B-46127, MAY 30, 1945, 24 COMP. GEN. 860

B-46127, MAY 30, 1945, 24 COMP. GEN. 860

SUBSISTENCE - PERSONS SERVING AWAY FROM HOME OR REGULAR PLACE OF BUSINESS WITHOUT OR AT NOMINAL COMPENSATION UNDER THE STATUTORY AUTHORITY TO PAY PER DIEM IN LIEU OF SUBSISTENCE TO PERSONS SERVING WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS WITHOUT OR AT NOMINAL COMPENSATION, SUCH A PERSON WHOSE HOME IS LOCATED IN A SUBURB WITHIN THE METROPOLITAN AREA OF A LARGE CITY AND WHO TRAVELS BETWEEN HIS HOME AND POST OF DUTY IN A DISTANT CITY, WITHOUT STOPPING BY HIS PRIVATE BUSINESS OFFICE IN THE METROPOLITAN CENTER, IS ENTITLED TO PER DIEM FOR THE PERIOD BETWEEN THE TIME OF DEPARTURE FROM AND RETURN TO THE COMMON CARRIER STATION AT HIS HOME, RATHER THAN THE STATION IN THE METROPOLITAN CENTER. 23 COMP. GEN. 753, OVERRULED IN PART; 22 ID. 129, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, MAY 30, 1945:

PURSUANT TO THE REQUEST CONTAINED IN YOUR LETTER OF MARCH 21, 1945, IN THE MATTER OF THE PER DIEM ALLOWANCE OF MR. ALLAN W. LUNDSTRUM, DEPUTY DIRECTOR OF GAS DIVISION, OFFICE OF WAR UTILITIES, WAR PRODUCTION BOARD, I HAVE UNDERTAKEN TO REVIEW IN DETAIL THE SUBJECT MATTER OF OFFICE DECISION OF JANUARY 8, 1945, B-46127 (ADDRESSED TO YOUR CERTIFYING OFFICER, MR. GUY W. LANE), WHICH INVOLVED THE MEASURE OF PER DIEM ALLOWANCE PAYABLE UNDER AN APPROPRIATION ITEM (SECTION 201, ACT OF JUNE 28, 1944, 58 STAT. 545, 546) READING AS FOLLOWS:

* * * 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, OR AT $1 PER ANNUM * *

AS THE STATUTE AUTHORIZES THE ALLOWANCE WHILE THE PERSONS INVOLVED ARE "AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS," THE QUESTION INVOLVED IS THE CORRECT TIME OF BEGINNING AND ENDING THE ALLOWANCE PERIOD UNDER THE CIRCUMSTANCES OF MR. LUNDSTRUM'S SERVICE, WHICH ARE OUTLINED AS FOLLOWS: WHILE THE HEADQUARTERS OF HIS PRIVATE EMPLOYMENT ARE IN NEW YORK, MR. LUNDSTRUM'S HOME IS AT MAPLEWOOD, NEW JERSEY, A SEPARATE TOWNSHIP SLIGHTLY WEST OF NEWARK AND 16.2 MILES (BY THE LACKAWANNA RAILROAD) FROM NEW YORK. SINCE HIS ENGAGEMENT BY THE WAR PRODUCTION BOARD IN 1942, ON A $1-A-YEAR BASIS, HE HAS SPENT THE GREATER PART OF EACH WEEK IN WASHINGTON AND, NORMALLY, HAS RETURNED TO HIS HOME ON THURSDAY OR FRIDAY EVENING OF EACH WEEK, LEAVING WASHINGTON AT 7 P.M., CHANGING FROM THE PENNSYLVANIA TO THE LACKAWANNA STATION IN NEWARK AT 11 P.M., AND ARRIVING AT MAPLEWOOD, NEW JERSEY, AT 12:07 A.M. FOR THE RETURN TRIP EACH SUNDAY EVENING, HE LEFT MAPLEWOOD AT 9:40 P.M., AND RODE INTO NEW YORK ON THE LACKAWANNA, TRANSFERRING TO THE PENN STATION IN NEW YORK, LEAVING THAT POINT AT 12:50 A.M., AND ARRIVING IN WASHINGTON AT 7:15 MONDAY MORNING.

ADOPTING THE METHOD LAID DOWN BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE PER DIEM OF $10 IS DIVIDED INTO UNITS OF ONE-FOURTH, OR $2.50, FOR EACH QUARTER OR PART OF A QUARTER OF A DAY AT THE BEGINNING OR ENDING OF A TRIP. IN THE CASE OF THE ACCOUNT PREVIOUSLY SUBMITTED (VOUCHER FOR SEPTEMBER, 1944, NO. 743237, IN THE OCTOBER ACCOUNTS OF G. F. ALLEN, SYMBOL 100-4891), THERE IS NO QUESTION WITH RESPECT TO THE HOMEWARD TRIP EACH THURSDAY OR FRIDAY EVENING SINCE THE PER DIEM WAS ADJUSTED BY YOUR OFFICE, PRIOR TO CERTIFICATION OF THE VOUCHER, TO ALLOW ONLY THE PER DIEM TO MIDNIGHT UPON THE BASIS THAT AN EARLIER TRAIN WAS AVAILABLE TO MR. LUNDSTRUM BY WHICH HIS ARRIVAL AT MAPLEWOOD WOULD HAVE BEEN PRIOR TO MIDNIGHT. HOWEVER, FOR THE RETURN TRIP TO WASHINGTON ON EACH SUNDAY NIGHT, AN ADDITIONAL QUARTER DAY'S PER DIEM ALLOWANCE ACCRUES FOR EACH TRIP, IF THE COMPUTATION BEGINS WITH THE TIME HE ACTUALLY LEAVES THE COMMON CARRIER STATION AT MAPLEWOOD, NEW JERSEY (9:40 P.M.) INSTEAD OF THE TIME OF DEPARTURE FROM NEW YORK (12:50 A.M.).

IN THE DECISION OF JANUARY 8, 1945, FOLLOWING THE RULING CONTAINED IN A PREVIOUS DECISION, 23 COMP. GEN. 753, IT WAS POINTED OUT THAT MAPLEWOOD AND NEWARK, NEW JERSEY, ARE WELL WITHIN THE METROPOLITAN AREA OF NEW YORK CITY AND WITHIN CUSTOMARY COMMUTING DISTANCE THEREFROM, UPON WHICH BASIS MR. LUNDSTRUM COULD NOT BE REGARDED AS TRAVELING AWAY FROM HIS HOME UNTIL HE HAD ACTUALLY LEFT THE CENTER OF THE METROPOLITAN AREA IN WHICH HE RESIDES--- IN OTHER WORDS, THE PER DIEM DID NOT BEGIN TO ACCRUE WHEN HE LEFT HIS HOME STATION AT MAPLEWOOD EARLY SUNDAY EVENING, BUT, INSTEAD, ACCRUED ONLY FROM THE TIME OF LEAVING THE STATION IN NEW YORK CITY AT 12:50 A.M.

THE PARTICULAR QUESTION IS NOT INVOLVED IN THE TRAVEL ACCOUNTS OF THE ORDINARILY COMPENSATED GOVERNMENT OFFICER FOR THE REASON THAT UNDER THE STATUTE AND THE REGULATIONS PER DIEM IS PAYABLE TO HIM UPON THE BASIS OF ABSENCE FROM HIS OFFICIAL POST OF DUTY, RATHER THAN FROM HIS HOME, AND THE POST OF DUTY OR HEADQUARTERS IS DEFINED BY REGULATION. DURING THE WAR EMERGENCY, NUMEROUS PROVISIONS HAVE BEEN MADE FOR A SPECIAL PER DIEM ALLOWANCE TO PERSONS SERVING AS CONSULTANTS OR, IN SOME CASES, AS EMPLOYEES, WITHOUT PAY OR AT NOMINAL COMPENSATION, THE INTENTION BEING TO AUTHORIZE FOR THOSE PERSONS A PER DIEM ALLOWANCE WHILE IN SERVICE AT THEIR OFFICIAL STATIONS AND WHILE EN ROUTE TO AND FROM THEIR HOMES. IT IS UNDERSTOOD THE LEGISLATION WAS MOTIVATED, IN PART---

* * * BY THE FACT THAT IT WAS NOT CONTEMPLATED THAT THESE APPOINTEES SHOULD BE REQUIRED TO ABANDON THEIR PERMANENT HOMES AND TRANSFER THEIR HOUSEHOLD EFFECTS TO THEIR POSTS OF DUTY, BUT RATHER BECAUSE OF THE NATURE OF THEIR APPOINTMENTS THESE EMPLOYEES WOULD BE UNDERGOING DUAL SUBSISTENCE EXPENSES IN MAINTAINING A REGULAR HOME AWAY FROM THEIR POSTS OF DUTY AND INCURRING ADDITIONAL EXPENSES FOR SUBSISTENCE AT THEIR HEADQUARTERS.

SEE B-30150, NOVEMBER 28, 1942, WHERE, IN VIEW OF THE BACKGROUND AND PURPOSE OF THAT PROVISION, AND FOLLOWING 22 COMP. GEN. 459, THE EXPENSES OF SHORT WEEK-END TRIPS TO THE EMPLOYEES' HOMES, WHEN AT NOT AN UNREASONABLE DISTANCE, WERE HELD PROPERLY TO BE PAYABLE.

THE METROPOLITAN AREA RULE, ABOVE REFERRED TO, NECESSARILY IS APPLIED TO THE CASE OF THE OFFICER OR THE CONSULTANT CALLED TO SERVICE IN A POPULATION CENTER IN A SUBURB OF WHICH HE PERMANENTLY RESIDES. WHEN, IN FACT, HIS SERVICE CALLS HIM TO THE CENTER OF THE AREA IN WHICH HE LIVES AND WITHIN REASONABLE COMMUTING DISTANCE OF HIS HOME, AND HE DOES, IN FACT, COMMUTE DAILY BETWEEN HIS HOME AND HIS WORK, THE ENLISTMENT OF HIS SERVICES BY THE UNITED STATES DOES NOT REQUIRE HIM TO ESTABLISH AN EXTRA TEMPORARY LODGING OR TO INCUR SUBSISTENCE EXPENSES IN ANY AMOUNT. IN SUCH CIRCUMSTANCES HE CANNOT BE SAID TO BE SERVING AWAY FROM HIS HOME, AND A PER DIEM ALLOWANCE DOES NOT ACCRUE. 22 COMP. GEN. 129 ( BETHESDA, MARYLAND, AND WASHINGTON, D.C.); B-34322, JUNE 16, 1943 ( LARCHMONT- 1MAMARONECK AND NEW YORK); B-32632, MARCH 3, 1943 ( MORRISTOWN, NEW JERSEY, AND NEW YORK CITY).

HOWEVER, IN THE CASE OF MR. LUNDSTRUM, WHO TRAVELED FROM THE NEW YORK AREA TO WASHINGTON TO SERVE FOR SEVERAL DAYS AT A TIME, IT IS OBVIOUS THAT EXTRA SUBSISTENCE EXPENSES NECESSARILY WERE INCURRED, AND THE BASIS FOR THE APPLICATION OF THE METROPOLITAN RULE DOES NOT EXIST. THE COMPUTATION OF THE PER DIEM PERIOD REQUIRES ONLY THE APPLICATION OF THE STATUTORY FORMULA, THAT IS, TIME OF ARRIVAL AT AND DEPARTURE FROM EITHER HIS PERMANENT HOME OR HIS PLACE OF BUSINESS, DEPENDING, OF COURSE, ON WHETHER HE LEAVES FOR WASHINGTON FROM HIS HOME AND RETURNS THERETO OR WHETHER HIS DEPARTURE IS FROM HIS OFFICE IN NEW YORK AND HIS RETURN IS THERETO. OTHER WORDS, WHEN HE LEAVES HIS HOME FOR THE SOLE PURPOSE OF COMING TO WASHINGTON IN CONNECTION WITH HIS GOVERNMENT WORK, PER DIEM ACCRUES FROM THE TIME HE NECESSARILY LEAVES THE PLACE WHERE HE LIVES, MAPLEWOOD, NEW JERSEY, AND ENDS WHEN HE RETURNS THERETO. BUT IF, ON HIS WAY TO WASHINGTON, HE SHOULD FIRST HAVE OCCASION TO GO TO HIS PRIVATE BUSINESS OFFICE IN NEW YORK, OR IF HE SHOULD STOP THERE ON HIS WAY BACK FROM WASHINGTON, THEN THE PER DIEM WOULD BE ON THE BASIS OF TRAVEL TO AND FROM HIS REGULAR PLACE OF BUSINESS, NEW YORK CITY, RATHER THAN TO AND FROM HIS HOME. ON THE RECORD SUBMITTED, IT IS STATED DEFINITELY THAT THE DEPARTURE IN EACH INSTANCE WAS FROM MAPLEWOOD, NOT FROM THE OFFICE IN NEW YORK, AND THAT, SIMILARLY, HIS RETURN WAS DIRECTLY TO MAPLEWOOD AFTER CHANGING TRAINS AT NEWARK. THE RETURN TRAVEL THROUGH NEW YORK CITY DOES NOT, OF COURSE, INVOLVE LEAVING FROM HIS REGULAR PLACE OF BUSINESS SINCE, IN FACT, HE DID NOT GO THERE, AND THE PER DIEM SHOULD BE COMPUTED FROM THE TIME OF DEPARTURE FROM AND ARRIVAL AT THE COMMON CARRIER STATION AT MAPLEWOOD.

ACCORDINGLY, THE DECISION OF JANUARY 8 IS REVERSED, AND THE CONTRARY RULING CONTAINED IN THE DECISION OF APRIL 5, 1944, 23 COMP. GEN. 753, WILL NO LONGER BE FOLLOWED. IT IS EVIDENT THAT A NUMBER OF THE ACCOUNTS OF MR. LUNDSTRUM WILL WARRANT READJUSTMENT IN VIEW OF THE FOREGOING, AND IT IS SUGGESTED THAT HE BE DIRECTED TO FILE A SINGLE CLAIM WITH THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE REFERRING TO ALL OF THE VOUCHERS UPON WHICH PER DIEM HERETOFORE HAS BEEN COMPUTED AND PAID TO HIM UNDER THE BASIS PREVIOUSLY STATED.