B-168655, MAY 27, 1970

B-168655, MAY 27, 1970

DEBT COLLECTIONS--WAIVER--CIVILIAN EMPLOYEES--COMPENSATION OVERPAYMENTS- WHAT CONSTITUTES "COMPENSATION" REQUEST FOR WAIVER OF ERRONEOUS PER DIEM PAYMENT IS AGAIN DENIED AS NOT BEING AUTHORIZED UNDER PROVISIONS OF 5 U.S.C. 5584 SINCE PER DIEM AS DEFINED AND DIFFERENTIATED IN PAR. 4-3 CPR T3.4 (A) AND (E), RELATES TO TRAVEL EXPENSES AND, AS SUCH, FAILS TO FALL WITHIN DEFINITION OF "PAY" CONTAINED IN IMPLEMENTING STANDARDS FOR WAIVER UNDER PUB. L. 90 616, IN 4 CFR 91-2 (B) (REVISED JAN. 1, 1970), THUS DIFFERING FROM POST DIFFERENTIALS WHICH ARE AUTHORIZED AND REFERRED TO IN 5 U.S.C. 5925 AS ADDITIONAL PAY AND, AS SUCH, BEING SUBJECT TO WAIVER AS PAY. SEE B 167730, SEPT. 3, 1969.

TO JOSEPH E. TIMMINS:

THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 2, 1969, AND ENCLOSURES, REQUESTING THAT THE ACTION TAKEN BY OUR CLAIMS DIVISION ON NOVEMBER 25, 1969, DISALLOWING YOUR REQUEST FOR A WAIVER OF AN ERRONEOUS PAYMENT OF PER DIEM UNDER AUTHORITY OF THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90 616, 5 U.S.C. 5584, BE RECONSIDERED.

THE RECORD SHOWS THAT DURING THE PERIOD DECEMBER 17, 1962, THROUGH APRIL 8, 1963, PAYMENTS OF PER DIEM TOTALING $1,541 FOR TEMPORARY DUTY AT HEADQUARTERS, USAECOM, FORT MONMOUTH, NEW JERSEY, WERE MADE TO YOU AFTER YOU HAD ACCOMPLISHED MOVEMENT TO THAT STATION OF YOUR HOUSEHOLD GOODS AND DEPENDENTS. PAYMENT OF PER DIEM UNDER THESE CIRCUMSTANCES WAS IMPROPER UNDER THE APPLICABLE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS, PARAGRAPH 4-3, CPR T3.4. ON OCTOBER 1, 1969, YOU REQUESTED THAT CONSIDERATION BE GIVEN BY OUR OFFICE TO RETURN OF THE AMOUNT OF $1,541 REFUNDED BY YOU TO USAECOM, AND IT IS WITH RESPECT TO THE ACTION TAKEN BY THE CLAIMS DIVISION ON SUCH REQUEST THAT YOU NOW ASK FURTHER CONSIDERATION.

THE REASON FOR THE ACTION TAKEN IN DENYING YOUR REQUEST IS THAT WAIVERS AUTHORIZED BY PUBLIC LAW 90-616 EXTEND ONLY TO ERRONEOUS PAYMENTS OF "PAY" AND SINCE THE ERRONEOUS PAYMENTS MADE TO YOU WERE FOR PER DIEM WHILE ON TEMPORARY DUTY, WHICH IS NOT "PAY", THERE IS NO BASIS AT LAW FOR GRANTING YOUR REQUEST.

YOUR VIEW, AS STATED IN YOUR LETTER OF DECEMBER 2, 1969, IS AS FOLLOWS:

"THE MONIES PAID TO ME WERE NOT FOR TRAVEL EXPENSES OR EXPENSES ENTAILING TRANSPORTATION OF HOUSEHOLD GOODS. THE PAYMENT, TO ME, OF THE AMOUNT OF MONEY IN MY CLAIM WAS TO COVER THE INCREASED EXPENSES OF MY MEALS AND LODGING RESULTING FROM THE GOVERNMENT TRANSFERRING MY POSITION FROM WASH. TO FT. MONMOUTH UNDER A HARDSHIP CONDITION AND THE UNNECESSARY PROLONGATION OF A TEMPORARY DUTY STATUS FROM AUG. 1962 TO APRIL 1963.

"THE EXTRA REMUNERATION TO COVER MEALS AND LODGING WHILE ON TEMPORARY DUTY FALLS INTO THE SAME CATEGORY AS THE PAYMENT OF 25% PREMIUM FOR THE ACCEPTANCE OF A POSITION IN ALASKA OR ANY OTHER OVERSEAS POSITION WHERE THE ADDITIONAL COSTS OF LIVING ARE PROVIDED BY THE GOVERNMENT UNDER A 'PREMIUM' ARRANGEMENT. THE PAYMENT OF ANY PREMIUM TO COVER ADDITIONAL LIVING EXPENSES CERTAINLY FALLS WITHIN THE DEFINITION OF 'PAY' UNDER THE PUBLIC LAW."

IN REGARD TO YOUR ANALOGY, POST DIFFERENTIALS ARE AUTHORIZED BY 5 U.S.C. 5925 AND REFERRED TO THEREIN AS ADDITIONAL PAY AND ACCORDINGLY A POST DIFFERENTIAL HAS BEEN CONSIDERED AS EMBRACED WITHIN THE TERM "PAY" AS USED IN PUBLIC LAW 90-616, BUT A SEPARATE MAINTENANCE ALLOWANCE AS A PART OF THE COST-OF-LIVING ALLOWANCES AUTHORIZED BY 5 U.S.C. 5924, IS NOT SUBJECT TO THE WAIVER CONDITIONS. SEE B-167730, SEPTEMBER 3, 1969, COPY ATTACHED.

PER DIEM SUCH AS YOU RECEIVED IS DEFINED IN PARAGRAPH 4-3, CPR T3.4, EFFECTIVE DURING THE PERIOD HERE CONCERNED, AS FOLLOWS:

"PER DIEM

"4-3. PER DIEM IS A FLAT DAILY ALLOWANCE AUTHORIZED TO BE PAID WHILE EMPLOYEES OR PERSONS ARE IN A TRAVEL STATUS ON OFFICIAL BUSINESS. IT IS INTENDED TO OFFSET THE NECESSARY SUBSISTENCE COSTS OF TRAVEL NOT OTHERWISE REIMBURSABLE. IT IS PAID IN LIEU OF EXPENSES FOR ALL CHARGES FOR MEALS, LODGING, PERSONAL USE OF ROOM DURING DAYTIME, BATHS, ALL FEES AND TIPS TO WAITERS, PORTERS, BAGGAGE MEN, BELLBOYS, HOTEL MAIDS, DINING ROOM STEWARDS AND OTHERS ON VESSELS, HOTEL SERVANTS IN FOREIGN COUNTRIES, TELEGRAMS AND TELEPHONE CALLS RESERVING HOTEL ACCOMMODATIONS, LAUNDRY, CLEANING AND PRESSING OF CLOTHING, FANS AND FIRES IN ROOMS, AND TRANSPORTATION BETWEEN PLACES OF LODGING OR BUSINESS AND PLACES WHERE MEALS ARE TAKEN EXCEPT AS PROVIDED IN PARAGRAPH 3-3B (4). THE TERM 'LODGING' DOES NOT INCLUDE ACCOMMODATIONS ON AIRPLANES, TRAINS, OR STEAMERS, AND THESE EXPENSES ARE NOT SUBSISTENCE EXPENSES. PER DIEM IN LIEU OF SUBSISTENCE MAY BE AUTHORIZED AS INDICATED IN THE FOLLOWING PARAGRAPHS.

"WITHIN COMMUTING RANGE OF RESIDENCE OR PERMANENT

PERMANENT DUTY STATION

"A. PER DIEM MAY BE PAID ONLY WHEN AN INDIVIDUAL'S OFFICIAL TRAVEL STATUS PLACES HIM BEYOND NORMAL COMMUTING RANGE OF HIS RESIDENCE OR PERMANENT DUTY STATION. WHEN AN EMPLOYEE INCURS NO ADDITIONAL SUBSISTENCE EXPENSES DURING A PERIOD IN WHICH HE COMMUTES BETWEEN HIS REGULAR PLACE OF RESIDENCE AND PLACE OF TEMPORARY DUTY, HE IS NOT ENTITLED TO PER DIEM.

"RELATIONSHIP OF PER DIEM TO OVERSEA POST DIFFERENTIAL

"E. PER DIEM IS FOR THE PURPOSE OF DEFRAYING NECESSARY SUBSISTENCE COSTS WHILE THE FOREIGN AREA POST DIFFERENTIAL OR TERRITORIAL POST DIFFERENTIAL IS ADDITIONAL COMPENSATION FOR EMPLOYEES ASSIGNED TO POSTS OVERSEAS WHERE ENVIRONMENTAL CONDITIONS ARE SUCH AS TO REQUIRE A RECRUITMENT AND RETENTION INCENTIVE. * * *"

IT IS THUS APPARENT THAT CONTRARY TO YOUR VIEW, PER DIEM DOES RELATE TO EXPENSES OF TRAVEL, AND IS NOT COMPARABLE WITH POST DIFFERENTIALS. THEREFORE, IT DOES NOT COME WITHIN THE FOLLOWING DEFINITION OF "PAY" AS CONTAINED IN SECTION 91.2 (B) OF THE STANDARDS IMPLEMENTING PUBLIC LAW 90- 616, PUBLISHED IN TITLE 4, CHAPTER I OF THE CODE OF FEDERAL REGULATIONS (REVISED AS OF JANUARY 1, 1970):

"'PAY' MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES OVERTIME PAY; NIGHT, SUNDAY STANDBY, IRREGULAR AND HAZARDOUS DUTY DIFFERENTIAL; PAY FOR SUNDAY AND HOLIDAY WORK; PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE; AND SEVERANCE PAY. IT DOES NOT INCLUDE EXPENSES OF TRAVEL AND TRANSPORTATION OR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS."

IN VIEW OF THE FOREGOING THERE IS NO BASIS UNDER THE LAW OR REGULATIONS THAT OUR OFFICE MAY CONSIDER A WAIVER OF ERRONEOUS PAYMENTS OF PER DIEM. THE ACTION OF THE CLAIMS DIVISION IS, THEREFORE, SUSTAINED.