B-141172, DECEMBER 17, 1959, 39 COMP. GEN. 446

B-141172, DECEMBER 17, 1959, 39 COMP. GEN. 446

CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - HOME LEAVE - ILLNESS - TRAVEL STATUS FOR PER DIEM OVERSEAS EMPLOYEES WHO BECOME ILL OR INCAPACITATED DURING A PERIOD OF HOME LEAVE MAY NOT BE REGARDED AS IN A TRAVEL STATUS AFTER ARRIVAL AT THE HOME LEAVE POINT TO COME WITHIN THE PURVIEW OF SECTION 6.5A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH PERMITS A CONTINUATION OF PER DIEM FOR TRAVELERS WHO TAKE LEAVE BECAUSE OF ILLNESS OR INJURY, PROVIDED THAT THEY ARE IN FACT IN AN OFFICIAL TRAVEL OR TEMPORARY DUTY STATUS AWAY FROM OR EN ROUTE TO AN OFFICIAL STATION; THEREFORE, THE EMPLOYEE'S TRAVEL STATUS HAVING TERMINATED ON ARRIVAL AT THE HOME LEAVE POINT, HE IS NOT ENTITLED TO PER DIEM FOR A SUBSEQUENT PERIOD OF ILLNESS AND HIS TRAVEL STATUS DID NOT COMMENCE AGAIN UNTIL HE BEGAN TRAVEL TO THE TEMPORARY DUTY POINT FOR CONSULTATION DUTY.

TO J. E. FOWLER, JR., DEPARTMENT OF THE INTERIOR, DECEMBER 17, 1959:

YOUR LETTER OF NOVEMBER 2, 1959, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE SUBMITTED TRAVEL VOUCHER FOR $633 IN FAVOR OF MR. RANDOLPH M. MONTEITH, UNDER THE FACTS OUTLINED BELOW.

THE AMOUNT REFERRED TO REPRESENTS MR. MONTEITH'S CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE FOR 52 3/4 DAYS (INCLUDING 13 DAYS NOT PAID ON A PRIOR TRAVEL VOUCHER) COVERING THE PERIOD OCTOBER 16, 1958, THROUGH DECEMBER 7, 1958, FOR WHICH HE SUBMITS A PHYSICIAN'S CERTIFICATE EVIDENCING THAT MR. MONTEITH WAS INCAPACITATED DURING THAT PART OF THE PERIOD OF HIS "HOME LEAVE" IN THE UNITED STATES UNDER TRAVEL AUTHORIZATION NO. WO-ADM-31 DATED AUGUST 27, 1958. THEREUNDER, HE WAS AUTHORIZED AS AN EMPLOYEE OF THE BUREAU OF MINES TO TRAVEL FROM CALI, COLOMBIA, TO HUNTINGTON STATION, NEW YORK, VIA WASHINGTON, D.C., AND RETURN, FOR PURPOSES OF TAKING "HOME LEAVE" AND CONSULTATION AT WASHINGTON WITH OFFICIALS OF THE INTERNATIONAL COOPERATION ADMINISTRATION AND THE BUREAU OF MINES. THEREUNDER, THE "HOME LEAVE" WAS AUTHORIZED "WITHIN THE CONTINENTAL UNITED STATES," WITH COST TO THE GOVERNMENT LIMITED TO NOT TO EXCEED THAT WHICH WOULD HAVE BEEN INCURRED FOR TRAVEL FROM CALI VIA WASHINGTON TO HUNTINGTON STATION. THIRTEEN DAYS OF THE PER DIEM ( NOVEMBER 22 THROUGH DECEMBER 4, 1958 AMOUNTING TO $156) PREVIOUSLY CLAIMED BY MR. MONTEITH ON BUREAU VOUCHER NO. 2556 WERE ADMINISTRATIVELY DEDUCTED BECAUSE THE ILLNESS OR INCAPACITY OCCURRED DURING THE "HOME LEAVE" PERIOD AND AFTER MR. MONTEITH HAD ARRIVED AT HIS "HOME LEAVE" POINT.

THE PRIMARY QUESTIONS FOR CONSIDERATION HERE ARE (1) WHAT EFFECT SHOULD BE GIVEN THE PHYSICIAN'S CERTIFICATE DATED DECEMBER 11, 1958, IN MR. MONTEITH'S CASE, AND (2) WHETHER A GRANT OR APPROVAL OF SICK LEAVE FOR THE PERIOD--- SUBSTITUTED FOR AN EQUIVALENT AMOUNT OF THE "HOME LEAVE" AND ANNUAL LEAVE PREVIOUSLY NOTED ON VOUCHER NO. 2556--- WOULD VALIDATE HIS CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE AT HIS RESIDENCE IN THE UNITED STATES.

WE UNDERSTAND THE FUNDS CHARGEABLE WITH MR. MONTEITH'S OFFICIAL TRAVEL ARE DERIVED FROM APPROPRIATIONS MADE PURSUANT TO THE MUTUAL SECURITY ACT OF 1954, AS AMENDED. SECTION 522 THEREOF, 22 U.S.C. 1782 (A), PROVIDES IN PART THAT SUCH FUNDS SHALL BE AVAILABLE FOR THE PURPOSES AND AUTHORITY GRANTED IN THAT ACT OR UNDER AUTHORITY GOVERNING THE ACTIVITIES OF THE AGENCY TO WHICH SUCH FUNDS ARE ALLOCATED OR TRANSFERRED. WHEN, AS HERE, THE APPOINTMENT IS UNDER SECTION 527 (C) (1) OF THE ACT, 22 U.S.C. 1787 (C), THE ALLOWANCES AND BENEFITS OF THE FOREIGN SERVICE ACT OF 1946 APPLY. THE LATTER ACT AUTHORIZES THE RETURN TO THE UNITED STATES FOR STATUTORY LEAVE OF ABSENCE FOR WHICH TRAVELING EXPENSES MAY BE ALLOWED "WHILE TRAVELING" PURSUANT TO ORDERS. 22 U.S.C. 1136, 1148. SECTION 6.5A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS--- WHICH SECTION IS INCLUDED IN BOTH THE FOREIGN SERVICE AND ICA TRAVEL REGULATIONS--- PROVIDES THAT, WHENEVER A TRAVELER TAKES LEAVE OF ABSENCE OF ANY KIND BECAUSE OF AN INCAPACITY DUE TO ILLNESS OR INJURY NOT ATTRIBUTABLE TO HIS OWN MISCONDUCT, THE PRESCRIBED PER DIEM IN LIEU OF SUBSISTENCE SHALL CONTINUE FOR PERIODS NOT TO EXCEED 14 CALENDAR DAYS IN ANY ONE PERIOD OF ABSENCE, EXCEPT THAT A LONGER PERIOD MAY BE APPROVED ADMINISTRATIVELY UNDER THE CIRCUMSTANCES IN A PARTICULAR CASE. THAT PROVISION OF SECTION 6.5 CONTEMPLATES THAT THE PER DIEM ALLOWANCE, WHICH IS PRESCRIBED FOR PERIODS OF OFFICIAL TRAVEL, SHALL CONTINUE AVAILABLE TO THE OFFICER OR EMPLOYEE ONLY IF AT THE TIME HE IS IN FACT IN AN OFFICIAL TRAVEL OR TEMPORARY DUTY STATUS AWAY FROM OR EN ROUTE TO HIS DESIGNATED HEADQUARTERS. THE PROVISION HAS NO APPLICATION WHEN, AS HERE, THE EMPLOYEE AT THE TIME OF THE INCAPACITY, AS EVIDENCED BY THE RECORD, WAS NOT IN AN OFFICIAL TRAVEL OR TEMPORARY DUTY STATUS AND FOR WHICH A PER DIEM HAD BEEN PRESCRIBED. AS A MATTER OF LAW, SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED APRIL 26, 1950, 5 U.S.C. 836, EXPRESSLY LIMITS APPLICATION OF SUCH AN ALLOWANCE TO CASES ,WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' MOREOVER, AS INDICATED ABOVE, PAYMENT FOR TRAVELING EXPENSES, INCLUDING PER DIEM, INCIDENT TO STATUTORY LEAVE OF ABSENCE IS LIMITED TO PERIODS OF "TRAVEL.'

THE RECORD SHOWS MR. MONTEITH ARRIVED AT HIS SO-CALLED "HOME LEAVE" POINT ON OCTOBER 9. ON THAT DATE HIS OFFICIAL TRAVEL STATUS FOR THAT PURPOSE TERMINATED. HE DID NOT REENTER OFFICIAL TRAVEL AND TEMPORARY DUTY STATUS UNTIL 7:40 P.M. DECEMBER 7.

HENCE, THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.