B-168637, JUL. 15, 1970

B-168637, JUL. 15, 1970

CIVIL PAY -- TEMPORARY DUTY -- MILEAGE AND PER DIEM DECISION TO EMPLOYEE SUSTAINING ADMINISTRATIVE SETTLEMENT DISALLOWING CLAIM OF EMPLOYEE FOR MILEAGE FROM HOME TO TEMPORARY DUTY STATION ON BASIS OF CONSTRUCTIVE COST OF COMMERCIAL RENTAL OF AUTO AND FOR PER DIEM. EMPLOYEE WHO REGULARLY TRAVELED BY AUTO FROM HOME IN BALTIMORE, MD., TO ARLINGTON, VA., --PERMANENT DUTY STATION-- BUT WHO WHEN HE WAS ORDERED TO TEMPORARY DUTY IN GAITHERSBURG, MD., CLAIMED MILEAGE ON BASIS OF CONSTRUCTIVE COSTS FOR RENTAL OF COMMERCIAL VEHICLE WAS PROPERLY DENIED MILEAGE ON SUCH BASIS. ALSO, ADMINISTRATIVE ACTION IN DEDUCTING COST OF REGULAR DAILY TRAVEL FROM MILEAGE WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. FURTHER SINCE AGENCY DID NOT AUTHORIZE NOR APPROVE PER DIEM, NO PAYMENT IS PROPER.

TO MR. REUBEN B. PARRAN:

THIS WILL REFER TO YOUR LETTER OF JUNE 15, 1970, ENCLOSING A COPY OF THE REVISED VOUCHER YOU FILED FOR REIMBURSEMENT OF EXPENSES INCIDENT TO PERFORMANCE OF TEMPORARY DUTY AT THE NATIONAL BUREAU OF STANDARDS DURING THE PERIOD JULY 1 THROUGH AUGUST 14, 1969.

WE NOTE THAT YOU HAVE CHANGED THE BASIS OF YOUR CLAIM AS MADE IN YOUR ORIGINAL VOUCHER, FROM A MILEAGE ALLOWANCE AT A RATE OF 10 CENTS PER MILE FOR A DISTANCE COMPUTED AT APPROXIMATELY 148 MILES ROUND TRIP BETWEEN YOUR RESIDENCE AT BALTIMORE, MARYLAND, AND THE TEMPORARY DUTY SITE AT GAITHERSBURG, MARYLAND, TO A CLAIM BASED ON THE CONSTRUCTIVE COST OF COMMERCIAL RENTAL OF AN AUTOMOBILE FOR THE TRAVEL INVOLVED. YOU AGAIN CLAIM AN AMOUNT OF $104 PER DIEM FOR THE TEMPORARY DUTY PERIOD. THE TOTAL AMOUNT CLAIMED ON YOUR REVISED VOUCHER IS $1,057.18. THE AMOUNT ALLOWED YOU BY THE DIRECTOR OF THE OFFICE OF AUDITS OF YOUR AGENCY ($133.90) WAS COMPUTED ON THE FOLLOWING BASIS:

"REALISTIC MILEAGE PER 1969 MARYLAND OFFICIAL HIGHWAY MAP FOR DISTANCE TRAVELED IS 86 MILES ROUND-TRIP RATHER THAN THE APPROXIMATELY 148 MILES CLAIMED. MR. PARRAN'S NORMAL DAILY COMMUTING COSTS FROM BALTIMORE, MARYLAND, TO CRYSTAL PLAZA, ARLINGTON, VIRGINIA, HAVE BEEN DETERMINED TO BE $3.45 PER DAY. COMPUTATION OF ALLOWABLE REIMBURSEMENT PER OFFICE OF AUDITS POLICY IS AS FOLLOWS:

R/T OF 86 MILES PER DAY TIMES $0.10 PER MILE

TIMES 26 TRIPS----------------------------------------------$223.60

LESS - NORMAL DAILY COMMUTING COSTS - $3.45

TIMES 26---------------------------------------------------- -89.70

NET REIMBURSEMENT-------------------------------------------$133.90"

WE MUST ADVISE YOU THAT YOUR ASSERTION THAT MILEAGE TRAVELED ON OFFICIAL BUSINESS VIA A PRIVATELY OWNED AUTOMOBILE MAY BE REIMBURSED ON THE BASIS OF COMPARABLE COSTS OF RENTAL OF A COMMERCIAL VEHICLE IS WITHOUT FOUNDATION IN LAW. WE KNOW OF NO AUTHORITY UNDER WHICH SUCH FORM OF REIMBURSEMENT COULD BE APPROVED. AS FOR YOUR MILEAGE COMPUTATION, WE REPEAT THE OBSERVATION MADE IN OUR LETTER OF FEBRUARY 18, 1970, TO MR. GEORGE R. BOSS, THAT OUR REVIEW OF HIGHWAY ROUTES BETWEEN BALTIMORE AND GAITHERSBURG RESULTS IN THE SAME DETERMINATION AS TO DISTANCE AS THAT OF THE OFFICE OF AUDITS, WITH THE EXCEPTION OF THE ADDITIONAL 13 MILES DISTANCE BETWEEN YOUR RESIDENCE AND THE INTERSECTION OF 695 WITH ROUTE 40, WHICH WE HAVE NO MEANS OF VERIFYING.

IN 32 COMP. GEN. 235 IT WAS HELD THAT IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF AN AGENCY TO LIMIT REIMBURSEMENT FOR TRANSPORTATION OF AN EMPLOYEE BETWEEN HIS HOME AND A TEMPORARY PLACE OF DUTY TO THE COST OF TRAVEL BETWEEN THE HEADQUARTERS OFFICE AND TEMPORARY PLACE OF DUTY. IN 36 COMP. GEN. 795 WE FURTHER HELD THAT ALTHOUGH IT IS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW MILEAGE FROM WHATEVER POINT A JOURNEY BEGINS WITH NO REQUIREMENT FOR DEDUCTION OF THE DISTANCE BETWEEN THE HOME OF THE EMPLOYEE AND HIS PERMANENT DUTY STATION, IT IS THE DUTY OF ADMINISTRATIVE OFFICIALS TO LIMIT REIMBURSEMENT WHEN IT IS IN THE INTEREST OF THE GOVERNMENT TO DO SO. IN CASES ANALOGOUS TO YOURS WE HAVE HELD THAT ADMINISTRATIVE DISCRETION IS PROPERLY EXERCISED WHEN REIMBURSEMENT FOR MILEAGE IS LIMITED TO THE AMOUNT BY WHICH EXPENSE OF TRAVEL FROM THE EMPLOYEE'S RESIDENCE TO PLACE OF TEMPORARY DUTY EXCEEDS THAT INCURRED BETWEEN THE RESIDENCE AND PERMANENT DUTY STATION. SEE B-164189, DATED JUNE 25, 1968, AND B-164614, DATED JULY 22, 1968, COPIES ENCLOSED.

WITH RESPECT TO YOUR CLAIM FOR PER DIEM THERE IS NO REQUIREMENT OF LAW THAT SUCH ALLOWANCE BE AUTHORIZED UPON ASSIGNMENT TO A TEMPORARY DUTY STATION. IN BORNHOFT V UNITED STATES, 137 CT. CL. 134, IT WAS HELD THAT SUCH AN ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR EXTRA EXPENSES, SUCH AS RENTAL OF A HOTEL ROOM, WHILE MAINTAINING HIS REGULAR RESIDENCE AND THAT WHERE NO ADDITIONAL EXPENSE IS INCURRED, PER DIEM ALLOWANCE SHOULD NOT BE AUTHORIZED. A DETERMINATION AS TO THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE IS WHOLLY WITHIN THE DISCRETIONARY AUTHORITY OF AN ADMINISTRATIVE AGENCY AND WHERE PER DIEM IS NOT AUTHORIZED OR APPROVED SUCH AS HERE WE ARE WITHOUT JURISDICTION TO QUESTION THE AGENCY ACTION. -156699, DATED MAY 24, 1965, COPY ENCLOSED. SEE ALSO B-164673, DATED OCTOBER 22, 1968, AND B-165783, DATED FEBRUARY 11, 1969, COPIES ENCLOSED.

ON THE BASIS OF THE PRESENT RECORD WE FIND NO ERROR IN THE SETTLEMENT OF YOUR CLAIM BY THE BUREAU OF STANDARDS. THE MATTER OF THE FORCED USE OF YOUR AUTOMOBILE FOR THE TRAVEL IN QUESTION IS ONE FOR SETTLEMENT BETWEEN YOU AND YOUR AGENCY.