B-114375, MAY 6, 1953, 32 COMP. GEN. 492

B-114375, MAY 6, 1953, 32 COMP. GEN. 492

SUBSISTENCE - PER DIEM - UNCOMPENSATED PERSONNEL - TRAVEL PERFORMED BETWEEN 8 A.M. AND 6 P.M. UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 WHICH PROVIDES THAT PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND PER DIEM IN LIEU OF SUBSISTENCE ENROUTE, THE TRANSPORTATION ONLY IS SUBJECT TO THE TRAVEL REGULATIONS, SO THAT ADMINISTRATIVE REGULATIONS MAY PROVIDE FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO UNCOMPENSATED PERSONNEL FOR TRAVEL PERFORMED BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. EVEN THOUGH SAID TRAVEL REGULATIONS PROHIBIT SUCH PAYMENT.

COMPTROLLER GENERAL WARREN TO DIRECTOR OF SELECTIVE SERVICE, MAY 6, 1953:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1953, NO. 1-41-1, REQUESTING A DECISION AS TO WHETHER THE SELECTIVE SERVICE REGULATIONS MAY BE AMENDED TO AUTHORIZE THE PAYMENT OF A PER DIEM SUBSISTENCE ALLOWANCE TO UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM WHILE TRAVELING AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, EVEN THOUGH SUCH TRAVEL IS PERFORMED WHOLLY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.THE CURRENT TRAVEL AND SUBSISTENCE REGULATIONS OF THE SELECTIVE SERVICE SYSTEM, 32 CFR 1609.41, ET SEQ., ARE CONSIDERED TO INCORPORATE BY REFERENCE THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PARAGRAPH 51 OF WHICH PROVIDES "THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AT OR AFTER 8 A.M., AND THE RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M. *

THERE IS FOR CONSIDERATION HEREIN, AS SUGGESTED IN YOUR LETTER, THE PROVISIONS OF SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, 60 STAT. 806, AND THE EFFECT THEREON OF SECTIONS 3 AND 9 OF THE TRAVEL EXPENSE ACT OF 1949, APPROVED JUNE 9, 194 63 STAT. 166, 167.

SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, PROVIDES AS FOLLOWS:

PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.

IT IS OBSERVED THAT, WHILE THE PORTION OF THE ABOVE ACT DEALING WITH PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM, CONTAINS LANGUAGE SUBJECTING THE TRANSPORTATION OF SUCH PERSONS TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE MILEAGE ACT OF FEBRUARY 14, 1931, THERE IS NO SIMILAR LANGUAGE WITH RESPECT TO THE AUTHORIZED PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE. ACCORDINGLY, AND AS THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 2, 1946, FAILS TO INDICATE ANY INTENTION TO THE CONTRARY, IT MUST BE CONCLUDED THAT THE PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED BY SECTION 5 OF THE ACT FOR PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM IS WITHOUT REFERENCE TO THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, OR THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688. SEE 24 COMP. GEN. 331, AND B-93085, MARCH 21, 1950.

THERE REMAINS FOR CONSIDERATION WHETHER ANY CHANGE IN THAT CONCLUSION WOULD BE REQUIRED BY THE ENACTMENT OF THE TRAVEL EXPENSE ACT OF 1949. THAT ACT APPEARS TO HAVE BEEN ENACTED IN LIEU OF THE SUBSISTENCE EXPENSE ACT OF 1926, AND THE MILEAGE ACT OF FEBRUARY 14, 1931. ALTHOUGH SECTION 9 OF THE 1949 ACT REPEALS THE LATTER TWO MENTIONED ACTS AS WELL AS ANY OTHER ACTS--- WITH CERTAIN EXCEPTIONS, INCONSISTENT OR IN CONFLICT WITH SUCH ACT OF 1949, IT IS NOT BELIEVED THERE WAS ANY INTENTION TO DISTURB THE PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 2, 1946, APPLICABLE TO PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED FOR PERSONS SERVING WITHOUT COMPENSATION OR $1 PER ANNUM. THUS, THE SAME CONCLUSION AS REACHED IN THE PRIOR PARAGRAPH WOULD STILL BE WARRANTED.

UPON THE BASIS OF THE FOREGOING YOU MAY BE ADVISED THAT YOU WOULD BE AUTHORIZED TO CHANGE YOUR REGULATION TO PROVIDE FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO UNCOMPENSATED PERSONNEL IN ACCORDANCE WITH SECTION 5 OF THE ACT OF AUGUST 2, 1946, WITHOUT REGARD TO THE STANDARDIZED GOVERNMENT REGULATIONS OR THE TRAVEL EXPENSE ACT OF 1949.