B-82924, JANUARY 16, 1952, 31 COMP. GEN. 289

B-82924, JANUARY 16, 1952, 31 COMP. GEN. 289

SUBSISTENCE - HEADQUARTERS - DESIGNATION SOLELY FOR PER DIEM PURPOSES UNDER THE AUTHORITY VESTED IN ADMINISTRATIVE OFFICES TO DETERMINE AND DESIGNATE THE OFFICIAL HEADQUARTERS OF ITS EMPLOYEES, AN ADMINISTRATIVE OFFICE MAY NOT FIX THE PERMANENT DUTY STATION OF AN EMPLOYEE AT A PLACE FOR THE PURPOSE OF PAYING HIM A PER DIEM IN LIEU OF SUBSISTENCE WHEN MOST OF HIS OFFICIAL DUTIES ARE PERFORMED AT ANOTHER PLACE.

COMPTROLLER GENERAL WARREN TO GRANT W. ERNST, JANUARY 16, 1952:

YOUR LETTER OF OCTOBER 19, 1951, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES GOVERNMENT, WHICH AROSE AS A RESULT OF OVERPAYMENTS RECEIVED BY YOU WHILE AN EMPLOYEE OF THE WAR ASSETS ADMINISTRATION, ALBANY, NEW YORK, HAS BEEN REFERRED TO THIS OFFICE FOR A REPLY.

YOU MAKE PARTICULAR REFERENCE TO GENERAL ACCOUNTING OFFICE SETTLEMENT NO. US-70374, DATED OCTOBER 1, 1951, WHEREIN YOU WERE CERTIFIED TO BE INDEBTED TO THE UNITED STATES FOR THE SUM OF $814.50, REPRESENTING UNAUTHORIZED PAYMENTS ALLOWED YOU AS PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD FROM JULY 1 TO NOVEMBER 30, 1946, DURING WHICH TIME NEW YORK, NEW YORK, WAS ERRONEOUSLY DESIGNATED AS YOUR OFFICIAL DUTY STATION, WHEREAS YOUR ACTUAL POST OF DUTY--- OFFICIAL HEADQUARTERS--- WAS ALBANY, NEW YORK.

THE QUESTION OF YOUR RIGHT TO A PER DIEM ALLOWANCE DURING THE ABOVE MENTIONED PERIOD HAS BEEN THE SUBJECT OF THREE PREVIOUS DECISIONS OF THIS OFFICE, TO YOU, DATED JUNE 20, AUGUST 8 AND OCTOBER 20, 1949, B 82924. YOU WERE THEREIN ADVISED THAT ALBANY, RATHER THAN NEW YORK, NEW YORK, WAS YOUR PRINCIPAL PLACE OF EMPLOYMENT--- OFFICIAL POST OF DUTY--- AND SINCE PAYMENT OF PER DIEM TO AN EMPLOYEE AT HIS PERMANENT DUTY STATION IS PRECLUDED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THIS OFFICE HAS NO ALTERNATIVE OTHER THAN TO CONCLUDE THAT ANY PAYMENT RECEIVED BY YOU FOR PER DIEM WHILE IN DUTY STATUS AT ALBANY WAS ERRONEOUS AND CONTRARY TO LAW.

IN SUPPORT OF THE CONTENTION OF THIS OFFICE THAT ALBANY RATHER THAN NEW YORK, NEW YORK, WAS IN FACT YOUR OFFICIAL DUTY STATION, THERE IS QUOTED BELOW A PORTION OF A LETTER ADDRESSED TO YOU DATED SEPTEMBER 24, 1947, FROM WILLIAM J. MULLOY, CHIEF, ACCOUNTING DIVISION, WAR ASSETS ADMINISTRATION, REGION II, NEW YORK, NEW YORK, WHICH READS IN PART AS FOLLOWS:

IN VIEW OF THE FACTS NOW AVAILABLE THROUGH CORRESPONDENCE BETWEEN YOURSELF, MR. YATES AND THIS OFFICE AND REVIEW OF YOUR TRAVEL VOUCHER FILE REGARDING PAYMENT OF PER DIEM AT ALBANY FOR THE PERIODS DECEMBER 1 TO 31, 1946 AND JANUARY 1 TO 31, 1947 WHICH THIS OFFICE HAS DENIED, ALL EVIDENCE POINTS TO THE FACT THAT WHEN YOU WERE FIRST ASSIGNED TO THE ALBANY OFFICE, YOU WERE NOTIFIED BY YOUR SUPERVISOR, MR. DYKEMAN, THAT YOU WOULD BE WORKING OUT OF THE ALBANY OFFICE WHICH WOULD BE YOUR POST OF DUTY. THIS FACT IS SUBSTANTIATED IN THE SECOND AND THIRD PARAGRAPHS OF MR. YATES LETTER TO THIS OFFICE DATED MAY 12, 1947. MR. THOMAS MCGUINESS OF OUR PERSONNEL DIVISION STATES HE INTERVIEWED YOU IN SYRACUSE, PRIOR TO YOUR APPOINTMENT AND IS REASONABLY CERTAIN THAT YOU WERE AWARE OF THE FACT THAT ANOTHER EMPLOYEE HAD BEEN ACCEPTED FOR THE SYRACUSE APPOINTMENT AND SAYS YOU WERE INSTRUCTED TO REPORT TO THE NEW YORK OFFICE FOR INSTRUCTION, ASSIGNMENT, ETC.

ALTHOUGH YOU WERE ADMINISTRATIVELY ATTACHED TO NEW YORK FOR SUPERVISION, ETC., THE FACT STILL REMAINS THAT ALBANY WAS FOR ALL INTENTS AND PURPOSES, YOUR OFFICIAL DUTY STATION, REGARDLESS OF THE FACT THAT YOUR TRAVEL AUTHORIZATIONS SHOWED NEW YORK AS YOUR OFFICIAL STATION. * * *

THE RECORD FURTHER SHOWS THAT ALTHOUGH NEW YORK, NEW YORK, WAS YOUR DESIGNATED DUTY STATION, SUCH PLACE WAS NOT IN FACT YOUR PERMANENT STATION DURING ANY PART OF SAID EMPLOYMENT, BUT WAS DESIGNATED AS SUCH SO AS TO AFFORD YOU ADDITIONAL COMPENSATION IN THE FORM OF PER DIEM ALLOWANCES. THEREFORE, THE ADMINISTRATIVE ACTION PURPORTING TO ALLOW YOU PER DIEM AT ALBANY FROM JULY 1 TO NOVEMBER 30, 1946, WAS CLEARLY ERRONEOUS.

ACCOUNTING OFFICERS OF THE GOVERNMENT REPEATEDLY AND CONSISTENTLY HAVE HELD THAT THE AUTHORITY TO DETERMINE AND DESIGNATE THE POST OF DUTY OF AND OFFICER OR EMPLOYEE OF THE GOVERNMENT INCLUDES ONLY THE AUTHORITY TO FIX THE PLACE AT WHICH THE EMPLOYEE SHOULD ACTUALLY ESTABLISH OFFICIAL HEADQUARTERS, AND FROM WHICH HE SHOULD IN FACT OPERATE, WHICH, ORDINARILY IS THE PLACE WHERE THE EMPLOYEE WOULD BE REQUIRED TO SPEND MOST OF HIS TIME. THE DESIGNATION OF ANY OTHER PLACE, FOR THE PURPOSE OF GIVING THE EMPLOYEE A SUBSISTENCE ALLOWANCE FOR THE GREATER PORTION, OR ALL, OF HIS TIME, IS NOT WITHIN THE AUTHORITY VESTED IN THE HEAD OF A DEPARTMENT OR OTHER ADMINISTRATIVE OFFICIAL CHARGED WITH THE DUTY OF DESIGNATING POSTS OF DUTY OF GOVERNMENT EMPLOYEES, AND DOES NOT ENTITLE AN EMPLOYEE TO PER DIEM WHEN ABSENT THEREFROM AND PERFORMING DUTY AT ANOTHER PLACE, WHICH LATTER PLACE IS IN FACT HIS POST OF DUTY. 27 COMP. GEN. 657; 19 ID. 347; 18 ID. 423; 10 ID. 469; 4 ID. 320.

THE TABULATION BELOW SHOWS THE VOUCHERS INVOLVED AS WELL AS THE DATE AND AMOUNTS OF THE VARIOUS OVERPAYMENTS AS DISBURSED BY E. J. BRENNAN, CHIEF DISBURSING OFFICER, SYMBOL NO. 202:

CHART

PER DIEM PAYMENTS--- $6 PER DAY

VOUCHER AMOUNT

NO. DATE PAID PERIOD INVOLVED ALLOWED DUE OVERPAID

2-138835 8-27-46--- 7- 1 TO 7-18-46--- $103.50 $9.00 $ 94.50

2-202867 9-19-46--- 7-20 TO 7-31-46--- 61.50 NONE 61.50

2-255330 10- 7-46---8- 1 TO 8-31-46--- 186.00 NONE 186.00

2-393045 11-21-46--- 9- 1 TO 9-30-46--- 162.00 7.50 154.50

2-392613 11-21-46--- 10- 1 TO 10-31-46--- 181.50 4.50177.00

2-521261 1-15-47--- 11- 1 TO 11-30-46--- 169.50 4.50 165.00

TOTAL AMOUNT

OVERPAID------------ -------------------- ------- ----- 838.50 THE CITED VOUCHERS SHOW THAT YOU WERE ALLOWED PER DIEM TOTALING $864 FOR 144 DAYS OF THE 5 MONTH PERIOD INDICATED, WHEREAS--- ON THE EXISTING RECORD--- YOU WERE ACTUALLY ENTITLED TO ONLY $25.50 REPRESENTING 4 1/4 DAYS OF THE PERIOD INVOLVED WHILE YOU WERE ON OFFICIAL DUTY AWAY FROM ALBANY, NEW YORK, YOUR PERMANENT DUTY STATION. FROM THE AMOUNT OVERPAID ($838.50), THE SUM OF $24 ALLOWED ON GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 12, 1948, REPRESENTING PER DIEM DUE WHILE IN A TRAVEL STATUS AWAY FROM YOUR OFFICIAL STATION ( ALBANY) DURING DECEMBER 1946 AND JANUARY 1947, WAS APPLIED AS A CREDIT IN PARTIAL LIQUIDATION OF YOUR ACCOUNT, LEAVING A BALANCE OF $814.50 HERETOFORE REPORTED AS DUE THE UNITED STATES.

IN THIS CONNECTION IT IS NOTED THAT FOLLOWING YOUR APPOINTMENT YOU TRAVELED FROM SYRACUSE TO NEW YORK, NEW YORK, ON JUNE 25-26, 1946, VIA FIRST-CLASS RAIL AND PULLMAN USING GOVERNMENT TRANSPORTATION REQUESTS NOS. 64537-8, AT A COST OF $11.37. SAID AMOUNT, PLUS THE SUM OF $32.15 (TAXI FARE $0.65--- PER DIEM $31.50) ALLOWED YOU ON VOUCHER NO. 2 225104 OF THE SEPTEMBER 1946 ACCOUNTS OF E. J. BRENNAN, RESULTED IN A TOTAL GOVERNMENT EXPENDITURE OF $43.52. THE RECORD FURTHER SHOWS THAT PURSUANT TO A REQUEST OF THE ADMINISTRATIVE OFFICE WHICH WAS BASED UPON THE WELL ESTABLISHED RULE THAT A NEW APPOINTEE MUST PAY ALL EXPENSES OF TRAVEL TO HIS FIRST PERMANENT DUTY STATION AND, ALSO, IS PRECLUDED FROM RECEIVING A PER DIEM ALLOWANCE WHILE AT HIS PERMANENT STATION, YOU REMITTED THE SUM OF $43.53. HOWEVER, SINCE IT IS CONVINCINGLY CLEAR THAT YOUR ASSIGNMENT TO NEW YORK, NEW YORK, WAS FOR TEMPORARY RATHER THAN PERMANENT DUTY, AND SINCE THAT STATION WAS NOT--- AND MAY NOT BE CONSIDERED AS--- YOUR PERMANENT DUTY STATION, YOU ARE ENTITLED TO A CREDIT IN THE AMOUNT OF $37.13, $31.50 FOR PER DIEM REFUNDED, PLUS $5.63, REPRESENTING THE DIFFERENCE BETWEEN $12.02, THE COST OF YOUR TRANSPORTATION FROM SYRACUSE TO NEW YORK, NEW YORK, AND $6.39, THE CONSTRUCTIVE COST OF FIRST-CLASS RAIL FARE WITH PULLMAN, INCLUDING TAXI FARE, FOR TRAVEL FROM SYRACUSE TO ALBANY, NEW YORK, YOUR ONLY PERMANENT DUTY STATION, LEAVING A BALANCE NOW DUE THE UNITED STATES OF $777.37. IN DUE TIME, GENERAL ACCOUNTING OFFICE SETTLEMENT NO. US-70374, DATED OCTOBER 1, 1951, WILL BE REVISED TO SHOW THE CORRECT AMOUNT FOUND TO BE DUE.

IN VIEW OF THE FOREGOING, AND SINCE YOUR LETTER CONTAINS NO EVIDENCE OR INFORMATION WHICH JUSTIFIES THIS OFFICE IN RELIEVING YOU OF SAID OBLIGATION, IT IS REQUESTED THAT YOU REMIT TO THIS OFFICE A CHECK OR DRAFT MADE PAYABLE TO THE TREASURER OF THE UNITED STATES IN THE AMOUNT OF $777.37, IN ORDER THAT FURTHER STEPS TO ENFORCE COLLECTION MAY NOT BE NECESSARY.