B-45830, DECEMBER 19, 1944, 24 COMP. GEN. 463

B-45830, DECEMBER 19, 1944, 24 COMP. GEN. 463

SUBSISTENCE - PER DIEMS - NAVAL OFFICERS - CHANGE TO MILEAGE BASIS DURING TEMPORARY DUTY STATUS ADDITIONAL TEMPORARY DUTY ORDERS, UNDER WHICH MILEAGE WAS PAYABLE, ISSUED TO A NAVAL OFFICER WHILE HE WAS AT A TEMPORARY DUTY STATION UNDER PRIOR ORDERS PRESCRIBING REIMBURSEMENT ON A PER DIEM BASIS--- THERE BEING AN UNAUTHORIZED COMBINATION OF MILEAGE AND PER DIEM DURING A PARTICULAR TRAVEL STATUS PERIOD--- ARE INEFFECTIVE TO TERMINATE THE OFFICER'S PER DIEM STATUS UNDER HIS ORIGINAL ORDERS, AND, THEREFORE, HE IS ENTITLED TO AN ALLOWANCE ON A PER DIEM BASIS UNDER BOTH ORDERS, LESS ANY MILEAGE RECEIVED THEREUNDER. 23 COMP. GEN. 713, DISTINGUISHED. IRRESPECTIVE OF THE FACT THAT A NAVAL RESERVE OFFICER WAS IN A PER DIEM STATUS AT A TEMPORARY DUTY STATION WHEN HE RECEIVED ORDERS DIRECTING HIM TO RETURN TO HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY THE OFFICER MAY BE PAID A MILEAGE ALLOWANCE FROM SUCH LAST DUTY STATION TO HIS HOME IN ACCORDANCE WITH THE EXPRESS PROVISIONS OF SECTIONS 3 AND 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 19, 1944:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1944, REQUESTING DECISION WITH RESPECT TO THREE QUESTIONS, HEREINAFTER QUOTED, BASED ON FACTS AND CIRCUMSTANCES STATED IN A LETTER FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED OCTOBER 7, 1944, AS FOLLOWS:

1.LIEUTENANT ARTHUR H. HEIST, E-V/S), USNR, BY ORDERS OF 13 JUNE 1944, ISSUED BY THE COMMANDANT, NINTH NAVAL DISTRICT, WAS DIRECTED TO PROCEED FROM CHICAGO, ILLINOIS TO WASHINGTON, D.C. FOR TEMPORARY ADDITIONAL DUTY, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION AT CHICAGO. THE ORDERS PRESCRIBED A PER DIEM OF $7 DURING ABSENCE FROM STATION NOT TO EXCEED 60 DAYS (AT ANY ONE TEMPORARY DUTY STATION). WHILE HE WAS IN WASHINGTON PURSUANT TO SUCH ORDERS THE BUREAU OF NAVAL PERSONNEL ISSUED ORDERS OF 5 JULY 1944 DIRECTING THE OFFICER TO PROCEED TO VARIOUS POINTS IN THE UNITED STATES, TRAVEL BY GOVERNMENT OR COMMERCIAL AIR BEING AUTHORIZED. THESE ORDERS, APPARENTLY OVERLOOKING THE FACT THAT THE OFFICER WAS ALREADY TRAVELING UNDER ORDERS AUTHORIZING A PER DIEM WHILE ABSENT FROM STATION, PRESCRIBED A PER DIEM OF $7 WHILE IN AN AIR TRAVEL STATUS. ALL THE TRAVEL UNDER THESE LATER ORDERS WAS PERFORMED BY RAIL AND UPON PRESENTATION OF HIS CLAIM THE OFFICER WAS REIMBURSED ON A MILEAGE BASIS. COPY OF THE MILEAGE CLAIM IS ENCLOSED.

2. UPON PRESENTATION OF HIS FINAL CLAIM THE VARIANCE IN THE METHOD OF REIMBURSEMENT PRESCRIBED IN THE ORDERS WAS NOTED AND THE OFFICER NOW HAS ADJUSTED SUCH FINAL CLAIM ON THE BASIS OF PER DIEM HAVING BEEN PRESCRIBED FOR ALL THE TRAVEL INVOLVED. * * * * *

4. CASES HAVE ALSO ARISEN WHERE AN OFFICER WAS DETACHED FROM HIS PERMANENT STATION AND DIRECTED TO PROCEED TO A PARTICULAR PLACE FOR TEMPORARY DUTY, HIS ORDERS PRESCRIBING A PER DIEM. WHILE ON SUCH TEMPORARY DUTY IN A PER DIEM STATUS THE OFFICER RECEIVES ORDERS DIRECTING HIM TO PROCEED TO HIS HOME AND UPON ARRIVAL, OR SOME OTHER DATE, TO CONSIDER HIMSELF RELIEVED FROM ACTIVE DUTY. IN VIEW OF THE GENERAL PROHIBITION AGAINST THE COMBINATION OF PER DIEM AND MILEAGE DECISION IS DESIRED AS TO WHETHER SUCH OFFICER WOULD BE ENTITLED TO MILEAGE FOR TRAVEL TO HIS HOME, THE PAYMENT BEING OTHERWISE PROPER. SEE, IN THIS CONNECTION, SECTIONS 8 AND 9 OF THE ACT OF 7 SEPTEMBER 1942, (1944) PUBLIC LAW 421, AMENDING SECTIONS 3 AND 12 OF THE PAY READJUSTMENT ACT OF 1942.

5. IN CONNECTION WITH THE FOREGOING IT IS DESIRED TO POINT OUT THAT IN PERFORMING THE TRAVEL UNDER THE BUREAU OF NAVAL PERSONNEL ORDERS OF 5 JULY 1944, THE OFFICER EITHER DID NOT RETAIN OR DID NOT SECURE RECEIPTS FOR CASH FARES PAID FOR PULLMAN ACCOMMODATIONS ON THE ASSUMPTION THAT HE WAS TRAVELING ON MILEAGE ORDERS. THIS SAME CONDITION EXISTS IN CASES WHERE AN OFFICER WAS PAID MILEAGE FOR SOME PARTICULAR TRAVEL AND LATER NOTICE OF EXCEPTION IS RECEIVED FROM THE GENERAL ACCOUNTING OFFICE FOR THE REASON THAT SUCH OFFICER SHOULD HAVE BEEN PAID ON A PER DIEM BASIS. IN THE MAJORITY OF CASES THERE IS A LONG LAPSE OF TIME--- AS MUCH AS TWO YEARS--- BETWEEN THE TIME PAYMENT IS MADE ON THE MILEAGE BASIS AND THE TIME IT IS ASCERTAINED THAT SUCH PAYMENT SHOULD HAVE BEEN ON A PER DIEM BASIS. UNDER SUCH CIRCUMSTANCES, THE OFFICERS CONCERNED DO NOT HAVE RECEIPTS TO SUBSTANTIATE PAYMENT OF CASH FARES FOR PULLMAN ACCOMMODATIONS. THE OFFICER'S CERTIFICATION IS ACCEPTED AS TO FIRST CLASS TRAVEL WITH RESPECT TO REIMBURSEMENT OF THE RAIL FARE AND IT IS RECOMMENDED THAT DECISION BE REQUESTED AS TO WHETHER WHEN RECEIPTS ARE NOT AVAILABLE UNDER THE CIRCUMSTANCES STATED, SUCH CERTIFICATION MAY ALSO BE ACCEPTED IN CONNECTION WITH PULLMAN FARES.

THE QUESTIONS UPON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

(1) WHAT IS THE PROPER BASIS OF REIMBURSEMENT TO LIEUTENANT HEIST FOR TRAVEL PERFORMED UNDER THE CONDITIONS STATED IN PARAGRAPHS 1-3 OF THE ENCLOSED LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS? IT WILL BE NOTED THAT COST TO THE GOVERNMENT ON A PER DIEM BASIS WILL EXCEED WHAT THE COST WOULD BE ON A COMBINATION OF PER DIEM AND MILEAGE AND THAT DOUBT ARISES WHETHER PAYMENT SHOULD BE MADE ON A PER DIEM BASIS ALONE IN VIEW OF 23 COMP. GEN. 713, 716.

(2) IN VIEW OF THE GENERAL PROVISION AGAINST THE COMBINATION OF PER DIEM AND MILEAGE UNDER THE SAME ORDERS, WOULD LIEUTENANT HEIST BE ENTITLED TO MILEAGE FOR TRAVEL TO HIS HOME, PROVIDED PAYMENT OF MILEAGE IS OTHERWISE PROPER?

(3) REFERRING TO PARAGRAPH 5 OF THE ENCLOSED LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, WHEN RECEIPTS ARE NOT AVAILABLE TO SUBSTANTIATE PAYMENTS OF CASH FARES FOR PULLMAN ACCOMMODATIONS UNDER THE CIRCUMSTANCES THEREIN STATED, MAY THE OFFICER'S CERTIFICATION AS TO FIRST CLASS TRAVEL WITH RESPECT TO REIMBURSEMENT OF THE RAIL FARE ALSO BE ACCEPTED IN CONNECTION WITH PULLMAN FARES?

ORDERS DATED JUNE 13, 1944, FROM THE COMMANDANT, NINTH NAVAL DISTRICT, ADDRESSED TO LIEUTENANT HEIST AT CHICAGO, DIRECTED AS FOLLOWS:

1. PROCEED TO THE PLACE (OR PLACES--- IN THE ORDER GIVEN) INDICATED BELOW, FOR TEMPORARY DUTY. THIS IS IN ADDITION TO YOUR PRESENT DUTIES AND UPON THE COMPLETION THEREOF YOU WILL RETURN TO YOUR STATION: ON OR ABOUT 21 JUNE 1922, TO WASHINGTON, D.C., IN CONNECTION WITH STANDARDIZED PROCEDURE FOR HANDLING FACILITIES ITEMS, FOR ABOUT SIXTY (60) DAYS.

2. A PER DIEM OF $7.00 IN LIEU OF SUBSISTENCE WILL BE ALLOWED DURING YOUR ABSENCE FROM YOUR STATION. PER DIEM ALLOWED WILL NOT EXCEED SIXTY (60) DAYS.

WHILE THE OFFICER WAS IN WASHINGTON, D.C., PURSUANT TO SUCH ORDERS, THE BUREAU OF NAVAL PERSONNEL, ON JULY 5, 1944, DIRECTED THE OFFICER TO PERFORM ADDITIONAL TEMPORARY DUTY, THE ORDERS READING---

1. PROCEED TO THE PLACE (OR PLACES--- IN THE ORDER GIVEN) INDICATED BELOW, FOR TEMPORARY DUTY. THIS IS IN ADDITION TO YOUR PRESENT DUTIES AND UPON THE COMPLETION THEREOF YOU WILL RETURN TO YOUR STATION:

ON OR ABOUT 6 JULY 1944 TO THE FOLLOWING PLACES AND TO SUCH OTHER PLACES AS MAY BE NECESSARY IN CONNECTION WITH SURVEY OF THE AMOUNT AND TYPE OF ASSISTANCE NEEDED BY FIELD OFFICES IN THE REDISTRIBUTION PROGRAMS:

OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, CHICAGO DISTRICT, CHICAGO, ILLINOIS.

OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, MINNEAPOLIS DISTRICT, MINNEAPOLIS, MINNESOTA.

OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, DETROIT DISTRICT, DETROIT, MICHIGAN.

OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, CINCINNATI DISTRICT, CINCINNATI, OHIO.

OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, PHILADELPHIA DISTRICT, PHILADELPHIA, PENNSYLVANIA.

2. YOU ARE AUTHORIZED TO OMIT OR REVISIT ANY OF THE ABOVE-MENTIONED PLACES AND VARY THE ITINERARY AS MAY BE DEEMED NECESSARY.

3. IN PERFORMING THE ABOVE TRAVEL, GOVERNMENT AIR AND/OR COMMERCIAL AIR IS DIRECTED WHERE NECESSARY TO EXPEDITE COMPLETION OF THIS DUTY.

4. FOR TRAVEL BY NAVAL TRANSPORT AIRCRAFT, CLASS THREE PRIORITY IS HEREBY CERTIFIED.

5. A PER DIEM OF $7.00 WILL BE ALLOWED WHILE IN AN AIR TRAVEL STATUS. (SEE ART. 2501-5 U.S. NAVY TRAVEL INSTRUCTIONS).

PURSUANT TO THE ORDERS OF JUNE 13, 1944, LIEUTENANT HEIST DEPARTED FROM CHICAGO ON JUNE 20, 1944. HE ARRIVED IN WASHINGTON, D.C., THE FOLLOWING DAY WHERE HE REMAINED UNTIL JULY 6, 1944, ON WHICH DATE HE DEPARTED FOR CHICAGO PURSUANT TO THE ORDERS OF JULY 5, 1944. APPARENTLY, THE DUTY DIRECTED BY THE ORDERS OF JULY 5 WAS COMPLETED ON JULY 15 AND THE OFFICER CONTINUED HIS TEMPORARY DUTY IN WASHINGTON PURSUANT TO HIS ORDERS OF JUNE 13. HE RETURNED TO HIS STATION AT CHICAGO ON JULY 27. ALL OF THE TRAVEL PERFORMED BY THE OFFICER PURSUANT TO HIS ORDERS WAS PERFORMED BY RAIL AND SINCE THE ORDERS OF JULY 5, 1944, PROVIDED FOR PAYMENT OF A PER DIEM ALLOWANCE ONLY WHEN HE WAS IN AN AIR TRAVEL STATUS, HE WAS PAID MILEAGE FOR THE TRAVEL PERFORMED PURSUANT TO THAT ORDER.

THE FACTS INVOLVED IN YOUR QUESTION (1) ARE THE CONVERSE OF THOSE IN 23 COMP. GEN. 713, CITED IN YOUR QUESTION. THAT DECISION CONSIDERED SEVERAL DIFFERENT SITUATIONS WHERE TRAVEL AND TEMPORARY DUTY WERE DIRECTED UNDER ORDERS PURSUANT TO WHICH THE OFFICERS INVOLVED WERE ENTITLED TO MILEAGE AND WHERE, BECAUSE OF THE VARYING CONDITIONS AS THEREIN INDICATED, IT WAS THE ADMINISTRATIVE VIEW THAT PAYMENT OF MILEAGE WAS INADEQUATE. THEREFORE, IT WAS PROPOSED TO AMEND THE ORIGINAL ORDERS TO PROVIDE FOR AN ALLOWANCE ON A PER DIEM BASIS. THE SAID DECISION HELD THAT THE ORIGINAL ORDERS TO PROVIDE FOR AN ALLOWANCE ON A PER DIEM BASIS. THE SAID DECISION HELD THAT THE ORIGINAL ORDERS CONSIDERED THEREIN MIGHT BE MODIFIED SO AS TO PRESCRIBE A PER DIEM FOR THE REMAINDER OF THE TRAVEL PERIOD INVOLVED IN THE ORIGINAL ORDERS, PROVIDED THAT THE TOTAL COST TO THE GOVERNMENT--- MILEAGE AND PER DIEM- - WOULD NOT EXCEED WHAT IT WOULD HAVE COST IF THE ORIGINAL ORDERS HAD PRESCRIBED A PER DIEM. BUT THAT DECISION PROPERLY MAY NOT BE INTERPRETED AS HOLDING THAT A PER DIEM COULD NOT HAVE BEEN PRESCRIBED IN BOTH OF THE ORDERS INVOLVED IN THE PRESENT MATTER. THE NAVAL APPROPRIATION ACT OF 1944, 57 STAT. 197, AND THE NAVAL APPROPRIATION ACT OF 1945, 58 STAT. 309, PUBLIC LAW 347, APPROVED JUNE 22, 1944, EACH CONTAIN THE FOLLOWING PROVISION:

PROVIDED FURTHER, THAT THE SECRETARY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE IN ACCORDANCE WITH LAW, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM, WHETHER OR NOT ORDERS ARE GIVEN TO OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POST OF DUTY UNDER SUCH ORDERS * * *.

THAT PROVISION PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING ALLOWANCES TO OFFICERS WHILE IN A TRAVEL AND TEMPORARY DUTY STATUS. HOWEVER, THAT RIGHT OF ELECTION IS TO BE EXERCISED IN ACCORDANCE WITH THE APPLICABLE REGULATIONS, INSTRUCTIONS AND DECISIONS WITH REFERENCE THERETO.

PARAGRAPH D 4 (B) OR SECTION IV, ENCLOSURE C TO BUPERS--- S AND A JOINT LETTER OF APRIL 29, 1944, NAVY DEPARTMENT BULLETIN OF APRIL 30, 1944, 44- 512, IS AS FOLLOWS:

WHEN AN OFFICER IS ON TEMPORARY DUTY AND IS RECEIVING A PER DIEM IN ACCORDANCE WITH HIS ORDERS, ANY FURTHER TEMPORARY ADDITIONAL DUTY MUST ALSO BE ON A PER DIEM BASIS. * * *

SINCE LIEUTENANT HEIST WAS IN A PER DIEM STATUS UNDER HIS ORDERS OF JUNE 13, 1944, WHEN THE ORDERS OF JULY 5, 1944, WERE ISSUED, THE LATTER ORDERS WERE INCONSISTENT WITH THE ADMINISTRATIVE INSTRUCTIONS IN THE MATTER. ALSO, SUCH A COMBINATION OF MILEAGE AND PER DIEM DURING A PARTICULAR TRAVEL STATUS PERIOD IS CONTRARY TO THE DECISIONS OF THIS OFFICE TO THE EFFECT THAT AN OFFICER IN A PER DIEM STATUS MAY NOT BE PAID MILEAGE DURING THE PERIOD FOR WHICH PER DIEM WAS PRESCRIBED. SEE DECISION DATED JUNE 24, 1943, B-31588. ACCORDINGLY, THE ORDERS OF JULY 5, 1944, WERE INEFFECTIVE TO TERMINATE THE OFFICER'S PER DIEM STATUS AND HE IS ENTITLED TO AN ALLOWANCE ON A PER DIEM BASIS UNDER BOTH ORDERS, LESS ANY MILEAGE RECEIVED BY HIM THEREUNDER. YOUR QUESTION (1) IS ANSWERED ACCORDINGLY.

YOUR QUESTION (2) IS WITH RESPECT TO AN OFFICER'S RIGHT TO MILEAGE UNDER ORDERS DIRECTING HIM TO RETURN TO HIS HOME AND UPON ARRIVAL, OR AT SOME OTHER DATE, TO CONSIDER HIMSELF RELIEVED FROM ACTIVE DUTY, IF SUCH ITEMS ARE ISSUED WHILE HE IS IN A PER DIEM STATUS. IT SEEMS EVIDENT THAT SUCH ORDERS WOULD HAVE THE EFFECT OF TERMINATING THE TEMPORARY DUTY ENJOINED IN HIS PRIOR ORDERS AND WOULD NOT CONTEMPLATE ADDITIONAL DUTY OF ANY KIND, EXCEPT THAT WHICH WAS INCIDENT TO THE OFFICER'S TRAVEL TO HIS HOME AND RELEASE FROM ACTIVE DUTY. THE STATUTORY PROVISION QUOTED ABOVE AUTHORIZING THE PAYMENT OF A PER DIEM CONTEMPLATES AN ASSIGNMENT TO DUTY AWAY FROM THE OFFICER'S DESIGNATED POST OF DUTY AND DOES NOT APPEAR TO BE FOR APPLICATION TO THE CASE OF A RESERVE OFFICER TRAVELING TO HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY IN WHICH CASE IT SEEMS CLEAR THAT ANY ASSIGNMENT TO A DESIGNATED POST OF DUTY IS TERMINATED. A MILEAGE ALLOWANCE FOR TRAVEL BY A RESERVE OFFICER FROM HIS LAST STATION TO HIS HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY IS EXPRESSLY AUTHORIZED BY THE PROVISIONS OF SECTION 3 AND 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY SECTIONS 7 AND 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, PUBLIC LAW 421; AND, UNDER THE CIRCUMSTANCES HERE CONSIDERED, SUCH ALLOWANCE IS AUTHORIZED TO BE PAID IRRESPECTIVE OF THE FACT THAT THE OFFICER CONCERNED WAS IN A PER DIEM STATUS IMMEDIATELY PRECEDING TRAVEL TO HIS HOME. YOUR QUESTION (2) IS ANSWERED ACCORDINGLY.

WHILE YOUR THIRD QUESTION IS STATED IN GENERAL TERMS, THE FACTS DISCLOSED ARE NOT SUFFICIENT TO FORM THE BASIS OF A DECISION, EXCEPT INSOFAR AS THE QUESTION REFERS TO LIEUTENANT HEIST'S REQUEST FOR REIMBURSEMENT FOR PULLMAN FARES PAID BY HIM DURING HIS TRAVEL UNDER THE ORDERS OF JULY 5, 1944. NO RECEIPTS IN SUPPORT OF THE EXPENDITURES ARE SUBMITTED AS REQUIRED BY UNITED STATES NAVY TRAVEL INSTRUCTIONS, ARTICLE 2511, PARAGRAPH 3 (A) (4). THE CERTIFICATE OF THE OFFICER, APPEARING ON ONE OF THE SUBMITTED VOUCHERS, DISCLOSES THAT THE EXPENDITURES WERE MADE BY HIM, BUT THAT NO RECEIPTS ARE AVAILABLE SINCE HE PRESUMED THAT HE WAS TO BE REIMBURSED ON A MILEAGE BASIS AND, THEREFORE, WOULD HAVE TO PAY ALL PULLMAN EXPENSES HIMSELF. THE FORM OF THE ORDERS UNDER WHICH HE WAS TRAVELING FULLY JUSTIFIED THAT ASSUMPTION. HENCE, LIEUTENANT HEIST'S FAILURE TO OBTAIN OR RETAIN SUCH RECEIPTS APPEARS TO HAVE BEEN THE RESULT OF AN ADMINISTRATIVE ERROR. UNDER SUCH CIRCUMSTANCES, HIS CERTIFICATE IN LIEU OF PULLMAN RECEIPTS MAY BE ACCEPTED AS SUBSTANTIATING OTHERWISE PROPER EXPENDITURES FOR PULLMAN ACCOMMODATIONS. QUESTION (3) IS ANSWERED ACCORDINGLY.