B-141930, JULY 12, 1960, 40 COMP. GEN. 7

B-141930, JULY 12, 1960, 40 COMP. GEN. 7

MILITARY PERSONNEL - PER DIEM - DEPARTURE FROM PERMANENT STATION - TERMINAL OUTSIDE STATION - WASHINGTON NATIONAL AIRPORT THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS WITH RESPECT TO THE COMMENCEMENT OF TRAVEL AWAY FROM THE PERMANENT DUTY STATION OF MEMBERS OF THE UNIFORMED SERVICES REFLECT AN INTENT THAT, WHEN TRAVEL IS PERFORMED BY COMMON CARRIER, THE PER DIEM ALLOWANCE FOR THE TIME BETWEEN THE DUTY POINT SHALL BEGIN TO ACCRUE AT THE TIME OF THE SCHEDULED DEPARTURE BY THE COMMON CARRIER WHICH IS USED INITIALLY IN THE PERFORMANCE OF THE TRAVEL, AND THIS RULE IS FOR APPLICATION IN CASES WHERE DEPARTURE IS FROM A TERMINAL WHICH IS OUTSIDE OF THE PERMANENT DUTY STATION BUT READILY AND EASILY ACCESSIBLE BY TAXICAB, BUS, STREETCAR, SUBWAY, OR OTHER PUBLIC CARRIER; THEREFORE, WHEN AIRPORT LIMOUSINE SERVICE IS USED TO A NEARBY AIRPORT OUTSIDE THE STATION, PER DIEM BEGINS TO ACCRUE FROM THE TIME OF DEPARTURE OF THE LIMOUSINE FROM THE ESTABLISHED LOCAL TERMINAL. A MEMBER OF THE UNIFORMED SERVICES WHO USES AN AIRPORT LIMOUSINE FROM HIS STATION IN WASHINGTON, D.C., TO WASHINGTON NATIONAL AIRPORT INCIDENT TO OFFICIAL TRAVEL IS ENTITLED TO PER DIEM COMPUTED FROM THE TIME OF THE DEPARTURE OF THE LIMOUSINE FROM THE STATLER HOTEL, AND NOT FROM THE TIME HE WAS PICKED UP BY THE LIMOUSINE AT HIS STATION FOR TRANSPORTATION TO THE AIRPORT VIA THE STATLER HOTEL TERMINAL, SINCE THE WASHINGTON NATIONAL AIRPORT PROVIDES LIMOUSINE SERVICE BETWEEN THE AIRPORT AND THE LOCAL CITY TERMINAL AT THE STATLER HOTEL. MEMBERS OF THE UNIFORMED SERVICES WHO ARE STATIONED AT THE PENTAGON AND OTHER POINTS WITHIN THE WASHINGTON, D.C., AREA AND WHO PERFORM TRAVEL BY COMMON CARRIER WHOSE TERMINAL IS OUTSIDE THE BOUNDARIES OF THEIR DUTY STATIONS, BUT IN A NEARBY AREA READILY AND EASILY ACCESSIBLE BY PUBLIC CONVEYANCE, ARE ENTITLED UNDER THE JOINT TRAVEL REGULATIONS TO PER DIEM FOR TRAVEL BY COMMON CARRIER AWAY FROM THEIR DUTY STATIONS COMPUTED ON THE NECESSARY SCHEDULES OF DEPARTURE FROM THE TERMINAL OF THE COMMON CARRIER USED.

TO MAJOR C. E. JONES, DEPARTMENT OF THE ARMY, JULY 12, 1960:

BY THIRD ENDORSEMENT DATED FEBRUARY 5, 1960, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED HERE YOUR LETTER OF DECEMBER 28, 1959, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYING A FRACTIONAL PER DIEM TO CAPTAIN MURRAY W. BALLENGER, USN, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 60-5.

IT APPEARS THAT CAPTAIN BALLENGER LEFT HIS DUTY STATION AT THE ARMED FORCES INSTITUTE OF PATHOLOGY, WASHINGTON, D.C., AT 5:45 A.M. ON OCTOBER 20, 1959, BY AIRPORT LIMOUSINE TO WASHINGTON NATIONAL AIRPORT AND DEPARTED FROM THERE BY COMMERCIAL AIRCRAFT AT 7:00 A.M. FOR NORFOLK, VIRGINIA. RETURNED TO WASHINGTON NATIONAL AIRPORT AT 7:30 P.M. ON THE SAME DATE. THE TRAVEL WAS PERFORMED UNDER ORDERS DATED OCTOBER 16, 1959, DIRECTING TRAVEL FROM HIS STATION AT THE ARMED FORCES INSTITUTE OF PATHOLOGY, WASHINGTON, D.C., TO NORFOLK, VIRGINIA, FOR PERFORMANCE OF TEMPORARY DUTY AND RETURN. HE WAS PAID PER DIEM FOR THREE-FOURTHS OF A DAY COMPUTED ON THE BASIS OF THE TIME THE AIRPORT LIMOUSINE WOULD HAVE LEFT THE STATLER HOTEL, REGULAR TERMINAL IN WASHINGTON, D.C., IN ORDER TO ARRIVE AT THE AIRPORT IN TIME FOR AIRPLANE DEPARTURE AT 7:00 A.M. YOU SAY THE MEMBER CONTENDS THAT SINCE THE LIMOUSINE WAS USED FROM HIS DUTY STATION WITHIN THE CORPORATE LIMITS OF WASHINGTON, D.C., TO THE AIRPORT, WHICH IS OUTSIDE THE CORPORATE LIMITS OF THE CITY, PER DIEM SHOULD BEGIN AT THE TIME HE WAS PICKED UP AT THE ARMED FORCES INSTITUTE OF PATHOLOGY.

THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY IS GOVERNED BY REGULATIONS ISSUED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), AND PUBLISHED IN THE JOINT TRAVEL REGULATIONS. UNDER THE PROVISIONS OF PARAGRAPH 3050 OF SUCH REGULATIONS THE ALLOWANCES ACCRUE ONLY WHILE THE MEMBER IS IN A TRAVEL STATUS; AND IT IS PROVIDED THAT A TRAVEL STATUS COMMENCES WITH DEPARTURE FROM THE PERMANENT DUTY STATION. THE TERM "PERMANENT DUTY STATION" IS DEFINED IN PARAGRAPH 1150-10 OF THE REGULATIONS AS EXTENDING TO THE LIMITS OF THE CITY OR TOWN IN WHICH A MEMBER IS STATIONED OR, IF NOT STATIONED IN A CITY OR TOWN, TO THE LIMITS OF THE RESERVATION, STATION OR ESTABLISHED AREA. PARAGRAPH 4401 OF THE REGULATIONS PROVIDES FOR REIMBURSEMENT OF TAXICAB, BUS, STREETCAR, SUBWAY OR OTHER PUBLIC CARRIER FARES BETWEEN PLACES OF ABODE, LODGING, OR PLACE OF DUTY AND STATIONS, WHARVES, AIRPORTS OR OTHER LOCAL TERMINALS OF THE COMMERCIAL MODES OF TRANSPORTATION USED IN PERFORMING THE ORDERED TRAVEL. WITH RESPECT, HOWEVER, TO THE TIME ALLOWABLE IN THE COMPUTATION OF PER DIEM AUTHORIZED FOR TRAVEL BY COMMON CARRIER, PARAGRAPH 4204-3 OF THE REGULATIONS PROVIDES THAT THE PORTION OF SUCH ALLOWANCE PAYABLE FOR TRAVEL BETWEEN DUTY POINTS WILL BE BASED UPON ACTUAL AND NECESSARY SCHEDULES BY COMMON CARRIER, INCLUDING BUS IN CERTAIN CIRCUMSTANCES, DEPENDING UPON THE MEANS USED, WHICH SCHEDULES EXCEPT THOSE WHICH WOULD REQUIRE BOARDING OR LEAVING A TRAIN BETWEEN THE HOURS OF 2400 AND 10600, SHALL BE THOSE WHICH MOST NEARLY COINCIDE WITH THE POSSIBLE TIME OF DEPARTURE AND ARRIVAL REQUIRED TO CARRY OUT THE PURPOSES OF THE TRAVEL ORDERS.

WHEN READ TOGETHER, SUCH REGULATORY PROVISIONS APPEAR TO REFLECT AN INTENTION THAT WHEN TRAVEL IS PERFORMED BY COMMON CARRIER THE PER DIEM ALLOWANCE FOR TRAVEL BETWEEN DUTY POINTS SHALL BEGIN TO ACCRUE AT THE SCHEDULED TIME OF DEPARTURE BY COMMON CARRIER SERVING THE MEMBER'S PERMANENT STATION WHICH IS USED INITIALLY IN THE PERFORMANCE OF THE ORDERED TRAVEL. CLEARLY, WHEN THE COMMON CARRIER TERMINAL IS WITHIN THE LIMITS OF THE STATION, SUCH IS THE CASE, AND WE SEE NO COMPELLING REASON WHY, IN CASE WHERE A TERMINAL IN A NEARBY AREA IS EQUALLY AND AS READILY AND EASILY ACCESSIBLE BY TAXICAB, BUS, STREETCAR, SUBWAY, OR OTHER PUBLIC CARRIER, EVEN THOUGH LOCATED OUTSIDE THE LIMITS OF THE PERMANENT STATION THAT INTENTION SHOULD NOT ALSO BE GIVEN EFFECT. HENCE, IN OUR VIEW THE MERE FACT THAT THE COMMON CARRIER TERMINAL IS OUTSIDE THE BOUNDARIES OF A DUTY STATION TO WHICH IT IS READILY AND EASILY ACCESSIBLE BY COMMON CARRIER DOES NOT CONSTITUTE SUFFICIENT BASIS FOR A CONCLUSION THAT UNDER THE REGULATIONS PER DIEM IS TO BE COMPUTED FROM THE TIME OF DEPARTURE FROM SUCH STATION RATHER THAN ON THE BASIS OF THE TIME OF DEPARTURE FROM THE CARRIER'S TERMINAL. TO SO CONCLUDE COULD RESULT IN THE PAYMENT OF DIFFERENT PER DIEMS FOR THE DAY OF DEPARTURE AND DAY OF ARRIVAL TO MEMBERS ON DUTY IN THE SAME AREA FOR THE PERFORMANCE OF ORDERED TRAVEL, EVEN THOUGH THEY TRAVELED TOGETHER ON THE SAME COMMON CARRIER AND USED THE SAME TYPE OF CONVEYANCE TO REACH THE TERMINAL.

WE DO NOT BELIEVE SUCH A RESULT IS INTENDED BY THE REGULATIONS.

SINCE THE WASHINGTON NATIONAL AIRPORT PROVIDES LIMOUSINE SERVICE TO AN ESTABLISHED TERMINAL AT THE STATLER HOTEL, WASHINGTON, D.C., AND SINCE THE CLAIMANT USED THE LIMOUSINE SERVICE, PRESUMABLY VIA THAT TERMINAL, HIS TRAVEL STATUS FOR PER DIEM PURPOSES WAS PROPERLY COMPUTED UPON THE BASIS OF THE REQUIRED TIME OF DEPARTURE BY LIMOUSINE FROM THE STATLER HOTEL TO THE AIRPORT. SEE 35 COMP. GEN. 650. CF. 31 COMP. GEN. 442. ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND SUCH VOUCHER AND ATTACHED PAPERS WILL BE RETAINED HERE.

REGARDING MEMBERS ASSIGNED TO OTHER DUTY STATIONS IN THIS AREA, SUCH AS THE PENTAGON, BUILDING T-7, OR FORT MEYER, VIRGINIA, REFERRED TO IN THE SECOND ENDORSEMENT TO YOUR LETTER, WE SEE NO REASON WHY THEIR STATUS FOR PER DIEM PURPOSES SHOULD BE ANY DIFFERENT FROM THAT OF THE OFFICER IN THE SUBMITTED CASE WHEN THEY PERFORM TRAVEL BY COMMON CARRIER WHOSE TERMINAL IS OUTSIDE THE BOUNDARIES OF THEIR DUTY STATIONS BUT IS IN A NEARBY AREA AND IS READILY AND EASILY ACCESSIBLE BY PUBLIC CARRIER. CONSEQUENTLY, IT IS OUR VIEW THAT PER DIEM FOR TRAVEL BY COMMON CARRIER AWAY FROM SUCH STATIONS SHOULD BE COMPUTED ON THE NECESSARY SCHEDULES OF DEPARTURE FROM THE TERMINAL OF THE COMMON CARRIER USED.