B-47952, MARCH 30, 1945, 24 COMP. GEN. 705

B-47952, MARCH 30, 1945, 24 COMP. GEN. 705

SUBSISTENCE - PER DIEM AT TEMPORARY STATION TO WHICH TRAVEL PERFORMED ON GOVERNMENT-OWNED VESSEL THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, LIMITING OFFICERS PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES, DO NOT PRECLUDE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO ANY ARMY WARRANT OFFICER FOR A PERIOD OF TEMPORARY DUTY ASHORE IN CONNECTION WITH THE REPAIR, ETC., OF A GOVERNMENT-OWNED CRASH BOAT TO WHICH HE WAS ATTACHED AND IN WHICH HE TRAVELED BETWEEN THE PLACE OF TEMPORARY DUTY AND HIS PROPER DUTY STATION. 24 COMP. GEN. 362, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. R. C. HORNE, U.S. ARMY, MARCH 30, 1945:

BY SECOND INDORSEMENT OF FEBRUARY 20, 1945, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF DECEMBER 23, 1944, AS FOLLOWS:

1. TRANSMITTED HEREWITH IS A VOUCHER, STANDARD FORM 1012, AND SUPPORTING PAPERS, PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

2. IT IS REQUESTED THAT THE QUESTION PRESENTED BE SUBMITTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR ADVANCE DECISION.

3. THE CLAIMANT, WOJG MARVIN M. O-HAVER, IS SKIPPER AND ENGINEER ABOARD U.S. ARMY CRASH BOAT NO. 1-69, HOME PORT AT VENICE ARMY AIR FIELD, VENICE, FLORIDA.

4. THERE ARE NO ADEQUATE FACILITIES FOR MESSING, COOKING, OR SLEEPING ABOARD THIS TYPE OF BOAT.

5. DUE TO THE FACT THAT THE TYPE OF TRAVEL AUTHORIZED BY PARAGRAPH 1, S.O. 159, HQS. VENICE AAF, VENICE, FLORIDA, DATED 4 SEPTEMBER 1944, IS BEING PERFORMED FREQUENTLY BY CRASH BOATS ASSIGNED TO THIS HEADQUARTERS, IT IS REQUESTED THAT THE FOLLOWING SPECIFIC QUESTIONS BE PRESENTED FOR ADVANCE DECISION:

A. WHAT TRAVEL ALLOWANCES, IF ANY, ARE PAYABLE FOR THE PERIOD OF ABSENCE FROM THE HOME STATION.

B. IN THE EVENT TRAVEL ALLOWANCES ARE PAYABLE FOR THE TRAVEL PERIOD ONLY, IS REIMBURSEMENT TO BE MADE ON A PER DIEM OR ON A NECESSARY AND ACTUAL EXPENSE BASIS.

C. IN THE EVENT TRAVEL ALLOWANCES ARE NOT PAYABLE FOR THE PERIOD OF TRAVEL, IS PER DIEM PAYABLE FOR THE PERIOD OF TEMPORARY DUTY ONLY.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS STATED IN FAVOR OF MARVIN M. O- HAVER, WARRANT OFFICER (JG), UNITED STATES ARMY, AND COVERS A PER DIEM ALLOWANCE INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT TAMPA, FLORIDA, DURING THE PERIOD SEPTEMBER 5 TO 10, 1944, PURSUANT TO PARAGRAPH 1, SPECIAL ORDERS NO. 159, HEADQUARTERS, VENICE ARMY AIR FIELD, VENICE, FLORIDA, DATED SEPTEMBER 4, 1944, AS FOLLOWS:

1. THE FOLLOWING NAMED WARRANT OFFICER AND EM, SQ A, 337TH AAF BASE UNIT ( RTUF), ON SD WITH VENICE CRASH BOAT, WILL PROCEED FROM THIS STA O/A 5 SEPTEMBER 44 TO RIVER HEIGHTS BOAT YARD, TAMPA, FLORIDA, FOR THE PURPOSE OF TAKING U.S. ARMY CRASH BOAT NO. P-69 THERETO, WHERE EMERGENCY REPAIRS AND PAINTING OF THE BOTTOM WILL BE DONE, AND UPON COMPLETION OF THIS TEMPORARY DUTY NOT TO EXCEED FIVE (5) DAYS WILL RETURN TO THEIR PROPER STATION, VENICE CRASH BOAT, VENICE FLORIDA.

WOJG MARVIN M. O-HAVER, W2121480, USA * * * * * *

WD CIR 260, CS, WILL APPLY FOR WARRANT OFFICER.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, PROVIDES---

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM THE DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6 (INCREASED TO $7 BY THE PROVISIONS OF SECTION 211 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1945, 58 STAT. 361, 387), IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *.

THE MILITARY APPROPRIATION ACT, 1945, 58 STAT. 573, 577, CONTAINS A PROVISO AS FOLLOWS:

* * * THAT THE SECRETARY OF WAR, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE IN ACCORDANCE WITH LAW FOR OFFICERS AND WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM RATES OF ALLOWANCE, WHETHER OR NOT ORDERS ARE GIVEN TO SUCH OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS * * *.

WAR DEPARTMENT CIRCULAR NO. 260, DATED JUNE 26, 1944, WHICH CIRCULAR WAS IN/EFFECT AT THE TIME OF THE TRAVEL AND TEMPORARY DUTY HEREIN INVOLVED, PROVIDES, INSOFAR AS PERTINENT HEREIN, AS OLLOWS:

1. ORDERS.--- ORDERS ISSUED ON AND AFTER 15 JULY 1944 DIRECTING TRAVEL AND TEMPORARY DUTY OF COMMISSIONED OFFICERS * * * AND WARRANT OFFICERS OF THE ARMY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WILL NOT * * * SPECIFY THE METHOD OR RATE OF REIMBURSEMENT TO BE USED IN MAKING PAYMENT UNDER SUCH ORDERS. * * * THE DUTY ENJOINED AND THE CONDITIONS OF TRAVEL STATED IN THE ORDER WILL DETERMINE THE METHOD AND RATE OF PAYMENT AS HEREINAFTER PRESCRIBED. * * * * * * * *

3. TEMPORARY DUTY TRAVEL.---PAYMENT OF A FLAT PER DIEM IS THE ONLY AUTHORIZED METHOD OF REIMBURSING OFFICERS FOR SUBSISTENCE EXPENSES INCURRED IN CONNECTION WITH TEMPORARY DUTY TRAVEL DIRECTED IN ORDERS ISSUED ON AND AFTER 15 JULY 1944. THE FOLLOWING RATES OF PER DIEM ARE PRESCRIBED FOR ALL SUCH TRAVEL AND TEMPORARY DUTY AWAY FROM PERMANENT STATIONS:

A. $7 PER DAY WHILE TRAVELING EXCEPT WHEN THE ORDER INCLUDES THE WORDS "TRAVEL WITH TROOPS" OR THE ABBREVIATION " TT.' * * *

B. OFFICERS WILL BE REIMBURSED FOR SUBSISTENCE EXPENSES INCURRED IN CONNECTION WITH TRAVEL AND TEMPORARY DUTY PERFORMED WITHIN THE UNITED STATES AT THE RATE OF $7 PER DAY NOT EXCEEDING 30 DAYS AT ANY ONE POINT *

IN PERFORMING THE TRAVEL AND TEMPORARY DUTY DIRECTED BY THE ORDER OF SEPTEMBER 4, 1944, SUPRA, IT APPEARS THAT MR. O-HAVER NECESSARILY TRAVELED IN A GOVERNMENT-OWNED BOAT FROM VENICE ARMY AIR FIELD, VENICE, FLORIDA, TO TAMPA, FLORIDA, AND RETURN. HE ARRIVED AT TAMPA ON SEPTEMBER 5, 1944, AT 8:08 P.M. AND DEPARTED THEREFROM ON SEPTEMBER 10, 1944, AT 1:44 P.M. AND, HENCE, WAS AT HIS TEMPORARY DUTY STATION FOR A PERIOD OF 5 DAY ( 1/4 DAY ON SEPTEMBER 5; 4 DAYS, SEPTEMBER 6 TO 9; AND 3/4 OF A DAY ON SEPTEMBER 10).

WHILE THE VOUCHER COVERS PER DIEM FOR ONLY THE PERIOD THE OFFICER WAS AT THE TEMPORARY DUTY STATION, YOUR DOUBT IN THE MATTER APPEARS TO ARISE BECAUSE OF THE PROVISIONS OF PARAGRAPH 7 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, WHICH IS AS FOLLOWS:

PERSONNEL OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED.

IN A DECISION OF NOVEMBER 7, 1944, 24 COMP. GEN. 362, INVOLVING OFFICERS OF THE NAVY ENGAGED IN FERRYING VESSELS OR SMALL SURFACE CRAFT OWNED BY THE GOVERNMENT, WHICH LACKED MESSING AND SHELTERING FACILITIES, MAKING IT NECESSARY FOR THE VESSEL TO DOCK AND THE PERSONNEL TO GO ASHORE TO SECURE LODGING AND SUBSISTENCE, IT WAS HELD THAT PAYMENT OF PER DIEM TO SUCH OFFICERS, WHILE SO TRAVELING, WAS PRECLUDED BY THE PROVISIONS OF THE SAID SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942. THE SAID STATUTE WAS VIEWED AS APPLICABLE TO ALL GOVERNMENT-OWNED VESSELS OF EVERY CLASS AND IT WAS HELD THAT THE OFFICERS INVOLVED WERE TRAVELING ON GOVERNMENT-OWNED VESSELS.

AN EARLIER STATUTORY PROVISION ESSENTIALLY THE SAME AS THAT APPEARING IN THE SAID SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, WAS CONSIDERED IN A DECISION OF JULY 9, 1931, A-36993, AND IT WAS HELD THAT AN OFFICER OF THE ARMY ORDERED TO PROCEED BY AN ARMY TRANSPORT FROM HONOLULU, T.H., TO NEW YORK, NEW YORK, WAS TRAVELING ON A GOVERNMENT-OWNED VESSEL WITHIN THE MEANING OF THE STATUTE DURING A SCHEDULED STOP AT SAN FRANCISCO FROM NOVEMBER 4 TO 8, 1930, AT WHICH TIME HE WAS REQUIRED TO DISEMBARK. HENCE, IT WAS HELD THAT THE OFFICER WAS ENTITLED "ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED" DURING THE PERIOD HE WAS AT SAN FRANCISCO AND THAT PAYMENT OF THE PER DIEM ALLOWANCE CLAIMED WAS NOT AUTHORIZED.

HOWEVER, WHERE, AS HERE, AN OFFICER IS ORDERED TO TRAVEL ON A GOVERNMENT- OWNED VESSEL FROM HIS PROPER DUTY STATION TO A TEMPORARY DUTY STATION AND THERE IS REQUIRED TO PERFORM TEMPORARY DUTIES ASHORE, PAYMENT TO THE OFFICER OF A PER DIEM ALLOWANCE FOR THE PERIOD OF AUTHORIZED TEMPORARY DUTY IS NOT PROHIBITED MERELY BECAUSE TRAVEL TO AND FROM SUCH DUTY WAS PERFORMED BY GOVERNMENT-OWNED VESSEL. ACCORDINGLY, PAYMENT OF A PER DIEM ALLOWANCE TO THE OFFICER HERE INVOLVED IS AUTHORIZED FOR THE PERIOD OF HIS TEMPORARY DUTY AT TAMPA IN CONNECTION WITH THE REPAIR, ETC., OF THE CRASH BOAT.

PAYMENT ON THE VOUCHER RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.

SINCE YOUR QUESTIONS RELATING TO THE TRAVELING EXPENSES AUTHORIZED FOR THE PERIOD OF ACTUAL TRAVEL TO AND FROM THE OFFICER'S TEMPORARY DUTY STATION ARE NOT INVOLVED IN THE PRESENT VOUCHER, NO DECISION WITH RESPECT THERETO IS PROPER AT THIS TIME. HOWEVER, IT SEEMS APPARENT THAT SUCH TRAVEL FALLS WITHIN THE EXPRESS PROVISIONS OF THE STATUTE AUTHORIZING REIMBURSEMENT OF ONLY ACTUAL AND NECESSARY EXPENSES INCURRED FOR TRAVEL ON GOVERNMENT-OWNED VESSELS.