B-149451, OCT. 17, 1962

B-149451, OCT. 17, 1962

TO MR. W. E. PILCHER, DISBURSING OFFICER, CORPS OF ENGINEERS:

YOUR LETTER OF APRIL 27, 1962, REQUESTS OUR DECISION WHETHER A VOUCHER FOR ADDITIONAL PER DIEM IN THE AMOUNT OF $2, CLAIMED BY MR. JAMES T. LONG, IS PROPER FOR PAYMENT.

MR. LONG'S TRAVEL ORDER AUTHORIZED A PER DIEM RATE OF $16 "WHILE TRAVELING," AND FOR "OTHER RATES," SPECIFIED A RATE OF $12.

MR. LONG ARRIVED AT MEMPHIS, TENNESSEE, EN ROUTE TO HIS TEMPORARY DUTY STATION AT 5:05 P.M. AND DEPARTED AT 6:50 P.M. HIS PER DIEM RATE WAS COMPUTED AT THE $16 "TRAVELING" RATE UNTIL 6:00 P.M., AND THE SUBSEQUENT QUARTER, BEGINNING AT 6:01 P.M., WAS COMPUTED AT THE $12 TEMPORARY DUTY RATE. MR. LONG ARRIVED AT JACKSON, MISSISSIPPI, HIS TEMPORARY DUTY STATION, AT 7:50 P.M. THE SAME DAY. ON HIS RETURN FROM JACKSON, MR. LONG ARRIVED AT MEMPHIS AT 4:45 P.M. AND DEPARTED AT 8:00 P.M., ARRIVING AT HIS HOME STATION AT 8:50 P.M. THE SAME DAY. HIS PER DIEM WAS COMPUTED AT THE $16 RATE UNTIL 6:00 P.M., AND THE FOLLOWING QUARTER, BEGINNING AT 6:01 P.M., WAS COMPUTED AT THE $12 PER DIEM RATE.

MR. LONG CONTENDS THAT THE $16 RATE "WHILE TRAVELING" IS APPLICABLE FROM THE TIME HE LEAVES HIS PERMANENT DUTY STATION UNTIL THE END OF THE QUARTER IN WHICH HE ARRIVES AT HIS TEMPORARY DUTY STATION, AND, AGAIN, FROM THE QUARTER AFTER HE LEAVES HIS TEMPORARY DUTY STATION UNTIL HE ARRIVES BACK AT HIS PERMANENT DUTY STATION.

THE PERTINENT REGULATIONS ARE CONTAINED IN CIVILIAN PERSONNEL REGULATION T3, CHANGE 2, NOVEMBER 3, 1961, PARAGRAPH 4-5A (1) AND PARAGRAPH 7-1C WHICH PROVIDE:

"4-5A (1) A PER DIEM RATE OF $16 IS PRESCRIBED DURING THE PERIOD OF TRAVEL BY COMMON CARRIER * * *.'

"7-1C (1)EXCEPT AS PROVIDED IN (2) BELOW, IN ANY INSTANCE WHERE THE TRAVEL ORDERS PRESCRIBE VARYING RATES OF PER DIEM FOR TRAVEL STATUS IN DIFFERENT AREAS OR UNDER DIFFERENT CONDITIONS OR CIRCUMSTANCES, THE RATE OF PER DIEM IN EFFECT AT THE BEGINNING OF THE QUARTER IN WHICH THE CHANGE OCCURS WILL CONTINUE TO THE END OF SUCH QUARTER. THE NEW RATE OF PER DIEM WILL BEGIN WITH THE SUCCEEDING QUARTER. * * *"

YOU SAY THAT:

"THE DA TRANSMITTAL SHEET FOR CHANGE 2, DATED 3 NOVEMBER 1961, OF CPR T3, ANNOUNCED MAJOR CHANGES, ONE OF WHICH WAS A CHANGE IN PER DIEM RATE "FOR THE PERIOD OF ACTUAL TRAVEL.' THIS HAS NOT BEEN INTERPRETED AS "WHILE EN ROUTE TO TDY STATION" SINCE SUCH WORDING COULD HAVE BEEN USED IF INTENDED. THE PROVISIONS OF CHANGE 2, DATED 20 MARCH 1957, TO CPR T3 UNDER PARAGRAPH 4-4 A (2), REQUIRED THAT THE "WHILE TRAVELING" RATE (WHICH WAS $9.00 AT THAT TIME) BE ALLOWED ,INCLUDING STOPOVERS OF LESS THAN 6 HOURS.' WHEN THIS WAS IN EFFECT, PAYMENTS WERE MADE AT THE ,WHILE TRAVELING" RATE ($9.00) INCLUDING STOPOVERS OF LESS THAN 6 HOURS. IF THE STOPOVER WAS 6 HOURS OR MORE, THE TDY RATE, WHICH WAS USUALLY HIGHER, WAS ALLOWED UPON CHANGE OF THE QUARTER DAY DURING THE STOPOVER PERIOD. THIS 6 -HOUR RULE WAS APPLIED BY THIS OFFICE ONLY DURING THE TIME THIS REQUIREMENT WAS IN EFFECT. WHEN THE PHRASE "INCLUDING STOPOVERS OF LESS THAN 6 HOURS" WAS REMOVED BY REVISED EDITION OF CPR T3 DATED 18 JUNE 1959, CHANGES IN THE PER DIEM RATE WERE MADE FOR ANY STOPOVER PERIOD EN ROUTE, PROVIDED THE PER DIEM QUARTER CHANGED DURING THE STOPOVER. APPLYING THIS RULE TO THE CURRENT REGULATION WHICH DOES NOT CARRY THE PHRASE "INCLUDING STOPOVERS OF LESS THAN 6 HOURS," THE PER DIEM RATE IS CHANGED IF THE QUARTER CHARGES DURING THE STOPOVER, UNLESS THE EMPLOYEE IS AUTHORIZED THE $16.00 RATE FOR THE ENTIRE PERIOD OF ABSENCE ON TDY.

"ON THE BASIS OF THE ABOVE IT IS MY INTERPRETATION THAT WHEN A TRAVELER ARRIVES AT A TERMINAL EN ROUTE PRIOR TO THE END OF ONE QUARTER AND DEPARTS AFTER THE BEGINNING OF THE NEXT QUARTER, HIS PER DIEM RATE CHANGES FROM THE PER DIEM RATE "WHILE TRAVELING" TO HIS TEMPORARY DUTY RATE.

"THE TRAVEL ORDERS DID NOT FOLLOW THE EXACT WORDING OF DISTRICT TRAVEL REGULATIONS WHICH PROVIDE FOR THE $16.00 PER (DIEM) RATE "DURING THE ACTUAL PERIOD OF TRAVEL.' IT HAS BEEN MY INTERPRETATION THAT SUCH WORDING REQUIRES THE STRICT APPLICATION OF THE PER DIEM RATE OF $16.00 TO THE ACTUAL MOVEMENT OF THE TRAVELER, AND THAT DELAY OR LAY TIME EN ROUTE WHERE THE QUARTER ENDED WAS PROPERLY PAID FOR AT THE TEMPORARY DUTY PER DIEM RATE BEGINNING WITH THE QUARTER FOLLOWING ARRIVAL AT THE TERMINAL.'

YOU SAY THAT SINCE YOU ARE IN DOUBT WHETHER PERIODS OF STOPOVER EN ROUTE MAY BE INCLUDED IN ALLOWING THE $16 "WHILE TRAVELING" RATE, AND, IF SO, WHETHER SUCH STOPOVER PERIODS MUST EXCEED A SPECIFIED NUMBER OF HOURS, YOU HAVE DOUBT WHETHER PAYMENT TO MR. LONG IS PROPER.

CONSTRUING THE CONTROLLING REGULATION IN THE LIGHT OF THE FORMER REGULATION, WE DO NOT FEEL THAT THE POSITION TAKEN BY YOU IS UNTENABLE. HOWEVER, SINCE THE AUTHORIZATION OF PER DIEM RATES PRIMARILY IS A RESPONSIBILITY OF THE DEPARTMENT OR ESTABLISHMENT BY WHICH A TRAVELER IS EMPLOYED, AND THE QUESTION HERE IS DIRECTED TOWARD THE MANNER IN WHICH SUCH RATES HAVE BEEN AUTHORIZED IN THE REGULATIONS, WE REQUESTED THE VIEWS OF THE DIRECTOR OF CIVILIAN PERSONNEL, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., AS TO THE ADMINISTRATIVE PURPOSE SOUGHT TO BE ACHIEVED IN CHANGING THE REGULATIONS. IN RESPONSE, WE HAVE BEEN ADVISED AS FOLLOWS:

"* * * IT IS CONSIDERED THAT FOR COMPUTING PER DIEM ALLOWANCES AN EMPLOYEE'S PERIOD OF TRAVEL BY COMMON CARRIER GENERALLY BEGINS WHEN THE TRAIN, AIRPLANE OR OTHER CONVEYANCE IS SCHEDULED TO DEPART FROM ITS DEPOT OR AIRPORT AND ENDS WHEN THE TRAIN OR AIRPLANE ARRIVES AT THE DEPOT OR AIRPORT AT THE TEMPORARY DUTY POINT * * *.

"IN THE ATTACHED CASE, UNDER CURRENT PROVISIONS OF CPR 63.4-5A (1) AND CPR T3.7-1C TO WHICH MR. PILCHER REFERS IN PARAGRAPH 4 OF HIS SUBMISSION, NO REDUCTION SHOULD HAVE BEEN MADE IN THE PER DIEM RATE UNTIL THE BEGINNING OF THE FIRST QUARTER AFTER MR. LONG'S ARRIVAL IN JACKSON, MISSISSIPPI. ON THE RETURN TRIP, MR. LONG BEGAN HIS TRIP DURING A QUARTER OF THE DAY IN WHICH HE WAS RECEIVING THE TEMPORARY DUTY POINT PER DIEM RATE OF $12. ACCORDINGLY, THE $12 RATE WOULD BE CONTINUED TO THE END OF THAT QUARTER, 6:00 P.M., AND THE $16 RATE WOULD BECOME APPLICABLE AT 6:01 FOR THE BALANCE OF THE TRAVEL PERIOD BY COMMON CARRIER. IT IS OUR VIEW, THEREFORE, THAT MR. LONG'S CLAIM IN THE AMOUNT OF $2 SHOULD BE PAID.'

SINCE THE LANGUAGE OF THE CONTROLLING REGULATION IS SUSCEPTIBLE OF AN INTERPRETATION CONSISTENT WITH THE ADMINISTRATIVE PURPOSE EXPRESSED ABOVE, WE AGREE WITH THE VIEWS OF THE DIRECTOR OF CIVILIAN PERSONNEL. THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.