B-147492, MAR. 30, 1962

B-147492, MAR. 30, 1962

TO MR. JOHN L. SMART:

THIS REFERS TO YOUR LETTER OF FEBRUARY 8, 1962, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF DECISION OF DECEMBER 11, 1961, WHICH SUSTAINED THE DISALLOWANCE OF MR. WESLEY CROWELL'S CLAIM FOR ADDITIONAL PER DIEM ALLEGED TO BE DUE FOR THE PERIOD JUNE 24 THROUGH AUGUST 22, 1960, AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, DISTRICT PUBLIC WORKS OFFICE, 14TH NAVAL DISTRICT, PEARL HARBOR, HAWAII.

THE FACTS AND CIRCUMSTANCES WHICH GAVE RISE TO THE CLAIM AND OUR REASON FOR DISALLOWING IT WERE FULLY RELATED TO YOU IN OUR DECISION OF DECEMBER 11, 1961, B-147492, AND NEED NOT BE REPEATED HERE.

THE AUTHORITY FOR THE PAYMENT OF TRAVEL EXPENSES OF GOVERNMENT EMPLOYEES TRAVELING ON GOVERNMENT BUSINESS IS CONTAINED IN THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166. SECTIONS 3 AND 7 OF THAT ACT PROVIDE, IN PART, AS FOLLOWS:

"SEC. 3. CIVILIAN OFFICERS AND EMPLOYEES * * * WHILE TRAVELING ON OFFICIAL BUSINESS * * * SHALL BE ALLOWED * * * A PER DIEM ALLOWANCE * * * IN CASE OF TRAVEL BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES NOT TO EXCEED RATES ESTABLISHED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET *

"SEC. 7. THE FIXING AND PAYMENT UNDER THIS ACT OF TRAVEL ALLOWANCES AND OF ADVANCES AND RECOVERY THEREOF, AND REIMBURSEMENT OF TRAVEL EXPENSES UNDER THIS ACT, SHALL BE IN ACCORDANCE WITH REGULATIONS WHICH SHALL BE PROMULGATED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET.'

BUREAU OF THE BUDGET CIRCULAR NO. A-7 IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED AUTHORIZED A MAXIMUM PER DIEM RATE OF $16 FOR TRAVEL IN HAWAII.

SECTION 6.2A AND 6.2D OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, ISSUED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET, AS CONTAINED IN NAVY CIVILIAN PERSONNEL INSTRUCTIONS, 240.10-ENCL.1, READ AS FOLLOWS:

"6.2 RATES OF PER DIEM.--- A. THE PER DIEM ALLOWANCES PROVIDED IN THESE REGULATIONS REPRESENT THE MAXIMUM ALLOWABLE, NOT THE MINIMUM. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND ESTABLISHMENT TO SEE THAT TRAVEL ORDERS AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF PER DIEM ALLOWANCE IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES.

"D. IN ANY CASE WHERE THE EMPLOYEE'S TOUR OF TRAVEL REQUIRES MORE THAN 2 MONTHS' STAY AT A TEMPORARY DUTY STATION, CONSIDERATION SHOULD BE GIVEN TO EITHER CHANGE IN OFFICIAL STATION OR A REDUCTION IN THE PER DIEM ALLOWANCE.'

UNDER SECTION 6.2A THE AUTHORIZING OFFICER CAN FIX A RATE OF PER DIEM FOR TEMPORARY DUTY AT LESS THAN THE MAXIMUM RATE. IT IS NOT REQUIRED, AS YOU APPEAR TO CONTEND, THAT THE MAXIMUM PER DIEM BE AUTHORIZED FOR TEMPORARY DUTY. SECTION 6.2D DOES NOT LIMIT THE AUTHORIZING OFFICER'S AUTHORITY UNDER SECTION 6.2A. WHEN HE KNOWS BEFORE THE TRAVEL BEGINS THAT THE TEMPORARY DUTY WILL BE TWO MONTHS OR MORE HE STILL IS AUTHORIZED TO SET A REDUCED PER DIEM AT THE START OF THE TRAVEL.

WE HAVE ON FILE A COPY OF DISTRICT PUBLIC WORKS OFFICE INSTRUCTION 12552.2A, DATED MARCH 18, 1960. PARAGRAPH 4 THEREOF, SETTING A $16 RATE IN THE HAWAIIAN ISLANDS (EXCLUDING OAHU), AUTHORIZES EXCEPTIONS "IN UNUSUAL CIRCUMSTANCES" UPON THE "SPECIFIC APPROVAL OF THE DISTRICT PUBLIC WORKS OFFICER.'

YOU ALSO, REFER TO SECTION 240.8-3G OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS. SECTION 240.8-3G, DATED JULY 14, 1958, IN EFFECT AT THE TIME THE TRAVEL COMMENCED PROVIDED AS FOLLOWS:

"G. PROLONGED TEMPORARY DUTY.--- WHEN THE LENGTH OF TEMPORARY DUTY AT ONE PLACE WILL EXCEED TWO MONTHS, CONSIDERATION SHALL BE GIVEN TO A CHANGE IN OFFICIAL STATION UNLESS THERE IS A BASIS FOR EXPECTING THE EMPLOYEE TO RETURN TO HIS PERMANENT DUTY STATION WITHIN A REASONABLE TIME AFTER THE EXPIRATION OF THE TWO MONTH PERIOD. THE PER DIEM AUTHORIZED SHOULD BE REEXAMINED AT THE END OF EACH MONTH OF TEMPORARY DUTY TO DETERMINE WHETHER CONTINUANCE IS JUSTIFIED, OR WHETHER A DIFFERENT PER DIEM ALLOWANCE SHOULD BE PRESCRIBED.'

THERE IS NOTHING IN THAT REGULATION WHICH WOULD REQUIRE THE MAXIMUM RATE OF PER DIEM FOR THE FIRST TWO MONTHS OF TEMPORARY DUTY. THAT REGULATION MERELY AUTHORIZES THE ADMINISTRATIVE OFFICE, WHEN A TOUR OF TEMPORARY DUTY IS TWO MONTHS OR MORE, TO REEXAMINE AT THE END OF EACH MONTH THE PRESCRIBED PER DIEM ALLOWANCE, WHICH IN THIS CASE WAS $9, AND TO MAKE ADJUSTMENTS WHEN JUSTIFIED.

THE OTHER EMPLOYEES TO WHOM YOU REFER IN YOUR LETTER RECEIVED $16 PER DIEM FOR TEMPORARY DUTY AT LIHUE, KAUAI, FOR PERIODS OF ONLY FROM THREE TO FIVE DAYS. ON THE PRESENT RECORD, OUR OPINION IS THAT THEIR CASES ARE NOT SIMILAR TO MR. CROWELL-S.

THEREFORE, BASED UPON THE FOREGOING CONSIDERATIONS, THE PREVIOUS ACTION TAKEN IN OUR DECISION OF DECEMBER 11, 1961, B-147492, IS AFFIRMED.

YOU ASK AS TO WHERE YOU MAY OBTAIN CURRENT COPIES OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND NAVY CIVILIAN PERSONNEL INSTRUCTIONS. COPIES OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE UNDERSTOOD TO BE OBTAINABLE FROM THE SUPERINTENDENT OF DOCUMENTS, U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON 25, D.C; AT 15 CENTS PER COPY. THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS ARE ISSUED BY THE OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, WASHINGTON 25, C., AND WE SUGGEST YOU CONTACT THAT AGENCY FOR INFORMATION CONCERNING THE AVAILABILITY OF COPIES OF THOSE INSTRUCTIONS. AS TO THE PROCEDURE FOR PURSUING MR. CROWELL'S CLAIM IN THE COURTS, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF 28 U.S.C. 1346; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.