B-55103, MARCH 6, 1946, 25 COMP. GEN. 635

B-55103, MARCH 6, 1946, 25 COMP. GEN. 635

SUBSISTENCE - PER DIEMS - NONWORK DAYS IMMEDIATELY PRECEDING LEAVE OF ABSENCE AN EMPLOYEE WHO ARRIVED AT HIS TEMPORARY DUTY STATION ON A SATURDAY AND BEGAN A PERIOD OF LEAVE AT THE BEGINNING OF THE FOLLOWING MONDAY--- SATURDAY AND SUNDAY BEING NONWORK DAYS--- BUT NOT WITHIN HIS PRESCRIBED HOURS OF DUTY, IS ENTITLED UNDER PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO PER DIEM IN LIEU OF SUBSISTENCE UNTIL SUNDAY MIDNIGHT, PROVIDED A STATEMENT BE FURNISHED ESTABLISHING THAT THE EMPLOYEE ACTUALLY WAS PRESENT AT HIS DUTY STATION ON SATURDAY AND SUNDAY DURING THE PRESCRIBED HOURS OF DUTY. 9 COMP. GEN. 77, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THOMAS SMART, DEPARTMENT OF AGRICULTURE, MARCH 6, 1946:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1946, AS FOLLOWS:

THE ATTACHED STANDARD FORM 1012 RECLAIMING $7.50 SUSPENDED FROM D.O. VOUCHER NO. 4-216, PAID DECEMBER 3, 1945, BY E. J. BRENNAN, SYMBOL 204- 2350, HAS BEEN PRESENTED TO ME FOR CERTIFICATION.

THE TRAVELER WHILE IN AN OFFICIAL TRAVEL STATUS ARRIVED IN JAMESTOWN, NORTH DAKOTA ON SATURDAY, OCTOBER 20, 1945 AT 2:20 P.M. HE WAS ON ANNUAL LEAVE ON OCTOBER 22 AND 23 AND RESUMED OFFICIAL DUTY STATUS ON OCTOBER 24 AT 9:00 A.M. NO PER DIEM WAS CLAIMED FOR OCTOBER 22 AND 23 AND THE TRAVELER HAS STATED THAT HAD NO ANNUAL LEAVE BEEN TAKEN HE WOULD HAVE RETURNED TO WASHINGTON, D.C. ON OCTOBER 26 AT 8:40 A.M. RATHER THAN OCTOBER 2 AT 8:40 A.M. PARAGRAPH 45-A OF THE GOVERNMENT TRAVEL REGULATIONS STATES IN PART THAT "PERSONS (PRESENCE) AT DUTY STATION ON SUNDAYS OR HOLIDAYS DURING DAILY PRESCRIBED HOURS OF DUTY WILL BE REGARDED AS EQUIVALENT TO ACTUAL SERVICE IF THE TRAVELER OTHERWISE BE IN A DUTY STATUS.' IN ACCORDANCE WITH THIS REGULATION, $7.50 REPRESENTING PER DIEM FOR THE LAST QUARTER OF SATURDAY, OCTOBER 20, AND SUNDAY, OCTOBER 21, WAS SUSPENDED FROM THE CLAIM PENDING RECEIPT OF A STATEMENT FROM THE TRAVELER THAT HE WAS PRESENT AT HIS POST OF DUTY DURING THE DAILY PRESCRIBED HOURS OF DUTY ON THESE DAYS. THE TRAVELER HAS RECLAIMED THIS AMOUNT STATING THAT HE WAS IN A DUTY STATUS ON THESE DAYS.

DECISIONS 7 CG 319, 9 CG 77, AND A-21592, DATED FEBRUARY 18, 1928, ALLOW PAYMENT ON SUNDAYS AND HOLIDAYS APPARENTLY WITHOUT A DEFINITE STATEMENT FROM THE TRAVELER THAT HE WAS PRESENT AT DUTY STATION DURING THE DAILY PRESCRIBED HOURS OF DUTY ON SUCH NONWORK DAYS. ON THE BASIS OF THESE DECISIONS PERHAPS IT WOULD HAVE BEEN PROPER TO HAVE CERTIFIED THE VOUCHER IN THE FIRST INSTANCE WITHOUT EXCEPTION. EXCEPTION WAS TAKEN, HOWEVER, BECAUSE THE DECISION, 9 CG 77, APPARENTLY WAS BASED UPON THE FACT THAT LEAVE WAS NOT INVOLVED. I REALIZE THAT IN THE INSTANT CASE NO LEAVE IS INVOLVED FOR OCTOBER 20 OR 21, YET LEAVE WAS TAKEN ON THE TWO SUCCEEDING WORK DAYS. IN THE RECLAIM, THE TRAVELER STATES THAT HE WAS IN A "DUTY STATUS" OCTOBER 20 AND 21. HOWEVER, SUCH A STATEMENT DOES NOT NECESSARILY MEAN HE ACTUALLY PERFORMED DUTY, SINCE HE MAY HAVE MEANT HE WAS AVAILABLE FOR DUTY. NEITHER DOES THE STATEMENT INDICATE WHETHER HE REMAINED AT JAMESTOWN DURING WORKING HOURS OF THESE TWO DAYS. IF, HOWEVER, THE TAKING OF LEAVE IMMEDIATELY PRECEDING OR FOLLOWING THE CURRENT WEEKEND NON-WORK DAYS DOES NOT AFFECT THE ALLOWANCE OF PER DIEM FOR SATURDAY AND SUNDAY (SEE A-21592 CITED ABOVE) IT APPEARS THE RECLAIM MAY PROPERLY BE CERTIFIED BY ME AND, IN FACT, THE ORIGINAL VOUCHER COULD HAVE BEEN CERTIFIED AS SUBMITTED.

IN VIEW OF THE FOREGOING MAY THE ATTACHED RECLAIM VOUCHER BE PROPERLY CERTIFIED BY ME?

IN REAFFIRMING THE RULE THAT EMPLOYEES IN A TRAVEL STATUS ARE ENTITLED TO RECEIVE PER DIEM IN LIEU OF SUBSISTENCE ON SUNDAYS AND HOLIDAYS WHERE NO DUTY IS REQUIRED, NOTWITHSTANDING THEY MAY BE ABSENT FROM THEIR TEMPORARY DUTY STATION ON SUCH DAYS FOR PERSONAL REASONS, DECISION OF AUGUST 15, 1929, 9 COMP. GEN. 77, HELD AS FOLLOWS (QUOTING FROM PAGE 78);

* * * NO QUESTION OF LEAVE OF ABSENCE BEING INVOLVED, PARAGRAPH 45 (B) IS NOT APPLICABLE, AND PAYMENT OF THE FULL PER DIEM FOR SUNDAYS OR HOLIDAYS IS AUTHORIZED NOTWITHSTANDING THE EMPLOYEE'S ABSENCE FROM HIS TEMPORARY DUTY STATION ON SUCH DAYS. * * *

IN THE INSTANT CASE, HOWEVER, THE QUESTION OF LEAVE OF ABSENCE IS INVOLVED AND THE MATTER CLEARLY FALLS WITHIN THE PROVISIONS OF PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED JANUARY 30, 1942, WHICH ARE, IN PERTINENT PART, AS FOLLOWS:

IF LEAVE OF ABSENCE OF ANY KIND BEGINS OR TERMINATES WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, SUBSISTENCE ALLOWANCE WILL TERMINATE OR BEGIN AT THE SAME TIME. IF THE LEAVE OF ABSENCE DOES NOT BEGIN OR TERMINATE WITH THE TRAVELER'S PRESCRIBED HOURS OF DUTY THE TRAVELER WILL BE REGARDED AS BEING IN A SUBSISTENCE STATUS UNTIL MIDNIGHT OF THE LAST DAY ON WHICH ACTUAL SERVICE IS RENDERED PRECEDING THE LEAVE OF ABSENCE AND FROM 12:01 O-CLOCK A.M., OF THE DAY ON WHICH ACTUAL SERVICE IS RESUMED. PRESENCE AT DUTY STATION ON SUNDAYS OR HOLIDAYS DURING DAILY PRESCRIBED HOURS OF DUTY WILL BE REGARDED AS EQUIVALENT TO ACTUAL SERVICE, IF THE TRAVELER OTHERWISE BE IN A DUTY STATUS. * * *

THE TRAVELER INVOLVED HEREIN ARRIVED AT HIS TEMPORARY DUTY STATION ON SATURDAY, OCTOBER 20, 1945, AT 2:20 P.M., AND HIS LEAVE BEGAN ON MONDAY, OCTOBER 22, AT THE BEGINNING OF THAT DAY, BUT NOT WITHIN HIS PRESCRIBED HOURS OF DUTY. HENCE, ON THE PRESENT RECORD, HE WOULD BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE ONLY FOR THAT PART OF SATURDAY, OCTOBER 20, DURING WHICH HE WAS IN A TRAVEL STATUS, THAT IS, SATURDAY APPEARING A NON- WORK DAY ON WHICH NO ACTUAL SERVICES WERE RENDERED, AND HAVING ARRIVED AT HIS TEMPORARY DUTY STATION AT 2:20 P.M. ON THAT DAY, HIS SUBSISTENCE STATUS (EXCEPT AS HEREINAFTER INDICATED) ENDED AT 6:00 P.M. HOWEVER, IN VIEW OF THE PROVISION IN PARAGRAPH 45 (A) OF THE TRAVEL REGULATIONS THAT " PRESENCE AT DUTY STATION ON SUNDAYS OR HOLIDAYS DURING DAILY PRESCRIBED HOURS OF DUTY WILL BE REGARDED AS EQUIVALENT TO ACTUAL RVICE," IF THE TRAVELER ACTUALLY WERE PRESENT AT HIS DUTY STATION DURING THE AFTERNOON OF OCTOBER 20 AND ALL DAY ON OCTOBER 21, THE LATTER DAY MAY BE CONSIDERED AS THE LAST DAY OF ACTUAL SERVICE FOR THE PURPOSE OF THE QUOTED REGULATIONS AND HIS SUBSISTENCE STATUS WOULD NOT END UNTIL MIDNIGHT THEREON.

ALTHOUGH THE DECISION OF FEBRUARY 18, 1928, A-21592, WHICH IS CITED IN YOUR LETTER, INVOLVES FACTS SIMILAR TO THE CASE PRESENTED, THE PRINCIPLES SET FORTH THEREIN NO LONGER ARE FOR APPLICATION INASMUCH AS THE TRAVEL REGULATIONS IN EFFECT AT THAT TIME CONTAINED NO PROVISION WITH REGARD TO THE PAYMENT OF PER DIEM ON SUNDAYS AND HOLIDAYS WHERE LEAVE OF ABSENCE IS INVOLVED, WHEREAS THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS--- PARAGRAPH 45 (A/--- IN EFFECT AT THE TIME HERE INVOLVED MAKE SPECIFIC PROVISION FOR CASES OF THAT NATURE.

ACCORDINGLY, IN VIEW OF THE EXPRESS PROVISIONS OF PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AS HEREINBEFORE SET FORTH, AND IN THE ABSENCE OF A STATEMENT ESTABLISHING THAT THE TRAVELER ACTUALLY WAS PRESENT AT HIS DUTY STATION DURING THE PRESCRIBED HOURS OF DUTY ON SATURDAY AND SUNDAY, OCTOBER 20 AND 21, 1945, THE VOUCHER PRESENTED MAY NOT BE CERTIFIED FOR PAYMENT.

THE VOUCHER AND SUPPORTING PAPERS FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH.