B-160966, MAY 19, 1967

B-160966, MAY 19, 1967

TO MR. BEN C. SHIPP:

THIS REFERS TO YOUR LETTER OF FEBRUARY 12, 1967, REQUESTING REVIEW OF THAT PART OF OUR CLAIMS DIVISION SETTLEMENT OF NOVEMBER 21, 1966, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE $2.50 PER DIEM WHICH WAS COLLECTED BY DEDUCTION FROM A SALARY PAYMENT TO YOU BY THE FINANCE AND ACCOUNTING OFFICER, PINE BLUFF ARSENAL, ARKANSAS. THAT AMOUNT OF PER DIEM ($2.50), PAID ON THE TRAVEL VOUCHER (NO. 4335) DISCUSSED IN YOUR LETTER, WAS DETERMINED UPON ADMINISTRATIVE REVIEW TO HAVE BEEN NOT DUE YOU BECAUSE GOVERNMENT TRANSPORTATION WOULD HAVE BEEN AVAILABLE EARLIER THAN THE TIME YOU ARRANGED AND USED SUCH MODE OF TRAVEL FROM BALTIMORE, MARYLAND, TO THE AUTHORIZED TEMPORARY DUTY POST. THE DETAILS THEREOF WERE CONSIDERED IN THE SETTLEMENT OF NOVEMBER 21 AND NEED NOT BE REPEATED HERE.

PARAGRAPH NUMBERED 1 IN YOUR LETTER SUGGESTS THAT YOU BELIEVE THE $7 RATE OF PER DIEM WAS APPLIED IN THE SETTLEMENT ON THE BASIS THAT YOU WERE UNDER COMPULSION TO BEGIN YOUR USE OF GOVERNMENT OPERATED QUARTERS AS EARLY AS PRACTICABLE AFTER YOU ARRIVED BY RAIL IN BALTIMORE AT :40 A.M. ON JUNE 11, 1961. ALSO, YOU SUGGEST THAT SINCE YOU ELECTED NOT TO REGISTER FOR GOVERNMENT QUARTERS UNTIL AFTER 8 P.M. ON JUNE 11, THE $7 RATE LAWFULLY COULD NOT HAVE BECOME EFFECTIVE UNTIL YOU ACTUALLY DEPARTED FROM BALTIMORE AT THAT HOUR ON JUNE 11. WE INFER THEREFROM THAT YOU BELIEVE THE LAW AND STATUTORY REGULATIONS GIVEN AN EMPLOYEE UNLIMITED PERSONAL CHOICE, WHEN TRAVELING ON OFFICIAL BUSINESS, WHETHER HE SHOULD DELAY HIS CONTINUOUS TRAVEL FOR UNOFFICIAL REASONS IN ADDITION TO THE TIME THAT MAY BE NECESSARY TO MAKE CONNECTIONS WITH THE SCHEDULED COMMON CARRIERS AND OTHER CONVEYANCES WHICH FURNISH DIRECT SERVICE TO HIS TEMPORARY DUTY POINT.

WE INVITE YOUR ATTENTION TO SECTIONS 1.2, 1.4, 6.7, 6.9A, FIRST SENTENCE, AND 6.10 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (1960 EDITION) IN EFFECT AT THE TIME, WHICH ARE STATUTORY IN NATURE AND HAVE THE EFFECT OF LAW. COMPARE THE CIVILIAN PERSONNEL REGULATIONS OF THE DEPARTMENT OF THE ARMY, CPR T3 (JUNE 1961 ISSUE), PARAGRAPHS 1-2, 1-3 AND, PARTICULARLY, THAT PART OF PARAGRAPH 2-2E WHICH SAYS AN EMPLOYEE WHO TRAVELS TO A TEMPORARY DUTY STATION AT GOVERNMENT EXPENSE WILL BE REQUIRED TO REIMBURSE THE UNITED STATES FOR PER DIEM THE EMPLOYEE HAS RECEIVED IF HE IMPROPERLY USES THE TRAVEL AUTHORIZATION FOR PURELY PERSONAL REASONS WITHOUT REGARD TO THE PURPOSE FOR WHICH THE TRAVEL IS AUTHORIZED.

THE SETTLEMENT OF NOVEMBER 21, 1966, RECITED TO YOU THE FIRST TWO SENTENCES OF PARAGRAPH CPR T3.3-1A. ALSO SEE PARAGRAPH 3.4-1A WHICH STATES THE POLICY OF THE DEPARTMENT OF THE ARMY IS THAT NO EMPLOYEE OR PERSON SHALL BE FORCED TO BEAR THE COST OF GOVERNMENT TRAVEL FROM PERSONAL FUNDS NOR SHOULD THEY BE PERMITTED TO PROFIT FROM SUCH TRAVEL AND, TO THIS END, THAT RATES OF REIMBURSEMENT (PER DIEM) WITHIN THE LEGAL MAXIMA SHOULD BE SO FIXED AS TO APPROXIMATE THE NECESSARY COSTS OF OFFICIAL TRAVEL SO THAT TRAVELERS ARE NEITHER FINANCIALLY REWARDED NOR PENALIZED BY REASON OF OFFICIAL TRAVEL STATUS. PARAGRAPH 4-1B CONCERNING USE OF GOVERNMENT QUARTERS DURING TEMPORARY DUTY ASSIGNMENTS--- WITH CERTAIN EXCEPTIONS--- PROVIDES "CIVILIAN EMPLOYEES MAY NOT BE REQUIRED TO USE GOVERNMENT QUARTERS WHILE IN A TRAVEL STATUS.' THERE IS NO SHOWING THAT YOU WERE REQUIRED TO USE GOVERNMENT QUARTERS, THOUGH IT IS SHOWN THAT YOU OCCUPIED SUCH QUARTERS ON JUNE 11 AND 12. FURTHER, AS TO THE PER DIEM RATES, PARAGRAPH 4-4A SPECIFIED THE LEGAL MAXIMUM RATE OF $12 FOR REGULAR SALARIED EMPLOYEES' TRAVEL WITHIN THE UNITED STATES EXCEPT THAT PARAGRAPH 4-5A PRESCRIBED (1) THE $9 RATE TO BE APPLICABLE DURING THE PERIOD OF ACTUAL TRAVEL BY COMMON CARRIER OR GOVERNMENT AIRCRAFT, AND (2) A RATE OF $6 WHEN GOVERNMENT QUARTERS ARE USED, BUT WHEN A CHARGE IN EXCESS OF $1.50 PER DAY IS PAID FOR SUCH QUARTERS AND IS CLAIMED BY THE TRAVELER, THE AMOUNT IN EXCESS OF $1.50 WILL BE ADDED TO THE $6 RATE.

THE RECORD SHOWS YOU PAID $2.50 PER NIGHT FOR OCCUPANCY OF QUARTERS ON JUNE 11 AND 12, 1961. HENCE, THE AMOUNT DUE YOU AS PER DIEM FOR THOSE DAYS WAS $7 ($6 PLUS $1). FURTHER, THE RECORD ESTABLISHES THAT YOUR DELAY IN BALTIMORE--- FOR PER DIEM PURPOSES, FROM 12 NOON UNTIL 8 P.M. ON JUNE 11--- WAS ARRANGED BY YOU NOT BY REASON OF TEMPORARY DUTY AT THAT POINT NOR FOR THE PURPOSE BETWEEN THOSE HOURS OF AWAITING SCHEDULED DEPARTURE OF A COMMON CARRIER. THUS, THE RATE OF $7 WAS APPLICABLE BEGINNING AT 12 NOON ON JUNE 11 SINCE YOUR ARRIVAL--- EXCEPT FOR THE UNEXPLAINED STOPOVER- -- AT YOUR TEMPORARY POST OF DUTY WOULD HAVE BEEN PRIOR TO THAT TIME AND YOU OCCUPIED GOVERNMENT QUARTERS ON THE NIGHT OF JUNE 11.

THEREFORE, THE ADDITIONAL PER DIEM OF $2.50 IS NOT DUE YOU AS RECLAIMED IN PARAGRAPH 1 OF YOUR LETTER.

REGARDING YOUR PARAGRAPH 2 AND THE USE OF A PRIVATE AUTOMOBILE TO TRANSPORT YOURSELF BETWEEN YOUR RESIDENCE AT THE PINE BLUFF ARSENAL AND THE LITTLE ROCK RAIL STATION UPON YOUR DEPARTURES AND FROM THE AIRPORT UPON YOUR RETURNS, THE COPIES FURNISHED US OF YOUR TRAVEL VOUCHERS NO. 4335 FOR THE PERIOD JUNE 9-13 AND NO. 357 FOR JULY 14-20, 1961, SHOW YOU CLAIMED AND WERE PAID $1.50 TAXI FARE FOR EACH OF SUCH DEPARTURES AND RETURNS. HOWEVER, WE POINT OUT THAT THE SECOND PARAGRAPH OF SECTION 3.5B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES ROUND-TRIP MILEAGE--- IF IT IS CLAIMED FOR USE OF PRIVATE AUTOMOBILE BETWEEN SUCH POINTS--- SHALL NOT IN EITHER INSTANCE EXCEED THE TAXICAB FARE, INCLUDING TIP ALLOWABLE UNDER SECTION 3.1B, FOR A ONE-WAY TRIP BETWEEN SUCH APPLICABLE POINTS. AS TO PER DIEM NOT BEING ALLOWABLE FOR THE PERIOD OF TRAVEL BY AUTOMOBILE OR OTHER NONSCHEDULED MEANS OF TRANSPORTATION BETWEEN HOME AND A DEPOT OR AIRPORT (UNLESS LOCATED MORE THAN 50 MILES DISTANT) SEE SECTION 6.9C (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

THEREFORE, SINCE THE PRESENT RECORD DOES NOT INDICATE THAT ANY ADDITIONAL AMOUNT IS DUE YOU EITHER AS PER DIEM OR TRANSPORATION COSTS, THE SETTLEMENT OF NOVEMBER 21, 1966, IS SUSTAINED.

YOU ARE INFORMED THAT OUR DECISIONS ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. WITH RESPECT TO JUDICIAL REVIEW, SEE 28 U.S.C. 1491 AND 28 U.S.C. 1346.