B-55940, APRIL 17, 1946, 25 COMP. GEN. 727

B-55940, APRIL 17, 1946, 25 COMP. GEN. 727

SUBSISTENCE - PER DIEMS - TEMPORARY DUTY AT NEARBY POINT UPON DETACHMENT FROM OLD STATION A MEMBER OF THE NAVY NURSE CORPS WHO WAS DETACHED FROM HER OLD STATION ( OAKLAND, CALIFORNIA) UNDER PERMANENT CHANGE OF STATION ORDERS DIRECTING HER TO VACATE GOVERNMENT QUARTERS THEREAT AND TO PROCEED BEYOND THE CORPORATE LIMITS OF THE OLD STATION TO A NEARBY POINT ( SAN FRANCISCO), FOR TEMPORARY DUTY PENDING AVAILABILITY OF TRANSPORTATION OVERSEAS, WHERE THE EXPENSES OF SUBSISTENCE APPRECIABLY EXCEEDED THOSE WHICH WOULD HAVE BEEN REQUIRED AT THE OLD STATION, IS TO BE REGARDED AS HAVING BEEN IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS RELATING TO THE PAYMENT OF PER DIEM ALLOWANCE DURING THE PERIOD OF SUCH TEMPORARY DUTY. 24 COMP. GEN. 279, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 17, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1946, REQUESTING DECISION RELATIVE TO THE PAYMENT OF A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER CONDITIONS STATED IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 1, 1946, AS FOLLOWS:

1. IN DECISION OF THE COMPTROLLER GENERAL DATED 6 OCTOBER 1944, 24 COMP. GEN. 279, IT WAS HELD, QUOTING THE SYLLABUS:

"THE DETACHMENT OF A NAVY OFFICER FROM THE NAVAL MEDICAL CENTER, BETHESDA, MARYLAND, AND HIS ASSIGNMENT TO TEMPORARY DUTY AT THE NAVY YARD, WASHINGTON, D.C.--- BOTH PLACES BEING LOCATED CONTIGUOUS TO EACH OTHER (22 COMP. GEN. 129) AND BOTH ACTIVITIES BEING CONSIDERED AS ONE STATION INSOFAR AS AN OFFICER'S RIGHT TO PER DIEM IS CONCERNED WHEN DETACHED FROM ONE AND ASSIGNED TO THE OTHER FOR DUTY--- DID NOT CONSTITUTE A CHANGE OF STATION WITHIN THE MEANING OF THE TRAVEL ALLOWANCE LAWS TO ENTITLE THE OFFICER TO PAYMENT OF PER DIEM DURING SUCH ASSIGNMENT AT THE WASHINGTON NAVY YARD, EVEN THOUGH HIS ORDERS AUTHORIZED PER DIEM.'

2. UNDER AUTHORITY GRANTED BY LAW THE SECRETARY OF THE NAVY HAS DEFINED TRAVEL STATUS AS COMMENCING WITH THE DAY THAT ACTUAL TRAVEL AWAY FROM A SHORE STATION BEGINS. (SEE ARTICLE 2501-1 (C) (1), U.S. NAVY TRAVEL INSTRUCTIONS.) WHILE THE CONCLUSION REACHED IN THE DECISION OF 6 OCTOBER 1944, SUPRA, HAS NOT BEEN QUESTIONED, IT HAS NOT BEEN CONSIDERED BY THIS BUREAU, TO BE FOR GENERAL APPLICATION SINCE IT WOULD APPEAR TO BE BASED, TO A LARGE EXTENT, ON CONDITIONS PECULIAR TO THE WASHINGTON AREA AND ON THE FACTS IN THAT PARTICULAR CASE.

3. RECENTLY NOTICES OF EXCEPTIONS HAVE BEEN RECEIVED BY THE NAVY ACCOUNTS DISBURSING OFFICER, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIF. FOR TEMPORARY DUTY PENDING FURTHER TRANSPORTATION OVERSEAS. TYPICAL OF SUCH CASES IS THAT OF LT. (JG) ELIZABETH RUTH VILLONE, ( NO), USN, PAID PER DIEM FOR THE PERIOD 20 SEPTEMBER TO 29 SEPTEMBER 1944 ON D.O. VOUCHER NO. 10827, SEPTEMBER 1944, ACCOUNTS OF P. P. CLOWARD, LETUT., ( SC), USNR, UNDER CIRCUMSTANCES AS FOLLOWS:

BY ORDERS OF 8 SEPTEMBER 1944 LT. (JG) VILLONE WAS DIRECTED TO BE DETACHED FROM DUTY AT THE U.S. NAVAL HOSPITAL, OAKLAND, CALIF., IN TIME TO PROCEED AND REPORT ON 20 SEPTEMBER 1944 TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIF., FOR TEMPORARY DUTY PENDING FIRST AVAILABLE TRANSPORTATION TO PEARL HARBOR, T.H. SHE WAS DETACHED ON 16 SEPTEMBER 1944 AND DIRECTED TO VACATE GOVERNMENT QUARTERS ON THAT DATE. IN ACCORDANCE WITH SUCH ORDERS SHE REPORTED IN SAN FRANCISCO ON 20 SEPTEMBER 1944 WHERE SHE REMAINED ON TEMPORARY DUTY THROUGH 29 SEPTEMBER 1944.

4. WHILE THE NAVAL HOSPITAL AT OAKLAND IS ONLY ABOUT 14 MILES FROM SAN FRANCISCO, IT DOES NOT APPEAR THAT SUCH FACT, IN ITSELF, IS CONTROLLING WITH RESPECT TO THE OFFICER'S RIGHT TO PER DIEM. MORE IMPORTANT, WOULD APPEAR TO BE THE FACT THAT BY VIRTUE OF THE ORDERS OF 8SEPTEMBER 1944 THE OFFICER WAS REQUIRED TO VACATE THE PUBLIC QUARTERS AT THE HOSPITAL AND TO SECURE OTHER QUARTERS, AT HER OWN EXPENSE FOR A SHORT PERIOD OF TEMPORARY DUTY IN SAN FRANCISCO. IN OTHER WORDS, SHE WAS IN EXACTLY THE SAME POSITION, IN SO FAR AS THE INCURRENCE OF EXPENSES WAS CONCERNED, AS AN OFFICER WHO MIGHT HAVE TRAVELED FROM WASHINGTON TO SAN FRANCISCO, FOR TEMPORARY DUTY PENDING FURTHER TRANSPORTATION OVERSEAS. UNDER SUCH CIRCUMSTANCES, THE CLAIM WOULD APPEAR TO BE A VALID OBLIGATION OF THE GOVERNMENT AND PAYMENT THEREOF WOULD APPEAR TO BE IN LINE WITH THE PRINCIPLES LAID DOWN IN DECISION OF THE COMPTROLLER GENERAL DATED 4 SEPTEMBER 1944, 24 COMP. GEN. 179, WITH RESPECT TO CIVILIAN TRAVEL, WHEREIN IT WAS STATED:

"THE DECISIONS OF THIS OFFICE NEGATIVING THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO EMPLOYEES FOR PERIODS OF OFFICIAL DUTY SHORT DISTANCES BEYOND THE CORPORATE LIMITS OF THEIR OFFICIAL STATIONS FOR THE REASON THAT THE DUTY WAS PERFORMED SUBSTANTIALLY AT HEADQUARTERS ARE, FOR THE MOST PART, PREDICATED UPON THE FACT THAT THE DUTIES ASSIGNED REQUIRED THE PRESENCE OF THE EMPLOYEES AT THE RESPECTIVE PLACES AT SUCH REGULAR AND FREQUENT INTERVALS AS WOULD ORDINARILY BE REQUIRED IN THE PERFORMANCE OF DUTY AT HEADQUARTERS AND WERE OF SUCH NATURE AS TO PERMIT THE EMPLOYEE'S RETURN TO HIS HOME OR OFFICIAL STATION EACH DAY, SUBJECTING HIM TO NO GREATER INCONVENIENCE OR EXPENSE THAN THE PERFORMANCE OF DUTY AT HIS OFFICE. THE QUESTION OF WHETHER THE PERFORMANCE OF DUTY WITHIN A FEW MILES OF THE HEADQUARTERS OFFICE CONSTITUTES A TRAVEL STATUS DEPENDS UPON THE FACTS IN THE CASE, SUCH AS THE TIME NECESSARILY ABSENT FROM HEADQUARTERS ON OFFICIAL BUSINESS AND THE AVAILABILITY OF TRANSPORTATION BETWEEN HEADQUARTERS AND THE TEMPORARY DUTY STATION.'

5. IN ORDER THAT PROPER INSTRUCTIONS MAY BE ISSUED WITH RESPECT TO THE FOREGOING, IT IS REQUESTED THAT THE MATTER BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION.

6. IN THE EVENT THAT THE COMPTROLLER GENERAL DETERMINES THAT PER DIEM IS NOT PAYABLE UNDER THE CIRCUMSTANCES OUTLINED, IT IS REQUESTED THAT CONSIDERATION BE GIVEN TO PASSING TO CREDIT PAYMENTS ALREADY MADE WHERE THE FACTS INDICATE THAT THE PAYEES NECESSARILY INCURRED APPRECIABLE ADDITIONAL EXPENSE IN COMPLYING WITH THEIR ORDERS.

THE ORDERS OF SEPTEMBER 8, 1944, SUMMARIZED IN THE ABOVE-QUOTED LETTER, WERE ISSUED BY THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, PURSUANT TO BUREAU OF NAVAL PERSONNEL RADIOGRAM 1071709 OF SEPTEMBER, 1944, AND PRESCRIBED A PER DIEM ALLOWANCE OF $7 IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH ARTICLE 2501-4 (D), U.S. NAVAL INSTRUCTIONS. SUCH ORDERS REQUIRED LIEUTENANT VILLONE TO VACATE HER QUARTERS AT THE HOSPITAL AND ACCORDING TO THE FIRST ENDORSEMENT THEREON, DATED SEPTEMBER 20, 1944, FROM THE DISTRICT STAFF HEADQUARTERS, 12TH NAVAL DISTRICT, SAN FRANCISCO, NO GOVERNMENT QUARTERS WERE AVAILABLE FOR HER OCCUPANCY DURING THE PERIOD OF TEMPORARY DUTY IN SAN FRANCISCO. ALSO, IT APPEARS THAT THE MESSING FACILITIES AT THE HOSPITAL WERE NOT AVAILABLE TO THE OFFICER SUBSEQUENT TO HER DETACHMENT THEREFROM.

UNDER THE PROVISIONS OF SECTIONS 1 AND 7 OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072 AND 1074, MEMBERS OF THE NAVY NURSE CORPS ARE ENTITLED DURING THE WAR AND FOR SIX MONTHS THEREAFTER TO MILEAGE AND OTHER TRAVEL ALLOWANCES PROVIDED BY LAW FOR COMMISSIONED OFFICERS. AUTHORITY FOR PRESCRIBING A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR PERSONNEL OF THE MILITARY AND NAVAL FORCES IS CONTAINED IN THE SECOND PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, AS FOLLOWS:

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6 (INCREASED TO $7 FOR THE FISCAL YEAR 1945 BY SECTION 211 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1945, 58 STAT. 387), IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *. AND IN THE NAVAL APPROPRIATION ACT, 1945, 58 STAT. 309, AS FOLLOWS:

* * * 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 * * *.

WHILE IT APPEARS THAT AT THE TIME THE TRAVEL HERE IN QUESTION WAS PERFORMED THE TERM "TRAVEL STATUS" HAD NOT BEEN DEFINED BY THE SECRETARY OF THE NAVY PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE LAST PARAGRAPH OF SECTION 12 OF THE SAID PAY READJUSTMENT ACT OF 1942, SUCH TERM WAS DEFINED IN ARTICLE 2501-1 (C) (1), CHANGE 17 TO THE U.S. NAVY TRAVEL INSTRUCTIONS, EFFECTIVE OCTOBER 1, 1944, AS FOLLOWS:

TRAVEL STATUS DEFINED.---

(1) TRAVEL STATUS, UNDER COMPETENT ORDERS, WHETHER BY LAND, AIR, OR SEA (EXCEPT WHILE AT SEA AS A MEMBER OF A SHIP'S COMPLEMENT) WILL COMMENCE WITH DAY OF DEPARTURE FROM A SHIP, OR ACTUAL TRAVEL AWAY FROM A SHORE STATION, AND WILL INCLUDE AMONG OTHERS, THE FOLLOWING CONDITIONS:

(B) TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY AWAY FROM PERMANENT STATION WITHOUT REGARD TO WHETHER SOME DUTY EN ROUTE MAY BE INVOLVED AND WITHOUT REGARD TO LENGTH OF TIME AWAY FROM THEIR DESIGNATED POST OF DUTY AND WITHOUT REGARD TO WHETHER TRAVEL IS WITHIN THE DUTY DISTRICT AS DISTINGUISHED FROM DESIGNATED POST OF DUTY. * * *

ARTICLE 2501-4 (D) OF SUCH INSTRUCTIONS (CURRENT IN SEPTEMBER, 1944) PROVIDED:

PER DIEM ON CHANGE OF DUTY OR TEMPORARY ADDITIONAL DUTY ORDERS.---

(1) PAYMENT OF PER DIEM WHEN AUTHORIZED IN ORDERS, OR AS AUTHORIZED IN SUBPAR. (A), WILL BE ALLOWED FOR A PERIOD COMMENCING WITH THE FIRST DAY OF OFFICIAL TRAVEL ON OR AFTER THE DATE OF NECESSARY DEPARTURE FROM THE DUTY STATION, AND TERMINATING WITH THE DATE OF REPORTING AT THE FINAL DUTY STATION ON CHANGE OF DUTY ORDERS, OR THE DATE OF RETURN TO THE STATION FROM WHICH TRAVEL COMMENCED ON TEMPORARY ADDITIONAL DUTY ORDERS * * *.

THE ABOVE-QUOTED PROVISIONS OF LAW AUTHORIZE THE PRESCRIBING OF PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE DURING PERIODS WHEN OFFICERS ARE "TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' IT IS WELL SETTLED THAT SUCH PROVISIONS CONTEMPLATE AND INCLUDE PERIODS OF TEMPORARY DUTY AWAY FROM AN OFFICER'S PERMANENT STATION AS WELL AS PERIODS OF TEMPORARY DUTY EN ROUTE TO A NEW STATION, THE BASIC PURPOSE OF THE ALLOWANCE BEING TO COMPENSATE THE OFFICER FOR THE INCREASED EXPENSES GENERALLY INCURRED WHILE TEMPORARILY REQUIRED TO MAINTAIN HIMSELF AWAY FROM HIS PERMANENT STATION. 23 COMP. GEN. 522, 527.

IN DECISION OF OCTOBER 6, 1944, 24 COMP. GEN. 279, REFERRED TO IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, THERE WAS CONSIDERED THE CASE OF AN OFFICER WHO, PURSUANT TO ORDERS FROM THE CHIEF OF NAVL PERSONNEL, WAS DETACHED FROM DUTY UNDER INSTRUCTION AT THE NAVAL MEDICAL SCHOOL, BETHESDA, MD., AND DIRECTED TO PROCEED TO WASHINGTON, D.C., AND REPORT TO THE COMMANDANT, NAVY YARD, FOR TEMPORARY DUTY, SUCH ORDERS LATER BEING MODIFIED SO AS TO PRESCRIBE A PER DIEM ALLOWANCE. THE DENIAL OF PER DIEM IN THAT CASE DURING THE OFFICER'S PERIOD OF TEMPORARY DUTY AT THE NAVY YARD IN WASHINGTON WAS BASED PRIMARILY ON THE PROXIMITY OF THE NAVY YARD TO THE OFFICER'S FORMER STATION AT BETHESDA, WHICH IN FACT INDICATED THAT THE OFFICER IN QUESTION WAS NOT REQUIRED TO INCUR ANY ADDITIONAL EXPENSES BY REASON OF COMPLIANCE WITH SUCH ORDERS. SEE, ALSO, 16 COMP. GEN. 1000 AND B-44738 OF JANUARY 11, 1945. AN OFFICER TRANSFERRED FROM BETHESDA TO WASHINGTON NORMALLY WOULD NOT BE REQUIRED TO MAKE A CHANGE IN HIS LIVING ARRANGEMENTS NOR WOULD ANY EXTRA COSTS ORDINARILY BE INCURRED INCIDENT TO THE PROCURING OF HIS MEALS AND OTHER INCIDENTAL SUBSISTENCE ITEMS. BEARING IN MIND THAT THE FUNDAMENTAL PURPOSE OF THE PER DIEM ALLOWANCE IS TO COMPENSATE THE OFFICER FOR INCREASED EXPENSES INCURRED BY REASON OF TEMPORARY DUTY AWAY FROM, OR EN ROUTE TO, A PERMANENT STATION, IT WOULD APPEAR THAT ON THE BASIS OF THE FACTS CONSIDERED IN THE SAID DECISION OF OCTOBER 6, 1944, THE CONCLUSION THAT THE OFFICER THERE CONCERNED WAS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS PROVIDING FOR THE PAYMENT OF PER DIEM ALLOWANCES WAS CORRECT. IN THAT CONNECTION, IT MIGHT BE POINTED OUT THAT SUCH CONCLUSION ALSO WOULD APPEAR TO BE IN LINE WITH THE POLICY OF THE NAVY DEPARTMENT AS SET FORTH IN ARTICLE 2511-1 (C), U.S. NAVY TRAVEL INSTRUCTIONS, WHICH PROVIDES:

NO CLAIM WILL BE ALLOWED FOR EXPENSES WHICH CONSIDERING THE CIRCUMSTANCES APPEAR UNREASONABLE OR UNNECESSARY * * *.

HOWEVER, IN VIEW OF THE FACTS PRESENTED WITH RESPECT TO THE PAYMENTS HERE IN QUESTION, IT DOES NOT APPEAR THAT THE DECISION OF OCTOBER 6, 1944, IS APPLICABLE THERETO. LIEUTENANT VILLONE WAS DETACHED FROM HER OLD STATION UNDER PERMANENT CHANGE OF STATION ORDERS AND WAS DIRECTED TO VACATE HER QUARTERS AND PROCEED BEYOND THE CORPORATE LIMITS OF HER OLD STATION FOR TEMPORARY DUTY PENDING THE AVAILABILITY OF TRANSPORTATION TO HER ULTIMATE DESTINATION. IT APPEARS THAT SHE WOULD BE REQUIRED TO PROCURE HER MEALS, LODGING AND OTHER INCIDENTALS ON A DAY-TO-DAY BASIS AT THE POINT OF HER TEMPORARY DUTY AND UNDER ORDINARY CONDITIONS THE COST THEREOF WOULD BE APPRECIABLY MORE THAN SHE WOULD HAVE BEEN REQUIRED TO SPEND FOR SUCH ITEMS HAD THE PERMANENT CHANGE OF STATION ORDERS NOT BEEN ISSUED. CF. 24 COMP. GEN. 179. ACCORDINGLY, UNDER THE CIRCUMSTANCES HERE CONSIDERED, IT MAY BE CONCLUDED THAT LIEUTENANT VILLONE WAS IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS RELATIVE TO THE PAYMENT OF PER DIEM ALLOWANCE DURING THE PERIOD OF TEMPORARY DUTY IN SAN FRANCISCO AND THE PAYMENTS MADE TO HER, AND OTHER SIMILAR PAYMENTS, WILL BE PASSED TO CREDIT, IF OTHERWISE CORRECT.