Disallowance of Per Diem on Basis of Reconstructed Travel

B-177138, JAN 18, 1973

CIVILIAN EMPLOYEE - CONSTRUCTIVE TRAVEL - PER DIEM DECISION REGARDING THE CLAIM OF [REDACTED], AN EMPLOYEE OF THE BUREAU OF MINES, ARISING OUT OF TRAVEL FROM NORTON, VA., TO WASHINGTON, D.C., AND RETURN. UNDER THE CIRCUMSTANCES, THE ADMINISTRATIVE DETERMINATION THAT CLAIMANT'S DEPARTURE FROM WASHINGTON, D.C., COULD HAVE BEEN AFFECTED DURING THE LATE AFTERNOON-EARLY EVENING HOURS OF JUNE 15, 1972, DOES NOT APPEAR UNREASONABLE OR ARBITRARY. MOREOVER, UNDER SECTION 4.3D OF OMB CIRCULAR NO. A-7, THE CONSTRUCTIVE DEPARTURE TIME OF 5:05 P.M. DOES NOT RAISE THE PROBLEM OF HAVING THE EMPLOYEE TRAVEL AT UNREASONABLE TIMES.

TO MR. JOSEPH A. PAGLIASOTTI:

WE REFER TO YOUR LETTER DATED SEPTEMBER 21, 1972, WITH ENCLOSURES, WHICH REQUESTS OUR DECISION ON THE APPLICABILITY OF SECTION 4.3D OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-7, REVISED AUGUST 17, 1971, TO A VOUCHER SUBMITTED BY MR. [REDACTED], AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF MINES.

THE RECORD INDICATES THAT UNDER TRAVEL AUTHORIZATION NO. T5002152, ISSUED JUNE 2, 1972, MR. [REDACTED] TRAVELED FROM NORTON, VIRGINIA, TO WASHINGTON, D.C., FOR THE PURPOSE OF ATTENDING THE DEPARTMENTAL HONOR AWARDS CONVOCATION. THE SUBJECT TRAVEL WAS TO BE PERFORMED DURING THE PERIOD JUNE 14-16, 1972. HE TRAVELED BY PRIVATELY OWNED AUTOMOBILE FOR HIS OWN CONVENIENCE.

THE VOUCHER SUBMITTED BY MR. [REDACTED] SHOWS THAT HE DEPARTED FROM NORTON, VIRGINIA, BY AUTO AT 8 A.M. ON JUNE 14, 1972, AND ARRIVED IN WASHINGTON, D.C., AT 5 P.M. THE SAME DAY. THE VOUCHER FURTHER INDICATES THAT HE RETURNED TO NORTON AT 5 P.M. ON JUNE 16, 1972, HAVING LEFT WASHINGTON, D.C., AT 8 A.M. THAT DAY. IT IS NOTED THAT THE COLLOQUIUM WHICH MR. MALESKY ATTENDED ENDED BETWEEN 3:30 AND 3:45 P.M. ON JUNE 15, 1972.

IN PROCESSING MR. [REDACTED] VOUCHER, THE VOUCHER EXAMINERS RECONSTRUCTED HIS TRAVEL AS THOUGH HE HAD MADE THE TRIP TO AND FROM WASHINGTON, D.C., VIA COMMON AIR CARRIER. BY SO DOING IT WAS DETERMINED THAT HE COULD HAVE DEPARTED TRI-CITIES AIRPORT AT 4:12 P.M. ON JUNE 14 AND ARRIVED IN WASHINGTON 6:18 P.M. ACCORDINGLY, THERE WAS SUSPENDED FROM MR. [REDACTED] VOUCHER A PER DIEM ALLOWANCE OF 1/4 DAY (REPRESENTING THE DIFFERENT DEPARTURE TIME).

IN ADDITION TO THE ABOVE IT WAS CONSTRUCTIVELY DETERMINED THAT MR. [REDACTED] COULD HAVE RETURNED FROM WASHINGTON ON JUNE 15, 1972, ON A FLIGHT WHICH DEPARTED 5:05 P.M. THEREFROM. PURSUANT TO SUCH DETERMINATION THERE WAS ALSO DISALLOWED MR. [REDACTED] CLAIM FOR 3/4 DAY PER DIEM ON JUNE 16, 1972, THE DAY HE DROVE BACK TO NORTON, VIRGINIA. MR. [REDACTED] HAS OBJECTED ONLY TO THIS LATTER SUSPENSION.

IT IS APPARENTLY YOUR POSITION THAT CONSTRUCTIVELY SCHEDULING MR. [REDACTED] DEPARTURE FROM WASHINGTON, D.C., AT 5:05 ON JUNE 15, 1972, WAS NOT UNREASONABLE UNDER THE CONTROLLING REGULATIONS.

WITH REGARD THERETO YOU HAVE STATED THAT -

"OUR JUDGEMENT THAT THE 5:05 P.M. DEPARTURE WAS NOT UNREASONABLE WAS BASED ON THE ACTUAL DEPARTURE OF THE WIDOW OF A DECEASED EMPLOYEE WHO ATTENDED THE SAME CONVOCATION. THIS LADY LEFT ON A FLIGHT THAT DEPARTED WASHINGTON, D.C. AT 5:00 P.M. ON JUNE 15, 1972."

CONCERNING THE TIME OF DEPARTURE ON JUNE 15, 1972, THE RECORD INDICATES THAT MR. [REDACTED] MENTIONED HIS PREFERENCE TO VISIT WITH SOME FORMER EMPLOYEES RATHER THAN TO RUSH TO THE AIRPORT WHICH ALLEGEDLY WOULD HAVE BEEN NECESSARY HAD HE TRAVELED BY AIRPLANE.

SECTIONS 4.3C AND 4.3D OF OMB CIRCULAR NO. A-7 (STANDARDIZED GOVERNMENT TRAVEL REGULATIONS) PROVIDE AS FOLLOWS:

"C. PER DIEM ALLOWANCE. THE CONSTRUCTIVE PER DIEM WILL BE THE AMOUNT WHICH WOULD HAVE BEEN ALLOWABLE IF THE TRAVELER HAD USED THE CARRIER UPON WHICH THE CONSTRUCTIVE TRANSPORTATION COSTS ARE DETERMINED.

"D. USE OF ACTUAL AND REASONABLE SCHEDULES. IN MAKING THE FOREGOING CONSTRUCTIVE COST COMPARISONS OF TRANSPORTATION, SCHEDULED DEPARTURES AND ARRIVALS OF PLANES, TRAINS, AND BUSES AT UNREASONABLE HOURS WILL BE DISREGARDED. (FOR THIS PURPOSE, 'UNREASONABLE HOURS' MEANS THOSE WHICH WOULD UNDULY INCONVENIENCE THE TRAVELER OR ADVERSELY AFFECT HIS SAFETY, OR WHICH WOULD RESULT IN UNDULY INCREASING THE CONSTRUCTIVE PER DIEM)."

UNDER THE CIRCUMSTANCES THE ADMINISTRATIVE DETERMINATION THAT MR. [REDACTED] DEPARTURE FROM WASHINGTON, D.C., COULD HAVE BEEN EFFECTED DURING THE LATE AFTERNOON-EARLY-EVENING HOURS OF JUNE 15, 1972, DOES NOT APPEAR UNREASONABLE OR ARBITRARY. FURTHER, WE FEEL IT CONSISTENT WITH THE RULE THAT THE TRAVELER SHOULD EXERCISE THE SAME CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON PERSONAL BUSINESS. OMB CIRCULAR NO. A-7, REVISED AUGUST 17, 1971, SECTION 1.2.

MOREOVER, UNDER SECTION 4.3D SUPRA WE DO NOT FEEL THAT THE CONSTRUCTIVE DEPARTURE TIME OF 5:05 P.M. PRESENTS THE PROBLEM OF HAVING THE EMPLOYEE TRAVEL AT UNREASONABLE HOURS. NOT ONLY DOES IT APPEAR THAT HAD MR. [REDACTED] DEPARTED, AS CONSTRUCTIVELY SHOWN ON THE 5:05 P.M. FLIGHT THAT HE WOULD HAVE BEEN HOME AT A REASONABLE HOUR ON JUNE 15, 1972, BUT HIS REASON FOR NOT HAVING DONE SO SEEMS TO BE BASED UPON THE DESIRE TO MEET WITH FORMER COLLEAGUES. THE RECORD IS DEVOID OF ANY INDICATION THAT FOR MR. [REDACTED] TO HAVE MADE THE 5:05 P.M. FLIGHT THAT HE WOULD HAVE BEEN "UNDULY INCONVENIENCED."

ACCORDINGLY, IT IS OUR VIEW THAT THE DISALLOWANCE OF PER DIEM ON JUNE 16, 1972, WAS PROPER.

THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH.