B-94986, AUGUST 2, 1950, 30 COMP. GEN. 62

B-94986, AUGUST 2, 1950, 30 COMP. GEN. 62

SUBSISTENCE ALLOWANCE; PER DIEMS - ARMY OFFICERS ON TEMPORARY DUTY OUTSIDE THE UNITED STATES ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND EXECUTIVE ORDER NO. 9871, AUTHORIZE THE PAYMENT OF A TRAVEL PER DIEM ALLOWANCE TO MILITARY PERSONNEL TRAVELING OUTSIDE THE CONTINENTAL UNITED STATES WITHOUT A REDUCTION BY REASON OF AVAILABILITY OF GOVERNMENT RATIONS OR MESSING FACILITIES AND, THEREFORE, AN ARMY OFFICER ON TEMPORARY DUTY OUTSIDE THE UNITED STATES IS ENTITLED TO PER DIEM AT THE RATE PRESCRIBED FOR OFFICERS IN A TRAVEL STATUS WITH QUARTERS AVAILABLE AT THE PLACE OF DUTY EVEN THOUGH GOVERNMENT RATIONS ARE FURNISHED OR AVAILABLE FOR SUCH PERIOD. AN ARMY OFFICER TRAVELING BETWEEN POINTS OF DUTY LOCATED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHO COMPLETES SUCH TRAVEL DURING ONE CALENDAR DAY IS ENTITLED UNDER THE ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND EXECUTIVE ORDER NO. 9871, TO PER DIEM AT THE HIGHER OF THE TRAVEL PER DIEM RATES PRESCRIBED FOR THE POINTS OF DUTY BETWEEN WHICH THE TRAVEL IS PERFORMED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, AUGUST 2, 1950:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1950, REQUESTING DECISION AS TO THE AUTHORITY FOR MAKING PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF MAJOR JOHN T. KRAMERS, GSC, IN THE AMOUNT OF $62 FOR PER DIEM INCIDENT TO TRAVEL PERFORMED DURING THE PERIOD FEBRUARY 26, TO MARCH 12, 1948, UNDER SPECIAL ORDER NO. 3, OFFICE OF THE MILITARY ATTACHE, AMERICAN EMBASSY, CAIRO, EGYPT, DATED FEBRUARY 24, 1948. THE AMOUNT NOW CLAIMED INCLUDES $57.12 PREVIOUSLY PAID INCIDENT TO THE INDICATED TRAVEL ON VOUCHER NO. 105246, APRIL 1948 ACCOUNTS OF MAJOR W. TROOLIN F.D., AND WHICH WAS REFUNDED BY THE OFFICER IN CONNECTION WITH A GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION.

UNDER THE SAID ORDERS OF FEBRUARY 24, 1948, MAJOR KRAMERS WAS DIRECTED TO PROCEED ON OR ABOUT FEBRUARY 24, 1948, FROM HIS STATION AT CAIRO, EGYPT, TO FRANKFURT, GERMANY, AND SUCH OTHER PLACES AS MAY BE NECESSARY IN CONNECTION WITH MILITARY INTELLIGENCE ACTIVITIES, AND UPON COMPLETION OF HIS MISSION TO RETURN TO CAIRO. A FLAT PER DIEM WAS AUTHORIZED IN LIEU OF REIMBURSEMENT FOR ACTUAL AND NECESSARY EXPENSES. IT APPEARS THAT THE OFFICER LEFT CAIRO AT 7 A.M. ON FEBRUARY 26, 1948, BY MILITARY AIRCRAFT AND ARRIVED AT FRANKFURT AT 8 P.M., OF THE SAME DAY, AND THAT AFTER PERFORMING TEMPORARY DUTY THERE HE LEFT FRANKFURT AT 3 A.M. ON MARCH 12, 1948, AND RETURNED TO CAIRO AT 7 P.M. OF THE SAME DAY. FOR SUCH TRAVEL HE WAS PAID PER DIEM IN THE AMOUNT OF $65.12 COMPUTED ON THE BASIS OF 13/24 DAY AT $10 PER DAY, THE PER DIEM RATE APPLICABLE AT CAIRO, AND 14-23/24 DAYS AT $7 PER DAY, THE RATE AUTHORIZED AT FRANKFURT, LESS $3 PER DAY FOR 15 DAYS DURING WHICH GOVERNMENT QUARTERS WERE FURNISHED. IN THE AUDIT OF THE VOUCHER AN EXCEPTION IN THE AMOUNT OF $57.12 WAS ALLOWABLE IN EXCESS OF TWO DAYS AT $4 PER DAY ON THE BASIS OF THE RATE APPLICABLE AT FRANKFURT FOR THE DAYS OF ACTUAL TRAVEL IN VIEW OF THE PROVISIONS OF PARAGRAPH 8B, WAR DEPARTMENT CIRCULAR NO. 196, JULY 25, 1947, AND THAT NO PER DIEM WAS CONSIDERED AS ALLOWABLE FOR THE PERIOD OF DUTY AT FRANKFURT. THE BASIS FOR SUCH ACTION INSOFAR AS DUTY AT FRANKFURT IS CONCERNED WAS THAT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO THE OFFICER AT THAT STATION AND, THEREFORE, THAT HE WAS PUT TO NO GREATER EXPENSE THAN WOULD HAVE BEEN INCURRED AT THIS DESIGNATED POST OF DUTY AT WHICH PLACE NO TRAVEL PER DIEM WOULD BE PAYABLE. YOU REQUEST DECISION AS TO WHETHER THE REQUIREMENTS OF THE LAW AND APPLICABLE ADMINISTRATIVE REGULATIONS WARRANT SUCH CONCLUSION.

THE SECOND PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * WITHOUT REGARD TO THE MONETARY LIMITATIONS IN THIS ACT, AND IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, THE HEADS OF THE DEPARTMENTS CONCERNED MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ON DUTY OUTSIDE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF ACTUAL AND NECESSARY EXPENSES OR PER DIEM IN LIEU THEREOF, CONSIDERING ALL ELEMENTS OF COST OF LIVING, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES.

PART II OF EXECUTIVE ORDER NO. 9871, JULY 8, 1947, PROMULGATED PURSUANT TO THE QUOTED STATUTORY PROVISIONS, PROVIDES THAT THE HEADS OF THE DEPARTMENTS CONCERNED MAY AUTHORIZE PAYMENT OF PER DIEM ALLOWANCES IN LIEU OF ACTUAL AND NECESSARY EXPENSES, CONSIDERING ALL ELEMENTS OF COST OF LIVING, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY AND INCIDENTAL EXPENSES, TO MEMBERS OF THEIR RESPECTIVE SERVICES ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS. THE HEADS OF THE DEPARTMENTS FURTHER WERE AUTHORIZED TO PRESCRIBE SUCH ADDITIONAL REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THE SAID PART II OF THE EXECUTIVE ORDER. REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND STATION ALLOWANCES TO ALL MILITARY PERSONNEL TRAVELING OR ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, ISSUED BY THE SECRETARY OF WAR UNDER THE AUTHORITY OF THE FOREGOING STATUTORY PROVISIONS AND EXECUTIVE REGULATIONS, ARE CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 196, JULY 25, 1947, AS AMENDED. DETERMINATIONS BY THE SECRETARY OF WAR OF STATION ALLOWANCES AND TRAVEL PER DIEM ALLOWANCES, AUTHORIZED IN VARIOUS GEOGRAPHICAL LOCATIONS OUTSIDE THE CONTINENTAL UNITED STATES, ARE CONTAINED IN PART II OF THAT CIRCULAR AND AMENDMENTS THERETO. IT APPEARS THAT FOR THE PERIOD IN QUESTION THE TRAVEL PER DIEM RATE AUTHORIZED FOR FRANKFURT, GERMANY, IS $7, OR $4 WHERE QUARTERS ARE AVAILABLE, AND FOR CAIRO, EGYPT, $10, WITH PROVISION FOR A DEDUCTION OF $3 THEREFROM WHERE QUARTERS ARE FURNISHED. NO PROVISION IS CONTAINED IN SUCH REGULATIONS FOR A REDUCTION IN THE TRAVEL PER DIEM RATES PRESCRIBED BY REASON OF THE AVAILABILITY TO THE TRAVELER OF GOVERNMENT RATIONS, AND YOU STATE THAT NONE WAS INTENDED AT THE TIME THE REGULATION WAS WRITTEN SINCE TRANSIENT OFFICERS ARE NOT IN A POSITION TO TAKE ADVANTAGE OF MONTHLY RATES FOR MEALS THAT ARE OFFERED TO PERMANENTLY STATIONED OFFICERS AND ARE REQUIRED AT TIMES TO MESS AT OFFICERS' CLUBS, POST EXCHANGES, ETC., WHERE RATES ARE HIGHER. YOU STATE FURTHER THAT IN FIXING THE PRESCRIBED PER DIEM RATES CONSIDERATION ALSO WAS GIVEN TO OTHER ADDITIONAL EXPENSES NORMALLY INCURRED WHILE IN A TRAVEL STATUS, SUCH AS INCREASED LAUNDRY AND CLEANING CHARGES, LOCAL TRANSPORTATION EXPENSES, ETC. IN VIEW OF SUCH EXPLANATION, IT APPEARS PROPER TO CONCLUDE THAT THE PROVISIONS OF CIRCULAR NO. 196 AUTHORIZED THE PAYMENT OF THE TRAVEL PER DIEM ALLOWANCES THEREIN PRESCRIBED, WITHOUT REDUCTION BY REASON OF AVAILABILITY OF GOVERNMENT RATIONS OR GOVERNMENT MESSING FACILITIES, AND, THEREFORE, THAT MAJOR KRAMERS IS ENTITLED TO PER DIEM FOR THE PERIOD WHILE AT FRANKFURT AT THE TRAVEL PER DIEM RATE PRESCRIBED FOR OFFICERS IN A TRAVEL STATUS AT THAT CITY WITH QUARTERS AVAILABLE, EVEN THOUGH IT IS SHOWN THAT GOVERNMENT RATIONS WERE FURNISHED OR AVAILABLE TO HIM WHILE THERE.

PARAGRAPH 8D OF CIRCULAR NO. 196 PROVIDES AS FOLLOWS RELATIVE TO THE PAYMENT OF TRAVEL PER DIEM TO OFFICER PERSONNEL:

(1) WHEN TRAVELING BETWEEN ANY POINTS OF DUTY THE RATE APPLICABLE TO THE LAST DUTY STATION; THE DATE OF DEPARTURE FROM OR ARRIVAL AT ANY DUTY STATION WILL BE AT THE RATE APPLICABLE FOR THAT POINT UNLESS TRAVEL IS COMPLETED DURING ANY ONE CALENDAR DAY, WHEN THE HIGHER RATE SHALL GOVERN FOR THAT DAY EXCEPT AS NOTED IN (2) BELOW.

(2) THE DAY OF ARRIVAL IN AND ALL TRAVEL WITHIN THE CONTINENTAL UNITED STATES IN CONNECTION WITH TRAVEL FROM A FOREIGN DUTY STATION SHALL BE AT THE RATE PRESCRIBED FOR THE UNITED STATES.

SUCH PROVISIONS CLEARLY INDICATE AN INTENTION THAT AN OFFICER TRAVELING BETWEEN POINTS OF DUTY LOCATED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHERE THE TRAVEL INVOLVED IS COMPLETED DURING ONE CALENDAR DAY SHALL BE ENTITLED TO PER DIEM AT THE HIGHER OF THE TRAVEL PER DIEM RATES PRESCRIBED FOR THE POINTS OF DUTY BETWEEN WHICH THE TRAVEL IS PERFORMED. INASMUCH AS MAJOR KRAMERS' TRAVEL IN PROCEEDING FROM CAIRO TO FRANKFURT AND FROM FRANKFURT TO CAIRO WAS PERFORMED IN EACH INSTANCE DURING ONE CALENDAR DAY, THE PER DIEM RATE TO WHICH HE WAS ENTITLED FOR SUCH DAYS OF TRAVEL WOULD BE THAT PRESCRIBED FOR CAIRO, SUCH RATE BEING HIGHER THAN THAT PRESCRIBED FOR FRANKFURT.

THE $63 CLAIMED ON THE SUBMITTED VOUCHER REPRESENTS PER DIEM FOR TWO DAYS, FEBRUARY 26 AND MARCH 12, 1948, AT THE RATE OF $10, LESS DEDUCTION OF $3 PER DAY FOR QUARTERS FURNISHED ON THOSE DAYS, INCIDENT TO THE TRAVEL FROM CAIRO TO FRANKFURT AND RETURN, AND FOR 14 DAYS, FEBRUARY 27 TO MARCH 11, 1948, AT THE RATE OF $4, COVERING THE PERIOD WHILE AT FRANKFURT, A TOTAL OF $70, LESS THE SUM OF $8, THE NET SUM RECEIVED ON THE PRIOR PAYMENT. THE AMOUNT SO CLAIMED APPEARS TO BE AUTHORIZED UNDER THE PROVISIONS OF THE CITED ADMINISTRATIVE REGULATIONS AND, ACCORDINGLY, WHEN THE VOUCHER, RETURNED HEREWITH, IS PROPERLY CERTIFIED, PAYMENT MAY BE MADE THEREON BY A DISBURSING OFFICER IN THE USUAL MANNER.