B-160911, MAY 10, 1967, 46 COMP. GEN. 795

B-160911, MAY 10, 1967, 46 COMP. GEN. 795

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - REDUCTION - QUARTERS OCCUPATION PROHIBITION THE PER DIEM PAYABLE TO A MEMBER OF THE UNIFORMED SERVICES WHO IS FURNISHED QUARTERS BY A COMMERCIAL AIRLINE FOR A SCHEDULED OVERNIGHT DELAY IN TRANSIT WHILE TRAVELING UNDER A GOVERNMENT TRANSPORTATION REQUEST NEED NOT BE REDUCED, THE ACCOMMODATIONS FURNISHED NEITHER CONSTITUTING GOVERNMENT QUARTERS UNDER PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING PER DIEM AT THE FULL ALLOWABLE RATE WHILE TRAVELING ABOARD AN AIRPLANE, REGARDLESS OF WHETHER OR NOT SLEEPING ACCOMMODATIONS ARE FURNISHED A MEMBER, NOR CONSTITUTING QUARTERS FURNISHED BY A GOVERNMENT CONTRACTOR INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH M4256-6, AS THE DELAY WAS NOT OCCASIONED BY THE PERFORMANCE OF TEMPORARY DUTY, BUT CAUSED BY THE MODE OF TRANSPORTATION UTILIZED.

TO C. F. IRVING, JR., DEPARTMENT OF THE NAVY, MAY 10, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 14, 1967, AND ATTACHMENTS, FILE REFERENCE NCNAG/43:KDF 7200, FORWARDED HERE BY THE COMMANDING OFFICER, NAVAL COMPONENT, U.S. NAVAL ADVISORY GROUP, REPUBLIC OF KOREA NAVY, APO SAN FRANCISCO 96301, BY FIRST ENDORSEMENT DATED FEBRUARY 15, 1967, IN WHICH YOU REQUEST OUR DECISION WHETHER A DEDUCTION SHOULD BE MADE FROM THE PER DIEM PAYABLE TO YN2 JAMES E. COMER, 534 11 68, USN, ON ACCOUNT OF QUARTERS FURNISHED BY A COMMERCIAL AIRLINE FOR A SCHEDULED OVERNIGHT DELAY IN TRANSIT.

BY ORDERS PREPARED SEPTEMBER 8, 1966, THE MEMBER WAS DIRECTED TO PROCEED FROM THE U.S. NAVAL SCHOOL, INDIAN HEAD, MARYLAND, AND REPORT NOT LATER THAN OCTOBER 20, 1966, TO THE U.S. NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, FOR 6 WEEKS' ATTENDANCE AT YEOMAN "B" SCHOOL. BY ORDERS PREPARED DECEMBER 19, 1966, HE WAS DIRECTED TO PROCEED FROM THE AFOREMENTIONED CENTER AND REPORT TO COMPHIBTRAPAC AT CORONADO, CALIFORNIA, FOR APPROXIMATELY 3 WEEKS' TEMPORARY DUTY FOR INSTRUCTION. THE LATTER ORDERS FURTHER DIRECTED THE MEMBER, UPON COMPLETION OF HIS TEMPORARY DUTY AND WHEN DIRECTED BY COMPHIBTRAPAC, TO PROCEED TO SEOUL, KOREA, AND REPORT NOT LATER THAN DECEMBER 30, 1966, TO THE COMMANDING OFFICER, NAVAL COMPONENT, U.S. NAVAL ADVISORY GROUP.

THE MEMBER PERFORMED THE TRAVEL AND TEMPORARY DUTY AS DIRECTED IN THE ABOVE ORDERS AND ON FEBRUARY 8, 1967, HE SUBMITTED A VOUCHER FOR REIMBURSEMENT OF HIS TRAVEL EXPENSES AND FOR PAYMENT OF PER DIEM. IN THE ITINERARY LISTED ON THE VOUCHER, HE SHOWED, AMONG OTHER ENTRIES, THAT HE TRAVELED FROM TACOMA, WASHINGTON, TO SEOUL VIA TOKYO, JAPAN, BY COMMERCIAL PLANE ON A GOVERNMENT TRANSPORTATION REQUEST. THE TIME SCHEDULE FOR THIS PARTICULAR TRAVEL IS GIVEN IN THE ITINERARY AS FOLLOWS: DEPART FROM TACOMA 7:15 A.M., JANUARY 30, 1967 ARRIVE IN TOKYO

6:00 P.M., JANUARY 31, 1967 DEPART FROM TOKYO 10:30 A.M., FEBRUARY 1, 1967 ARRIVE IN SEOUL 3:00 P.M., FEBRUARY 1, 1967

PAYMENT OF PER DIEM FOR THE ABOVE PERIOD HAS BEEN PROPOSED AND SHOWN ON THE VOUCHER, AS OLLOWS:

1/30 DATE LINE--- NONE

1/31 18 LESS NONE--- 18.00

2/1 8 LESS 64 PERCENT--- 2.88

YOU ADVISE THAT THE GOVERNMENT TRANSPORTATION REQUEST UTILIZED BY THE MEMBER FOR THE TRANSPORTATION FROM SEATTLE (SEATTLE-TACOMA INTERNATIONAL AIRPORT) TO SEOUL WAS ON A COMMERCIAL AIRLINE WITH A SCHEDULED OVERNIGHT DELAY IN TOKYO AND THAT QUARTERS WERE FURNISHED BY THE AIRLINE AT NO COST TO THE MEMBER. IN VIEW OF THOSE FACTS, YOU ASK WHETHER IT WOULD BE PROPER TO (1) DEDUCT 50 PERCENT OF THE ALLOWED PER DIEM AS IN THE CASE OF AVAILABLE GOVERNMENT QUARTERS, (2) CONSIDER THE AIRLINE A GOVERNMENT CONTRACTOR AND THE QUARTERS FURNISHED AS BEING NON-GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH M4256-6, JOINT TRAVEL REGULATIONS, THEREBY REDUCING THE PER DIEM PAYABLE TO THE MEMBER, OR (3) PAY THE FULL PER DIEM RATE WITH NO DEDUCTION FOR QUARTERS.

SECTION 404 OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY. SECTION 405 PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

THE REGULATIONS IMPLEMENTING THE ABOVE PROVISIONS OF LAW ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS, VOLUME 1. PARAGRAPH M4152 THEREOF PROVIDES FOR A PER DIEM ALLOWANCE FOR THE TIME REQUIRED TO TRAVEL BETWEEN PERMANENT STATIONS, INCLUDING NECESSARY DELAYS EN ROUTE, PAYABLE IN ACCORDANCE WITH PART E OR F OF CH. 4 OF THE REGULATIONS, FOR PERMANENT CHANGE-OF-STATION TRAVEL PERFORMED BY GOVERNMENT TRANSPORTATION, OR WHEN TRANSPORTATION IS FURNISHED BY THE GOVERNMENT VIA COMMON CARRIER OR MADE AVAILABLE BY A FOREIGN GOVERNMENT AT NO COST TO THE MEMBER, EXCEPT FOR GROUP TRAVEL.

PARAGRAPH M4253 OF THE REGULATIONS PROVIDES FOR THE PAYMENT OF TRAVEL PER DIEM ALLOWANCES FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE CONTINENTAL UNITED STATES AND THAT WHEN TRAVELING BY ANY MODE OF TRANSPORTATION, INCLUDING DELAYS OF LESS THAN 10 HOURS INCIDENT TO THE MODE OF TRANSPORTATION, A MEMBER IS ENTITLED TO A PER DIEM ALLOWANCE OF $8 REGARDLESS OF THE TRAVEL PER DIEM ALLOWANCES ESTABLISHED FOR THE COUNTRIES OR PLACES IN WHICH TRAVEL BEGINS, IS DELAYED, OR ENDS. IT FURTHER PROVIDES THAT WHEN A DELAY IS INCURRED FOR 10 HOURS OR MORE BECAUSE OF UNFAVORABLE WEATHER CONDITIONS, MAINTENANCE, OR OTHER REASONS INCIDENT TO THE MODE OF TRANSPORTATION, OR FOR TEMPORARY DUTY, THE LOCAL TRAVEL PER DIEM ALLOWANCE APPLIES FROM THE DAY OF ARRIVAL THROUGH THE DAY PRIOR TO THE DAY OF DEPARTURE. PARAGRAPH M4254 REQUIRES A DEDUCTION OF 50 PERCENT OF THE TRAVEL PER DIEM ALLOWANCE RATE APPLICABLE FOR THE DAY WHEN GOVERNMENT QUARTERS ARE AVAILABLE TO A MEMBER. PARAGRAPH M1150-5 DEFINES THE TERM "GOVERNMENT QUARTERS" AS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED, AND FURTHER THAT SUCH TERM ALSO INCLUDES QUARTERS IN A STATE-OWNED NATIONAL GUARD CAMP, BUT NOT SLEEPING ACCOMMODATIONS ON AIRCRAFT, TRAINS, OR BUSES.

UNDER THE APPLICABLE REGULATION (PARAGRAPH M1150-5, JOINT TRAVEL REGULATIONS), A MEMBER WHILE ABOARD AN AIRPLANE IS ENTITLED TO PAYMENT OF PER DIEM AT THE FULL ALLOWABLE RATE REGARDLESS OF WHETHER OR NOT SLEEPING ACCOMMODATIONS (QUARTERS) ARE FURNISHED TO HIM. THE FACT THAT THE AIRLINE MAY FURNISH HIM SLEEPING ACCOMMODATIONS OR QUARTERS AT NO COST TO HIM AND NO ADDITIONAL COST TO THE GOVERNMENT IN A HOTEL OR ELSEWHERE FOR A SHORT PERIOD OF A SCHEDULED OR UNANTICIPATED DELAY EN ROUTE, INCIDENT TO THE MODE OF TRANSPORTATION, DOES NOT REQUIRE THE CONCLUSION THAT SUCH ACCOMMODATIONS CONSTITUTE GOVERNMENT QUARTERS WITHIN THE MEANING OF PARAGRAPH M1150-5. APPARENTLY, NO SEPARATE CHARGE WAS MADE FOR THE QUARTERS FURNISHED AND IN THESE CIRCUMSTANCES THEY MAY BE VIEWED AS BEING A PART OF THE TRANSPORTATION FURNISHED FOR THE PARTICULAR FLIGHT RATHER THAN QUARTERS FURNISHED BY THE GOVERNMENT. HENCE, NO REDUCTION OF PER DIEM IS REQUIRED ON THE BASIS THAT THE MEMBER OCCUPIED GOVERNMENT QUARTERS. COMPARE, IN THIS CONNECTION, OUR DECISION OF MARCH 20, 1962, 41 COMP. GEN. 605, COPY ENCLOSED, RESPECTING A CIVILIAN EMPLOYEE.

PARAGRAPH M4256-6, JOINT TRAVEL REGULATIONS, PROVIDES, IN PERTINENT PART, THAT WHEN A MEMBER PERFORMS TEMPORARY DUTY UNDER CONDITIONS WHERE QUARTERS ARE FURNISHED, WITH OR WITHOUT CHARGE, AS AN INCIDENT TO SUCH TEMPORARY DUTY BY LOCAL OR STATE GOVERNMENTS, FOREIGN GOVERNMENTS, OTHER U.S. GOVERNMENT AGENCIES, OR U.S. GOVERNMENT CONTRACTORS, THE MEMBER WILL BE ENTITLED TO 50 PERCENT OF THE LOCAL PER DIEM RATE ESTABLISHED IN APPENDIX A OF THE REGULATIONS, PLUS ANY CHARGES PAID BY HIM FOR THE QUARTERS FURNISHED.

IT APPEARS THAT THE GOVERNMENT TRANSPORTATION REQUEST ISSUED TO THE MEMBER WAS UTILIZED FOR A CATEGORY "A" FLIGHT FROM SEATTLE TO SEOUL. PARAGRAPH 3619 OF AIR FORCE MANUAL 75-4E, DATED APRIL 8, 1965, DEFINES CATEGORY "A" AIRLIFT AS A MOVEMENT OF PASSENGERS IN LESS THAN PLANELOAD LOTS ON REGULARLY SCHEDULED COMMERCIAL FLIGHTS UNDER CONTRACTS ADMINISTERED BY HEADQUARTERS, MILITARY AIR TRANSPORT SERVICE.

WHILE THE TRANSPORTATION ON THE COMMERCIAL AIRLINE APPARENTLY WAS OBTAINED UNDER A CONTRACT, PRESUMABLY AS STATED ABOVE NO SEPARATE CHARGE WAS MADE FOR FURNISHING QUARTERS DURING THE SCHEDULED STOP. ALSO, THE ABOVE REGULATION PROVIDES FOR A REDUCTION IN PER DIEM WHEN QUARTERS ARE FURNISHED INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY. THE DELAY IN TOKYO WAS NOT FOR THE PERFORMANCE OF TEMPORARY DUTY BUT, RATHER, WAS A DELAY INCIDENT TO THE MODE OF TRANSPORTATION UTILIZED. IN THESE CIRCUMSTANCES, IT IS OUR VIEW THAT THE QUARTERS FURNISHED BY THE AIRLINE DO NOT CONSTITUTE QUARTERS FURNISHED BY A GOVERNMENT CONTRACTOR INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH M4256-6 OF THE REGULATIONS. THEREFORE, IF THE FACTS ARE AS WE HAVE ASSUMED, THE MEMBER IS ENTITLED TO THE PER DIEM OTHERWISE AUTHORIZED, WITH NO REDUCTION REQUIRED ON ACCOUNT OF THE QUARTERS FURNISHED BY THE AIRLINE.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED, PAYMENT THEREON BEING AUTHORIZED ON THE BASIS SET FORTH ABOVE.