B-164673, JAN. 16, 1969

B-164673, JAN. 16, 1969

TO MR. THEODORE R. HECHT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1968, BY WHICH YOU REQUEST REVIEW OF THE CLAIM SETTLEMENT OF THIS OFFICE DATED NOVEMBER 27, 1968, IN WHICH IT WAS HELD THAT YOU WERE NOT ENTITLED TO PER DIEM WHILE YOU WERE ASSIGNED TO TEMPORARY DUTY IN WORMS, GERMANY, AWAY FROM YOUR OFFICIAL DUTY STATION IN RUSSELSHEIM, GERMANY.

YOU WERE ASSIGNED TO TEMPORARY DUTY IN WORMS FOR THE PERIOD JULY 18, 1967, TO MARCH 15, 1968, WHILE CERTAIN ORGANIZATIONAL CHANGES IN THE OFFICE IN WHICH YOU WERE EMPLOYED WERE BEING CONSIDERED AND IMPLEMENTED. DURING THAT PERIOD YOU PERFORMED DAILY TRAVEL BETWEEN YOUR RESIDENCE IN RUSSELSHEIM AND YOUR PLACE OF WORK IN WORMS WHICH INVOLVED A ROUND-TRIP DISTANCE OF 74 MILES. THE INFORMATION FURNISHED US INDICATES THAT YOU CLAIMED AND WERE PAID MILEAGE AT 10 CENTS PER MILE AND PER DIEM FOR 1/2 DAY AT THE $16 RATE FOR EACH DAY YOU MADE THE ROUND TRIP BETWEEN RUSSELSHEIM AND WORMS AND PERFORMED A NORMAL DAY'S WORK IN WORMS. ACCORDINGLY YOU RECEIVED $15.40 REIMBURSEMENT FOR TRAVEL EXPENSES FOR EACH OF SUCH DAYS. YOU WERE PLACED IN DEBT FOR SUCH PAYMENTS BY THE DEPARTMENT OF THE ARMY ON THE BASIS OF THEIR DETERMINATION THAT WORMS, NOT RUSSELSHEIM, WAS TO BE CONSIDERED YOUR OFFICIAL OR PERMANENT STATION DURING THE WHOLE PERIOD IN QUESTION.

AFTER WE HAD RECEIVED A FULL REPORT ON THE FACTS INVOLVED, IT WAS DETERMINED THAT RUSSELSHEIM WAS YOUR OFFICIAL STATION DURING THE PERIOD IN QUESTION BUT THAT, IN THE CIRCUMSTANCES OF YOUR CASE, YOU WERE NOT ENTITLED TO PER DIEM ON THE DAYS YOU WORKED AT WORMS. THE LATTER CONCLUSION WAS BASED ON A DETERMINATION THAT, APART FROM THE COST OF DRIVING YOUR PRIVATELY OWNED VEHICLE TO WORMS EACH DAY FOR WHICH MILEAGE WAS CONSIDERED ALLOWABLE, YOU INCURRED NO ADDITIONAL EXPENSE BY VIRTUE OF YOUR TEMPORARY ASSIGNMENT TO WORMS.

YOU ASK THAT WE REVIEW OUR SETTLEMENT IN THE LIGHT OF YOUR STATEMENT THAT WHILE YOU WORKED AT RUSSELSHEIM YOU ATE YOUR LUNCH AT YOUR HOME WHICH WAS LOCATED ONLY 5 MINUTES AWAY FROM YOUR PLACE OF WORK, BUT THAT WHILE YOU WERE ON TEMPORARY DUTY IN WORMS YOU WERE REQUIRED TO PURCHASE LUNCH COMMERCIALLY CAUSING YOU TO INCUR AN ADDITIONAL EXPENSE FOR SUBSISTENCE.

WE DO NOT BELIEVE THAT AN INDIVIDUAL'S PARTICULAR HABITS WITH REGARD TO OBTAINING LUNCH AS WELL AS THE SMALL DIFFERENCE IN COSTS ARE A SUFFICIENT BASIS FOR DETERMINING WHETHER OR NOT HE IS ENTITLED TO PER DIEM UNDER THE RULE CITED IN THE SETTLEMENT OF NOVEMBER 27 TO THE EFFECT THAT AN EMPLOYEE IS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE WHEN HE INCURS NO EXTRA SUBSISTENCE EXPENSES WHILE AWAY FROM HIS OFFICIAL STATION ON GOVERNMENT BUSINESS.