B-184175, AUG 5, 1975

B-184175, AUG 5, 1975

1. EMPLOYEE, WHO TRAVELED IN HIS CAR DAILY TO A NEARBY TEMPORARY DUTY STATION, WAS IN TRAVEL STATUS MORE THAN 10 HOURS DAILY. HE IS NOT ENTITLED TO PER DIEM SINCE SECTION C8050-8 OF JOINT TRAVEL REGULATIONS, VOLUME 2, DOES NOT REQUIRE THAT PER DIEM ALLOWANCE BE PAID WHEN TRAVEL TO TEMPORARY DUTY STATION EXCEEDS 10 HOURS, BUT SIMPLY PRECLUDES THE PAYMENT OF PER DIEM WHEN TEMPORARY DUTY TRAVEL IS LESS THAN 10 HOURS DURING THE SAME CALENDAR DAY, EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 0600 HOURS OR TERMINATES AFTER 2000 HOURS, AGENCY HAS DISCRETION, AND AGENCY DID NOT AUTHORIZE PER DIEM. 2. ALTHOUGH AN EMPLOYEE MAY BE REIMBURSED FOR TRAVEL FROM RESIDENCE TO NEARBY TEMPORARY DUTY STATION, AN EMPLOYEE WHO DROVE DAILY TO A TEMPORARY DUTY STATION IS NOT ENTITLED TO MILEAGE SINCE AGENCY DID NOT AUTHORIZE IT AND SUCH AUTHORIZATION IS WITHIN THE AGENCY'S DISCRETION UPON CONSIDERATION OF THE BEST INTERESTS OF THE EMPLOYEE AND THE GOVERNMENT.

BRIAN E. CHARNICK - PER DIEM AND MILEAGE INCIDENT TO TEMPORARY DUTY NEAR OFFICIAL STATION:

THIS DECISION IS THE RESULT OF AN APPEAL BY BRIAN E. CHARNICK OF THE DISALLOWANCE OF HIS CLAIM FOR MILEAGE AND PER DIEM EXPENSES INCURRED INCIDENT TO HIS TEMPORARY DUTY ASSIGNMENT AS A MEMBER OF THE SOURCE SELECTION AND EVALUATION BOARD (SSEB) DURING THE PERIOD OCTOBER 9, 1973, THROUGH MARCH 30, 1974. THE CASE WAS REFERRED TO OUR OFFICE AS A DOUBTFUL CLAIM SINCE NO TRAVEL ORDERS WERE ISSUED.

THE RECORD SHOWS THAT MR. CHARNICK WAS PERMANENTLY ASSIGNED TO THE JOINT TACTICAL COMMUNICATIONS (TRI-TAC) OFFICE LOCATED AT NEW SHREWSBURY, NEW JERSEY, A SITE WHICH IS SERVICED BY FORT MONMOUTH, NEW JERSEY. SEPTEMBER 21, 1973, MR. CHARNICK WAS DIRECTED TO PARTICIPATE IN AN SSEB LOCATED IN THE NEPTUNE, NEW JERSEY, AREA. DURING HIS ASSIGNMENT THERE, MR. CHARNICK STATES THAT HE TRAVELED FROM HIS RESIDENCE DIRECTLY TO THE WORKSITE, A DISTANCE OF 12 MILES, AS THE HOURS OF THE BOARD WERE 0800 TO 1645, AND IT WAS IMPOSSIBLE FOR HIM TO REPORT TO HIS NORMAL DUTY STATION. NO PUBLIC OR PRIVATE TRANSPORTATION WAS AVAILABLE FOR HIS USE AND, THEREFORE, HE UTILIZED HIS PRIVATELY OWNED VEHICLE. THE CLAIM FOR PER DIEM WAS DISALLOWED ON THE GROUND THAT MR. CHARNICK DID NOT INCUR ADDITIONAL EXPENSES. MILEAGE WAS DISALLOWED BECAUSE A FORT MONMOUTH REGULATION DID NOT PROVIDE MILEAGE FOR LOCAL TRAVEL WHEN THE EMPLOYEE DID NOT REPORT TO HIS OFFICIAL DUTY STATION. MR. CHARNICK STATES THAT HE INCURRED $5 EXTRA SUBSISTENCE EXPENSES EACH DAY AND, THEREFORE, SHOULD BE ALLOWED PER DIEM SINCE THE MONMOUTH TRAVEL OFFICE HAS ALWAYS PAID A MINIMUM OF $5.90 PER DIEM WHEN TRAVEL EXCEEDS 10 HOURS A DAY. CONCERNING HIS MILEAGE CLAIM MR. CHARNICK STATES THAT HIS TRAVEL WAS TEMPORARY DUTY TRAVEL AND NOT LOCAL TRAVEL. HE BELIEVES THAT HE IS ENTITLED TO MILEAGE IN ACCORDANCE WITH DECISION B-131810, JUNE 4, 1957 (PUBLISHED AT 36 COMP. GEN. 795).

THE PERTINENT REGULATION, 2 JOINT TRAVEL REGULATIONS PARA. C8050-9 (CHANGE 93, JULY 1, 1973), SUBSEQUENTLY RENUMBERED C8050-8, PROVIDES THAT PER DIEM IS NOT ALLOWABLE FOR TEMPORARY DUTY TRAVEL WHEN A TRAVEL PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY. THE CITED REGULATION DOES NOT REQUIRE THAT PER DIEM ALLOWANCE BE PAID WHEN TRAVEL EXCEEDS 10 HOURS, BUT SIMPLY PRECLUDES THE PAYMENT OF PER DIEM ALLOWANCE WHEN TEMPORARY DUTY TRAVEL IS LESS THAN 10 HOURS DURING THE SAME CALENDAR DAY EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 0600 HOURS OR TERMINATES AFTER 2000 HOURS. THUS, UNDER PROPER CIRCUMSTANCES AN AGENCY MAY REFUSE TO AUTHORIZE OR APPROVE PER DIEM, NOTWITHSTANDING AN EMPLOYEE'S ASSIGNMENT MAY BE OF GREATER DURATION THAN 10 HOURS. B-182728, FEBRUARY 18, 1975. ALSO, PER DIEM ALLOWANCES ARE TO BE PRESCRIBED IN ACCORDANCE WITH FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (1973) WHICH PROVIDE THAT IT IS THE RESPONSIBILITY OF THE AGENCY TO "AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL." FTR PARA. 1-7.3A (MAY 1973). ACCORDINGLY, THE AUTHORIZATION OF PER DIEM IS WITHIN THE DISCRETION OF THE AGENCY AND IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO QUESTION THE PROPRIETY OF THE REFUSAL TO AUTHORIZE SUCH EXPENSES. B-156699, MAY 24, 1965; B-171969, NOVEMBER 14, 1973; B-182728, FEBRUARY 18, 1975. THEREFORE, SINCE THE AGENCY NEITHER AUTHORIZED NOR APPROVED PER DIEM, THE DISALLOWANCE IS AFFIRMED.

WITH REGARD TO THE CLAIM FOR MILEAGE EXPENSES, MR. CHARNICK CITES 36 COMP. GEN. 795. THE SYLLABUS OF THAT DECISION READS IN PART:

"EMPLOYEES WHO ARE AUTHORIZED TO USE PRIVATELY-OWNED AUTOMOBILES FOR OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR DESIGNATED POSTS OF DUTY MAY BE PAID MILEAGE FROM WHATEVER POINT THE JOURNEY BEGINS WITHOUT DEDUCTION FOR THE DISTANCE NORMALLY TRAVELED BETWEEN HOME AND HEADQUARTERS ***."

THAT CASE IS DISTINGUISHABLE FROM THE PRESENT ONE IN SEVERAL RESPECTS. FIRST, THE DECISION INVOLVED EMPLOYEES WHO WERE AUTHORIZED TO USE THEIR PRIVATELY OWNED VEHICLES FOR OFFICIAL BUSINESS. MR. CHARNICK, ON THE OTHER HAND, WAS NOT SO AUTHORIZED. HE USED HIS AUTOMOBILE FOR TRANSPORTATION TO AND FROM WORK AT HIS TEMPORARY DUTY STATION AND NOT FOR OFFICIAL BUSINESS. SECOND, THE PRIOR DECISION INVOLVED CIVIL SERVICE COMMISSION INVESTIGATORS WHO, BECAUSE OF THE NATURE OF THEIR WORK, REQUIRED THE USE OF TRANSPORTATION THROUGHOUT THE DAY IN THE PERFORMANCE OF THEIR JOBS. MR. CHARNICK, ON THE OTHER HAND, DID NOT REQUIRE TRANSPORTATION IN THE PERFORMANCE OF HIS WORK AT SSEB. THIRD, THE SCHEDULES OF THE CIVIL SERVICE COMMISSION INVESTIGATORS WERE SUCH THAT THEY DID NOT REPORT TO THEIR OFFICES ON A REGULAR BASIS AND, ON AN AVERAGE, SPENT LESS THAN THREE QUARTERS OF A DAY IN THE OFFICE PER WEEK. IN CONTRAST, MR. CHARNICK GENERALLY PERFORMED WORK AT A REGULAR WORK SITE.

IN 32 COMP. GEN. 235 (1952), AND B-177555, FEBRUARY 22, 1973, IT WAS HELD THAT AN EMPLOYEE MAY BE REIMBURSED FOR TRAVEL FROM RESIDENCE TO TEMPORARY DUTY POST, BUT THAT THE DECISION IS DISCRETIONARY WITH THE AGENCY. IN 36 COMP. GEN. 795 (1957) ON P. 797, IT WAS HELD THAT IN USING ITS DISCRETION THE AGENCY SHOULD CONSIDER THE INTERESTS OF BOTH THE GOVERNMENT AND THE EMPLOYEE. SINCE THE MATTER IS A DISCRETIONARY ONE, IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO QUESTION THE PROPRIETY OF THE REFUSAL TO AUTHORIZE SUCH EXPENSES. THEREFORE THE DECISION TO DISALLOW MR. CHARNICK'S CLAIM FOR REIMBURSEMENT OF MILEAGE EXPENSES IS AFFIRMED.