B-59652, AUGUST 21, 1946, 26 COMP. GEN. 130

B-59652, AUGUST 21, 1946, 26 COMP. GEN. 130

SUBSISTENCE - PER DIEMS - DURING PERIODS OF COMPENSATORY TIME OFF FROM DUTY COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION GRANTED, PURSUANT TO SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, TO AN EMPLOYEE IN A TRAVEL STATUS IS TO BE REGARDED AS "LEAVE OF ABSENCE" WITHIN THE PURVIEW OF PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, REQUIRING THE SUSPENSION OF SUBSISTENCE ALLOWANCE DURING LEAVE OF ABSENCE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF COMMERCE, AUGUST 21, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 31, 1946, AS FOLLOWS:

A QUESTION HAS BEEN RAISED IN THE DEPARTMENT OF COMMERCE WITH RESPECT TO THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY UNDER THE PROVISIONS OF SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 9 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, WHILE EMPLOYEES ARE IN A TRAVEL STATUS.

CERTAIN WEATHER BUREAU EMPLOYEES ARE FREQUENTLY ASSIGNED TO EXTENDED TRAVEL DETAILS IN CONNECTION WITH SUCH ACTIVITIES AS FIRE-WEATHER SERVICE AND FRUIT-FROST FORECASTING. THE NATURE OF THESE ACTIVITIES IS SUCH THAT EMPLOYEES ENGAGED THEREIN ARE SUBJECT TO RELATIVELY HEAVY OVERTIME REQUIREMENTS OVER SHORT PERIODS OF TIME AND TO CORRESPONDING PERIODS WHEN THE WORK IS RELATIVELY LIGHT, DEPENDING ON WEATHER CONDITIONS.

EMPLOYEES ENGAGED IN THESE ACTIVITIES FREQUENTLY DESIRE COMPENSATORY TIME OFF DURING THE PERIODS WHEN THE WORK LOAD IS LIGHT FOR THE OVERTIME WORK PERFORMED DURING THE EMERGENCY PERIODS REQUIRING OVERTIME WORK. THE QUESTION THEREFORE ARISES AS TO WHETHER PER DIEM PAYMENTS MAY BE MADE TO THESE EMPLOYEES, WHILE IN TRAVEL STATUS, DURING PERIODS OF COMPENSATORY TIME OFF FOR OVERTIME INCURRED DURING THE TRAVEL DETAIL.

SECTION 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED, PROVIDES IN PART:

"IF LEAVE OF ABSENCE OF ANY KIND BEGINS OR TERMINATES WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, SUBSISTENCE ALLOWANCE WILL TERMINATE OR BEGIN AT THE SAME TIME.'

THE QUESTION THEREFORE WOULD SEEM TO BE WHETHER COMPENSATORY TIME OFF CONSTITUTES "LEAVE OF ABSENCE" AS THAT TERM IS USED IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED, WHEN THE COMPENSATORY TIME OFF IS TAKEN DURING THE TRAVEL DETAIL IN WHICH THE OVERTIME WORK IS PERFORMED. IF IT IS DETERMINED THAT COMPENSATORY TIME OFF IS NOT "LEAVE OF ABSENCE" IN SUCH CASE, THE ADDITIONAL QUESTION ARISES AS TO WHETHER COMPENSATORY TIME OFF FOR OVERTIME ACCRUED DURING A PREVIOUS AND DIFFERENT TRAVEL DETAIL IS "LEAVE OF ABSENCE.'

IT WILL BE APPRECIATED IF YOU WILL GIVE AN OPINION ON THESE QUESTIONS.

SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, AS AMENDED BY SECTION 9 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, PUBLIC LAW 390, APPROVED MAY 24, 1946, 60 STAT. 218, PROVIDES, AS FOLLOWS:

THE HEADS OF DEPARTMENTS, OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND THE HEADS OF LEGISLATIVE OR JUDICIAL AGENCIES TO WHICH THIS TITLE APPLIES, IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, TO THOSE PER ANNUM EMPLOYEES REQUESTING SUCH COMPENSATORY TIME OFF FROM DUTY.

WHILE THE TERM,"LEAVE OF ABSENCE," AS USED IN PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS QUOTED IN YOUR LETTER SPECIFICALLY IS NOT DEFINED THEREIN, FOR THE PURPOSE OF SUBSISTENCE ALLOWANCE PROVIDED FOR IN SAID REGULATIONS NO SOUND REASON SUGGESTS ITSELF AS TO WHY ,COMPENSATORY TIME OFF FOR OVERTIME," AS PROVIDED FOR UNDER THE STATUTE, SUPRA, SHOULD NOT BE CONSIDERED AS COMING WITHIN THE PURVIEW OF THAT TERM--- LEAVE OF ABSENCE--- AS USED IN THE REGULATIONS. SUPPORT FOR THAT VIEW IS FOUND IN PARAGRAPH 4 OF THE REGULATIONS WHICH REQUIRES THAT ,ABSENCE FROM * * * DUTY STATUS IS CHARGEABLE AS LEAVE OF ABSENCE.' WHILE "COMPENSATORY TIME OFF FOR OVERTIME" IS NOT CHARGEABLE AS LEAVE OF ABSENCE IT CERTAINLY CONSTITUTES AN ABSENCE FROM DUTY STATUS WHICH STATUS MAY NOT FORM THE BASIS FOR ALLOWANCE OF SUBSISTENCE WITHIN THE PURVIEW OF THE REGULATIONS.