B-127435, MAY 1, 1956, 35 COMP. GEN. 606

B-127435, MAY 1, 1956, 35 COMP. GEN. 606

SUBSISTENCE - PER DIEMS - NONWORKDAYS A MONDAY WHICH IS OBSERVED IN LIEU OF A SUNDAY HOLIDAY UNDER EXECUTIVE ORDER NO. 10358 IS A NONWORKDAY, AND AN EMPLOYEE WHO IS IN A TEMPORARY DUTY STATUS OF FRIDAY PRECEDING THE HOLIDAY, AND WHO ENTERS ON ANNUAL LEAVE ON TUESDAY FOR THE REMAINDER OF THE WEEK IS PRECLUDED FROM RECEIVING PER DIEM FOR SUCH MONDAY UNDER PARAGRAPH 45A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH LIMITS PER DIEM TO TWO NONWORKDAYS WHEN THE LEAVE OF ABSENCE IS IMMEDIATELY PRECEDED AND FOLLOWED BY NONWORKDAYS.

TO CONRAD N. SWINDELL, DEPARTMENT OF AGRICULTURE, MAY 1, 1956:

YOUR LETTER OF FEBRUARY 23, 1956, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF SAMUEL R. KEYES, TRAINEE, MEAT GRADER, IN THE AMOUNT OF $7 REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE FOR DECEMBER 26, 1955. MR. KEYES WAS ON OFFICIAL TEMPORARY DUTY AWAY FROM HIS HEADQUARTERS ON DECEMBER 23, 1955 ( FRIDAY), AND ENTERED ON ANNUAL LEAVE DECEMBER 27 ( TUESDAY), THROUGH DECEMBER 30, 1955 ( FRIDAY). HE RETURNED TO TEMPORARY DUTY JANUARY 3, 1956 ( TUESDAY). HE CLAIMED PER DIEM FOR NONWORKDAYS DECEMBER 24, 25, AND 26, 1955, BUT PER DIEM FOR DECEMBER 26 WAS ADMINISTRATIVELY DISALLOWED. THE ADMINISTRATIVE DISALLOWANCE WAS BASED ON THE PROVISION IN PARAGRAPH 45A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH PROVIDES:

* * * A TRAVELER WILL BE CONSIDERED TO BE IN SUBSISTENCE STATUS ON NONWORK DAYS UNLESS HE RETURNS TO HIS OFFICIAL STATION OR UNLESS SUCH NONWORK DAY IS IMMEDIATELY PRECEDED AND FOLLOWED BY LEAVE OF ABSENCE. PROVIDED, THAT PER DIEM IN LIEU OF SUBSISTENCE MAY NOT BE PAID FOR MORE THAN TWO NONWORK DAYS WHERE THE LEAVE OF ABSENCE IS IMMEDIATELY PRECEDED AND FOLLOWED BY NONWORK DAY/S). * * *

AS A BASIS FOR A RECLAIM THE EMPLOYEE STATES THAT DECEMBER 26, 1955, WOULD NOT BE CONSIDERED A NONWORKDAY SINCE UNDER EXECUTIVE ORDER OFFICES ARE NOT OPEN FOR BUSINESS ON MONDAY WHEN A HOLIDAY FALLS ON A SUNDAY.

WE ARE UNABLE TO FOLLOW THE CLAIMANT'S REASONING AS TO WHAT CONSTITUTES A NONWORKDAY. UNDER EXECUTIVE ORDER NO. 10358 WHENEVER A HOLIDAY FALLS ON A SUNDAY FEDERAL OFFICES AND ESTABLISHMENTS ARE CLOSED TO PUBLIC BUSINESS ON THE FOLLOWING MONDAY; THAT IS TO SAY, NO WORK IS TO BE PERFORMED GENERALLY ON SUCH A MONDAY, WHICH FACT ESTABLISHES IT AS A NONWORKDAY. SEE IN THIS CONNECTION SECTION 205A IN THE ANNUAL SICK LEAVE ACT OF 1951, APPROVED OCTOBER 30, 1951, 65 STAT. 681, 5 U.S.C. 2064, WHICH PROVIDES:

SEC. 205. (A) THE DAYS OF LEAVE PROVIDED FOR IN THIS TITLE SHALL MEAN DAYS UPON WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF HOLIDAYS, AND ALL NONWORKDAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ( ITALICS SUPPLIED.)

COMPARE 19 COMP. GEN. 955.

ACCORDINGLY, WE HOLD THAT MONDAY, DECEMBER 26, 1955, WAS A NONWORKDAY WITHIN THE PURVIEW OF PARAGRAPH 45A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THAT THE EMPLOYEE PROPERLY WAS DISALLOWED PER DIEM IN LIEU OF SUBSISTENCE FOR THAT DAY.