B-148065, APRIL 4, 1962, 41 COMP. GEN. 646

B-148065, APRIL 4, 1962, 41 COMP. GEN. 646

SUBSISTENCE - PER DIEM - FRACTIONAL DAYS - LESS THAN TEN HOURS--- OVERSEAS EMPLOYEES - STANDARDIZED GOVERNMENT TRAVEL REGULATIONS APPLICABILITY THE AMENDMENT TO SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROHIBITING PAYMENT OF PER DIEM TO CIVILIAN EMPLOYEES WHEN THE TRAVEL PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, WHICH BECAME EFFECTIVE ON AUGUST 1, 1959, MUST BE APPLIED TO ONE-WAY TRAVEL, SUCH AS TRAVEL INCIDENT TO CHANGES OF OFFICIAL STATION, TRAVEL OF NEW APPOINTEES IN SHORTAGE CATEGORY POSITIONS, AND TRAVEL OF EMPLOYEES ASSIGNED TO POSITIONS OUTSIDE THE UNITED STATES AND RETURN UPON COMPLETION OF AN AGREED PERIOD OF SERVICE; HOWEVER, IN VIEW OF THE DOUBT AS TO THE SCOPE OF THE AMENDMENT, PAYMENTS OF TRAVEL EXPENSES MADE ON THE BASIS THAT ONE-WAY TRAVEL WAS EXEMPT FROM THE 10-HOUR PER DIEM RESTRICTION WILL NOT BE RECOVERED. TRAVEL OF EMPLOYEES FROM PLACES OUTSIDE THE CONTINENTAL UNITED STATES TO THEIR RESIDENCE FOR HOME LEAVE PURPOSES AND RETURN TRAVEL TO THE OVERSEAS DUTY POINT IS REQUIRED UNDER SECTION 27 (B) OF EXECUTIVE ORDER NO. 9805, AS AMENDED, TO BE CONSIDERED AS SEPARATE TRAVEL PERIODS FOR APPLICATION OF THE 10-HOUR RESTRICTION IN SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS; THEREFORE, THE TRAVEL PERIOD FOR HOME LEAVE TRAVEL MAY NOT BE CONSIDERED TO BEGIN AT THE TIME THE AIRPLANE IS SCHEDULED TO DEPART FROM THE OVERSEAS AIRPORT AND TO END WHEN THE AIRPLANE ACTUALLY ARRIVES AT THE AIRPORT ON THE EMPLOYEE'S RETURN TO THE SAME OR ANOTHER OVERSEAS POST.

TO THE SECRETARY OF AGRICULTURE, APRIL 4, 1962:

ON JANUARY 26, 1962, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION UPON THE QUESTIONS SET FORTH BELOW REGARDING APPLICATION OF THE RESTRICTION IN SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROHIBITING PAYMENT OF PER DIEM TO CIVILIAN EMPLOYEES WHEN THE "TRAVEL PERIOD" IS 10 HOURS OR LESS IN THE SAME CALENDAR DAY. HE SAYS THE QUESTIONS RESULT FROM OUR DECISION OF SEPTEMBER 21, 1961, B-147138, 41 COMP. GEN. 209, UPHOLDING A DISALLOWANCE OF PER DIEM CLAIMED BY A CIVILIAN EMPLOYEE WHO PERFORMED ROUND-TRIP TRAVEL BETWEEN SAN JUAN, PUERTO RICO AND NEW YORK CITY AT GOVERNMENT EXPENSE FOR LEAVE PURPOSES UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3 (A), BECAUSE OF THE 10-HOUR RESTRICTION IN SECTION 6.11 OF THE TRAVEL REGULATIONS. HE POINTS OUT THAT THE DECISION TREATS THE TRAVEL TO AND FROM RESIDENCE IN THE UNITED STATES AS SEPARATE TRAVEL PERIODS.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS YOUR DEPARTMENT HAS CONSIDERED AS ONE TRAVEL PERIOD THE ROUND-TRIP TRAVEL INVOLVED IN TAKING LEAVE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. ALSO, HE SAYS THE 10-HOUR RESTRICTION IN SECTION 6.11, ABOVE, HAS NOT BEEN APPLIED TO ONE-WAY TRAVEL OF NEW APPOINTEES TO SHORTAGE CATEGORY POSITIONS IN THE UNITED STATES AND EMPLOYEES ASSIGNED TO POSITIONS OUTSIDE THE UNITED STATES; TO CHANGES OF OFFICIAL STATION; AND TO EMPLOYEES RETURNING TO THE UNITED STATES FOR SEPARATION AFTER THEIR HAVING COMPLETED AN AGREED PERIOD OF SERVICE OUTSIDE THE UNITED STATES. IN SUPPORT OF THE DEPARTMENT'S POSITION HE REFERS TO OUR DECISION OF MAY 13, 1952, B-107845, 31 COMP. GEN. 590, AND CASES CITED THEREIN (A-43833, AUGUST 19, 1932; B- 51934, SEPTEMBER 12, 1945), HOLDING THAT THE RESTRICTION THEN CONTAINED IN SECTION 6.11 OF THE TRAVEL REGULATIONS PROHIBITING PAYMENT OF PER DIEM FOR TRAVEL INVOLVING A DEPARTURE AT OR AFTER 8 A.M., AND "THE RETURN" AT OR PRIOR TO 6 P.M., OF THE SAME DAY OR "ANY ABSENCE" OF LESS THAN 3 HOURS, HAD NO APPLICATION TO ONE-WAY TRAVEL SUCH AS OCCURS IN A TRANSFER OF STATION.

IN VIEW OF YOUR DEPARTMENT'S PRESENT PRACTICE CONCERNING THE APPLICATION OF THE CURRENT RESTRICTION IN SECTION 6.11 OF THE TRAVEL REGULATIONS, THE ASSISTANT SECRETARY ASKS THE FOLLOWING SPECIFIC QUESTIONS, WHICH FOR REPLY PURPOSES ARE NUMBERED 1 TO 3 BY US:

(1) DOES THIS DECISION (B-147138) HAVE THE EFFECT OF OVERRULING ALL PREVIOUS DECISIONS RELATIVE TO PER DIEM FOR ONE-WAY TRAVEL?

(2) IF YOUR ANSWER IS IN THE AFFIRMATIVE, IT WOULD APPEAR THAT ALL TRAVEL WOULD HAVE TO MEET THE REQUIREMENTS OF THE PROVISO TO PARAGRAPH 6.11 BEFORE PER DIEM MAY BE ALLOWED.

(3) WHETHER OR NOT YOUR ANSWER IS IN THE NEGATIVE, MAY THE CERTIFYING OFFICERS OF THIS DEPARTMENT CONTINUE TO CERTIFY VOUCHERS FOR PAYMENT OF PER DIEM IN CONNECTION WITH HOME LEAVE TRAVEL ON THE BASIS THAT THE HOME LEAVE "TRAVEL PERIOD," AS THAT TERM IS USED IN PARAGRAPH 6.11, BEGINS AT THE TIME THE AIRPLANE IS SCHEDULED TO DEPART FROM ITS AIRPORT AND ENDS WHEN THE AIRPLANE ACTUALLY ARRIVES AT THE AIRPORT ON THE EMPLOYEE'S RETURN TO THE SAME OR ANOTHER OVERSEAS POST AT THE CONCLUSION OF THE TRAVEL PERIOD PROVIDED FOR IN THAT PART OF 5 U.S.C. 73B-3 (A) REFERRED TO ABOVE?

SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN EFFECT PRIOR TO AUGUST 1, 1959, PROVIDED IN PART AS FOLLOWS:

* * * PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AT OR AFTER 8 A.M., AND THE RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M., OR FOR ANY ABSENCE NOT EXCEEDING 3 HOURS.

EFFECTIVE AUGUST 1, 1959, THE QUOTED PORTION OF SECTION 6.11 WAS AMENDED. THAT PROVISO NOW READS AS FOLLOWS:

* * * PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE TRAVEL PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE :00 A.M. OR TERMINATES AFTER 8:00 P.M. * * *.

PURSUANT TO SECTION 2 OF EXECUTIVE ORDER NO. 9805 AND CIRCULARS A-4 AND A -37 OF THE BUREAU OF THE BUDGET, THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE APPLICABLE TO OTHERWISE ALLOWABLE TRAVEL EXPENSES OF NEW APPOINTEES, ROUND-TRIP TRAVEL FOR LEAVE PURPOSES, TRANSFERS OF STATION, AND TRAVEL INCIDENT TO SEPARATION FROM THE SERVICE.

OUR OPINION IS THAT UNDER THE AMENDED SECTION 6.11 OF THE TRAVEL REGULATIONS TRAVEL WITHIN THE VARIOUS CATEGORIES ABOVE MENTIONED ARE SUBJECT TO THE 10-HOUR RESTRICTION. SPECIFICALLY, THE REGULATIONS NO LONGER MAY BE CONSIDERED AS EXEMPTING ONE-WAY TRAVEL, SUCH AS TRANSFERS OF STATION, FROM THE APPLICABLE RESTRICTION. THEREFORE, AS TO TRAVEL SUBSEQUENT TO THE EFFECTIVE DATE, NAMELY, AUGUST 1, 1959, OF THE AMENDED REGULATION, THE DECISIONS OF OUR OFFICE TO WHICH YOUR ADMINISTRATIVE ASSISTANT SECRETARY REFERS, TO THE EXTENT THEY ARE IN CONFLICT WITH THE VIEW EXPRESSED HEREIN, NO LONGER APPLY. IT IS CLEAR, HOWEVER, THAT CONSIDERABLE CONFUSION HAS RESULTED FROM THE AMENDED REGULATIONS AND THE SCOPE OF THE NEW RESTRICTION. IN THE CIRCUMSTANCES, OUR OFFICE WILL NOT INSIST UPON RECOVERY OF PAYMENTS THAT MAY HERETOFORE HAVE BEEN ALLOWED BASED UPON APPLICATION OF OUR DECISIONS, ABOVE, IN THE AREA UNDER CONSIDERATION. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

SECTION 27 (B) OF EXECUTIVE ORDER NO. 9805, AS AMENDED BY BUREAU OF THE BUDGET CIRCULAR NO. A-4, RELATING TO ROUND-TRIP TRAVEL FOR LEAVE PURPOSES UNDER SECTION 7, ABOVE, NOW READS, IN PART, AS FOLLOWS:

(B) TRAVEL ALLOWANCE. AN ELIGIBLE EMPLOYEE SHALL BE ALLOWED TRAVEL EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, FOR HIMSELF AND TRANSPORTATION EXPENSES FOR HIS IMMEDIATE FAMILY FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT OR TRANSFER TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES (HEREAFTER REFERRED TO IN THIS SECTION AND IN SECTIONS 28 AND 29 AS "PLACE OF ACTUAL RESIDENCE"). THESE EXPENSES SHALL ALSO BE ALLOWED FROM THE PLACE OF ACTUAL RESIDENCE UPON RETURN TO THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THESE EXPENSES SHALL BE SUBJECT TO THE PROVISIONS OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. * * * ( ITALICS SUPPLIED.)

THE DECISION OF SEPTEMBER 21, 1961, B-147138, IS CONSISTENT WITH THE APPARENT INTENT OF SECTION 27 (B) ABOVE, IN TREATING THE RETURN TRAVEL TO PLACE OF RESIDENCE AND THE TRAVEL FROM THE RESIDENCE TO THE OVERSEAS DUTY POINT AFTER A PERIOD OF LEAVE IN THE UNITED STATES AS SEPARATE "TRAVEL IODS.' THEREFORE, AND SINCE WE FIND NO PROPER BASIS FOR EXEMPTING THE TWO SEPARATE TRAVEL PERIODS FROM THE REQUIREMENTS OF SECTION 6.11 OF THE TRAVEL REGULATIONS, WE MAY NOT APPROVE THE PROPOSAL IN QUESTION 3.