B-103968, JUNE 26, 1951, 30 COMP. GEN. 527

B-103968, JUNE 26, 1951, 30 COMP. GEN. 527

SUBSISTENCE - PER DIEMS - WHEN-ACTUALLY-EMPLOYED EMPLOYEES - PERIODS OF ILLNESS A CONSULTANT HIRED ON A WHEN-ACTUALLY-EMPLOYED BASIS IN ACCORDANCE WITH SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, AUTHORIZING PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO CONSULTANTS WHILE SERVING AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, IS ENTITLED TO THE PER DIEM ALLOWANCE WHEN PREVENTED BY ILLNESS FROM PERFORMING SERVICES, EVEN THOUGH COMPENSATION IS NOT PAYABLE FOR THE PERIOD NO DUTY IS PERFORMED.

COMPTROLLER GENERAL WARREN TO ABRAHAM STARR, DEPARTMENT OF COMMERCE, JUNE 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1951, REQUESTING DECISION AS TO WHETHER A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR. OLAF K. TACKLE, CONSULTANT ( WAE), IN THE AMOUNT OF $26.25, REPRESENTING 1 3/4 DAYS' PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $15 PER DAY PROPERLY MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH. SAID VOUCHER REPRESENTS A RECLAIM OF THE AMOUNT ADMINISTRATIVELY DEDUCTED ON A PRIOR VOUCHER BECAUSE OF THE REPORTED ILLNESS OF THE EMPLOYEE.

IT APPEARS FROM THE INFORMATION CONTAINED IN YOUR LETTER THAT MR. TACKLE WAS HIRED ON A WHEN-ACTUALLY-EMPLOYED BASIS WITH THE DEFENSE PRODUCTION ADMINISTRATION IN ACCORDANCE WITH SECTION 710 (C) OF PUBLIC LAW 774, APPROVED SEPTEMBER 8, 1950. FURTHER, IT APPEARS THAT MR. TACKLE WHILE ENGAGED IN OFFICIAL DUTIES AWAY FROM HIS HOME AND REGULAR PLACE OF BUSINESS WAS STRICKEN WITH ILLNESS, PREVENTING HIS WORKING FOR 1 3/4 DAYS, THE PERIOD FOR WHICH PER DIEM IS CLAIMED ON THE VOUCHER IN QUESTION.

SECTION 710 (C) OF PUBLIC LAW 774, 64 STAT. 819, IS, IN PART, AS FOLLOWS:

(C) THE PRESIDENT IS AUTHORIZED, TO THE EXTENT HE DEEMS IT NECESSARY AND APPROPRIATE IN ORDER TO CARRY OUT THE PROVISIONS OF THIS ACT TO EMPLOY EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF, AS AUTHORIZED BY SECTION 55A OF TITLE 5 OF THE UNITED STATES CODE. INDIVIDUALS SO EMPLOYED MAY BE COMPENSATED AT RATES NOT IN EXCESS OF $50 PER DIEM AND WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS THEY MAY BE ALLOWED TRANSPORTATION AND NOT TO EXCEED $15 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES WHILE SO EMPLOYED. * * *

UNDER THE ABOVE-QUOTED STATUTE, EXPERTS AND CONSULTANTS MAY BE APPOINTED BY CONTRACT ON A WHEN-ACTUALLY-EMPLOYED BASIS AND PAID COMPENSATION AT A RATE NOT IN EXCESS OF $50 PER DAY WHILE SO EMPLOYED. IN ADDITION THEY MAY RECEIVE NOT TO EXCEED $15 PER DIEM IN LIEU OF SUBSISTENCE WHILE IN AN OFFICIAL TRAVEL STATUS AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS. WHILE IT IS CLEAR THAT SUCH EXPERTS AND CONSULTANTS ARE NOT ENTITLED TO COMPENSATION EXCEPT WHEN ACTUALLY EMPLOYED IN THE PERFORMANCE OF OFFICIAL DUTIES, IT HAS BEEN HELD IN SOMEWHAT SIMILAR SITUATIONS THAT THE RIGHT OF PERSONS SERVING ON A WHEN ACTUALLY-EMPLOYED BASIS TO PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO AN OFFICIAL TRAVEL STATUS IS NOT DEPENDENT UPON THEIR ENTITLEMENT TO COMPENSATION. SEE DECISIONS OF DECEMBER 21, 1943, B-38526, AND JULY 30, 1946, B-58983. IN VIEW THEREOF AND SINCE IT DOES NOT APPEAR THAT THE EMPLOYMENT STATUS OF MR. TACKLE WAS TERMINATED BY HIS ILLNESS, THE DURATION OF WHICH WAS LESS THAN THE 14-DAY LIMITATION PRESCRIBED IN PARAGRAPH 45C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.