B-181482, FEB 18, 1975

B-181482, FEB 18, 1975

IN REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE INCIDENT TO TRANSFER OF EMPLOYEE BY INTERNAL REVENUE SERVICE FROM ONE OFFICE TO ANOTHER, INTERRUPTION OF CONSECUTIVE 30-DAY ENTITLEMENT UNDER SECTION 537.2(2), IRS MT 1763 FOR "OFFICIAL NECESSITY" CAN INCLUDE TEMPORARY MILITARY DUTY TRAINING NOT EXCEEDING 15 DAYS.

INTERPRETTATION OF "OFFICIAL NECESSITY" IN REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE.:

THE INTERPRETATION OF THIS OFFICE HAS BEEN REQUESTED CONCERNING WHETHER INTERRUPTION DUE TO "OFFICIAL NECESSITY" PERTAINING TO ENTITLEMENT OF TEMPORARY QUARTERS REIMBURSEMENT UPON A TRANSFER AS PROVIDED FOR IN THE INTERNAL REVENUE SERVICE TRAVEL HANDBOOK MIGHT INCLUDE TEMPORARY MILITARY ACTIVE DUTY TRAINING.

WE ARE ADVISED THAT MR. LAWRENCE G. LILLY, A CIVILIAN EMPLOYEE OF THE INTERNAL REVENUE SERVICE WAS TRANSFERRED BY ORDERS DATED MAY 11, 1973, FROM CHICAGO, ILLINOIS, TO MIAMI, FLORIDA, EFFECTIVE AUGUST 6, 1973. DURING THE COURSE OF THE TRANSFER AND BETWEEN THE TIME HE LEFT CHICAGO AND ARRIVED IN MIAMI, HE WAS ON MILITARY TRAINING DUTY IN NEW JERSEY WITH THE ARMY RESERVES FOR 15 DAYS. ALTHOUGH MR. LILLY HAS BEEN REIMBURSED FOR TEMPORARY QUARTERS SUBSISTENCE INCURRED FROM AUGUST 4 TO AUGUST 30, HE HAS SUBMITTED A RECLAIM VOUCHER FOR TEMPORARY QUARTERS IN CHICAGO COMMENCING ON JULY 10. HE CONTENDS THAT HIS TRANSFER WAS INTERRUPTED FOR OFFICIAL NECESSITY WITHIN THE PROVISIONS OF THE INTERNAL REVENUE SERVICE REGULATION. HE POINTS OUT THAT USE OF TEMPORARY QUARTERS IN CHICAGO WAS REQUIRED BECAUSE RELINQUISHMENT OF POSSESSION OF OLD RESIDENCE WAS MANDATORY INCIDENT TO ITS SALE.

SECTION 537.2(2), IRS MT 1763 (TRAVEL HANDBOOK) STATES IN PERTINENT PART:

"***THE PERIOD OF CONSECUTIVE DAYS MAY BE INTERRUPTED TO TAKE ACCOUNT OF THE TIME THAT IS ALLOWED FOR TRAVEL BETWEEN THE OLD AND NEW OFFICIAL STATION OR WHICH IS DUE TO CIRCUMSTANCES ATTRIBUTABLE TO OFFICIAL NECESSITY, AS FOR EXAMPLE, AN INTERVENING TEMPORARY DUTY ASSIGNMENT."

THIS QUOTED PROVISION IS ESSENTIALLY IDENTICAL TO THAT FOUND IN THE FEDERAL PROPERTY MANAGEMENT REGULATION 101-7, SECTION 2-5.2.A, APPLICABLE TO ALL FEDERAL AGENCIES. THIS SECTION IN EITHER OF THE REGULATIONS PROVIDES THAT IN A PERMANENT CHANGE OF STATION, AN EMPLOYEE IS ENTITLED TO SUBSISTENCE EXPENSES FOR A PERIOD OF NOT MORE THAN 30 CONSECUTIVE DAYS WHILE THE EMPLOYEE AND FAMILY ARE NECESSARILY OCCUPYING TEMPORARY QUARTERS. THE PERIOD OF 30 CONSECUTIVE DAYS MIGHT BE INTERRUPTED FOR CIRCUMSTANCES ATTRIBUTABLE TO OFFICIAL NECESSITY. AN ILLUSTRATION OF OFFICIAL NECESSITY WOULD BE AN INTERVENING TEMPORARY DUTY ASSIGNMENT.

WITH REGARD TO TEMPORARY MILITARY DUTY, THE LAW PROVIDES IN 5 U.S.C. SEC. 6323(A) (1970):

"AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, IS ENTITLED TO LEAVE WITHOUT LOSS IN PAY, TIME, OR PERFORMANCE OR EFFICIENCY RATING FOR EACH DAY, NOT IN EXCESS OF 15 DAYS IN A CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32 AS A RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD."

IN APPLYING THIS STATUTORY PROVISION TO VARIOUS PAY SITUATIONS, THIS OFFICE HAS GENERALLY APPLIED A TEST OF LOOKING AT THE PAY STATUS OF THE EMPLOYEE WITHOUT MODIFICATION BY REASON OF AN INTERVENING PERIOD OF ACTIVE MILITARY DUTY. FOR INSTANCE, WE STATED IN 37 COMP. GEN. 608, 611 (1958) WHERE THE EMPLOYEE WAS IN A LEAVE WITHOUT PAY STATUS IMMEDIATELY BEFORE STARTING MILITARY DUTY, "THE TEST OF WHETHER AN EMPLOYEE MAY BE GRANTED MILITARY LEAVE SHOULD NOT BE MERELY HIS LEAVE OR PAY STATUS IMMEDIATELY PRIOR TO OR AFTER MILITARY DUTY WITHOUT REGARD TO OTHER FACTS. RATHER, THE TEST SHOULD BE WHETHER, BUT FOR THE ACTIVE DUTY, THE EMPLOYEE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS (17 COMP. GEN. 174 (1937))." SEE ALSO B-166993, JUNE 18, 1969, WHEREIN WE FOUND THAT AN EMPLOYEE COULD BE PAID DURING HIS MILITARY LEAVE WHEN HE WAS CALLED TO DUTY WHILE ON LEAVE WITHOUT PAY INCIDENT TO POSTOPERATIVE CARE. SIMILARLY, WE HAVE FOUND THAT EMPLOYEES ON ACTIVE DUTY TRAINING ARE ENTITLED TO THE PREMIUM PAY THEY WOULD HAVE RECEIVED HAD THEY NOT BEEN ABSENT FROM THE CIVILIAN POSITION DUE TO MILITARY DUTY. 31 COMP. GEN. 173 (1951), B-160622, JANUARY 13, 1967.

ALTHOUGH IT IS RECOGNIZED THAT IN THE DRAFTING OF THE REGULATION IN QUESTION, "OFFICIAL NECESSITY" WAS PROBABLY REGARDED AS PERTAINING TO THE OFFICIAL DUTIES OF THE AGENCY TRANSFERRING ITS EMPLOYEES, WE SEE NO REASON WHY THE INTERPRETATION SHOULD NOT INCLUDE AN INTERRUPTION DUE TO TEMPORARY MILITARY DUTY. THUS, AN EMPLOYEE'S ENTITLEMENT TO TEMPORARY QUARTERS SUBSISTENCE REIMBURSEMENT UPON HIS TRANSFER SHOULD NOT BE REDUCED BY REASON OF THE MILITARY DUTY OBLIGATION FALLING WITHIN HIS PERIOD OF TRANSIT.

ACCORDINGLY, THE RECLAIM MAY BE ALLOWED IF OTHERWISE CORRECT.