B-144546, JAN. 12, 1961

B-144546, JAN. 12, 1961

TO MR. GEORGE T. TURNIPSEED:

YOUR LETTERS OF NOVEMBER 10 AND DECEMBER 28, 1960, CONCERN OUR OFFICE SETTLEMENT OF OCTOBER 26, 1960, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE WHILE ON TEMPORARY DUTY IN GREECE, ITALY, FRANCE AND TURKEY, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

YOU SAY THAT SINCE THE PER DIEM RATE FOR MILITARY PERSONNEL PRESCRIBED BY JOINT TRAVEL REGULATIONS FOR THOSE LOCATIONS IS HIGHER THAN THE RATE AT WHICH YOU WERE PAID UNDER THE STANDARDIZED GOVERNMENT REGULATIONS, APPLICABLE TO CIVILIAN GOVERNMENT EMPLOYEES, YOU SHOULD BE PAID AT THE HIGHER RATE APPLICABLE TO MILITARY PERSONNEL. YOU QUESTION THE AUTHORITY WHEREBY DIFFERENT RATES ARE ESTABLISHED FOR MILITARY PERSONNEL AND CIVILIAN EMPLOYEES AND YOU SAY TWO REGULATIONS RESULTING IN THE ESTABLISHMENT OF DIFFERENT RATES FOR THE SAME LOCALITY APPEAR UNNECESSARY AND ONE REGULATION APPLICABLE TO BOTH CIVILIAN AND MILITARY PERSONNEL WOULD BE MORE EQUITABLE.

THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 836, PRESCRIBING THE MAXIMUM PER DIEM ALLOWANCE TO BE PAID CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, READS IN PART AS FOLLOWS:

"* * * PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED, NOT TO EXCEED THE RATE OF $12 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES AND IN CASES OF TRAVEL BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES NOT TO EXCEED RATES ESTABLISHED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET FOR THE LOCALITY IN WHICH THE TRAVEL IS PERFORMED. * * *"

UNDER THE REQUIREMENTS OF THAT ACT THE DIRECTOR OF THE BUREAU OF THE BUDGET ESTABLISHES MAXIMUM PER DIEM RATES FOR OVERSEAS LOCATIONS. HOWEVER, THOSE ESTABLISHED PER DIEM RATES ARE MAXIMUM OR CEILING RATES AND IT IS DISCRETIONARY WITH EACH DEPARTMENT OR AGENCY TO ADMINISTRATIVELY ESTABLISH RATES AT OVERSEAS STATIONS AND ALSO THOSE WITHIN THE CONTINENTAL UNITED STATES BELOW THE MAXIMUM. THUS, CIVILIAN EMPLOYEES OF TWO SEPARATE DEPARTMENTS OR AGENCIES WHILE IN A TRAVEL STATUS IN THE CONTINENTAL UNITED STATES OR AT AN OVERSEAS POST OF DUTY COULD RECEIVE DIFFERENT RATES OF PER DIEM NOT IN EXCESS OF THE MAXIMUM RATE WHILE AT THE SAME LOCATION. ALSO, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (B) THE SECRETARIES OF THE UNIFORMED SERVICES MAY PRESCRIBE REGULATIONS TO AUTHORIZE PAYMENT OF PER DIEM TO MILITARY PERSONNEL STATIONED AT OVERSEAS POSTS. THE JOINT TRAVEL REGULATIONS HAVE BEEN ISSUED UNDER THE PROVISIONS OF THAT ACT.

THEREFORE, UNDER THE CITED STATUTES THE MAXIMUM PER DIEM RATES ESTABLISHED FOR CIVILIAN EMPLOYEES AND MILITARY PERSONNEL PERFORMING DUTIES AT OVERSEAS STATIONS ARE SOLELY DISCRETIONARY WITH THE DIRECTOR OF THE BUREAU OF THE BUDGET AND THE SECRETARIES OF THE UNIFORMED SERVICES, RESPECTIVELY, AND DECISIONS WITH RESPECT TO THE RATES ESTABLISHED ARE NOT SUBJECT TO A REVIEW BY OUR OFFICE.

YOU WERE PAID PER DIEM AT THE RATES ESTABLISHED BY THE REGULATIONS APPLICABLE TO CIVILIAN EMPLOYEES FOR THE TRAVEL IN QUESTION. YOU ARE NOT ENTITLED TO PAYMENT OF ADDITIONAL PER DIEM FOR THIS PERIOD BASED UPON RATES ESTABLISHED FOR MILITARY PERSONNEL AT THESE LOCATIONS. THEREFORE, UPON REVIEW, THE SETTLEMENT MUST BE AND IS SUSTAINED.