B-137854, NOVEMBER 20, 1958, 38 COMP. GEN. 384

B-137854, NOVEMBER 20, 1958, 38 COMP. GEN. 384

CIVILIAN PERSONNEL - HOLIDAYS - PER DIEM - LEAVE BEFORE HOLIDAY AN EMPLOYEE ON TEMPORARY DUTY WHO WAS GRANTED FOUR HOURS OF ANNUAL LEAVE ON DECEMBER 24, 1957--- THE LAST HALF OF THE DAY BEING DECLARED A HOLIDAY FOR LEAVE AND COMPENSATION--- AND FOUR HOURS OF ANNUAL LEAVE ON DECEMBER 26 MUST HAVE THE LEAVE CONSIDERED AS ONE CONTINUOUS PERIOD OF ABSENCE NOT WHOLLY WITHIN ONE DAY FOR THE PURPOSE OF SAVING TO THE EMPLOYEE THE RIGHT TO PER DIEM FOR THE DAY AND A HALF HOLIDAY WHICH IS CONSIDERED A NONWORK PERIOD PRECEDED AND FOLLOWED BY LEAVE UNDER SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS; THEREFORE, THE EMPLOYEE'S RIGHT TO PER DIEM STOPPED AT MIDNIGHT OF DECEMBER 23 AND BEGAN AGAIN WITH THE QUARTER OF THE DAY IN WHICH HE RETURNED TO WORK.

TO HELEN M. HAYES, DEPARTMENT OF COMMERCE, NOVEMBER 20, 1958:

ON NOVEMBER 3, 1958, YOU REQUESTED OUR DECISION ON CERTAIN QUESTIONS ARISING IN CONNECTION WITH A VOUCHER IN FAVOR OF MR. OLAF D. REMMLER, FOR PER DIEM IN LIEU OF SUBSISTENCE FOR DECEMBER 24, 25, AND 26, 1957.

SO FAR AS IS PERTINENT TO THE QUESTIONS HERE, THE FILE SHOWS THAT MR. REMMLER WHILE ON TEMPORARY DUTY IN LONDON, ENGLAND, TOOK FOUR HOURS' ANNUAL LEAVE ON DECEMBER 24 AND FOUR HOURS ON DECEMBER 26--- THE FIRST HALF OF EACH OF THOSE WORK DAYS. DECEMBER 25 WAS, OF COURSE, A HOLIDAY, AND BY EXECUTIVE ORDER NO. 10744, DATED DECEMBER 10, 1957, EMPLOYEES WERE EXCUSED FROM DUTY FOR ONE-HALF DAY ON DECEMBER 24--- FOR PRACTICAL PURPOSES, THE LAST HALF OF THAT DAY. THE FIRST QUESTION PRESENTED IS WHETHER, IF THE LAST HALF-DAY ON DECEMBER 24 IS CONSIDERED TO BE A "NONWORKDAY," PAYMENT OF PER DIEM FOR THAT HALF-DAY AND FOR THE FOLLOWING NONWORKDAY--- A HOLIDAY--- MAY NOT BE PRECLUDED BY SECTION 6.3, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, FOR THE REASON THAT THE ,NONWORK" PERIOD OF ONE AND ONE-HALF DAYS WAS PRECEDED AND FOLLOWED BY LEAVES OF ABSENCE OF FOUR HOURS EACH.

EXECUTIVE ORDER NO. 10744 PROVIDES THAT THE HALF-DAY BEFORE CHRISTMAS IN 1957 "SHALL BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, AND OF ALL STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES.' CERTAINLY, FOR LEAVE AND COMPENSATION PURPOSES THE ENTIRE ONE AND ONE-HALF DAY PERIOD MUST BE CONSIDERED AS A "HOLIDAY; " AND WE HAVE CONSISTENTLY HELD THAT HOLIDAYS ARE "NONWORKDAYS" WITHIN THE MEANING OF SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. SEE, FOR EXAMPLE, 35 COMP. GEN. 606.

SECTION 6.3, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROVIDES IN PERTINENT PART:

LEAVE OF ABSENCE.--- EXCEPT AS STATED BELOW, IF THE TIME THAT LEAVE OF ABSENCE BEGINS OR TERMINATES IS WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, PER DIEM IN LIEU OF SUBSISTENCE EXPENSES WILL TERMINATE AT THE BEGINNING OF THE NEXT QUARTER DAY, OR BEGIN WITH THE QUARTER DAY DURING WHICH THE LEAVE OF ABSENCE TERMINATES. IF LEAVE OF ABSENCE DOES NOT BEGIN OR TERMINATE WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, THE TRAVELER WILL BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE EXPENSES UNTIL MIDNIGHT OF THE LAST DAY PRECEDING THE LEAVE OF ABSENCE AND FROM 2:01 A.M. OF THE DAY FOLLOWING THE LEAVE OF ABSENCE. A TRAVELER WILL BE CONSIDERED TO BE IN SUBSISTENCE STATUS ON NONWORK DAYS UNLESS HE RETURNS TO HIS OFFICIAL STATION OR PLACE OF ABODE FROM WHICH HE COMMUTES DAILY 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). FRACTIONAL LEAVE OF ABSENCE WHOLLY WITHIN A DAY, WHERE FOR HALF OF THE PRESCRIBED WORKING HOURS OR LESS, WILL BE DISREGARDED FOR SUBSISTENCE PURPOSES; WHERE IT EXCEEDS HALF OF THE PRESCRIBED WORKING HOURS OR LESS, WILL BE DISREGARDED FOR SUBSISTENCE URPOSES; WHERE IT EXCEEDS HALF OF THE PRESCRIBED WORKING HOURS NO SUBSISTENCE WILL BE ALLOWED. ( ITALICS SUPPLIED.)

WE HAVE CONSISTENTLY HELD THAT PER DIEM MAY NOT BE PAID FOR NONWORKDAYS PRECEDED AND FOLLOWED BY A LEAVE OF ABSENCE OF ANY DURATION. SEE 29 COMP. GEN. 533, 535, AND B-113856, DATED MARCH 27, 1953. THE LAST SENTENCE OF SECTION 6.3 QUOTED ABOVE CONCERNING FRACTIONAL LEAVES OF ABSENCE REFERS EXPRESSLY TO ABSENCES WHOLLY WITHIN A DAY. SINCE MR. REMMLER'S LEAVE BEGAN AT THE OPENING OF BUSINESS ON DECEMBER 24 AND EXTENDED WITHOUT A RETURN TO DUTY THROUGH FOUR HOURS ON DECEMBER 26, THAT PERIOD MUST BE CONSIDERED AS ONE CONTINUOUS PERIOD OF ABSENCE NOT WHOLLY WITHIN ONE DAY SO AS TO SAVE HIS PER DIEM ON THE HOLIDAYS. YOUR CERTIFICATION, AND PAYMENT OF PER DIEM FOR THE LAST HALF OF DECEMBER 24 AND ALL OF DECEMBER 25, THEREFORE, WAS IN ERROR AND THAT AMOUNT SHOULD BE RECOVERED FROM MR. REMMLER.

THE SECOND QUESTION RAISED CONCERNS THE VOUCHER YOU SUBMITTED IN WHICH MR. REMMLER IS RECLAIMING, AMONG OTHER ITEMS, THE AMOUNT OF $12 WHICH WAS ADMINISTRATIVELY DISALLOWED AND DEDUCTED FROM THE ORIGINAL VOUCHER AS A HALF-DAY'S PER DIEM ON DECEMBER 24 AND A HALF-DAY ON DECEMBER 26 ON ACCOUNT OF THE FOUR HOURS' ANNUAL LEAVE TAKEN ON EACH OF THOSE DAYS. YOU SAY THAT THE ADMINISTRATIVE DISALLOWANCE WAS BASED ON YOUR INTERPRETATION OF THE FIRST TWO SENTENCES OF SECTION 6.3.

BECAUSE MR. REMMLER'S LEAVE DID NOT FALL WHOLLY WITHIN ONE DAY, HE WAS NOT ENTITLED TO THE SAVING PROVISION OF THE LAST SENTENCE IN SECTION 6.3 AND, CONSEQUENTLY, YOU WERE CORRECT IN APPLYING THE FIRST TWO SENTENCES OF THAT SECTION TO HIS CLAIM FOR PER DIEM ON THE FIRST HALF OF DECEMBER 24 AND DECEMBER 26. HIS ENTITLEMENT TO PER DIEM TERMINATED AT MIDNIGHT ON DECEMBER 23, THE DAY PRECEDING THE BEGINNING OF THE LEAVE, AND BEGAN AGAIN WITH THE QUARTER DAY DURING WHICH HE RETURNED TO DUTY ON DECEMBER 26. THEREFORE, THE RECLAIM VOUCHER SO FAR AS IT CONCERNS A HALF-DAY'S PER DIEM EACH FOR DECEMBER 24 AND 26, MAY NOT BE CERTIFIED FOR PAYMENT.