B-180492, MAY 17, 1974

B-180492, MAY 17, 1974

IN ACCORDANCE WITH JOINT TRAVEL REGULATIONS, VOLUME II, PARAGRAPH C8501, MONTANA NATIONAL GUARD BUREAU SURVEYED HOTELS AND MOTELS IN THE 24 LOCATIONS WITHIN MONTANA WHERE ITS CIVILIAN TECHNICIANS COULD BE EXPECTED TO PERFORM TEMPORARY DUTY. ON BASIS OF SURVEY PER DIEM RATE OF $18 WAS ADMINISTRATIVELY ESTABLISHED INSTEAD OF MAXIMUM ALLOWABLE RATE OF $25. CLAIM BY CIVILIAN TECHNICIAN FOR DIFFERENCE BETWEEN RATE SET AND MAXIMUM ALLOWABLE RATE DENIED BECAUSE AGENCY HAD PROPERLY ESTABLISHED LESSER RATE IN ACCORDANCE WITH JTR PROVISIONS. 49 COMP. GEN. 493 (1970) DISTINGUISHED.

TO MR. RICHARD PIERSKY:

THE DEPARTMENT OF THE ARMY, FINANCE AND ACCOUNTING OFFICE, HEADQUARTERS, 9TH INFANTRY DIVISION AND FORT LEWIS, FORT LEWIS, WASHINGTON, HAS REQUESTED AN ADVANCE DECISION REGARDING THE PAYMENT OF A SUPPLEMENTAL TRAVEL CLAIM FOR THE DIFFERENCE BETWEEN THE ADMINISTRATIVELY ESTABLISHED PER DIEM RATE AND THE MAXIMUM ALLOWABLE RATE. THE CLAIM WAS SUBMITTED BY MR. RICHARD A. PIERSKY, A CIVILIAN TECHNICIAN EMPLOYED BY THE MONTANA NATIONAL GUARD BUREAU.

AT THE TIME MR. PIERSKY PERFORMED THE TRAVEL IN QUESTION, APRIL 28 30, 1970, PAYMENT OF PER DIEM WAS GOVERNED BY 5 U.S.C. 5702(A), WHICH PROVIDED, IN PERTINENT PART:

"AN EMPLOYEE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, IS ENTITLED TO A PER DIEM ALLOWANCE PRESCRIBED BY THE AGENCY CONCERNED. FOR TRAVEL INSIDE THE CONTINENTAL UNITED STATES, THE PER DIEM ALLOWANCE MAY NOT EXCEED THE RATE OF $25. ***"

THE GUIDELINES FOR DETERMINING THE APPROPRIATE RATE OF PER DIEM, WHEN A LOWER THAN MAXIMUM RATE WAS TO BE APPLIED, WERE SET OUT IN PARAGRAPH C8051 OF VOLUME II OF THE JOINT TRAVEL REGULATIONS. THAT PARAGRAPH STATED, IN PERTINENT PART:

"1. MAXIMUM PER DIEM RATE. A RATE OF PER DIEM MAY BE THE LEGAL MAXIMUM PER DIEM RATE OR A REDUCED AMOUNT. AUTHORIZATION WILL BE FOR ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF A PER DIEM ALLOWANCE IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES.

"3. REDUCED PER DIEM RATE. REDUCED PER DIEM RATES FOR CERTAIN CONDITIONS OF TRAVEL ARE AS PRESCRIBED IN PAR. C8101. THE RATES PRESCRIBED ARE MANDATORY EXCEPT THAT A LESSER RATE THAN THE LEGAL MAXIMUM RATES REFERRED TO IN PAR. C8101-2A AND 3A WILL BE PRESCRIBED WHEN IT IS KNOWN THAT THE COST OF LIVING AT A PLACE OF TEMPORARY DUTY ASSIGNMENT DOES NOT JUSTIFY THE MAXIMUM PER DIEM ALLOWANCE. ***"

IN ACCORDANCE WITH THESE PROVISIONS, THE MONTANA NATIONAL GUARD BUREAU CONDUCTED A SURVEY OF ALL OF THOSE 24 LOCATIONS WITHIN MONTANA WHERE ITS CIVILIAN TECHNICIANS COULD REASONABLY BE EXPECTED TO PERFORM TEMPORARY DUTY. THE SURVEY DISCLOSED THAT THE AVERAGE HOTEL AND MOTEL RATES WERE APPROXIMATELY UNIFORM THROUGHOUT THE STATE. BASED UPON THAT SURVEY, A PER DIEM RATE OF $18 APPLICABLE THROUGHOUT MONTANA WAS ESTABLISHED IN JANUARY 1970. SINCE NO COMPARABLE SURVEYS WERE CONDUCTED OUTSIDE MONTANA, THE MAXIMUM RATE OF $25 PER DAY WAS PRESCRIBED FOR TECHNICIANS PERFORMING OUT- OF-STATE TRAVEL.

MR. PIERSKY WAS IN A TRAVEL STATUS FROM 8 A.M., APRIL 28, 1970, TO 11:30 P.M., APRIL 30, 1970. HE SUBMITTED A PER DIEM CLAIM FOR 2 3/4 DAYS AT THE ADMINISTRATIVELY ESTABLISHED RATE OF $18 PER DAY FOR A TOTAL OF $49.50. SUBSEQUENTLY, HE SUBMITTED A SUPPLEMENTAL CLAIM FOR THE DIFFERENCE BETWEEN THE $18 RATE AND THE MAXIMUM RATE OF $25, A DIFFERENCE FOR THE 2 3/4 DAYS OF $19.25. HE CITED 49 COMP. GEN. 493 (1970) IN SUPPORT OF HIS CONTENTION THAT HE IS ENTITLED TO THE MAXIMUM RATE.

IN 49 COMP. GEN. 493 WE CONSIDERED THE LEGALITY OF A REGULATION PROMULGATED BY AN AGENCY WITHIN THE DEPARTMENT OF DEFENSE WHICH, ON AN AGENCY-WIDE BASIS, LIMITED THE PER DIEM PAYABLE TO EMPLOYEES TRAVELING THROUGHOUT THE COUNTRY TO RATE BELOW THE $25 MAXIMUM. INSOFAR AS PERTINENT HERE WE HELD THAT SINCE THERE WAS NO INDICATION IN THE RECORD THAT THE LESSER RATES WERE FIXED IN ACCORDANCE WITH PARAGRAPH C8051 OF THE JTR, THE $25 PER DIEM RATE WAS PAYABLE.

THE INSTANT CASE IS READILY DISTINGUISHABLE IN THAT THE MONTANA NATIONAL GUARD BUREAU HAS PROPERLY FOLLOWED THE PROCEDURES SET OUT IN PARAGRAPH C8501, JTR, AND HAS DETERMINED THAT THE LESSER PER DIEM RATE OF $18 IS APPROPRIATE. THE PRESCRIPTION OF LESSER PER DIEM RATES BY GEOGRAPHICAL AREA ON THE BASIS OF PROPER SURVEYS HAS BEEN APPROVED BY THIS OFFICE IN B- 175744, JUNE 6, 1973, AND B-174671, FEBRUARY 24, 1972. ALTHOUGH THE CITED CASES INVOLVE LESSER PER DIEM RATES ESTABLISHED ON CITY-WIDE BASES, WE FEEL THEY ARE PERTINENT WHERE, AS HERE, THE COST OF LIVING WITHIN THE AREA IS SHOWN ON THE BASIS OF AN APPROPRIATELY BROAD SURVEY TO BE SUBSTANTIALLY UNIFORM.

ACCORDINGLY, SINCE THE NATIONAL GUARD BUREAU FOR THE STATE OF MONTANA PROPERLY SET THE PER DIEM RATE AT $18 FOR THE PERIOD AND LOCALITY INVOLVED, MR. PIERSKY'S VOUCHER SEEKING INCREASED PER DIEM PAYMENTS, WHICH IS RETAINED HERE, MAY NOT BE PAID.