B-198437.OM, MAR 26, 1981

B-198437.OM, MAR 26, 1981

SUBJECT: CLAIM OF CLARENCE WENDEL, NO. Z-2813332, B-198437-O.M.

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

RETURNED HEREWITH IS YOUR FILE NO. Z-2813332 REGARDING MR. CLARENCE WENDEL'S CLAIM FOR TRAVEL AND SUBSISTENCE EXPENSES WHILE WORKING FOR THE NATIONAL PARK SERVICE IN SAN FRANCISCO. MR. WENDEL'S CLAIM FOR THE PERIOD BETWEEN OCTOBER 19, 1976, AND DECEMBER 18, 1977, WAS DENIED ON THE BASIS OF REGULATIONS WHICH PRECLUDE THE PAYMENT OF PER DIEM TO AN EMPLOYEE WHILE AT HIS DUTY STATION. BASED ON THE ADDITIONAL INFORMATION FURNISHED IN CONNECTION WITH MR. WENDEL'S APPEAL, HIS CLAIM MAY NOW BE ALLOWED.

EFFECTIVE OCTOBER 19, 1976, MR. WENDEL, A RETIRED FEDERAL EMPLOYEE LIVING IN MISSOULA, MONTANA, WAS HIRED BY THE NATIONAL PARK SERVICE TO ASSIST IN THE PREPARATION OF A REPORT TO CONGRESS. AT THE TIME OF HIS APPOINTMENT, HIS DUTY STATION WAS DESIGNATED AS SAN FRANCISCO. THE RECORD SHOWS THAT PRIOR TO JANUARY OF 1978, MR. WENDEL WORKED APPROXIMATELY THREE QUARTERS OF FULL TIME ON A SCHEDULE DICTATED IN PART BY THE NEEDS OF HIS WORK ASSIGNMENT. FOR A LARGE PORTION OF THE TIME THAT HE WAS IN A PAY STATUS, MR. WENDEL WAS ON TEMPORARY DUTY ASSIGNMENTS AWAY FROM BOTH SAN FRANCISCO AND MISSOULA. FOR NEARLY HALF OF HIS TOTAL TIME IN A PAY STATUS HIS DUTIES WERE PERFORMED IN THE MISSOULA AREA. ON APPROXIMATELY FIVE OCCASIONS INVOLVING 26 DAYS HE TRAVELED TO SAN FRANCISCO TO PERFORM DUTIES IN THAT AREA. ON THOSE OCCASIONS HE TRAVELED TO SAN FRANCISCO AT HIS OWN EXPENSE AND PAID HIS OWN LODGING AND SUBSISTENCE EXPENSES. HE CLAIMS THAT HE SHOULD HAVE BEEN REIMBURSED FOR THESE EXPENSES.

YOUR SETTLEMENT CERTIFICATE OF MARCH 19, 1980, CORRECTLY ADVISED MR. WENDEL THAT PARAGRAPH 1-7.6A OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101- 7, MAY 1973) PRECLUDES THE PAYMENT OF PER DIEM AT AN EMPLOYEE'S OFFICIAL DUTY STATION. A COROLLARY TO THIS PROHIBITION IS THE WELL ESTABLISHED PRINCIPLE THAT AN EMPLOYEE MAY NOT BE REIMBURSED FOR TRAVEL EXPENSES BETWEEN HIS RESIDENCE AND HIS DUTY STATION. B-180181, FEBRUARY 22, 1974, AND B-175853, AUGUST 21, 1972.

MR. WENDEL FEELS THAT THE ABOVE AUTHORITIES ARE NOT CONTROLLING IN HIS CASE. HE POINTS OUT THAT HIS EMPLOYMENT WITH THE NATIONAL PARK SERVICE WAS "TEMPORARY AND SPORADIC" AND THAT THE NATIONAL PARK SERVICE REDESIGNATED MISSOULA AS HIS PERMANENT DUTY STATION EFFECTIVE DECEMBER 18, 1977, IN RECOGNITION OF THE NATURE OF HIS DUTIES AND THE EXPENSES HE WAS REQUIRED TO BEAR WHILE ON DUTY IN SAN FRANCISCO. ESSENTIALLY, MR. WENDEL SUGGESTS THAT SAN FRANCISCO SHOULD NOT BE REGARDED AS HIS PERMANENT DUTY STATION FOR PURPOSES OF THE PROHIBITIONS AGAINST PAYMENT FOR TRAVEL TO AND PER DIEM AT AN EMPLOYEE'S DUTY STATION.

WE HAVE CONSISTENTLY HELD THAT THE LOCATION OF AN EMPLOYEE'S PERMANENT DUTY STATION IS NOT MERELY A MATTER OF ADMINISTRATIVE DESIGNATION BUT A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS, AND WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO THE DURATION THEREOF AND THE NATURE OF THE DUTIES. B-172207, JULY 21, 1971. IN 25 COMP.GEN. 136 (1945) WE STRESSED THAT AN EMPLOYEE'S PERMANENT DUTY STATION IS THE PLACE WHERE THE GREATER PART OF AN EMPLOYEE'S WORK IS PERFORMED AND THAT THE PLACE NEED NOT COINCIDE WITH THE PRINCIPAL HEADQUARTERS OF HIS DIVISION. UNDER CIRCUMSTANCES WHERE AN EMPLOYEE WAS REQUIRED TO PERFORM THE PREPONDERANCE OF HIS DUTIES IN THE VICINITY OF HIS RESIDENCE, WE STATED:

"*** THUS, IT MAY BE ENTIRELY APPROPRIATE FOR AN EMPLOYEE WHO REPORTS A DAY OR TWO EACH WEEK, OR STAYS A WEEK OUT OF EACH MONTH, AT THE DIVISION HEADQUARTERS OF HIS ACTIVITY TO RECEIVE A PER DIEM WHILE AT SUCH POINT, SINCE HE IS AWAY FROM HOME - HIS FACTUAL HEADQUARTERS - AND MUST INCUR EXTRA SUBSISTENCE EXPENSES, AND, IN CONSEQUENCE, THAT POINT REASONABLY IS NOT HIS INDIVIDUAL POST OF DUTY."

CONSIDERABLE WEIGHT IS TO BE GIVEN THE ADMINISTRATIVE DESIGNATION OF AN EMPLOYEE'S DUTY STATION. HOWEVER, WHERE THE FACTS AND CIRCUMSTANCES INDICATE THAT THE DESIGNATION IS IN ERROR, WE HAVE NOT OBJECTED TO THE RETROACTIVE AMENDMENT OF THE RELEVANT ORDERS TO CORRECTLY DESIGNATE A DUTY STATION AS TEMPORARY RATHER THAN PERMANENT. SEE B-172207, SUPRA.

THE RECORD IN MR. WENDEL'S CASE IS CONSISTENT WITH THE FINDING THAT MISSOULA WAS IN FACT HIS PERMANENT DUTY STATION. THE MAJORITY OF HIS WORK WAS PERFORMED IN THE MISSOULA AREA. ON THE FEW OCCASIONS HE REPORTED TO SAN FRANCISCO, HE DID SO IN CONNECTION WITH FURTHER TRAVEL ASSIGNMENTS AND WE UNDERSTAND THAT HIS DUTIES WHILE IN SAN FRANCISCO GENERALLY INVOLVED PREPARATIONS FOR SUCH TRAVEL. WHILE THE NATURE OF MR. WENDEL'S DUTIES DID NOT CHANGE IN THAT HE CONTINUED TO PERFORM SIGNIFICANT AMOUNTS OF TRAVEL AFTER DECEMBER 1977, THE NATIONAL PARK SERVICE REDESIGNATED MISSOULA AS HIS DUTY STATION EFFECTIVE DECEMBER 18, 1977. UNDER THESE CIRCUMSTANCES, WE BELIEVE THAT IT WOULD BE APPROPRIATE TO TREAT THE REDESIGNATION AS A CORRECTION OF MR. WENDEL'S TRAVEL ORDERS AND TO CONSIDER MISSOULA AS HIS PERMANENT DUTY STATION FOR THE PERIOD COVERED BY HIS CLAIM. SUCH MODIFICATION WOULD BE CONSISTENT WITH THE FACT THAT THE NATIONAL PARK SERVICE APPEARS TO HAVE CONSIDERED MISSOULA TO BE MR. WENDEL'S DUTY STATION FOR COMPENSATION PURPOSES. WE NOTE THAT HE WAS CARRIED IN A PAY STATUS FOR CERTAIN DAYS ON WHICH HE TRAVELED FROM MISSOULA TO SAN FRANCISCO.

MR. WENDEL SHOULD BE ASKED TO FURNISH VOUCHERS DOCUMENTING HIS CLAIM. LETTER OF THIS DATE WE HAVE ADVISED CONGRESSMAN WILLIAMS OF THIS DETERMINATION.

DIGEST

WHERE REEMPLOYED ANNUITANT'S DUTY STATION WAS CHANGED FROM SAN FRANCISCO TO MISSOULA, MONTANA, UNDER CIRCUMSTANCES INDICATING THAT HE PERFORMED THE PREPONDERANCE OF HIS DUTIES IN MISSOULA AND ONLY OCCASIONALLY REPORTED TO SAN FRANCISCO, HIS EARLIER ORDERS MAY BE MODIFIED RETROACTIVELY TO INDICATE MISSOULA AS HIS PERMANENT DUTY STATION. LOCATION OF EMPLOYEE'S DUTY STATION IS A FACTURAL MATTER AND NOT MERELY A MATTER OF ADMINISTRATIVE DESIGNATION.