B-168520, FEB. 13, 1970

B-168520, FEB. 13, 1970

CIVIL PAY--PER DIEM--EARLY DEPARTURE DECISION TO CERTIFYING OFFICER OF THE DEPARTMENT OF AGRICULTURE CONCERNING VOUCHER FOR PER DIEM FOR EARLY DEPARTURE OF EMPLOYEE TO ATTEND TRAINING COURSE. EMPLOYEE WHO DEPARTED BY PRIVATELY OWNED AUTO FROM HIS HEADQUARTERS ON FRIDAY AND ARRIVED ON SATURDAY AT TEMPORARY DUTY STATION TO BEGIN TRAINING COURSE ON MONDAY HAD CONSTRUCTIVE TRAVEL TIME BY COMMON CARRIER (AIR) APPLIED TO DAY OF ARRIVAL AND WAS CHARGED ANNUAL LEAVE FOR DAY OF DEPARTURE. NOTWITHSTANDING THAT TRAVEL ORDER GAVE EMPLOYEE LATITUDE CONCERNING TIME OF DEPARTURE SUCH OPTION MAY NOT BE CONSIDERED TO INCREASE EMPLOYEE'S ENTITLEMENT TO PER DIEM WHEN EARLY DEPARTURE IS FOR PERSONAL CONVENIENCE.

TO MR. A. D. COX:

YOUR LETTER OF NOVEMBER 26, 1969, REQUESTS OUR OPINION AS TO WHETHER THE ENCLOSED VOUCHER FOR $16 REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE FOR THE DAY OF FRIDAY AUGUST 15, 1969, MAY BE CERTIFIED FOR PAYMENT TO MR. MYRON J. JONES IN THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER AND THE ATTACHMENTS WITH THE VOUCHER.

SO FAR AS PERTINENT HERE, ITEM 6 OF TRAVEL AUTHORIZATION NO. 91-136 DATED AUGUST 7, 1969, AUTHORIZED TRAVEL "TO BEGIN ON OR ABOUT AUGUST 14, 1969," A THURSDAY, FROM SALT LAKE CITY, UTAH, TO DES MOINES, IOWA. THE TRAVEL ORDER FURTHER AUTHORIZED TRAVEL TO OTHER POINTS WITHIN IOWA AND RETURN ON OR ABOUT SEPTEMBER 30, 1969. ITEM 10 PROVIDED FOR A PER DIEM ALLOWANCE.

ITEM 11 (B) AUTHORIZED MILEAGE FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE AT THE RATE OF "6 CENTS PER MILE PERSONAL PREFERENCE RATE." IN THAT REGARD 7 AR 553B (3) IS AS FOLLOWS:

"(3) PERSONAL PREFERENCE RATE IN LIEU OF COMMON CARRIER. FOR TRAVEL WITHIN A 1,500 MILE RADIUS OF THE OFFICIAL STATION OF A TRAVELER HEADQUARTERED IN THE CONTINENTAL UNITED STATES A MILEAGE RATE OF 6 CENTS IS PRESCRIBED WHEN THE TRAVELER USES A PRIVATELY-OWNED AUTOMOBILE AS A MATTER OF PERSONAL PREFERENCE. SUCH MILEAGE RATE IS TO BE IN LIEU OF ALL OTHER TRANSPORTATION COSTS, INCLUDING PARKING FEES, FERRY FARES AND BRIDGE, ROAD AND TUNNEL TOLLS. USE OF THIS RATE IS SUBJECT TO THE FOLLOWING ADDITIONAL LIMITATIONS:

"(A) PER DIEM SHALL BE LIMITED TO THAT WHICH WOULD HAVE BEEN ALLOWED HAD TRAVEL BEEN PERFORMED BY AIR. WHEN THE ORIGIN AND DESTINATION POINTS ARE NOT CONNECTED BY SCHEDULED AIR SERVICE, THE PER DIEM ALLOWANCE SHALL BE COMPUTED ON THE BASIS OF TRAIN SERVICE. WHEN NEITHER AIR NOR TRAIN SERVICE IS AVAILABLE THE PER DIEM ALLOWANCE SHALL BE COMPUTED ON THE BASIS OF BUS SERVICE.

"(B) LEAVE SHOULD BE CHARGED FOR TRAVEL TIME DURING NORMAL WORKING HOURS IN EXCESS OF THAT WHICH WOULD HAVE BEEN INCURRED HAD TRAVEL BEEN PERFORMED BY THE CARRIER USED TO DETERMINE THE PER DIEM ALLOWANCE."

UNDER THE TRAVEL AUTHORIZATION MR. JONES LEFT HIS RESIDENCE AT OGDEN, UTAH, BY AUTOMOBILE AT 9:45 A.M. MST ON FRIDAY AUGUST 15, AND ARRIVED IN DES MOINES AT 7:45 P.M. CST ON SATURDAY AUGUST 16, 1969. ACCORDING TO THE COMMON CARRIER (AIR) SCHEDULE SHOWN ON THE VOUCHER, MR. JONES COULD HAVE LEFT SALT LAKE CITY AT 10:35 A.M. MST ON EITHER OF THOSE DAYS AND WOULD HAVE ARRIVED IN DES MOINES AT APPROXIMATELY 3 P.M. CST OF THE SAME DAY. THE RECORD SHOWS THAT TRAVEL TO DES MOINES WAS TO PARTICIPATE IN AN ADMINISTRATIVE TRAINING PROGRAM. WE ASSUME THE PROGRAM COMMENCED ON MONDAY, AUGUST 18. SINCE THE PERSONAL PREFERENCE AUTO ARRIVAL OCCURRED ON SATURDAY, AUGUST 16, YOUR OFFICE VOUCHER DIFFERENCE STATEMENT APPLIED THE CONSTRUCTIVE CARRIER SCHEDULE AND THE ALLOWABLE PER DIEM TO THAT DAY AND INDICATED THAT ANNUAL LEAVE WOULD BE CHARGEABLE FOR FRIDAY, AUGUST 15.

ON THE VOUCHER, MR. JONES SAYS THE COMMON CARRIER SCHEDULE SHOULD APPLY TO AUGUST 15, THE DAY OF HIS DEPARTURE, RATHER THAN TO AUGUST 16, THE DAY OF HIS ARRIVAL AT DES MOINES. YOU SUGGEST THAT STATEMENT IMPLIES A COMPARISON OF "TRAVEL DURING A REGULAR WORK DAY AS OPPOSED TO TRAVEL DURING A NON-WORK DAY." THAT PRESUMABLY HAS REFERENCE TO THE PROVISION IN 5 U.S.C. 6101 (B) (2) WHICH IS AS FOLLOWS:

"TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE."

IN B-165854 DATED FEBRUARY 4, 1969 (MORRIS CASE), COPY HEREWITH, WE HELD THAT THE QUOTED SUBSECTION 6101 (B) (2) DOES NOT OPERATE TO PERMIT EARLY DEPARTURE FOR THE TRAVELER'S CONVENIENCE SO AS TO EXTEND THE PERIOD OF ALLOWABLE OFFICIAL TRAVEL FOR PURPOSES OF PER DIEMALLOWANCE. COMPARE B- 167650 DATED SEPTEMBER 29, 1969, COPY ENCLOSED, CONCERNING OFFICIAL TRAVEL WHICH THE TRAVEL AUTHORIZATION HAS DIRECTED TO BEGIN ON A WORKDAY.

THEREFORE, NOTWITHSTANDING THAT ITEMS 6 AND 11B OF THE TRAVEL AUTHORIZATION GAVE MR. JONES SOME LATITUDE, WITHIN HIS DISCRETION, TO BEGIN AUTOMOBILE TRAVEL ON OR ABOUT AUGUST 14, SUCH AN OPTION MAY NOT BE CONSIDERED AS AUTHORIZING THE TRAVELER TO INCREASE HIS ENTITLEMENT TO PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCE BY HIS EARLY DEPARTURE. ACCORDINGLY, WE FIND NO OBJECTION TO THE ADMINISTRATIVE ACTIONS IN THIS CASE.