B-22756, JANUARY 10, 1942, 21 COMP. GEN. 655

B-22756, JANUARY 10, 1942, 21 COMP. GEN. 655

SUBSISTENCE - PER DIEMS - SCOPE OF "8 A.M. TO 6 P.M.' RULE WHERE AN EMPLOYEE'S REGULAR TOUR OF DUTY FALLS BETWEEN HOURS OTHER THAN 8 A.M. TO 6 P.M., THE PROVISO IN PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THAT "NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M. AND THE RETURN ON THE SAME DAY IS PRIOR TO 6 P.M.' DOES NOT PRECLUDE THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE FOR OFFICIAL TRAVEL PERFORMED ENTIRELY BETWEEN 8 A.M. AND 6 P.M., BUT WHEN THE TRAVEL IS PERFORMED ENTIRELY WITHIN THE HOURS COMPRISING THE EMPLOYEE'S REGULAR TOUR OF DUTY, NO PER DIEM MAY BE ALLOWED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 10, 1942:

I HAVE YOUR LETTER OF DECEMBER 22, 1941, AS FOLLOWS:

THERE ARE PRESENTED FOR DECISION QUESTIONS INVOLVING THE INTERPRETATION OF THE FOLLOWING PROVISIONS OF PARAGRAPH 51 OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED.

"PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AFTER 8 A.M., AND THE RETURN ON THE SAME DAY IS PRIOR TO 6 P.M., OR FOR ANY ABSENCE NOT EXCEEDING THREE HOURS.'

THE SPECIFIC QUESTIONS ARE:

(1) WHETHER AN EMPLOYEE, WHOSE OFFICIAL TOUR OF DUTY IS FROM 11 P.M. TO 7 A.M., AND WHO IS HELD IN A DUTY STATUS AND PERFORMS OFFICIAL TRAVEL, BEGINNING AFTER 8 A.M. AND CONTINUING FOR MORE THAN THREE HOURS, MUST BE DENIED PER DIEM BECAUSE THE TRAVEL FALLS WITHIN THE RESTRICTIVE PERIOD 8 A.M. TO 6 P.M. SPECIFIED IN PARAGRAPH 51, SUPRA.

(2) WHETHER AN EMPLOYEE, WHOSE OFFICIAL TOUR OF DUTY IS FROM 3 P.M. TO 11 P.M., AND WHO PERFORMS OFFICIAL TRAVEL FOR A PERIOD OF MORE THAN THREE HOURS ALL OF WHICH FALLS WITHIN THE PERIOD OF HIS OFFICIAL TOUR OF DUTY, THEREBY BECOMES ENTITLED TO PER DIEM, ALL OTHER REQUIREMENTS OF ENTITLEMENT BEING MET, BY REASON OF THE FACT THAT THE TRAVEL WAS NOT WITHIN THE PROHIBITED PERIOD 8 A.M. TO 6 P.M. SPECIFIED BY PARAGRAPH 51, SUPRA, NOTWITHSTANDING THE FACT THAT SUCH TRAVEL WAS ALL WITHIN THE EMPLOYEE'S OFFICIAL TOUR OF DUTY.

THE PROVISIONS OF PARAGRAPH 51, SUPRA, WOULD APPEAR TO DENY PER DIEM FOR ALL TRAVEL COMPLETED WITHIN THE HOURS 8 A.M. TO 6 P.M., REGARDLESS AS TO THE OFFICIAL HOURS OF DUTY OF THE TRAVELER, AND TO PERMIT THE PAYMENT OF PER DIEM FOR TRAVEL COMPLETED WITHIN ANY OTHER COMPARABLE PERIOD OF TIME, REGARDLESS AS TO THE OFFICIAL HOURS OF DUTY OF THE TRAVELER. IT WOULD APPEAR THAT THE SAID PROVISIONS PROBABLY WERE DRAFTED TO FIT THE CASES OF EMPLOYEES ASSIGNED TO THE GENERALLY PREVAILING TOUR OF DUTY, I.E., 9 A.M. TO 5 P.M., AND ARE PREDICATED UPON THE PRINCIPLE THAT EMPLOYEES SHOULD NOT BE ALLOWED PER DIEM FOR TRAVEL, ALL OF WHICH, OR SUBSTANTIALLY ALL OF WHICH, FALLS WITHIN THEIR OFFICIAL TOUR OF DUTY. BY THE SAME TOKEN IT IS ASSUMED THEY WERE NOT INTENDED TO DENY PER DIEM IF OTHERWISE PAYABLE MERELY BECAUSE THE TRAVEL FALLS WITHIN THE PRESCRIBED HOURS 8 A.M. TO 6 P.M. AS INDICATED IN QUESTION 1, SUPRA. IN OTHER WORDS, THE SPECIFIC HOURS REFERRED TO SHOULD BE REGARDED MERELY AS A FOOT RULE APPLICABLE TO ANY OTHER TOUR OF DUTY.

UNLESS IT BE HELD THAT THE PROVISIONS OF PARAGRAPH 51, SUPRA, PERMIT THE PAYMENT OF PER DIEM FOR TRAVEL COMPLETED WITHIN THE HOURS 8 A.M. TO 6 P.M., WHEN SUCH TRAVEL IS NOT WITHIN THE OFFICIAL TOUR OF DUTY OF THE TRAVELER, AND THAT THE SAID PROVISIONS CLEARLY IMPLY THAT NO PER DIEM CAN BE ALLOWED IN CONNECTION WITH TRAVEL, ALL, OR PRACTICALLY ALL, OF WHICH IS WITHIN THE OFFICIAL HOURS OF DUTY OF THE EMPLOYEES, THE DESIRABILITY OF AMENDING SAID PROVISIONS TO SPECIFICALLY SO PROVIDE SEEMS TO BE SUGGESTED.

YOUR CONSIDERATION AND DECISION IN THE MATTER WILL BE APPRECIATED.

AS YOU SUGGEST, THE PROVISO IN PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, QUOTED IN YOUR LETTER, STATING THE 8 A.M. TO 6 P.M. RULE, WAS INTENDED TO, AND DOES, RELATE ONLY TO EMPLOYEES WHOSE REGULAR TOUR OF DUTY FALLS WITHIN THOSE HOURS. THE PURPOSE WAS TO DENY SUBSISTENCE ALLOWANCE FOR TRIPS OF SHORT DURATION WHERE THE ORDINARY ARRANGEMENT FOR SUBSISTENCE WOULD NOT BE INTERRUPTED THEREBY. SEE 3 COMP. GEN. 966; 4 ID. 767; 5 ID. 100; ID. 128; ID. 163; ID. 319; 12 ID. 131.

THE FUNDAMENTAL PRINCIPLE INVOLVED IN THE RULE IN QUESTION WOULD DENY PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE TO AN EMPLOYEE WHOSE ABSENCE FROM HEADQUARTERS ON OFFICIAL DUTY IS ENTIRELY WITHIN THE HOURS COMPRISING HIS REGULAR TOUR OF DUTY FOR THE CALENDAR DAY INVOLVED.