B-129902, JAN. 4, 1957

B-129902, JAN. 4, 1957

TO MR. CHARLES L. MULLIN, JR.:

WE ARE IN RECEIPT OF A LETTER DATED NOVEMBER 2, 1956, FROM MR. JOHN C. HILL, ATTORNEY AT LAW, CONCERNING YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD NOVEMBER 1, 1953, THROUGH JANUARY 29, 1954, WHILE AN EMPLOYEE OF THE UNITED STATES INFORMATION AGENCY. YOUR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 20, 1956, FOR THE REASON THAT THE AMENDED ORDERS ASSIGNING YOU TO TEMPORARY DUTY IN WASHINGTON, D.C., FOR APPROXIMATELY NINETY DAYS CONTAINED A PROVISION WHICH PRECLUDED THE PAYMENT OF A PER DIEM ALLOWANCE DURING THE ABOVE-MENTIONED ASSIGNMENT.

BY TRAVEL AUTHORIZATION NO. 3-27388, DATED JUNE 8, 1953, YOU WERE DIRECTED TO PROCEED FROM NEW DELHI, INDIA, TO YOUR PLACE OF RESIDENCE AT PITTSBURGH, PENNSYLVANIA, FOR A PERIOD OF HOME LEAVE. TRAVEL TO YOUR HOME WAS ROUTED VIA WASHINGTON, D.C., FOR CONSULTATION WITH THE DEPARTMENT FOR APPROXIMATELY FIVE (5) WORKING DAYS, AND AT THE EXPIRATION OF AUTHORIZED LEAVE YOU WERE TO RETURN DIRECT FROM PITTSBURGH TO NEWDELHI, FOR FURTHER DUTY OVERSEAS. HOWEVER, ON OCTOBER 30, 1953, YOUR ORIGINAL ORDERS WERE AMENDED DIRECTING YOU--- AT THE CONCLUSION OF HOME LEAVE--- TO REPORT TO WASHINGTON, D.C., FOR TEMPORARY DUTY WITH THE AGENCY FOR APPROXIMATELY NINETY (90) DAYS. THE AMENDED ORDERS SPECIFICALLY PROVIDED "PER DIEM WHILE ON TEMPORARY DUTY IN WASHINGTON, D.C., NOT AUTHORIZED.' SUBSEQUENTLY, ON JANUARY 28, 1954, AUTHORITY FOR YOUR RETURN TO NEW DELHI, INDIA, WAS CANCELED. YOU WERE ORDERED TO REMAIN ON DUTY WITH THE AGENCY IN WASHINGTON UPON COMPLETION OF THE TEMPORARY DETAIL, AND THE SHIPMENT OF YOUR EFFECTS FROM NEW DELHI TO WASHINGTON WAS AUTHORIZED. THE RECORD FURTHER SHOWS THAT YOU WERE SEPARATED FROM THE FEDERAL SERVICE ON DECEMBER 10, 1954, AND THAT YOU ARE NOW INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $399.86, BECAUSE OF OVERPAYMENTS MADE FOR SALARY AND FOR LEAVE ADVANCED BUT UNEARNED AT THE TIME OF YOUR SEPARATION.

IN THE LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM, THE VIEW IS EXPRESSED THAT IN THE EVENT SUIT IS FILED FOR THE SUM DUE THE UNITED STATES, A COUNTERCLAIM MAY BE MADE FOR UNPAID PER DIEM IN THE ABSENCE OF CONCLUSIVE PROOF THAT PER DIEM REIMBURSEMENT WAS NOT INCLUDED IN YOUR EMPLOYMENT CONTRACT WITH THE GOVERNMENT. THE LETTER ALSO MAKES REFERENCE TO DOMESTIC CIRCULAR NO. 39 ISSUED BY THE EMPLOYING AGENCY ON JULY 16, 1954, WHICH OUTLINES THE ADMINISTRATIVE POLICY UNDER WHICH PER DIEM MAY BE AUTHORIZED OR APPROVED FOR AGENCY PERSONNEL WHEN ORDERED TO DUTY IN WASHINGTON, D.C., FOR TRAINING OR CONSULTATION.

ASIDE FROM THE FACT THAT THE CITED CIRCULAR WAS NOT ISSUED UNTIL LONG AFTER YOUR TEMPORARY DETAIL HAD BEEN COMPLETED, IT CONTAINS NO MANDATORY PROVISION FOR PAYMENT OF PER DIEM TO EMPLOYEES FOR PERIODS OF SERVICE RENDERED IN WASHINGTON. OUR OFFICE HAS NOT BEEN FURNISHED WITH A COPY OF ANY CONTRACT OR AGREEMENT WHICH YOU MAY HAVE EXECUTED INCIDENT TO YOUR EMPLOYMENT FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES. IN THE ADMINISTRATIVE REPORT FORWARDED HERE DISAPPROVING PAYMENT OF YOUR CLAIM, NO MENTION IS MADE OF ANY WRITTEN CONTRACT OR EMPLOYMENT AGREEMENT BETWEEN YOU AND THE AGENCY CONCERNED. IN ANY EVENT, THE USUAL FORM OF EMPLOYMENT AGREEMENT EXECUTED BY EMPLOYEES OF THE GOVERNMENT WHEN ORDERED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES, CONTAINS NO PROVISION REQUIRING THE PAYMENT OF PER DIEM WHILE ON TEMPORARY DUTY WITHIN THE UNITED STATES.

THE ALLOWANCE OF PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE TO CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY IS GOVERNED BY THE TRAVEL EXPENSE ACT OF 1949 (63 STAT. 166), AS AMENDED, AND EXISTING REGULATIONS ISSUED PURSUANT THERETO. THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS SPECIFICALLY PROVIDES THAT A PER DIEM ALLOWANCE MAY BE AUTHORIZED OR APPROVED, AND THE HEAD OF EACH DEPARTMENT AND ESTABLISHMENT IS VESTED WITH THE AUTHORITY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES (NOT IN EXCESS OF THE STATUTORY RATE), AS MAY BE JUSTIFIED AND REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES. THE ALLOWANCE OF PER DIEM IS A DISCRETIONARY MATTER VESTED IN THE ADMINISTRATIVE OFFICE CONCERNED.

IN VIEW OF THE FACTS AS REPORTED COUPLED WITH THE LAW AND APPLICABLE REGULATIONS, THE SETTLEMENT OF FEBRUARY 20, 1956, IS FOUND TO BE CORRECT AND IS SUSTAINED.

APPROPRIATE ACTION SHOULD THEREFORE BE TAKEN BY YOU TO LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES WITHOUT ANY UNNECESSARY DELAY.