B-179493, JAN 15, 1974

B-179493, JAN 15, 1974

EMPLOYEE TRANSFERRED FROM GUAM TO TEXAS AND AUTHORIZED AIR TRANSPORTATION FROM GUAM TO CALIFORNIA AND TRAVEL BY POV FOR HIMSELF AND DEPENDENTS FROM THERE TO TEXAS CLAIMS PER DIEM FOR 10 DAYS IN CALIFORNIA WHILE AWAITING DELIVERY OF POV. CLAIM ALLOWED SINCE RECORD INDICATES EMPLOYEE SCHEDULED TRAVEL TO COINCIDE WITH DELIVERY OF POV AND DELAY WAS BEYOND HIS CONTROL WITHIN MEANING OF THAT TERM IN HIS TRAVEL AUTHORIZATION.

TO CAPTAIN S. M. BROOM:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF JULY 9, 1973, REQUESTING AN ADVANCE DECISION CONCERNING THE CLAIM OF MR. EZRA L. SMITH, A DEPARTMENT OF THE AIR FORCE CIVILIAN EMPLOYEE, FOR A PER DIEM ALLOWANCE FOR A PERIOD OF 10 DAYS IN APRIL 1973 WHILE HE AND HIS FAMILY AWAITED THE ARRIVAL OF HIS PRIVATELY OWNED VEHICLE (POV) AT LONG BEACH, CALIFORNIA.

HEADQUARTERS 43D COMBAT SUPPORT GROUP (SAC), APO SAN FRANCISCO 96334, ISSUED TRAVEL ORDERS NO. A-718 ON MARCH 1, 1973, AUTHORIZING CONCURRENT TRAVEL FOR MR. SMITH AND DEPENDENTS FROM ANDERSON AIR FORCE BASE, GUAM, TO WEBB AIR FORCE BASE, TEXAS, IN CONNECTION WITH A PERMANENT CHANGE OF STATION. THE MODE OF TRANSPORTATION INDICATED WAS AIR AND PRIVATELY OWNED AUTOMOBILE. THESE ORDERS FURTHER AUTHORIZED THE TRANSPORTATION FROM GUAM OF MR. SMITH'S POV AND CONTAINED THE FOLLOWING INSTRUCTIONS CONCERNING DELAYS:

"YOU WILL BE IN A DUTY STATUS DURING THE PERIOD OF TRAVEL, INCLUDING DELAYS ENROUTE AND AT PORTS OF EMBARKATION (POE) BEYOND YOUR CONTROL AND NOT FOR PERSONAL REASONS. VOLUNTARY DELAYS ENROUTE ARE NOT OFFICIAL TRAVEL STATUS."

THE RECORD INDICATES MR. SMITH TURNED HIS POV OVER TO THE NAVAL STATION, GUAM, ON MARCH 21, 1973, FOR SHIPMENT TO LONG BEACH, CALIFORNIA, AND WAS REPORTEDLY ADVISED THAT HE COULD OBTAIN HIS POV AT ITS DESTINATION ON OR ABOUT APRIL 17, 1973. RELYING ON THIS INFORMATION, MR. SMITH AND FAMILY DEPARTED GUAM ON APRIL 16, 1973, AND ARRIVED IN LOS ANGELES, CALIFORNIA, THAT SAME DAY. ON APRIL 17, 1973, MR. SMITH CONTACTED THE SOUTHERN CALIFORNIA OUTPORT, LONG BEACH, CALIFORNIA, WHERE HE WAS TO PICK UP HIS POV. ALTHOUGH IT IS UNCLEAR AS TO EXACTLY WHAT REPRESENTATIVES OF THE OUTPORT TOLD MR. SMITH CONCERNING THE AVAILABILITY OF HIS POV, IT WOULD APPEAR THAT HE WAS LEAD TO BELIEVE HIS VEHICLE WOULD BE AVAILABLE WITHIN A DAY OR TWO. MR. SMITH CONTACTED THE OUTPORT DAILY AND EVEN VISITED THE INSTALLATION ON ONE OCCASION TO DETERMINE WHEN HE COULD EXPECT DELIVERY. APPARENTLY, UP UNTIL APRIL 26, 1973, WHEN MR. SMITH ACTUALLY RECEIVED HIS POV, REPRESENTATIVES OF THE OUTPORT CONTINUED TO INDICATE THE ARRIVAL OF HIS POV WAS IMMINENT, AS INDICATED BY THE FOLLOWING EXCERPT OF THE ADMINISTRATIVE REPORT:

"2. BECAUSE OF THE MANY CIRCUMSTANCES WHICH MAY ARISE TO DELAY DELIVERY, IT IS A STANDING RULE NOT TO GIVE POV CUSTOMERS A DEFINITE ANSWER AS TO WHEN THEIR POV WILL BE AVAILABLE TO THEM UNTIL IT IS ACTUALLY ON HAND. HOWEVER, AFTER 19 APRIL WE WERE EXPECTING THE POV EACH DAY AND, SINCE UNDER ORDINARY CIRCUMSTANCES POV COULD BE DELIVERED TO OWNER VERY SHORTLY AFTER ARRIVAL, WE FEEL CERTAIN MR. SMITH WAS SO ADVISED. THERE WAS A CUSTOMS PROBLEM WHICH ALSO DELAYED AVAILABILITY OF POV. POV WAS FINALLY RECEIVED BY THIS ACTIVITY ON 25 APRIL BUT IT MAY HAVE BEEN TOO LATE FOR HIM TO CLAIM THAT DAY.

"3. WHILE IT IS FELT THAT MR. SMITH'S NINE-DAY WAIT WAS A MATTER OF HIS OWN CHOICE RATHER THAN BASED ON DEFINITE STATEMENTS EACH DAY BY PERSONNEL OF THIS OFFICE THAT POV WOULD BE 'READY FOR HIM ON THE FOLLOWING DAY,' IT DOES SEEM A LOGICAL CHOICE SINCE THE POV COULD HAVE BECOME AVAILABLE ANYTIME AFTER 19 APRIL."

BASED ON THE FACTUAL SITUATION RELATED ABOVE, YOU HAVE REQUESTED THIS OFFICE TO ANSWER THE FOLLOWING QUESTIONS CONCERNING THE PROPRIETY OF PAYING MR. SMITH'S CLAIM:

"A. MAY PAYMENT OF PER DIEM BE MADE FOR THE ENTIRE TIME MR. SMITH WAS AWAITING HIS POV AT LONG BEACH, CALIFORNIA?

"B. WHAT WOULD BE CONSIDERED A REASONABLE TIME TO WAIT FOR THE VEHICLE?

"C. MAY MR. SMITH BE PAID PER DIEM FOR THE TIME REFERENCED IN (B) ABOVE?

"D. IF THE ANSWERS TO QUESTIONS A AND C ARE NEGATIVE, SHOULD MR. SMITH BE CHARGED ANNUAL LEAVE FOR ANY OR ALL OF THE PERIOD OF TIME HE WAS AWAITING HIS POV AT LONG BEACH?"

THE RECORD REASONABLY SUPPORTS THE CONCLUSION THAT MR. SMITH MADE TRAVEL ARRANGEMENTS THAT WOULD RESULT IN HIS ARRIVAL IN THE LOS ANGELES AREA COINCIDING WITH THE ARRIVAL OF HIS AUTOMOBILE. UNKNOWN TO HIM AND BEYOND HIS CONTROL, HOWEVER, WAS THE FACT THAT HIS POV WAS SHIPPED TO OAKLAND, CALIFORNIA, AND OFF-LOADED THERE AND TRANSPORTED OVERLAND TO LONG BEACH, CALIFORNIA. ALSO, IT IS NOTED THAT MR. SMITH'S NEW DUTY STATION WAS LOCATED A CONSIDERABLE DISTANCE FROM THE PORT. IN VIEW OF THIS GREAT DISTANCE AND THE FACT THAT THE EMPLOYEE WAS TO TRANSPORT HIMSELF AND HIS DEPENDENTS BY POV, IT WOULD APPEAR UNREASONABLE TO EXPECT THE EMPLOYEE TO PROCEED TO HIS DUTY STATION PARTICULARLY WHEN, ON THE BASIS OF INFORMATION AVAILABLE TO HIM FROM THE OUTPORT, THE ARRIVAL OF HIS POV WAS IMMINENT. IN VIEW OF THE ABOVE CIRCUMSTANCES QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE.

INASMUCH AS WE HAVE ANSWERED QUESTION "A" IN THE AFFIRMATIVE, THERE IS NO NEED TO RESPOND TO YOUR OTHER QUESTIONS. WE POINT OUT, HOWEVER, THAT THE NUMEROUS AND VARIED FACTUAL CIRCUMSTANCES IN EACH CASE OF THIS NATURE MAKE IT IMPOSSIBLE TO FORMULATE A GENERAL RULE FOR APPLICATION. THEREFORE, EACH CASE SHOULD BE DECIDED ON THE BASIS OF WHETHER THE EMPLOYEE ACTED REASONABLY IN THE LIGHT OF THE EXISTING CIRCUMSTANCES.

THE EMPLOYEE'S TRAVEL VOUCHER IS RETURNED HEREWITH AND MAY BE PAID IN ACCORDANCE WITH THE FOREGOING, IF OTHERWISE CORRECT.