B-66174, JUNE 5, 1947, 26 COMP. GEN. 902

B-66174, JUNE 5, 1947, 26 COMP. GEN. 902

SUBSISTENCE - PER DIEMS - NAVAL RESERVE OFFICERS ORDERED FROM HOME TO TO TEMPORARY ACTIVE DUTY IN CIVILIAN DEPARTMENT " EMERGENCY FUND FOR THE PRESIDENT" IN CONNECTION WITH THE OPERATION OF THE COAL MINES, BEING AVAILABLE FOR EXPENDITURE "WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS," ARE AVAILABLE FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO A NAVAL RESERVE OFFICER WHO WAS ORDERED FROM HIS HOME FOR TEMPORARY ACTIVE DUTY WITH THE COAL MINES ADMINISTRATION, EVEN THOUGH THE FACT THAT SUCH OFFICER WAS NOT AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WOULD PRECLUDE THE USE OF NAVAL APPROPRIATIONS FOR SUCH PURPOSE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 5, 1947:

I HAVE YOUR LETTER OF MAY 19, 1947, WITH ENCLOSURE, AS FOLLOWS:

THERE IS ATTACHED A VOUCHER IN THE AMOUNT OF $308.00 SUBMITTED BY COMMANDER OLIVER L, BILLINGSLEY, USNR, TO THE OFFICER IN CHARGE, DISBURSING DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS. THIS VOUCHER COVERS PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD 3 MARCH 1947 TO 15 APRIL 1947 WHILE ON TEMPORARY DUTY IN HE OFFICE OF THE FEDERAL COAL MINES ADMINISTRATOR, DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C. THERE ARE ATTACHED TO THE VOUCHER ORIGINAL ORDERS DATED 10 FEBRUARY 1947 DIRECTING COMMANDER BILLINGSLEY TO REPORT TO THE FEDERAL COAL MINES ADMINISTRATOR FOR TEMPORARY DUTY IN CONNECTION WITH THE ADMINISTRATION OF THE COAL MINES AND COPIES OF TWO VOUCHERS ALREADY PAID UNDER THESE ORDERS. THE ORDERS PROVIDE FOR PAYMENT OF $7.00 PER DIEM IN ACCORDANCE WITH ARTICLE 2501-4 (D) U.S. NAVY TRAVEL INSTRUCTIONS UNTIL COMPLETION OF THE TEMPORARY DUTY.

THE OFFICER IN CHARGE, DISBURSING DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS HAS DECLINED PAYMENT OF THE ENCLOSED VOUCHER IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL B-62094 DATED 4 FEBRUARY 1947, IN WHICH IT WAS HELD THAT THE PAYMENT OF PER DIEM TO ANY RESERVE OFFICER ON ACTIVE DUTY FOR ANY PERIOD DURING WHICH HE WAS PERFORMING HIS ASSIGNED DUTIES AT HIS ONLY DESIGNATED POST OF DUTY IS NOT AUTHORIZED.

THE AMOUNT TO BE PAID ON THIS VOUCHER, TOGETHER WITH ALL OTHER AMOUNTS EXPENDED BY THE NAVY DEPARTMENT FOR TRAVEL EXPENSES AND PER DIEM OF OFFICERS ASSIGNED TO THE FEDERAL COAL MINES ADMINISTRATOR, IS TO BE REIMBURSED TO THE NAVY DEPARTMENT BY THE DEPARTMENT OF THE INTERIOR. THE BUREAU OF SUPPLIES AND ACCOUNTS HAS BEEN INFORMALLY ADVISED BY REPRESENTATIVES OF THE FEDERAL COAL MINES ADMINISTRATOR THAT AN ALLOTMENT HAS BEEN OBTAINED UNDER THE PRESIDENT'S EMERGENCY FUND FOR THIS PURPOSE.

DECISION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO WHETHER, IN VIEW OF THE ARRANGEMENTS MADE FOR REIMBURSEMENT OF THE AMOUNTS EXPENDED BY THE NAVY DEPARTMENT FOR TRAVEL EXPENSES AND PER DIEM OF OFFICERS ASSIGNED TO THE FEDERAL COAL MINES ADMINISTRATOR, PAYMENT OF THE ENCLOSED VOUCHER IS AUTHORIZED.

SINCE THE COAL MINES ADMINISTRATOR IS VERY MUCH CONCERNED WITH THIS PROBLEM, I AM FORWARDING IT TO YOU VIA HIM FOR HIS COMMENTS WHICH MAY BE OF ASSISTANCE IN GIVING YOU A FULLER DESCRIPTION OF THE FACTUAL BACKGROUND.

THE ABOVE-QUOTED LETTER WAS FORWARDED VIA THE SECRETARY OF THE INTERIOR AND WAS TRANSMITTED BY HIM TO THIS OFFICE, HIS TRANSMITTAL LETTER BEING AS FOLLOWS:

I FORWARD HEREWITH LETTER TO YOU DATED 19 MAY 1947 FROM THE SECRETARY OF THE NAVY REQUESTING A DECISION WITH RESPECT TO PAYMENT BY NAVY DISBURSING OFFICERS OF PER DIEM EXPENSES OF NAVAL OFFICERS ATTACHED TO THE COAL MINES ADMINISTRATION, IN VIEW OF YOUR DECISION B 62094 OF 4 FEBRUARY 1947.

AS STATED IN THE LETTER FROM THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE NAVY, THE DEPARTMENT OF THE INTERIOR WILL REIMBURSE THE NAVY DEPARTMENT FOR ALL PER DIEM EXPENSES PAID TO OFFICERS ON TEMPORARY DUTY WITH THE COAL MINES ADMINISTRATION FROM FUNDS ALLOCATED TO THE SECRETARY OF THE INTERIOR BY THE PRESIDENT FROM THE PRESIDENT'S EMERGENCY FUND. THE PRESIDENT, BY ALLOCATION NO. 47-23, ALLOCATED TO THE SECRETARY OF THE INTERIOR FROM THE PRESIDENT'S EMERGENCY FUND THE SUM OF TWO HUNDRED NINETY THOUSAND DOLLARS ($290,000) TO REIMBURSE THE NAVY DEPARTMENT FOR THE COST OF TRAVEL, INCLUDING PER DIEM EXPENSE OF NAVY PERSONNEL FOR THE CURRENT FISCAL YEAR. COPY OF ALLOCATION NO. 47 23 AND THE MEMORANDUM FROM THE DIRECTOR, DIVISION OF BUDGET AND ADMINISTRATIVE MANAGEMENT TO THE COAL MINES ADMINISTRATOR ADVISING OF THE ALLOCATION AS WELL AS A COPY OF ALLOCATION NO. 47-8 REFERRED TO IN ALLOCATION 47-23 ARE ENCLOSED HEREWITH FROM WHICH YOU WILL NOTE THAT, AS AUTHORIZED BY LAW, THE PRESIDENT HAS MADE THESE FUNDS AVAILABLE IN CONNECTION WITH THE OPERATION OF COAL MINES "WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING EXPENDITURE OF GOVERNMENT FUNDS OR THE EMPLOYMENT OF PERSONS IN THE GOVERNMENT SERVICE.'

THE COAL MINES ADMINISTRATION HAS AUTHORIZED AND PERMITTED PER DIEM EXPENSE ONLY IN THOSE CASES WHERE OFFICERS HAVE BEEN ORDERED BACK TO ACTIVE DUTY OR WHERE THEY HAVE BEEN TRANSFERRED FROM THEIR PERMANENT DUTY STATION FOR TEMPORARY DUTY WITH THE COAL MINES ADMINISTRATION AND KEPT IN TRAVEL STATUS PURSUANT TO AUTHORITY FROM THE SECRETARY OF THE NAVY. THERE HAS BEEN NO AUTHORIZATION OF PER DIEM AND IT IS NOT INTENDED THAT THERE SHALL BE ANY AUTHORIZATION OF PER DIEM EXPENSE TO OFFICERS PERFORMING FUNCTIONS FOR THE COAL MINES ADMINISTRATION AT THEIR PERMANENT DUTY STATION. IN ALL CASES WHERE PER DIEM HAS BEEN AUTHORIZED THE ORDERS OF THE OFFICER IN QUESTION HAVE PROVIDED FOR PER DIEM AND THE OFFICERS RETURNED TO DUTY ON THE UNDERSTANDING THAT THIS EXPENSE WOULD BE ALLOWED. THERE IS THEREFORE A STRONG MORAL COMMITMENT TO ALLOW THIS EXPENSE WHICH SHOULD BE HONORED IN THE ABSENCE OF LEGAL PROHIBITIONS TO ITS PAYMENT.

IT IS THE INTENTION OF THIS DEPARTMENT, IF NO OBJECTION IS STATED BY YOU, TO TRANSFER TO THE NAVY DEPARTMENT THE NECESSARY PART OF THE TWO HUNDRED NINETY THOUSAND DOLLAR ($290,000) ALLOCATION REFERRED TO ABOVE, TO COVER ALL AUTHORIZED VOUCHERS FOR PER DIEM EXPENSE OF ALL OFFICERS ATTACHED TO THE COAL MINES ADMINISTRATION, WHETHER OR NOT FALLING WITHIN THE PURVIEW OF YOUR DECISION B-62094 REFERRED TO ABOVE.

IN VIEW OF THE FACT THAT PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS OR THE EMPLOYMENT OF PERSONS IN THE GOVERNMENT SERVICE HAVE NO APPLICATION TO THE FUNDS WHICH ARE TO BE USED FOR THIS PURPOSE, IT IS SUBMITTED THAT THERE SHOULD BE NO OBJECTION TO THE USE OF THESE FUNDS FOR PER DIEM EXPENSES, AS STATED ABOVE.

THE DEPARTMENT OF THE INTERIOR AND THE COAL MINES ADMINISTRATION WOULD PREFER TO CONTINUE TO USE THE ADMINISTRATIVE FACILITIES OF THE NAVY DISBURSING OFFICERS IN MAKING PAYMENT OF VOUCHERS FOR THIS EXPENSE.

IT IS RESPECTFULLY REQUESTED, THEREFORE, THAT IN ANSWER TO THE SECRETARY OF THE NAVY YOU ADVISE HIM THAT IN VIEW OF THE ARRANGEMENTS STATED IN HIS LETTER, AND THIS LETTER, THERE IS NO OBJECTION TO PAYMENT OF SUCH PER DIEM EXPENSE FROM THE FUNDS PROVIDED.

IN THE DECISION OF THIS OFFICE, B-62094, DATED FEBRUARY 4, 1947 (26 COMP. GEN. 557), REFERRED TO IN THE ABOVE-QUOTED LETTERS, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

RETIRED NAVY OFFICERS AND NAVAL RESERVE OFFICERS RECALLED FROM THEIR HOMES TO ACTIVE DUTY AT PLACES WHICH CONSTITUTED THEIR ONLY POSTS OF DUTY ARE NOT TO BE REGARDED AS HAVING BEEN "AWAY FROM THEIR DESIGNATED POSTS OF DUTY" WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO AS TO BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OF SUCH DUTY, EVEN THOUGH THEIR ORDERS PROVIDED FOR SUCH PER DIEM AND DENOMINATED THEIR ACTIVE DUTY AND THEIR DESIGNATED POSTS OF DUTY AS TEMPORARY.

FROM THE VOUCHER AND ITS RELATED PAPERS ENCLOSED WITH YOUR LETTER, IT APPEARS THAT COMMANDER BILLINGSLEY, A NAVAL RESERVE OFFICER, WAS ORDERED FROM BROWNWOOD, TEXAS (APPARENTLY HIS HOME), TO WASHINGTON, D.C., FOR ACTIVE DUTY IN CONNECTION WITH THE COAL MINES ADMINISTRATION, DEPARTMENT OF THE INTERIOR; THAT HE REPORTED FOR SUCH DUTY ON FEBRUARY 13, 1947; AND THAT HE IS CLAIMING PER DIEM IN LIEU OF SUBSISTENCE FOR A PERIOD WHILE ON SUCH DUTY IN WASHINGTON. THE VOUCHER DOES NOT SHOW THE APPROPRIATION PROPOSED TO BE CHARGED, BUT IT IS UNDERSTOOD THAT IT IS PROPOSED TO CHARGE A NAVAL APPROPRIATION AND TO REIMBURSE SUCH APPROPRIATION BY A TRANSFER OF FUNDS FROM AN ALLOCATION TO THE SECRETARY OF THE INTERIOR FROM THE " EMERGENCY FUND FOR THE PRESIDENT, NATIONAL DEFENSE, 1947.'

YOUR LETTER APPEARS TO RECOGNIZE THAT UNDER THE DECISION OF THIS OFFICE, DATED FEBRUARY 4, 1947, SUPRA, THERE IS NO AUTHORITY FOR PAYMENT OF COMMANDER BILLINGSLEY'S CLAIM FROM NAVAL APPROPRIATIONS, BUT YOU REFER TO THE "ARRANGEMENTS MADE FOR REIMBURSEMENT OF THE AMOUNTS EXPENDED BY THE NAVY DEPARTMENT FOR TRAVEL EXPENSES AND PER DIEM OF OFFICERS ASSIGNED TO THE FEDERAL COAL MINES ADMINISTRATOR" AND YOU REQUEST A DECISION WHETHER PAYMENT OF SUCH CLAIM IS AUTHORIZED IN VIEW OF SUCH ARRANGEMENTS.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1947 (ACT OF MARCH 28, 1946, 60 STAT. 61), UNDER THE HEADING " EMERGENCY FUND FOR THE PRESIDENT," PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * NOT TO EXCEED $5,000,000 OF THE APPROPRIATION "1EMERGENCY FUND FOR THE PRESIDENT," CONTAINED IN THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, AS SUPPLEMENTED AND AMENDED, IS HEREBY CONTINUED AVAILABLE UNTIL JUNE 30, 1947 * * *.

THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943 (ACT OF JULY 25, 1942), UNDER THE HEADING " EMERGENCY FUND FOR THE PRESIDENT," CONTAINS AN APPROPRIATION AS FOLLOWS (QUOTING FROM 56 STAT. 704-705):

"1EMERGENCY FUND FOR THE PRESIDENT: TO ENABLE THE PRESIDENT, THROUGH APPROPRIATE AGENCIES OF THE GOVERNMENT, TO PROVIDE FOR EMERGENCIES AFFECTING THE NATIONAL SECURITY AND DEFENSE AND FOR EACH AND EVERY PURPOSE CONNECTED THEREWITH, AND TO MAKE ALL NECESSARY EXPENDITURES INCIDENT THERETO FOR ANY PURPOSE FOR WHICH THE CONGRESS HAS PREVIOUSLY MADE APPROPRIATION OR AUTHORIZATION AND WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS OR THE EMPLOYMENT OF PERSONS IN THE GOVERNMENT SERVICE, SUCH AS SECTION 3709 OF THE REVISED STATUTES AND THE CIVIL SERVICE AND CLASSIFICATION LAWS; AND ANY WAIVER HEREUNDER OF THE PROVISIONS OF ANY LAW REGULATING SUCH EXPENDITURE OR SUCH EMPLOYMENT SHALL NOT BE EXERCISED BY ANY AGENCY UNLESS THE ALLOCATION TO SUCH AGENCY OR SUBSEQUENT ACTION OF THE PRESIDENT IN CONNECTION THEREWITH PERMITS ANY SUCH WAIVER TO BE AVAILED OF; $100,000,000: PROVIDED, THAT IN A TOTAL AMOUNT OF NOT EXCEEDING $25,000,000 AND WITHIN THE PURPOSES PROVIDED FOR IN THIS PARAGRAPH, THE PRESIDENT MAY AUTHORIZE THE EXPENDITURE OF SUMS FROM THIS APPROPRIATION FOR OBJECTS OF A CONFIDENTIAL NATURE AND IN ANY SUCH CASE THE CERTIFICATE DEEMED INADVISABLE TO SPECIFY THE NATURE THEREOF SHALL BE DEEMED A SUFFICIENT VOUCHER FOR THE SUM THEREIN EXPRESSED TO HAVE BEEN EXPENDED. PROVIDED FURTHER, THAT THE FOREGOING APPROPRIATION AND THE FOREGOING LIMITATION UPON THE AMOUNT WHICH MAY BE EXPENDED FOR OBJECTS OF A CONFIDENTIAL NATURE, ARE HEREBY RESPECTIVELY MERGED WITH THE APPROPRIATION AND WITH THE LIMITATION FOR THE SAME PURPOSE UNDER THIS HEAD IN THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942: PROVIDED FURTHER, THAT THE PRESIDENT SHALL TRANSMIT TO CONGRESS, ON OR BEFORE JANUARY 10, 1944, A REPORT OF THE EXPENDITURES FROM SUCH TOTAL APPROPRIATION. EXCEPTING THE ABOVE QUOTED PROVISIONS OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1947, NONE OF THE SEVERAL APPROPRIATION ACT PROVISIONS (56 STAT. 995; 57 STAT. 432; 58 STAT. 599; 59 STAT. 414) SUPPLEMENTING AND AMENDING THE PROVISIONS OF THE ACT OF JULY 25, 1942 (QUOTED NEXT ABOVE), ARE PERTINENT TO THE CONSIDERATION OF YOUR QUESTION.

UNDER THE TERMS OF THE PRESIDENT'S LETTERS OF ALLOCATION, THE FUNDS ALLOCATED TO THE SECRETARY OF THE INTERIOR, FROM THE ABOVE-MENTIONED EMERGENCY FUND, ARE FOR USE IN CONNECTION WITH EMERGENCIES AFFECTING THE NATIONAL SECURITY AND DEFENSE ARISING FROM SEIZURE AND OPERATION OF THE COAL MINES, AND ARE AVAILABLE TO THE SECRETARY OF THE INTERIOR FOR "ALL NECESSARY EXPENSES INCIDENT TO, OR IN ANTICIPATION OF, SEIZURE AND OPERATION OF COAL MINES WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS OR THE EMPLOYMENT OF PERSONS IN THE GOVERNMENT SERVICE.'

IT IS AN ESTABLISHED RULE OF LONG STANDING THAT WHEE ARMY OR NAVY OFFICERS, UNDER AUTHORIZED DETAILS, PERFORM TRAVEL FOR OTHER DEPARTMENTS OR AGENCIES OF THE FEDERAL SERVICE, THEY ARE ENTITLED TO THE SAME TRAVELING ALLOWANCES THAT THEY WOULD RECEIVE IF THEY WERE ASSIGNED TO DUTY IN THE MILITARY OR NAVAL SERVICE, AND NO OTHER, UNLESS SPECIFIC PROVISIONS ARE MADE BY STATUTE FOR OTHER TRAVELING ALLOWANCES. 1 COMP. GEN. 98; 2 ID. 373; 15 ID. 98; ID. 377; 18 ID. 923.

HOWEVER, IN VIEW OF THE BROAD AUTHORITY VESTED IN THE PRESIDENT BY THE STATUTES PROVIDING THE " EMERGENCY FUND FOR THE PRESIDENT," AND IN VIEW OF THE EXPRESS TERMS OF THE PRESIDENT'S LETTERS, MENTIONED ABOVE, ALLOCATING FUNDS TO THE SECRETARY OF THE INTERIOR, THE SECRETARY IS AUTHORIZED TO USE SUCH FUNDS FOR ANY EXPENSE, ARISING FROM AN EMERGENCY AFFECTING THE NATIONAL SECURITY AND DEFENSE, WHICH REASONABLY MAY BE CONSIDERED A NECESSARY EXPENSE IN CONNECTION WITH THE SEIZURE AND OPERATION OF THE COAL MINES AND "WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS.' HENCE, IF THE SECRETARY OF THE INTERIOR SHOULD AUTHORIZE THE USE OF SUCH ALLOCATED FUNDS FOR PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE TO NAVAL OFFICERS ON DUTY WITH THE COAL MINES ADMINISTRATION UNDER THE CIRCUMSTANCES AND LIMITATIONS SET FORTH IN HIS LETTER REASONABLY SHOWING THE NECESSITY THEREFOR, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO SUCH PAYMENTS, EVEN THOUGH THE PERSONNEL INVOLVED WERE NOT "AWAY FROM THEIR DESIGNATED POSTS OF DUTY" WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C., SUPP. V, 112. NOTWITHSTANDING THE FOREGOING, THIS OFFICE WOULD BE REQUIRED TO OBJECT TO THE USE OF NAVAL APPROPRIATIONS FOR PER DIEM PAYMENTS TO OFFICERS NOT "AWAY FROM THEIR DESIGNATED POSTS OF DUTY," EVEN THOUGH REIMBURSEMENT OF SUCH APPROPRIATIONS IS CONTEMPLATED OR EXPECTED, IN VIEW OF THE PROVISIONS OF SECTION 3678 OF THE REVISED STATUTES, 31 U.S.C. 628, AS FOLLOWS: EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

IN ACCORDANCE WITH SUCH STATUTORY PROVISIONS, THIS OFFICE CONSISTENTLY HAS HELD THAT AN ADMINISTRATIVE OFFICE MAY NOT, FOR THE SAKE OF ADMINISTRATIVE EXPEDIENCY, DELIBERATELY CHARGE THE WRONG APPROPRIATION WITH THE EXPECTATION OF THEREAFTER OBTAINING AN ADJUSTMENT BY A TRANSFER OF FUNDS FROM ANOTHER APPROPRIATION. 14 COMP. GEN. 103; 19 ID. 395.

YOUR QUESTION IS ANSWERED ACCORDINGLY. THE VOUCHER RECEIVED WITH YOUR LETTER IS RETURNED HEREWITH.