1944 APPROPRIATION ON " MISCELLANEOUS EXPENSES, NAVY, SUBHEAD (1)" FOR THE PERIOD TO AND INCLUDING JUNE 30, 1944, AND, FOR THE SUBSEQUENT PERIOD INVOLVED, TO THE SIMILAR APPROPRIATION FOR THE FISCAL YEAR 1945.

YOUR DECISION IS REQUESTED AS TO WHETHER WARD, UNDER THE CONDITIONS DISCLOSED IN THIS CASE, IS ENTITLED TO PAYMENT OF PER DIEM OF $6, AS AUTHORIZED IN HIS ORDERS OF DECEMBER 24, 1943, COVERING THE PERIOD OF HIS TEMPORARY DUTY AT THE NAVAL OPERATING BASE, RIO DE JANEIRO, BRAZIL, AND, IF SO, THE FISCAL YEAR APPROPRIATION UNDER " MISCELLANEOUS EXPENSES, NAVY, SUBHEAD (1)" PROPERLY CHARGEABLE WITH SUCH PAYMENT.

THE RECORD SHOWS THAT ON DECEMBER 11, 1943, ALEX S. WARD WAS APPOINTED AS ACCOUNTANT, CAF-9, EXCEPTED STATUS, AND WAS ASSIGNED TO DUTY IN THE OFFICE OF THE SENIOR CIVIL ENGINEER, COMMANDER OF THE FOURTH FLEET, AT RECIFE, BRAZIL, WITH THE UNDERSTANDING THAT HE WOULD SERVE AT RECIFE FOR A PERIOD OF THREE YEARS OR SUCH PART THEREOF AS HIS SERVICES MIGHT BE NECESSARY, AND THAT, IN ADDITION TO HIS SALARY AT THE RATE OF $4,625 PER ANNUM, HE WOULD BE GRANTED AN ALLOWANCE OF $700 PER ANNUM CHARGEABLE TO THE APPROPRIATION " MISCELLANEOUS EXPENSES (ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL AND LIGHT FOR CIVILIANS ABROAD)," FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, EFFECTIVE ON THE FIRST OR 16TH OF THE MONTH NEAREST SUBSEQUENT TO THE DATE OF HIS ARRIVAL AT RECIFE, BRAZIL. THERE WAS FORWARDED WITH THE LETTER OF SEPTEMBER 12, 1944, AN ORDER DATED DECEMBER 24, 1943, FROM THE COMMANDER, FOURTH FLEET, TO ALEX S. WARD DIRECTING HIM TO REPORT TO THE COMMANDING OFFICER, NAVAL OPERATING BASE, RIO DE JANEIRO, BRAZIL, FOR TEMPORARY DUTY. PARAGRAPH 5 OF SAID ORDER STATES: "PER DIEM OF $6.00 IS AUTHORIZED IN THE EXECUTION OF THESE ORDERS, CHARGEABLE TO MISC. EXP., NAVY, SUBHEAD (1).'

REFERENCE TO INDORSEMENTS ON THE ORDERS OF DECEMBER 24, 1943, DISCLOSES THAT THE EMPLOYEE REPORTED TO THE COMMANDER OF THE FOURTH FLEET AT RECIFE ON DECEMBER 24, 1943, AND THAT HE LEFT RECIFE AND ARRIVED AT RIO DE JANEIRO ON DECEMBER 28, 1943, REMAINING IN RIO DE JANEIRO ON TEMPORARY DUTY FROM THE TIME OF ARRIVAL UNTIL AUGUST 6, 1944, WHEN HE RETURNED TO HIS PERMANENT POST AT RECIFE.

IT APPEARS THAT YOUR DOUBT WHETHER THE EMPLOYEE WAS ENTITLED TO THE PER DIEM OF $6 PER DAY DURING THE PERIOD OF TEMPORARY DUTY AT RIO DE JANEIRO ARISES BECAUSE OF THE FACT HE WAS AUTHORIZED AND PAID AN ALLOWANCE FOR LIVING QUARTERS, HEAT, FUEL, AND LIGHT AT THE RATE OF $700 PER ANNUM FOR MAINTENANCE OF HIS LIVING QUARTERS AT HIS PERMANENT POST RECIFE.

THE TWO ALLOWANCES AUTHORIZED THE EMPLOYEE ARE PROVIDED FOR BY DIFFERENT LAWS, ARE FOR DIFFERENT PURPOSES, AND ARE ALLOWABLE UNDER DIFFERENT CONDITIONS. THE ALLOWANCE FOR LIVING QUARTERS, HEAT, FUEL, AND LIGHT PROVIDED FOR BY THE ACT OF JUNE 26, 1930, 46 STAT. 818 (5 U.S.C. 118A) IS SUBJECT TO THE STANDARDIZED REGULATIONS TO GOVERN ALLOWANCES FOR LIVING QUARTERS, HEAT, FUEL AND LIGHT ( BUREAU OF THE BUDGET CIRCULAR NO. 298 DATED JUNE 19, 1921, AS AMENDED BY BUREAU OF THE BUDGET CIRCULAR NO. 341 DATED AUGUST 31, 1936), ISSUED PURSUANT THERETO AND IS ALLOWABLE FOR EXPENSES INCURRED ONLY AT AN EMPLOYEE'S PERMANENT POST OF DUTY WITHIN THE LIMITATIONS OF AVAILABLE APPROPRIATIONS (SEE APPROPRIATION ITEM MISCELLANEOUS EXPENSES FOR FISCAL YEAR 1944, ACT OF JUNE 26, 1943, 57 STAT. 197), AS DISTINGUISHED FROM EXPENSES WHICH MAY BE INCURRED AT THE PLACE TO WHICH HE MAY BE ASSIGNED FOR TEMPORARY DUTY. 11 COMP. GEN. 404. ON THE OTHER HAND, THE PER DIEM ALLOWANCE OF $6 PER DAY IS AUTHORIZED BY SECTION 3 OF THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, AS AMENDED BY THE ACT OF JANUARY 30, 1942, 56 STAT. 39, AND MUST BE CONSIDERED IN THE LIGHT OF THAT STATUTE WHICH PROVIDES, IN PART, AS FOLLOWS:

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 HEADS OF THE DEPARTMENTS AND ESTABLISHMENTS CONCERNED AT A RATE NOT TO EXCEED $6 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $7 BEYOND THE LIMITS OF THE CONTINENTAL UNITED UNITED STATES. UNDER THIS PROVISION OF THE ACT AN EMPLOYEE IS NOT ENTITLED TO A PER DIEM ALLOWANCE UNLESS HE BE IN A STATUS OF TRAVELING UPON OFFICIAL BUSINESS AND AWAY FROM HIS DESIGNATED POST OF DUTY. IT APPEARS THAT THE EMPLOYEE HERE INVOLVED WAS IN A TRAVEL STATUS WHILE ON TEMPORARY DUTY AT RIO DE JANEIRO AND AWAY FROM HIS PERMANENT POST, RECIFE, AS CONTEMPLATED BY THE STATUTE, AND SINCE A PER DIEM OF $6 PROPERLY WAS AUTHORIZED IN THE TRAVEL ORDER OF DECEMBER 24, 1943, PRIOR TO THE TRAVEL, HE IS ENTITLED TO THE PER DIEM ALLOWANCE FROM DECEMBER 28, 1943, TO AUGUST 6, 1944 (THE PERIOD OF TEMPORARY DUTY), COMPUTED IN ACCORDANCE WITH PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

HOWEVER, IN RESPECT OF THE ALLOWANCE FOR LIVING QUARTERS, ETC., YOUR ATTENTION IS INVITED TO PARAGRAPH 9 (G) OF THE ABOVE-MENTIONED REGULATIONS ( BUREAU OF THE BUDGET CIRCULAR NO. 298) PROVIDING IN PERTINENT PART:

THE RIGHT TO ALLOWANCES WILL CONTINUE * * * (2) WHILE TEMPORARILY ABSENT UNDER ORDERS FROM POST OF ASSIGNMENT, SUBJECT TO THE CONDITION, HOWEVER, IN EITHER CASE, THAT THE OFFICER OR EMPLOYEE MAINTAINS AND PAYS FOR HIS QUARTERS AT HIS REGULAR POST OF ASSIGNMENT DURING SUCH PERIOD, A CERTIFICATE BY THE OFFICER OR EMPLOYEE TO THIS EFFECT TO APPEAR ON THE VOUCHER IN THE SPACE PROVIDED THEREFOR. * * *

IT IS STATED THAT MR. WARD WAS PAID THE ALLOWANCE FOR LIVING QUARTERS, HEAT, FUEL AND LIGHT AT THE RATE OF $700 PER ANNUM FOR THE PERIOD DECEMBER 28, 1943, TO AUGUST 6, 1944, AND AN EXAMINATION OF SOME OF THE VOUCHERS COVERING PAYMENTS MADE TO HIM DISCLOSES THAT THEY ARE NOT SUPPORTED BY THE EMPLOYEE'S CERTIFICATE THAT HE MAINTAINED AND PAID FOR HIS LIVING QUARTERS AT RECIFE, HIS PERMANENT POST, DURING THE PERIOD OF HIS ABSENCE THEREFROM ON TEMPORARY DUTY, WHICH CERTIFICATE IS REQUIRED BY THE ABOVE-QUOTED REGULATION IN SUPPORT OF SUCH PAYMENTS; AND IN THE ABSENCE OF SUCH SHOWING THE QUESTION ARISES WHETHER HE DID, IN FACT, MAINTAIN AND PAY FOR LIVING QUARTERS AT HIS POST OF DUTY DURING THE PERIOD OF HIS ABSENCE ON TEMPORARY DUTY AT RIO DE JANEIRO--- A PERIOD OF OVER SIX MONTHS.

WHILE, AS STATED ABOVE, THE EMPLOYEE IS ENTITLED TO PER DIEM AT $6 PER DAY FOR THE PERIOD OF HIS ABSENCE ON TEMPORARY DUTY, YET BEFORE ANY AMOUNT OTHERWISE DUE AS SUCH IS PAID TO HIM, IT SHOULD BE DEFINITELY DETERMINED WHETHER HE DID, IN FACT, MAINTAIN AND PAY FOR HIS LIVING QUARTERS AT RECIFE DURING THE PERIOD FOR WHICH PER DIEM IS PAYABLE; AND IN THE EVENT THAT HE DID NOT, THE AMOUNT PAID TO HIM AS LIVING QUARTERS DURING SUCH PERIOD WOULD BE FOR DEDUCTING FROM THE AMOUNT OF PER DIEM OTHERWISE DUE HIM. THIS OFFICE SHOULD BE ADVISED OF ANY ACTION TAKEN IN THAT CONNECTION, ACCOMPANIED WITH A REFERENCE TO THE VOUCHER NUMBERS AND ACCOUNTS IN WHICH THE INVOLVED PAYMENTS FOR LIVING QUARTERS, ETC., WERE MADE. IF IT SHOULD BE FOUND THAT THE EMPLOYEE DID MAINTAIN AND PAY FOR LIVING QUARTERS AT HIS POST OF DUTY DURING HIS ABSENCE ON TEMPORARY DUTY, APPROPRIATE CERTIFICATES, IDENTIFIED WITH THE VOUCHERS, SHOULD BE FURNISHED TO SUPPORT ALL SUCH PAYMENTS WHERE THEY HAVE NOT ALREADY BEEN FURNISHED.

WITH RESPECT TO THE FISCAL YEAR APPROPRIATION CHARGEABLE, YOU ARE ADVISED THAT WHERE OFFICIAL TRAVEL IS COMMENCED PRIOR TO THE EXPIRATION OF A FISCAL YEAR AND COMPLETED AFTER THE CONCLUSION OF SUCH FISCAL YEAR, PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE ARE CHARGEABLE TO THE APPROPRIATION CURRENT AT THE TIME THE ALLOWANCES ACCRUE. 23 COMP. GEN. 197.