B-40104, FEBRUARY 25, 1944, 23 COMP. GEN. 623

B-40104, FEBRUARY 25, 1944, 23 COMP. GEN. 623

TRAVELING EXPENSES - PERSONS SERVING IN AN ADVISORY CAPACITY OUTSIDE CONTINENTAL UNITED STATES THE $10 PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE AUTHORIZED BY THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, TO BE PAID TO PERSONS SERVING IN AN ADVISORY CAPACITY WITHOUT COMPENSATION, OR AT $1 PER ANNUM, IN ANY OF THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT IS APPLICABLE TO OFFICIAL TRAVEL EITHER WITHIN OR OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AND, THEREFORE, IS NOT SUBJECT TO THE MAXIMUM PER DIEM ALLOWANCE--- IN MOST CASES LESS THAN $10--- FIXED FOR OFFICIAL TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PURSUANT TO THE PROVISIONS OF SECTION 301 OF THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1944, AND REGULATIONS THEREUNDER, WHICH ARE APPLICABLE ONLY TO COMPENSATED OFFICERS AND EMPLOYEES WHO ARE SUBJECT TO SUBSISTENCE EXPENSE ACT AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, FEBRUARY 25, 1944:

I HAVE YOUR LETTER OF FEBRUARY 10, 1944, AS FOLLOWS:

THE APPROPRIATIONS FOR THE CONSTITUENT AGENCIES OF THE EXECUTIVE OFFICE OF THE PRESIDENT--- OFFICE FOR EMERGENCY MANAGEMENT HAVE CONSISTENTLY PROVIDED FOR PER DIEM IN LIEU OF SUBSISTENCE NOT TO EXCEED $10. PER DAY FOR PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACE OF BUSINESS IN AN ADVISORY CAPACITY OR EMPLOYED WITHOUT COMPENSATION OR ON A DOLLAR-A-YEAR BASIS.

THE LATEST PROVISIONS WITH RESPECT TO $10 PER DIEM FOR THESE EMPLOYEES IS CONTAINED IN SUB-PARAGRAPH (A) OF THE " GENERAL PROVISIONS" ON PAGE 16 OF PUBLIC LAW 139, 78TH CONGRESS, WHICH IS QUOTED IN PART AS FOLLOWS:

"AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY SUCH AGENCY WITHOUT OTHER COMPENSATIONS FROM THE UNITED STATES, OR AT A DOLLAR PER ANNUM. * * *"

SECTION 301, TITLE III.--- " GENERAL PROVISIONS" OF PUBLIC LAW 216, 78TH CONGRESS MAKES CERTAIN SPECIFIC PROVISIONS WITH RESPECT TO PER DIEM IN LIEU OF SUBSISTENCE OF EMPLOYEES TRAVELING ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND READS IN PART AS FOLLOWS:

"PROVIDED, THAT THE AMOUNT OF SUCH ALLOWANCES SHALL BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED OR BY SUCH OFFICIAL AS HE MAY DESIGNATE FOR THE PURPOSE, BUT SHALL IN NO CASE, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEED THE MAXIMUM ESTABLISHED BY REGULATIONS PRESCRIBED BY THE PRESIDENT FOR THE LOCALITY IN WHICH THE TRAVEL IS PERFORMED. * * *"

PURSUANT TO THE ABOVE-QUOTED PROVISION, THE DIRECTOR OF THE BUREAU OF THE BUDGET ON JANUARY 7, 1944, ISSUED SUPPLEMENT TO CIRCULAR A-7, ENTITLED " AMENDMENTS TO STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.' THE FOLLOWING IS QUOTED FROM THE PERTINENT PORTION OF THIS CIRCULAR.

"PARAGRAPH 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IS AMENDED BY THE SUPPLEMENT TO THE CIRCULAR A-7, THE AMENDMENT BEING IN PART AS FOLLOWS:

"WITH THE EXCEPTION OF TRAVEL CHARGEABLE TO THE APPROPRIATION OF THE WAR AND NAVY DEPARTMENTS, FOR TRAVEL ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, A PER DIEM ALLOWANCE NOT TO EXCEED $7 IN LIEU OF SUBSISTENCE EXPENSES MAY BE ALLOWED, EXCEPT THAT, DURING THE FISCAL YEAR 1944 (A) THE MAXIMUM PER DIEM ALLOWANCE FOR TRAVEL PERFORMED AFTER JANUARY 31, 1944 SHALL BE THE AMOUNT PRESCRIBED IN APPENDIX 1 OF THIS REGULATION. * * *"

THE MAXIMUM RATES OF PER DIEM IN LIEU OF SUBSISTENCE ESTABLISHED IN APPENDIX I ARE LESS THAN $10, EXCEPT FOR TRAVEL IN ICELAND AND RUSSIA. THESE MAXIMUM RATES ARE TO BE APPLIED TO DOLLAR-A-YEAR AND WITHOUT COMPENSATION EMPLOYEES OF THE WAR PRODUCTION BOARD TRAVELING ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IT WOULD MEAN THAT EXCEPT FOR TRAVEL IN ICELAND AND RUSSIA THEY WOULD BE GETTING LESS PER DIEM OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES THAN THEY WOULD WHILE TRAVELING WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

IT WOULD NOT APPEAR THAT THIS EFFECT WERE DESIGNED OR INTENDED BY THE LEGISLATIVE ACTION OR BY THE REGULATION PROMULGATED BY THE BUREAU OF THE BUDGET. HOWEVER, IN VIEW OF THE CONFLICTING PROVISIONS AS CITED ABOVE AND IN ORDER THAT PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE MAY BE MADE PURSUANT TO THE APPLICABLE LAWS AND REGULATIONS, YOUR DECISION IS REQUESTED AS TO WHETHER PER DIEM IN LIEU OF SUBSISTENCE OF $10 OR MORE FOR DOLLAR-A-YEAR OR WITHOUT COMPENSATION EMPLOYEES AUTHORIZED UNDER THE PROVISIONS OF PUBLIC LAW 139 AS CITED ABOVE, MUST BE REDUCED TO THE APPLICABLE MAXIMUM RATES ESTABLISHED IN APPENDIX I, BUREAU OF THE BUDGET SUPPLEMENT TO CIRCULAR A-7, WHEN SUCH EMPLOYEES TRAVEL ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

IN COMMENTING UPON A PROVISION APPEARING IN ANOTHER APPROPRIATION ACT SIMILAR TO THE APPROPRIATION ITEM QUOTED IN THE SECOND PARAGRAPH OF YOUR LETTER, IT WAS STATED IN DECISION OF AUGUST 8, 1942, 22 COMP. GEN. 129, AT PAGE 132, AS FOLLOWS:

THE AUTHORITY THUS PROVIDED BY LAW AND THE ACTION OF THE PRESIDENT FOR PAYMENT OF A PER DIEM OF $10 IN LIEU OF SUBSISTENCE TO PERSONS WHO SERVE WITHOUT COMPENSATION FOR THE OFFICE OF PRICE ADMINISTRATION IS EXCLUSIVE OF ALL OTHER AUTHORITY TO PAY A COMMUTATION ALLOWANCE FOR SUBSISTENCE, INCLUDING THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, AS AMENDED BY THE ACT OF JUNE 30, 1932, 47 STAT. 405, AND THE ACT OF JANUARY 30, 1942 PUBLIC LAW 424, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE AUTHORITY TO PAY THE PER DIEM OF $10 TO PERSONS WHO SERVE IN AN ADVISORY CAPACITY IN THE OFFICE OF PRICE ADMINISTRATION, WITHOUT COMPENSATION, IS LIMITED TO PERIOD SUCH PERSONS ARE "SERVING WHILE AWAY FROM THEIR HOMES.' SEE 21 COMP. GEN. 377. COMPARE 21 ID. 409; 610. * * *

THE APPROPRIATION ITEM HERE IN QUESTION, WHICH WOULD BE APPLICABLE EITHER WITHIN OR OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, PROVIDES A SPECIAL PER DIEM ALLOWANCE FOR PERSONS SERVING IN AN ADVISORY CAPACITY WITHOUT COMPENSATION, OR AT THE NOMINAL RATE OF $1 PER ANNUM, IN ANY OF THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT, WHEREAS THE APPROPRIATION PROVISION QUOTED IN THE THIRD PARAGRAPH OF YOUR LETTER, LIMITED TO TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IS APPLICABLE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHO SERVE WITH COMPENSATION AND WHO OTHERWISE ARE SUBJECT TO THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

ACCORDINGLY, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.