B-39387, JANUARY 25, 1944, 23 COMP. GEN. 537

B-39387, JANUARY 25, 1944, 23 COMP. GEN. 537

PER DIEM - DURING PERIOD OF ILLNESS - PERSON SERVING WITHOUT COMPENSATION PERSONS SERVING THE GOVERNMENT IN AN ADVISORY CAPACITY UNDER STATUTES AUTHORIZING PAYMENT TO SUCH PERSONS OF $10 PER DIEM IN LIEU OF SUBSISTENCE WHILE SERVING AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS WITHOUT OTHER COMPENSATION, OR ON A DOLLAR-A-YEAR-BASIS, MAY NOT BE REGARDED AS ,SERVING" THE GOVERNMENT DURING A PERIOD OF ABSENCE FROM DUTY BECAUSE OF PERSONAL ILLNESS WHILE AWAY FROM THEIR HOMES OR PLACES OF BUSINESS SO AS TO ENTITLE THEM TO PAYMENT OF PER DIEM DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, JANUARY 25, 1944:

I HAVE YOUR LETTER OF JANUARY 7, 1944, AS FOLLOWS:

THE NATIONAL WAR AGENCY APPROPRIATION ACT, 1944, PUBLIC LAW 139, 78TH CONGRESS, IN PARAGRAPH (A) OF PAGE 16, OF " GENERAL PROVISIONS" PROVIDES IN PART AS FOLLOWS:

"THE FOREGOING APPROPRIATIONS FOR THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT SHALL BE AVAILABLE * * * FOR * * * AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT A DOLLAR-A-YEAR PER ANNUM * * *.'

UNDER THE ABOVE-CITED PROVISION OF THE APPROPRIATION ACT, AN EMPLOYEE OF THIS BOARD APPOINTED ON A DOLLAR-A-YEAR BASIS IS PAID $10 PER DIEM IN LIEU OF SUBSISTENCE FOR EACH DAY HE SERVES THE BOARD WHILE AWAY FROM HIS PERMANENT HOME OR HIS REGULAR PLACE OF BUSINESS.

A QUESTION HAS ARISEN AS TO WHETHER SUCH A DOLLAR-A-YEAR EMPLOYEE, WHO IS TAKEN SICK WHILE AWAY FROM HOME AT A POINT WHERE HE IS SERVING THE BOARD, MAY BE PAID $10 PER DIEM IN LIEU OF SUBSISTENCE FOR ONE OR MORE FULL DAYS DURING WHICH HE IS SICK AND IS UNABLE TO PERFORM HIS OFFICIAL DUTIES FOR THE BOARD.

STANDARDIZED GOVERNMENT TRIAL REGULATIONS AS AMENDED, JANUARY 30, 1942 PROVIDE UNDER SUB-PARAGRAPH (A) OF PARAGRAPH 45," SUBSISTENCE ALLOWANCE:

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

THE EFFECT OF THE ABOVE-CITED PROVISION OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WITH RESPECT TO PER ANNUM EMPLOYEES TAKEN SICK WHILE IN TRAVEL STATUS AND UNABLE TO PERFORM THEIR DUTIES FOR ONE OR MORE FULL DAYS, IS THAT, WHILE PER DIEM IN LIEU OF SUBSISTENCE IS NOT PAYABLE FOR THE PERIOD OF SICKNESS, SUCH SICKNESS MAY BE CHARGED TO ANY SICK LEAVE WITH PAY WHICH MAY BE DUE THE EMPLOYEE. IN THE CASE OF A DOLLAR-A-YEAR EMPLOYEE, HOWEVER, THE CUTTING OFF OF HIS PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OF SICKNESS LEAVES HIM WITH NO COMPENSATION OTHER THAN THE DOLLAR-A YEAR, DESPITE THE FACT THAT HE IS PUT TO CONSIDERABLE EXPENSE SINCE HE IS AWAY FROM HOME BY REASON OF OFFICIAL DUTIES WITH THE BOARD.

YOUR DECISION IS REQUESTED AS TO WHETHER THE PHRASE "SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS" IN THE ABOVE- CITED PROVISION OF PUBLIC LAW 139, 78TH CONGRESS MAY BE CONSIDERED AS COVERING ONE OR MORE FULL DAYS OF ABSENCE OF A DOLLAR-A YEAR EMPLOYEE BECAUSE OF SICKNESS OCCURRING IN A PERIOD OF OFFICIAL DUTY AWAY FROM HIS PERMANENT HOME OR REGULAR PLACE OF BUSINESS.

IF YOUR DECISION TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, YOUR ADVICE IS ALSO REQUESTED AS TO THE MAXIMUM NUMBER OF DAYS OF SICKNESS FOR WHICH PER DIEM IN LIEU OF SUBSISTENCE MAY BE PAID.

REFERRING TO PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, IT LONG HAS BEEN CONSIDERED THAT DURING ABSENCE FROM DUTY ON ACCOUNT OF PERSONAL ILLNESS A PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS IS NOT AUTHORIZED TO BE PAID--- THAT IS, EMPLOYEES IN THAT SITUATION ARE NOT REGARDED AS "TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY" (QUOTING FROM THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED BY THE ACT OF JANUARY 30, 1942, 56 STAT. 39).

BY ANALOGY, THERE IS JUSTIFIED THE VIEW THAT PERSONS REASONABLY MAY NOT BE REGARDED AS "SERVING" THE GOVERNMENT IN AN ADVISORY CAPACITY WHILE AWAY FROM THEIR HOMES OR PLACES OF BUSINESS DURING A PERIOD OF ABSENCE FROM DUTY BECAUSE OF PERSONAL ILLNESS. THE FACT THAT SUCH PERSONS MAY BE PUT TO ADDITIONAL EXPENSE DURING ILLNESS AWAY FROM HOME DOES NOT JUSTIFY THE CONCLUSION THAT THE APPROPRIATION PROVISION UNDER CONSIDERATION WAS INTENDED TO OBLIGATE THE GOVERNMENT FOR PAYMENT OF A PER DIEM ALLOWANCE DURING PERIODS OF ABSENCE FROM DUTY AS AN ADVISOR BECAUSE OF PERSONAL REASONS IN NOWISE CONNECTED WITH THEIR OFFICIAL DUTY.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER THE SECOND QUESTION.