B-143523, AUG. 8, 1960

B-143523, AUG. 8, 1960

TO MR. LEROY DANZIGER:

YOUR LETTER OF JULY 5, 1960, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF JUNE 23, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ($60) ALLEGED TO BE DUE FOR THE PERIODS SEPTEMBER 21 TO 25, AND OCTOBER 19 TO 23, 1959, AND MILEAGE ($8.10) FOR TRAVEL IN YOUR PRIVATELY-OWNED AUTOMOBILE ON OCTOBER 29 AND 30, 1959.

THE RECORD SHOWS THAT BY TRAVEL AUTHORIZATION NO. 29, DATED JULY 1, 1959, YOU WERE AUTHORIZED TO TRAVEL FOR THE PERIOD JULY 1, 1959, TO JUNE 30, 1960, TO NEW YORK, CONNECTICUT AND NEW JERSEY; PHILADELPHIA, PENNSYLVANIA; IN THE PROVINCES OF ONTARIO AND QUEBEC, CANADA, CANADA WEST OF THE RICHELIEU RIVER, WITHIN 125 MILES FROM THE NEW YORK LINE. THE TRAVEL ORDER AUTHORIZED $12 PER DIEM FOR THE FIRST 14 DAYS AT ANY TEMPORARY-DUTY STATION INCLUDING TRAVEL TIME EN ROUTE TO SUCH STATION, AND $10 PER DIEM THEREAFTER AT THE SAME TEMPORARY-DUTY STATION. PARAGRAPH 10 OF THE TRAVEL AUTHORIZATION PROVIDES AS FOLLOWS:

"MODE OF TRAVEL: YOU ARE AUTHORIZED TO USE COMMON CARRIER AND ACCOMMODATIONS AS PRESCRIBED BY SECTION 3.6 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. WHEN BLOCK "A" IS CHECKED, YOU MAY USE PRIVATELY- OWNED AUTOMOBILE PROVIDED CLAIM FOR REIMBURSEMENT FOR MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE SHALL NOT EXCEED COST BY COMMON CARRIER; AND PROVIDED THAT ABSENCE (EXCLUSIVE OF ABSENCE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY) FROM DUTY DOES NOT EXCEED THAT REQUIRED BY COMMON CARRIER. WHEN BLOCK "B" IS CHECKED, USE OF PRIVATELY-OWNED AUTOMOBILE HAS BEEN ADMINISTRATIVELY DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT AND REIMBURSEMENT WILL BE ALLOWED AT 8 CENTS PER MILE IN ACCORDANCE WITH SECTION 3.5B OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.'

WE NOTE THAT A AND B BLOCKS WERE NOT CHECKED.

YOUR HEADQUARTERS OR OFFICIAL STATION IS LISTED AS NEWARK, NEW JERSEY, AND DURING THE PERIOD IN QUESTION YOU WERE ORDERED TO PERFORM TEMPORARY DUTY AT NEW YORK CITY WHICH WAS APPROXIMATELY 10 MILES FROM NEWARK FROM WHICH POINT COMMON CARRIER SERVICE IS FREQUENT. IN REPORTING FOR DUTY IN NEW YORK YOU TRAVELED FROM YOUR HOME WHICH IS APPROXIMATELY 42 MILES FROM NEW YORK CITY. YOU SAY THAT IN ORDER TO REPORT FOR WORK IN NEW YORK YOU LEFT YOUR HOME AT NEW BRUNSWICK, NEW JERSEY, BY GOVERNMENT OWNED AUTOMOBILE AT 7:00 A.M., AND ARRIVED IN THE NEW YORK OFFICE AT ABOUT 8:30 A.M. YOU LEFT THE NEW YORK OFFICE BETWEEN 5:00 AND 5:30 P.M., AND ARRIVED HOME BETWEEN 7:00 AND 7:30 P.M.

IN MEMORANDUM OF JANUARY 20, 1960, FROM MR. RYAN TO YOU, THE ADMINISTRATIVE VIEWS CONCERNING YOUR CLAIM ARE SET FORTH AS FOLLOWS:

"IN HIS MEMORANDUM OF OCTOBER 9, 1959, (COPY SENT TO YOU), REGIONAL MANAGER MCCLELLAND STATED THAT HE FELT YOU SHOULD NOT BE ALLOWED PER DIEM FOR DUTY IN NEW YORK, DURING THE PERIOD SEPTEMBER 21-25, BECAUSE (1) LENGTH OF TIME EXPENDED IN TRAVELING BY GOVERNMENT-OWNED AUTO FROM YOUR HOME IN NEW BRUNSWICK, NEW JERSEY, TO NEW YORK, COULD HAVE BEEN LESSENED HAD YOU TRAVELED BY COMMON CARRIER BETWEEN YOUR OFFICIAL STATION (NEWARK, NEW JERSEY) AND NEW YORK, AND (2) THE USE OF GOVERNMENT AUTO DURING THAT PERIOD WAS FOR YOUR CONVENIENCE, AND NOT TO THE ADVANTAGE OF THE GOVERNMENT.

"A REVIEW OF YOUR TRAVEL FOLDER INDICATES THE FOLLOWING: TRAVEL AUTHORIZATION NO. 29, ISSUED JULY 1, 1959, DENOTES YOUR OFFICIAL STATION AS NEWARK, NEW JERSEY, AND AUTHORIZED YOU TO USE COMMON CARRIER FACILITIES TO TRAVEL BETWEEN SPECIFIED POINTS AND YOUR OFFICIAL STATION. YOUR SEPTEMBER VOUCHER INDICATES THAT THE TRAVEL IN QUESTION WAS PERFORMED BY GOVERNMENT-OWNED AUTO FROM YOUR HOME IN NEW BRUNSWICK, NEW JERSEY, WHICH IS 42 MILES FROM NEW YORK; WHEREAS, SUCH TRAVEL SHOULD HAVE BEEN PERFORMED FROM YOUR OFFICIAL STATION IN NEWARK, WHICH IS ONLY ABOUT 10 MILES FROM NEW YORK, AND FROM WHICH POINT COMMON CARRIER SERVICE IS FREQUENT. THE USE OF SUCH FACILITY FROM AND TO YOUR HEADQUARTERS WOULD HAVE PRECLUDED YOUR EARLY DEPARTURE AND RETURN, UPON WHICH YOU BASE YOUR CLAIM FOR PER DIEM.

"THIS REFERS TO THAT PORTION OF YOUR LETTER PERTAINING TO THE DISALLOWANCE OF $8.10 FOR MILEAGE CLAIMED IN YOUR OCTOBER VOUCHER. SUCH AMOUNT WAS SUSPENDED IN THE ABSENCE OF AUTHORIZATION AND/OR APPROVAL FOR USE OF YOUR PRIVATELY-OWNED AUTOMOBILE. THE SUSPENSION WAS MADE IN COMPLIANCE WITH SECTION 3.5B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH STATE IN PART: ,CIVILIAN OFFICERS OR EMPLOYEES .......... WHENEVER SUCH MODE OF TRANSPORTATION IS AUTHORIZED OR APPROVED AS MORE ADVANTAGEOUS TO THE GOVERNMENT MAY BE PAID NOT MORE THAN 10 CENTS PER MILE (8 CENTS MAXIMUM FOR THE COMMISSION) FOR THE USE OF PRIVATELY- OWNED AUTOMOBILE.'"

IN YOUR LETTER OF JULY 5, 1960, YOU SAY THAT SECTION 6.9 (C) (2) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WOULD JUSTIFY YOUR CLAIM FOR PER DIEM AND SIMILAR PROVISIONS ARE CONTAINED IN SECTION 6.9 (C) OF THE TRAVEL REGULATIONS. SECTION 6.9 (C) (2) WOULD NOT BE APPLICABLE IN YOUR CASE AS IT WAS NOT EFFECTIVE UNTIL MAY 1, 1960, WHICH WAS SUBSEQUENT TO THE DATE OF THE TRAVEL HERE INVOLVED. SECTION 6.9 (C) OF THE TRAVEL REGULATIONS SO FAR AS IT REFERS TO TRAVEL PERFORMED BY THE USE OF A PRIVATELY OR GOVERNMENT OWNED AUTOMOBILE WOULD NOT BE APPLICABLE AS YOU WERE NOT AUTHORIZED TO USE EITHER ONE IN YOUR TRAVEL AUTHORIZATION. MOREOVER, WE FIND NO AUTHORIZATION IN YOUR TRAVEL ORDER TO PERFORM TRAVEL AT GOVERNMENT EXPENSE FROM YOUR RESIDENCE TO A TEMPORARY DUTY STATION IN NEW YORK AT A COST EXCEEDING THE COST OF SUCH TRAVEL HAD IT BEEN PERFORMED FROM YOUR OFFICIAL STATION.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 23, 1960, BECAUSE IT APPEARED THAT THE TRAVEL FROM YOUR HOME TO YOUR TEMPORARY DUTY STATION IN AN OFFICIAL GOVERNMENT CAR WAS NOT ONLY FOR YOUR OWN PERSONAL CONVENIENCE, BUT THAT NO ADDITIONAL SUBSISTENCE COSTS WERE INCURRED IN SUCH TRAVEL. YOUR LETTER OF JULY 5, 1960, YOU SAY THERE WERE SOME ADDITIONAL COSTS BUT THEY WERE SMALL AND YOU MADE NO MENTION OF THEM. YOU SAY THERE IS NOTHING IN THE REGULATIONS WHICH REQUIRE PROOF THEREOF. NEITHER THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, NOR THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REQUIRE EVIDENCE OR PROOF OF EXPENSES FOR SUBSISTENCE BEFORE A CIVILIAN OFFICER OR EMPLOYEE CAN BE PAID A PER DIEM ALLOWANCE (WITHIN THE MAXIMUM PRESCRIBED RATES) AS ADMINISTRATIVELY AUTHORIZED OR APPROVED. THE DISALLOWANCE OF PER DIEM HAS BEEN HELD TO BE PROPER, HOWEVER, WHERE THE RECORD CLEARLY SHOWED THAT, IN FACT, NO ADDITIONAL SUBSISTENCE EXPENSES WERE INCURRED AS A RESULT OF THE TEMPORARY DUTY. 31 COMP. GEN. 264; 21 ID. 697. A SUBSISTENCE ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN HOTELS AND RESTAURANTS, AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF ABODE. SEE BORNHOFT V. UNITED STATES, 137 C.CLS. 134. SECTION 6.12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH YOU REFER TO, IS NOT APPLICABLE IN YOUR CASE AS IT APPLIES TO THOSE EMPLOYEES WHO ARE AUTHORIZED TO TRAVEL ON AN ACTUAL EXPENSE BASIS.

CONCERNING YOUR CLAIM FOR REIMBURSEMENT FOR MILEAGE, SECTION 3.5B (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES THAT OFFICERS OR EMPLOYEES SHALL, WHENEVER SUCH MODE OF TRANSPORTATION IS AUTHORIZED OR APPROVED BE PAID MILEAGE FOR THE USE OF PRIVATELY-OWNED AUTOMOBILES WHEN ENGAGED ON OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR DESIGNATED POST OF DUTY OR PLACES OF SERVICE. SEE 36 COMP. GEN. 795. THE AUTHORIZATION OR APPROVAL OF THE USE OF A PRIVATELY-OWNED AUTOMOBILE ON A MILEAGE BASIS IS FOR ADMINISTRATIVE DETERMINATION.

SINCE THE RECORD SHOWS NO AUTHORIZATION OR APPROVAL OF OFFICIAL TRAVEL FROM YOUR RESIDENCE FOR THE PURPOSE OF PERFORMING TEMPORARY DUTY AT A PLACE APPROXIMATELY 10 MILES DISTANCE FROM YOUR HEADQUARTERS, AS YOUR AGENCY INDICATES NO NECESSITY FOR DEPARTURE OR RETURN TO YOUR HEADQUARTERS BY OTHER THAN COMMON CARRIER OR FOR A PERIOD OF SUCH DURATION AS WOULD ENTITLE YOU TO PER DIEM, AND AS THE USE OF YOUR PRIVATELY-OWNED AUTOMOBILE HAS NOT BEEN AUTHORIZED OR APPROVED WE HAVE NO ALTERNATIVE ON THE PRESENT RECORD BUT TO SUSTAIN THE PREVIOUS ACTION TAKEN BY OUR OFFICE.

IT MAY BE STATED THAT IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS ON DISPUTED QUESTIONS OF FACT, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.