B-173978, OCT 12, 1971

B-173978, OCT 12, 1971

CIVILIAN EMPLOYEE - PER DIEM - DUTY-CONNECTED TRAVEL DECISION THAT A DEDUCTION FROM THE PAY OF JOSEPH N. VENDETTI, EFFECTED TO COLLECT AN APPARENT DEBT TO THE U.S. ARISING OUT OF THE PAYMENT OF PER DIEM ALLOWANCES FOR DUTY-CONNECTED TRAVEL FROM PHILADELPHIA, PA., TO FORT MONMOUTH, N.J., WAS ERRONEOUS. UNDER 5 U.S.C. 5702, AN EMPLOYEE IS ENTITLED TO PER DIEM FOR TRAVEL ON OFFICIAL BUSINESS AS PRESCRIBED BY THE AGENCY. SINCE THE QUESTION IS OF ENTITLEMENT TO PER DIEM, NOT OVERTIME COMPENSATION, THE PORTIONS OF THE ARMY CIVILIAN PERSONNEL REGULATIONS USED AS A BASIS FOR DENYING THE CLAIM WERE NOT APPLICABLE. ACCORDINGLY, THE AGENCY IS AUTHORIZED TO REFUND THE $20 PREVIOUSLY COLLECTED FROM THE EMPLOYEE.

TO MR. W. P. MCCARTHY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1971, WITH ENCLOSURES, REFERENCE SELFA/P-FA2, CONCERNING A SALARY DEDUCTION OF $20 FROM THE PAYROLL ACCOUNT OF MR. JOSEPH N. VENDETTI, A CIVILIAN EMPLOYEE AT THE UNITED STATES ARMY ELECTRONICS SUPPORT COMMAND (USAESC) IN PHILADELPHIA. THE DEDUCTION WAS EFFECTED TO COLLECT AN APPARENT DEBT TO THE UNITED STATES ARISING OUT OF THE ALLEGEDLY ERRONEOUS PAYMENT OF PER DIEM ALLOWANCES TO THE EMPLOYEE FOR DUTY-CONNECTED TRAVEL FROM USAESC TO FORT MONMOUTH, NEW JERSEY (FMNJ), AND RETURN.

THE PER DIEM ALLOWANCES IN QUESTION WERE AUTHORIZED AND PAID FOR TRAVEL PERFORMED ON JULY 28, AUGUST 26, NOVEMBER 6 AND 15, 1967. ON EACH OF THE TRAVEL ASSIGNMENTS MR. VENDETTI WAS ACTING IN HIS OFFICIAL CAPACITY AS A CHAUFFEUR FOR VARIOUS MILITARY AND CIVILIAN OFFICERS OF USAESC WHO PRESUMABLY WERE TRAVELING ON OFFICIAL BUSINESS TO FMNJ. ADMINISTRATIVE APPROVAL IS INDICATED ON THE APPROPRIATE AUTHORIZATION ON AUGUST 26 AND NOVEMBER 6 EXCEEDED 10 HOURS ON EACH DATE AND DID FORM (DA FORM 662) FOR EACH INSTANCE OF TRAVEL. THE PERIODS OF TRAVEL NOT BEGIN OR TERMINATE WITHIN 30 MINUTES OF A QUARTER-DAY PERIOD. THE TRAVEL ON NOVEMBER 15 WAS LESS THAN 10 BUT MORE THAN 6 HOURS AND TERMINATED AFTER 8 P.M. IT DID NOT COMMENCE OR END WITHIN 30 MINUTES OF A QUARTER-DAY PERIOD. THE TRAVEL ON JULY 28 WAS LESS THAN 10 BUT MORE THAN 6 HOURS AND COMMENCED BEFORE 6 A.M.

THE GENERAL STATUTORY AUTHORITY FOR PER DIEM ALLOWANCE IS 5 U.S.C. 5702 AND PROVIDES IN SUBSTANCE THAT WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY AN EMPLOYEE IS ENTITLED TO PER DIEM AS PRESCRIBED BY THE AGENCY CONCERNED. THE PURPOSE OF PER DIEM HAS BEEN RECOGNIZED AS PROVIDING A SUBSISTENCE ALLOWANCE TO REIMBURSE A TRAVELER FOR EATING IN HOTELS AND RESTAURANTS AND TO COVER EXTRA EXPENSES INCIDENT TO TRAVELING. SEE BORNHOFT V UNITED STATES, 137 CT. CL. 134, 136 (1956). IT IS TYPICALLY APPROVED FOR OFFICERS AND EMPLOYEES EN ROUTE TO AND FROM TEMPORARY DUTY STATIONS BUT IS NOT ABSOLUTELY LIMITED TO SUCH SITUATIONS. IN THIS CONNECTION PARAGRAPH C3001 OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) DEFINES TEMPORARY DUTY TRAVEL AS INCLUDING SITUATIONS WHERE THERE ARE "ASSIGNMENTS OF A TEMPORARY NATURE IN CONNECTION WITH OFFICIAL DEPARTMENT OF DEFENSE BUSINESS AWAY FROM AN EMPLOYEE'S PERMANENT DUTY STATION."

PARAGRAPH C8050-4 OF JTR PROVIDES GENERALLY THAT PER DIEM CANNOT BE AUTHORIZED WHERE A TEMPORARY DUTY ASSIGNMENT TAKING THE EMPLOYEE OUTSIDE THE AREA OF HIS PERMANENT DUTY STATION, BUT STILL IN THE GENERAL VICINITY THEREOF, DOES NOT RESULT IN ADDITIONAL SUBSISTENCE EXPENSES. ADDITIONAL SUBSISTENCE EXPENSES WILL BE INCURRED, HOWEVER, THEN AN APPROPRIATE PER DIEM ALLOWANCE MAY BE AUTHORIZED SUBJECT TO THE LIMITATIONS IN PARAGRAPH C8050-9 OF JTR. THAT PARAGRAPH AT THE TIME IN QUESTION (CHANGE 20, EFFECTIVE ON JANUARY 1, 1967) PROVIDED IN PERTINENT PART AS FOLLOWS:

"TRAVEL FOR 10 HOURS OR LESS DURING SAME CALENDAR DAY. PER DIEM IS NOT ALLOWABLE WHEN A 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 0600 HOURS OR TERMINATES AFTER 2000 HOURS. *** "

PARALLEL PROVISIONS ARE FOUND IN SECTIONS 6.2A AND 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

IN THE PRESENT CASE AN ADMINISTRATIVE DETERMINATION WAS EVIDENTLY MADE THAT THE EMPLOYEE WOULD INCUR ADDITIONAL SUBSISTENCE EXPENSES IN PERFORMING THE TRAVEL. CONSEQUENTLY, PER DIEM WAS AUTHORIZED AT THE RATE OF $8 PER DAY PURSUANT TO JTR C8101-2D, CHANGE 22, EFFECTIVE JULY 1, 1967. THE RESPECTIVE VOUCHERS WERE APPROVED AND PAID WITHIN APPROXIMATELY 2 WEEKS OF EACH TRAVEL ASSIGNMENT.

BY LETTER OF MAY 12, 1970, REFERENCE SELFA/P, YOUR OFFICE INFORMED THE EMPLOYEE THAT AN INDEBTEDNESS HAD BEEN STATED AGAINST HIS ACCOUNT BECAUSE OF "ERRONEOUSLY PAYING YOU HIM PER DIEM FOR ONE DAY TRIPS BETWEEN PHILA, PA. AND FORT MONMOUTH, N.J." THE APPARENT BASIS OF THIS CONCLUSION WAS YOUR VIEW THAT AS A CHAUFFEUR HE WAS NOT ENTITLED TO PER DIEM BECAUSE HE WAS IN A WORK STATUS AND NOT A TEMPORARY DUTY STATUS. THE AUTHORITY CITED FOR REACHING THAT CONCLUSION WAS CERTAIN PORTIONS OF THE ARMY CIVILIAN PERSONNEL REGULATIONS WHICH PERTAINED NOT TO PER DIEM BUT TO OVERTIME COMPENSATION FOR DUTY PERIODS INVOLVING TRAVEL. THESE PROVISIONS CANNOT BE APPLIED AND CONSTRUED WITH REGULATIONS PERTAINING TO PER DIEM ALLOWANCES SO AS TO PRECLUDE ENTITLEMENT TO THE LATTER WHEN THERE IS NO ISSUE OF OVERTIME INVOLVED. NOR WOULD THE FACT OF ENTITLEMENT TO OVERTIME COMPENSATION AUTOMATICALLY DEFEAT ANY OTHERWISE PROPER ALLOWANCE OF PER DIEM WHICH WAS ADMINISTRATIVELY AUTHORIZED, APPROVED, AND PAID.

WE CANNOT CONSIDER THAT IN THE ABOVE CIRCUMSTANCES THERE WAS AN ERRONEOUS PAYMENT OF PER DIEM SO AS TO JUSTIFY YOUR CONCLUSION OF THE EMPLOYEE'S INDEBTEDNESS AND THE RESULTANT COLLECTION BY SETOFF AGAINST HIS PAY. ACCORDINGLY, YOU ARE AUTHORIZED TO REFUND TO MR. VENDETTI THE $20 PREVIOUSLY COLLECTED FROM HIM IN THE MATTER.