B-96652, JULY 31, 1950, 30 COMP. GEN. 50

B-96652: Jul 31, 1950

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ARE APPLICABLE ONLY TO THOSE OFFICERS AND EMPLOYEES WHO BECOME INCAPACITATED ON OR AFTER THE EFFECTIVE DATE OF THE AMENDMENT AND REGULATIONS. 1950: REFERENCE IS MADE TO YOUR LETTER OF JULY 3. YOU STATE THAT THE EMPLOYEE IS INCAPACITATED BECAUSE OF AN ILLNESS WHICH BEGAN IN MAY 1949 IN A TRAVEL STATUS. THAT HE WAS ON SICK AND ANNUAL LEAVE UNTIL APRIL 10. $9 PER DIEM IN LIEU OF SUBSISTENCE WHILE IN A TRAVEL STATUS IS AUTHORIZED THEREIN. BOTH OF WHICH WERE EFFECTIVE APRIL 26. IF SUCH LONGER PERIOD IS APPROVED BY THE EMPLOYEE'S SUPERVISING OFFICIAL. A LONGER PERIOD IS APPROVED ADMINISTRATIVELY. THE PRIMARY PURPOSE OF THE SAID PUBLIC LAW 482 WAS TO CHANGE THE PREVIOUSLY EXISTING RULE PROHIBITING THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO AN EMPLOYEE WHO BECAME INCAPACITATED FOR THE PERFORMANCE OF OFFICIAL DUTY.

B-96652, JULY 31, 1950, 30 COMP. GEN. 50

SUBSISTENCE - PER DIEMS - DURING PERIOD OF INCAPACITY, BEGINNING PRIOR TO EFFECTIVE DATE OF ACT OF APRIL 26, 1950 SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED BY THE ACT OF APRIL 26, 1950, AND REGULATIONS PROMULGATED THEREUNDER, PROVIDING THAT CIVILIAN OFFICERS AND EMPLOYEES TRAVELING FOR THE GOVERNMENT WHO BECOME INCAPACITATED DUE TO ILLNESS OR INJURY, NOT DUE TO THEIR OWN MISCONDUCT, SHALL BE ALLOWED THE PRESCRIBED PER DIEM ALLOWANCES AND TRANSPORTATION EXPENSES TO THEIR DESIGNATED POSTS OF DUTY, ARE APPLICABLE ONLY TO THOSE OFFICERS AND EMPLOYEES WHO BECOME INCAPACITATED ON OR AFTER THE EFFECTIVE DATE OF THE AMENDMENT AND REGULATIONS, SO THAT AN EMPLOYEE INCAPACITATED PRIOR THERETO MAY NOT BE PAID PER DIEM FOR A PERIOD OF SUCH INCAPACITY EXTENDING BEYOND THAT DATE.

ACTING COMPTROLLER GENERAL YATES TO ETHELREDA C. FESMIRE, NATIONAL LABOR RELATIONS BOARD, JULY 31, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1950, TRANSMITTING A VOUCHER STATED IN FAVOR OF GUSTAF B. ERICKSON FOR $468 REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD APRIL 26 TO JUNE 16, 1950, WHILE IN A LEAVE WITHOUT PAY STATUS AS AN EMPLOYEE OF THE NATIONAL RELATIONS BOARD, AND REQUESTING AN ADVANCE DECISION AS TO WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

YOU STATE THAT THE EMPLOYEE IS INCAPACITATED BECAUSE OF AN ILLNESS WHICH BEGAN IN MAY 1949 IN A TRAVEL STATUS; THAT PAYMENT TO HIM OF PER DIEM IN LIEU OF SUBSISTENCE CEASED ON MAY 4, 1949; THAT HE WAS ON SICK AND ANNUAL LEAVE UNTIL APRIL 10, 1950; AND THAT FROM THAT DATE TO THE PRESENT TIME HE HAS BEEN CARRIED ON THE PAY ROLL IN A LEAVE WITHOUT PAY STATUS. TRAVEL ORDER DATED JULY 1, 1949, PROVIDES FOR TRAVEL DURING PERIOD JULY 1, 1949, TO JUNE 30, 1950, AND $9 PER DIEM IN LIEU OF SUBSISTENCE WHILE IN A TRAVEL STATUS IS AUTHORIZED THEREIN. YOU REQUEST A DECISION AS TO WHETHER THE PROVISIONS OF PUBLIC LAW 482, 81ST CONGRESS, 64 STAT. 89, AND PARAGRAPH 45 (C) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROMULGATED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET, BOTH OF WHICH WERE EFFECTIVE APRIL 26, 1950, WOULD APPLY TO THE INSTANT CLAIM, AND, IF SO, WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT FOR 14 DAYS FROM APRIL 26, 1950, OR A LONGER PERIOD, IF SUCH LONGER PERIOD IS APPROVED BY THE EMPLOYEE'S SUPERVISING OFFICIAL.

SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, AS AMENDED BY PUBLIC LAW 482, 64 STAT. 89, AND THE REGULATIONS PROMULGATED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET PURSUANT THERETO, SUPRA, PROVIDE, IN MATERIAL PART, THAT CIVILIAN OFFICERS AND EMPLOYEES WHO "BECOME INCAPACITATED DUE TO ILLNESS OR INJURY, NOT DUE TO THEIR OWN MISCONDUCT," WHILE TRAVELING FOR THE GOVERNMENT, SHALL BE ALLOWED THE PRESCRIBED PER DIEM ALLOWANCES AND TRANSPORTATION EXPENSES TO THEIR DESIGNATED POST OF DUTY. THE SAID REGULATIONS FURTHER PROVIDE THAT THE PRESCRIBED PER DIEM IN LIEU OF SUBSISTENCE, IF ANY, SHALL CONTINUE FOR A PERIOD NOT TO EXCEED 14 CALENDAR DAYS (INCLUDING FRACTIONAL DAYS) IN ANY ONE PERIOD OF ABSENCE UNLESS, IN A PARTICULAR CASE, A LONGER PERIOD IS APPROVED ADMINISTRATIVELY.

THE PRIMARY PURPOSE OF THE SAID PUBLIC LAW 482 WAS TO CHANGE THE PREVIOUSLY EXISTING RULE PROHIBITING THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO AN EMPLOYEE WHO BECAME INCAPACITATED FOR THE PERFORMANCE OF OFFICIAL DUTY. THE QUOTED LANGUAGE OF THE ACT REASONABLY APPEARS TO BE PROSPECTIVE IN NATURE AND THERE HAS BEEN FOUND NOTHING IN THE LEGISLATIVE HISTORY THEREOF TO INDICATE A CONGRESSIONAL INTENT THAT ITS PROVISIONS BE GIVEN RETROACTIVE OPERATION. HENCE, IT MUST BE HELD THAT THE BENEFITS OF PUBLIC LAW 482, SUPRA, ARE APPLICABLE ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO, UNDER THE CONDITIONS SPECIFIED THEREIN, BECOME INCAPACITATED ON OR AFTER APRIL 26, 1950. ACCORDINGLY, ALLOWANCE OF PER DIEM FOR THE PERIOD OF ILLNESS IN QUESTION MAY NOT BE AUTHORIZED.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.