B-198397.OM, JUN 11, 1980

B-198397.OM, JUN 11, 1980

SUBJECT: EARL C. PARKHURST - PER DIEM - MEDICAL RESTRICTIONS ON ACTIVITIES (Z 2720151) - B-198397-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED IS YOUR FILE Z-2720151, INVOLVING THE CLAIM OF EARL C. PARKHURST. THE ISSUE PRESENTED IS WHETHER AN EMPLOYEE WITH A DOCUMENTED MEDICAL CONDITION RESTRICTING HIM TO NO MORE THAN 12 HOURS OF TRAVEL OR WORK OR A COMBINATION OF THE TWO MAY TAKE REST STOPS DURING TEMPORARY DUTY TRAVEL SO THAT HE DOES NOT EXCEED THE 12-HOUR LIMIT. FOR THE REASONS SET FORTH BELOW IT IS OUR VIEW THAT WHERE THE AGENCY KNEW IN ADVANCE OF THE EMPLOYEE'S MEDICAL CONDITION BUT ELECTED TO SEND HIM ON THE TEMPORARY DUTY ASSIGNMENT, THE EMPLOYEE IS ENTITLED TO TAKE THE REST STOPS NEEDED TO AVOID EXCEEDING THE 12-HOUR PER DAY TRAVEL AND DUTY RESTRICTION.

MR. PARKHURST, AN EMPLOYEE OF THE U. S. ARMY COMMUNICATIONS COMMAND, STATIONED AT FORT HUACHUCA, ARIZONA, WAS SENT ON A TEMPORARY DUTY ASSIGNMENT TO SAUDI ARABIA FROM JUNE 26 TO JULY 17, 1976. THE FILE CONTAINS A LETTER FROM THAD J. EARL, M.D., DATED JUNE 4, 1976, STATING THAT MR. PARKHURST SHOULD BE RESTRICTED TO WORK AND TRAVEL SHIFTS OF 12 HOURS BECAUSE HE SUFFERED FROM A HYPERTENSIVE CONDITION THAT WAS EXACERBATED BY TRAVEL AND WORK TIME. THE FILE ALSO CONTAINS A LETTER DATED AUGUST 20, 1976, SIGNED BY COLONEL JUSTICE B. KING STATING:

"NOTWITHSTANDING HIS MEDICAL CONDITION, MR. PARKHURST WAS SELECTED FOR TDY TO SAUDI ARABIA AS THE MOST QUALIFIED INDIVIDUAL. HIS ORDERS INCLUDED NEW YORK AND LONDON FOR THIS REASON."

MR. PARKHURST'S TRAVEL INCLUDED OVERNIGHT STOPS AT THE TUCSON AIRPORT, IN NEW YORK AND LONDON ON THE TRIP TO SAUDI ARABIA AND IN DHAHRAN, LONDON, CHICAGO AND TUCSON ON THE RETURN TRIP. HE CLAIMED PER DIEM FOR THE ACTUAL TRAVEL SCHEDULE FOLLOWED. REIMBURSEMENT WAS ALLOWED BASED ON A CONSTRUCTIVE TRAVEL SCHEDULE ELIMINATING THE OVERNIGHT STOPS. MR. PARKHURST FILED A RECLAIM VOUCHER FOR THE DIFFERENCE. THIS CLAIM WAS DISALLOWED BY THE CLAIMS DIVISION IN SETTLEMENT CERTIFICATE Z-2720151, APRIL 17, 1979, ON THE GROUNDS THAT THE AGENCY HAD PROPERLY APPLIED PARAGRAPHS C1051 AND C10101(8) OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (2 JTR).

PARAGRAPH 1051 FIRST STATES A GENERAL POLICY THAT EMPLOYEES TRAVELING ON OFFICIAL BUSINESS SHOULD EXERCISE THE SAME CARE A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON PERSONAL BUSINESS. IT ALSO PROVIDES THAT, TO THE EXTENT POSSIBLE, TRAVEL SHOULD BE SCHEDULED DURING NORMAL WORKING HOURS, AND EMPLOYEES SHOULD NOT BE EXPECTED TO USE A CARRIER ON A SCHEDULE WHICH REQUIRES BOARDING OR LEAVING THE CARRIER BETWEEN MIDNIGHT AND 6 A.M. FINALLY, THIS PARAGRAPH SETS CRITERIA FOR AUTHORIZING REST STOPS DURING TRAVEL. PARAGRAPH 10101(8) DEALS WITH CONSTRUCTIVE TRAVEL WHERE AN EMPLOYEE DOES NOT RETURN TO HIS PERMANENT DUTY STATION BY THE MOST EXPEDITIOUS ROUTE FOR PERSONAL REASONS. AGAIN IT IS STATED THAT AN EMPLOYEE SHOULD NOT BE REQUIRED TO BOARD OR LEAVE A CARRIER BETWEEN MIDNIGHT AND 6 A.M.

THE ARMY, IN DISALLOWING MR. PARKHURST'S CLAIM, RELIED ON THE ABOVE JTR PARAGRAPHS AND ON PARAGRAPH 6-77 OF ARMY REGULATION 37-106. THAT PARAGRAPH PROVIDES INSTRUCTIONS FOR THE CONSTRUCTIVE COMPUTATION OF TRAVEL TIME.

IN ESSENCE, MR. PARKHURST'S CLAIM HAS BEEN DISALLOWED BECAUSE HIS OVERNIGHT STOPS HAVE BEEN FOUND TO BE FOR HIS OWN CONVENIENCE, NOT FOR THE GOVERNMENT'S BENEFIT. THE ARMY, HOWEVER, IN ITS ADMINISTRATIVE REPORT, ACKNOWLEDGES THAT THE ISSUE MAY NOT BE THAT SIMPLE.

"HOWEVER, THE ORDER ISSUING AUTHORITY WAS COGNIZANT OF THE PHYSICAL CONDITION OF MR. PARKHURST AND STILL DEEMED IT NECESSARY AND PRACTICAL FOR HIM TO MAKE THE TRIP. CONSEQUENTLY, THE US GOVERNMENT MAY HAVE A MORAL OBLIGATION, AND POSSIBLY EVEN A LEGAL OBLIGATION, TO REIMBURSE MR. PARKHURST FOR THE DELAYS IN HIS ITINERARY NECESSITATED BY HIS MEDICAL RESTRICTIONS. IT IS NOT WITHIN THE AUTHORITY OF THIS OFFICE TO MAKE SUCH PAYMENT. RECOMMEND APPROVAL OF THE CLAIM."

THUS, THE ARMY ELECTED TO SEND MR. PARKHURST TO SAUDI ARABIA ON TEMPORARY DUTY EVEN THOUGH HE WAS UNDER MEDICAL ADVICE TO NEITHER WORK NOR TRAVEL FOR MORE THAN 12 HOURS EACH DAY.

WE HAVE HELD THAT THE MEDICAL CONDITION OF EMPLOYEES OR THEIR DEPENDENTS MAY JUSTIFY SPECIAL TRAVEL ARRANGEMENTS. IN MATTER OF MARVIN W. SHOAF, B-181344, FEBRUARY 12, 1975, AN EMPLOYEE RETURNING FROM KOREA WAS ALLOWED TO RETURN VIA SHIP RATHER THAN AIRPLANE BECAUSE OF HIS HEART CONDITION, AND WAS PAID PER DIEM FOR TRAVEL DELAYS CAUSED BY THAT MODE OF TRAVEL. SEE ALSO MATTER OF RICHARD H. HOWARTH, B-193290, FEBRUARY 15, 1979.

HERE THE ARMY ELECTED TO SEND MR. PARKHURST TO SAUDI ARABIA, EVEN THOUGH THEY KNEW THAT HE COULD NOT TRAVEL AND/OR WORK FOR MORE THAN 12 HOURS EACH DAY. MR. PARKHURST'S OVERNIGHT STOPS WERE NOT FOR HIS PERSONAL CONVENIENCE, BUT RATHER WERE IN ACCORDANCE WITH THE ADVICE OF HIS PHYSICIAN. BY ELECTING TO SEND MR. PARKHURST ON THAT ASSIGNMENT WITH KNOWLEDGE OF THE RESTRICTIONS ON HIS ACTIVITIES, THE ARMY IMPLICITLY AGREED TO ABIDE BY THOSE RESTRICTIONS. IN FACT, HIS TRAVEL ORDERS WERE WRITTEN TO INCLUDE THE NECESSARY STOPS. THE ARMY CANNOT NOW AFTER THE FACT TREAT MR. PARKHURST AS AN EMPLOYEE WITH NO RESTRICTIONS ON HIS ACTIVITIES.

THEREFORE, MR. PARKHURST'S TRAVEL VOUCHER SHOULD BE RECOMPUTED SO THAT HE WOULD NOT BE REQUIRED TO WORK AND/OR TRAVEL FOR MORE THAN 12 HOURS IN ANY SINGLE DAY, INCLUDING THE DAY OF DEPARTURE AND THE DAY OF RETURN.

ACCORDINGLY, SETTLEMENT SHOULD BE MADE IN ACCORDANCE WITH THE ABOVE IN THE AMOUNT FOUND DUE.