B-199846.OM, JAN 22, 1981

B-199846.OM, JAN 22, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MS. MILLIE WASHINGTON, A CIVILIAN EMPLOYEE OF THE ARMY, FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY TRAINING AT FORT LEE, VIRGINIA.

BY ORDERS DATED MAY 15, 1978, MS. WASHINGTON, WAS ASSIGNED FOR APPROXIMATELY 168 DAYS TO FORT LEE FOR LONG TERM TRAINING IN THE ALMC/FIT COOPERATIVE DEGREE PROGRAM. JOINT TRAVEL REGULATIONS PARAGRAPH C4552- 2I(3)(B) PROVIDES THAT FOR LONG-TERM TRAINING, NOT IN HIGH COST AREAS OF THE UNITED STATES, 55 PERCENT OF THE MAXIMUM AMOUNT PRESCRIBED IN C4551-1, ITEM 1, ROUNDED TO THE NEXT HIGHER DOLLAR, WILL BE THE PER DIEM. SINCE $35 IS THE MAXIMUM AMOUNT PRESCRIBED, MS. WASHINGTON WAS AUTHORIZED $20 PER DIEM. GOVERNMENT QUARTERS WERE NOT AVAILABLE.

FEDERAL TRAVEL REGULATIONS PARAGRAPH 1-7-.2 PROVIDES THAT FOR OFFICIAL TRAVEL WITHIN THE CONTERMINOUS UNITED STATES THE PER DIEM RATE WILL NOT EXCEED $35. FURTHER, PARAGRAPH 1-7.3A OF THE FTR STATES THAT EACH AGENCY SHALL AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING TRAVEL, AND THE AGENCY SHALL NOT FIX PER DIEM RATES IN EXCESS OF THAT NECESSARY TO MEET AUTHORIZED SUBSISTENCE EXPENSES.

HOWEVER, FTR PARAGRAPH 1-7.3C PROVIDES THAT WHEN LODGINGS ARE REQUIRED FOR TRAVEL IN THE CONTERMINOUS UNITED STATES, THE PER DIEM RATE MUST BE ESTABLISHED ON THE BASIS OF THE AVERAGE AMOUNT THE TRAVELER PAYS FOR LODGING, PLUS AN ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES, NOT TO EXCEED THE MAXIMUM RATE. IN 55 COMP.GEN. 179 IT WAS HELD THAT THE ONLY DISCRETION ALLOWED ON THE PART OF THE AGENCY TO SET THE PER DIEM RATE OTHERWISE IS TO DETERMINE THAT THE LODGING-PLUS METHOD IS NOT APPROPRIATE UNDER THE CIRCUMSTANCES OF A PARTICULAR TRAVEL SITUATION. FOR EXAMPLE, IN B-174522, OCTOBER 4, 1973, IT WAS HELD THAT IF LODGING-PLUS IS CONSIDERED INAPPROPRIATE, AN AGENCY MAY FIX A SPECIFIC PER DIEM RATE WHERE AN EMPLOYEE USES A PRIVATELY-OWNED TRAVEL TRAILER WHILE ON TEMPORARY DUTY.

THE QUESTIONS RAISED BY THE CIRCUMSTANCES OF MS. WASHINGTON'S CLAIM ARE:

WHETHER THE DEPARTMENT OF DEFENSE HAS TOO BROADLY INTERPRETED ITS DISCRETIONARY AUTHORITY UNDER 55 COMP.GEN. 179 IN ASSIGNING, BY REGULATION, A PER DIEM RATE AT 55 PERCENT OF THE LEGAL MAXIMUM FOR ALL TEMPORARY DUTY AT LONG-TERM TRAINING, RESEARCH AND STUDY PROGRAMS.

WHETHER 55 COMP.GEN. 179 REQUIRES THE AGENCY TO CONSIDER THE APPROPRIATENESS OF THE LODGING-PLUS METHOD ON A CASE BY CASE BASIS, AND

WHAT CRITERIA ARE TO BE APPLIED IN MEASURING THE INAPPROPRIATENESS OF THE LODGING-PLUS METHOD, IF SUCH AGENCY DETERMINATION IS SUBJECT TO REVIEW BY THIS OFFICE.

ACCORDINGLY, THE MATTER IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. IT IS NOT NECESSARY TO DELINEATE THE PARAMETERS OF FTR PARA. 1- 7.3C AND 55 COMP.GEN. 179 (1975) TO DISPOSE OF MS. WASHINGTON'S CLAIM. PAYMENT OF PER DIEM FOR PERIODS OF TRAINING UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. SEC. 4101 ET SEQ. (1976), IS GOVERNED BY SEC. 4109, WHICH PROVIDES IN PERTINENT PART:

"(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118(A)(8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY -

"(2) PAY, OR REIMBURSE THE EMPLOYEE FOR, ALL OR A PART OF THE NECESSARY EXPENSES OF THE TRAINING, WITHOUT REGARD TO SECTION 529 OF TITLE 31, INCLUDING AMONG THE EXPENSES THE NECESSARY COSTS OF -

"(A) TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE 5 U.S.C. SECS. 5701 ET SEQ. ***"

THIS PROVISION AUTHORIZES THE DEPARTMENT OF DEFENSE (DOD) TO SET SPECIFIC PER DIEM RATES FOR EMPLOYEE TRAINING PROGRAMS WITHOUT REGARD TO THE SPECIFIC REQUIREMENT OF FTR PARA. 1-7.3E FOR A DETERMINATION THAT IN THE PARTICULAR CIRCUMSTANCES THE LODGINGS-PLUS SYSTEM IS INAPPROPRIATE.

CLAIMANT ARGUES THAT PARAGRAPH C4552.2I OF JTR VOLUME 2, UNFAIRLY AND ERRONEOUSLY PRESCRIBES A $26 PER DIEM RATE FOR ENROLLEES IN THE LOGISTICS EXECUTIVE DEVELOPMENT COURSE AT FORT LEE, VIRGINIA, WHILE SETTING A $20 RATE FOR ENROLLEES IN ALL OTHER LONG-TERM TRAINING PROGRAMS AT FORT LEE. AS NOTED IN B-198008, SEPTEMBER 17, 1980, THERE IS NO LEGAL REQUIREMENT TO PAY THE SAME PER DIEM RATES FOR SIMILAR TEMPORARY DUTY TRAVEL. THIS IS TRUE UNDER THE EVEN BROADER AUTHORITY OF 5 U.S.C. SEC. 4109, TO SET PER DIEM RATES INCIDENT TO TRAINING. SEE B-164864, NOVEMBER 19, 1968, AND B-187453, SEPTEMBER 30, 1977, WHEREIN WE HELD THAT UNDER SECTION 4109 EXECUTIVE AGENCIES HAVE THE AUTHORITY TO INVOKE A POLICY OF NOT PAYING PER DIEM DURING A PERIOD OF TRAINING.