B-177226, DEC 22, 1972

B-177226, DEC 22, 1972

CIVILIAN EMPLOYEE - PER DIEM - CONSTRUCTIVE AIR TRAVEL UNDUE INCONVENIENCE DECISION REGARDING THE CLAIM OF EDWIN L. GARDNER, JR., AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE FOR $6.25 PER DIEM AND FOR APPROPRIATE ADJUSTMENT OF HIS LEAVE RECORD. UNDER THE CIRCUMSTANCES OF THIS CASE, THE COMP. GEN. BELIEVES THAT CLAIMANT WOULD HAVE BEEN "UNDULY INCOVENIENCED" WITHIN THE MEANING OF SECTION 3.5(C)(2)(C) OF OMB CIRCULAR NO. A-7, BY REQUIRING THAT HE DEPART ON THE 6 P.M. FLIGHT. A REVIEW OF EXISTING AIRLINE SCHEDULES INDICATES THAT THE CONSTRUCTIVE FLIGHT CLAIMED BY MR. GARDNER WOULD HAVE BEEN REASONABLE. THEREFORE, THE VOUCHER IN FAVOR OF MR. GARDNER MAY BE CERTIFIED FOR PAYMENT AND HIS LEAVE RECORD ADJUSTED ACCORDINGLY.

TO MR. E. A. LOUGHRAN:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 6, 1972, WITH ENCLOSURES, REFERENCE CO 615-C, WHICH REQUESTS OUR DECISION ON THE CLAIM OF MR. EDWIN L. GARDNER, JR., AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, FOR $6.25 PER DIEM AND FOR THE ADJUSTMENT OF HIS LEAVE RECORD UNDER THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE RECORD INDICATES THAT UNDER TRAVEL ORDER NO. CO-72-30, ISSUED JULY 19, 1971, MR. GARDNER WAS AUTHORIZED TRAVEL FROM HIS OFFICIAL DUTY STATION AT WASHINGTON, D. C., TO EL PASO, TEXAS, FOR THE PURPOSE OF SUPERVISING THE INSTALLATION OF AN INTRUSION ALARM SYSTEM IN THE EL PASO SECTOR. THE PERIOD OF TRAVEL INVOLVED WAS FROM AUGUST 17 - SEPTEMBER 3, 1971, AND THE MODE OF TRANSPORTATION AUTHORIZED WAS BY COMMON CARRIER, GOVERNMENT OWNED AUTOMOBILE OR BY PRIVATELY OWNED AUTOMOBILE AT THE RATE OF 10 CENTS PER MILE NOT IN EXCESS OF CONSTRUCTIVE COMMON CARRIER TRANSPORTATION.

AT THE CONCLUSION OF THE SUBJECT TRAVEL, MR. GARDNER SUBMITTED FOR PAYMENT A VOUCHER IN THE AMOUNT OF $722.50. HOWEVER, IN COMPUTING THE AMOUNT OF PER DIEM IN LIEU OF SUBSISTENCE CLAIMED BY MR. GARDNER ON A CONSTRUCTIVE BASIS HE WAS DENIED PER DIEM FOR ONE-FOURTH DAY ($6.25) AS INDICATED BY THE FOLLOWING:

"MR. GARDNER CLAIMS PER DIEM BASED ON DEPARTURE FROM WASHINGTON, D.C. VIA AIR AT 12:00 NOON ON AUGUST 16, 1971, AND THIS SERVICE ALLOWED PER DIEM BASED ON DEPARTURE VIA AIR SAME DATE AT 6 P.M. WITH ARRIVAL AT EL PASO, TEXAS AT 9:57 P.M. SINCE CLAIMANT WAS NOTIFIED WELL IN ADVANCE OF THE SCHEDULED TRAVEL SO AS TO PROVIDE SUFFICIENT TIME TO OBTAIN HOTEL ACCOMMODATIONS ETC., THE CONSTRUCTIVE DEPARTURE TIME AND THE TIME FOR ARRIVAL AT DESTINATION WAS NOT CONSIDERED TO BE UNREASONABLE AS IS CONTENDED BY THE CLAIMANT."

MR. GARDNER HAS TAKEN EXCEPTION TO THE ABOVE ADMINISTRATIVE DEDUCTION AND YOU HAVE REQUESTED OUR DECISION AS TO THE PROPRIETY THEREOF.

THE CONTROLLING REGULATION, SECTION 3.5C(2)(C) OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-7, AS AMENDED, STATES AS FOLLOWS:

"*** 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)."

WE NOTE THAT IF MR. GARDNER HAD TAKEN THE 6 P.M. FLIGHT, THE ELAPSED TIME WOULD HAVE BEEN APPROXIMATELY 6 HOURS. WHILE HE WOULD HAVE ARRIVED AT THE AIRPORT IN EL PASO AT 9:57 P.M. (MOUNTAIN TIME) HE WOULD HAVE BEEN REQUIRED TO OBTAIN BAGGAGE, AND TRAVEL TO HIS PLACE OF LODGING. THIS WOULD PROBABLY HAVE CONSUMED ANOTHER HOUR. MOREOVER, IT APPEARS THAT THE CONSTRUCTIVE TRAVEL BEGINNING 6 P.M. ON AUGUST 16, 1971, WOULD HAVE TAKEN PLACE AFTER MR. GARDNER HAD WORKED A FULL DAY OR A SUBSTANTIAL PART THEREOF.

UNDER THE RELATED CIRCUMSTANCES OUR VIEW IS THAT MR. GARDNER WOULD HAVE BEEN "UNDULY INCONVENIENCED" BY REQUIRING THAT HE DEPART AT 6 P.M. ON AUGUST 17.

OUR REVIEW OF EXISTING AIRLINE SCHEDULES IN EFFECT DURING THE PERIOD OF TRAVEL HERE INVOLVED INDICATES THAT THE CONSTRUCTIVE FLIGHT CLAIMED BY MR. GARDNER (DEPARTURE FROM WASHINGTON, D. C., AT 12 NOON ON AUGUST 16, 1971) WOULD HAVE BEEN A REASONABLE FLIGHT TO HAVE TAKEN HAD HE ACTUALLY TRAVELED BY AIR CARRIER.

IN LINE WITH THE ABOVE, THE VOUCHER IN FAVOR OF MR. GARDNER IN THE AMOUNT OF $6.25 SHOULD BE CERTIFIED FOR PAYMENT AND HIS LEAVE RECORD ADJUSTED ACCORDINGLY.