DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES (B-26782) SUBSISTENCE PER DIEMS-TEMPORARY STATION SUBSEQUENTLY. MADE PERMANENT Travel by an employee incident to an order to temporary duty away from his headquarters to perform the duties of another position pending determination by competent authority of his eligibility for permanent appointment to such position constitutes travel on official business away from a designated post of duty within the meaning of the Subsistence Expense Act of 1926, as amended, and the employee is entitled to per diem in lieu of subsistence, as provided in his orders, from the time he left his official station to and including the day preceding the date on which his eligibility for permanent appointment was finally determined. 19 Comp. Gen. 32, distinguished. Comptroller General Warren to the Secretary of Agriculture, July 2, 1942: I have your letter of June 15, 1942, as follows: The position of Assistant Chief Examiner, Examination Division, Farm Credit Administration, became vacant due to the death of the incumbent on March 1, 1942, and it became necessary for the Farm Credit Administration to make temporary arrangements for the performance of the duties of the position pending a permanent appointment. Accordingly, pursuant to proper travel authorization which provided for per diem in lieu of subsistence of $6 while absent from New Orleans, Supervising Farm Credit Examiner Henry P. Mousel proceeded to Washington, D. C., from his headquarters, New Orleans, Louisiana, arriving in Washington at 1: 40 a. m. on March 9. In its consideration of the person to be recommended for permanent appointment to the position of Assistant Chief Examiner, the Farm Credit Administration decided to recommend Mr. Mousel's appointment provided the proposed action would be acceptable to the Civil Service Commission. For the purpose of determining this question of eligibility, the matter was presented to the Civil Service Commission which indicated by letter to the Department dated April 2, received April 3, that it would have no objection to Mr. Mousel's advancement to the position of Assistant Chief Examiner. Upon recommendation of the Farm Credit Administration, Mr. Mousel was appointed to the latter position with headquarters Washington, D. C., effective May 6, 1942, by action of the Department taken on that date. During the period between March 9 and May 5, inclusive, Mr. Mousel was at Washington, D. C., with the exception of an official trip performed between April 5 and 15 on which it was necessary for him to visit New Orleans and other points in the discharge of duties incident to the position of Supervising Farm Credit Examiner. Decision of July 11, 1939 (19 Comp. Gen. 32), discussed a somewhat similar case where during a period within which steps were being taken to change the official headquarters of an employee it was necessary in the regular course of business for that employee to proceed to the new location. It was held that there were no expenses incident to the change of official station because during said interim the employee had already reached that point. However the administrative order for the performance of the travel provided that no per diem in lieu of subsistence would be payable after arrival. 1 The question presented for your determination is whether under the foregoing facts administrative approval may properly be given for payment to him of per diem in lieu of subsistence while he was at Washington during the period to and including May 5, the day preceding the date the Department appointed him to the position of Assistant Chief Examiner, headquarters Washington, D. C., effective May 6. In the event your answer to this question is not in the affirmative, advice as to what portion of the period between March 9 and May 5, inclusive, per diem may properly be allowed him, and the underlying reasons therefor will be appreciated. It is understood from your letter that when Mr. Mousel was directed to proceed to Washington for temporary assignment to the duties of the position of Assistant Chief Examiner which was vacated by the death of the incumbent it was not known whether he would be able to qualify for permanent appointment to such position under the civil-service rules and regulations, and that it was not until May 6, 1942, that his eligibility for permanent appointment was finally determined. It is proper for an administrative office, when the exigencies of the service require, to order an employee to temporary duty away from his headquarters for the purpose of performing temporarily the duties of another position pending determination by competent authority of such employee's eligibility for permanent appointment to such position, or until the position is filled by another employee. The travel performed incident to such an order constitutes travel "on official business and away from their designated posts of duty" within the meaning of the Subsistence Expense Act of 1926, 44 Stat. 688, as amended by the act of June 30, 1932, 47 Stat. 405, and the act of January 30, 1942, Public Law 424, 56 Stat. 39, authorizing the payment of a per diem in lieu of subsistence of not to exceed $6 within the limits of the continental United States. As it is understood the travel order directing Mr. Mousel to report at Washington, D. C., provided for a per diem allowance of $6, you are advised that he may be paid such rate of per diem for the entire period from the time he left his official station at New Orleans to and including May 5, 1942, the action taken on May 6, 1942, finally determining his eligibility for permanent appointment, having the effect of automatically terminating his temporary assignment. The rule stated in the decision of July 11, 1939, 19 Comp. Gen. 32, cited in your letter, is not applicable here for the reason that in that case no per diem in lieu of subsistence was provided for in the travel order involved. (B-26896) TRANSPORTATION-HOUSEHOLD EFFECTS-EXCESS COST- In determining the amount of transportation charges on household effects, etc., in excess of regulation change of station allowance for which an Army officer is liable under the act of March 23, 1910, and applicable Army regulations, there should be used the net amount actually paid by the Government on the shipment, taking into consideration any prompt payment discount received. Assistant Comptroller General Elliott to Col. W. M. Dixon, United States Army, July 6, 1942: I have your letter of June 2, 1942, as follows: There is inclosed herewith certified copy of voucher 567471, May 16, 1942, accounts of W. M. Dixon, Colonel, Finance Department, in favor of the National Delivery Association, Washington, D. C., in the net amount of $207.46 covering the costs of transporting the household goods of Col. Sewell M. Corbett, M. C., from Washington, D. C., to Fort Jay, N. Y. The weight of the property shipped is in excess of that provided by applicable regulations and there is for collection from the owner of the property a pro rata proportion of the cost of the shipment. The purchase order covering the transportation of the property provides for a charge of $209.56 less 1% for payment within 10 days. Since the discount is given for prompt payment and is earned by the Government and not through any action of the owner of the property, there is some doubt as to the amount to be used in computing the proportion chargeable to the owner of the property. The matter is submitted with request for decision as to whether the gross amount of $209.56 provided in the purchase order or the net amount of $207.46 actually paid is to be used in determining the pro rata proportion of the charges to be collected from Col. Sewell M. Corbett. The act of March 23, 1910, 36 Stat. 255 (10 U. S. C. 821) provides: That hereafter baggage in excess of regulation change of station allowances may be shipped with such allowances, and reimbursement collected for transportation charges on such excess Paragraph 10 (b), Army Regulations 30-960, May 24, 1938, provides: On permanent change of station, authorized baggage in excess of the prescribed weight allowance (see a above) may be shipped on the same bill of lading with the allowance, provided that the cost covering excess weight as determined under paragraph 24 will be borne by the owner and paragraph 24 of the same regulations directs, in pertinent part, that: The Finance Officer, U. S. Army, Washington, D. C. (or other finance officers as designated in par. 1, A. R. 35-6120), who settles the account will determine the excess amount to be collected and notify the owner, who, upon receipt of such notification, will promptly remit the amount so determined. * * The amount for collection in accordance with the provisions of the applicable statute and regulations is an amount equal to the "transportation charges on such excess" or the "cost covering excess weight," that is to say, the net amount actually paid by the Government is for use in determining the pro rata proportion of shipping charges for collection from Colonel Corbett and, as $207.46 was paid for moving the baggage, that amount should be used in determining the excess cost. (B-27100) PANAMA CANAL AND PANAMA RAILROAD CO. EMPLOYEES-LEAVE PAYMENTS WHILE ON MILITARY, ETC., DUTY; RECREDIT OF ACCRUED LEAVE ON RETURN TO CIVILIAN DUTY Employees of the Panama Canal and the Panama Railroad Co. who enter the military or naval service are entitled to the benefits of the act of August 1, 540712-433 1941, as amended, authorizing payment for accumulated or current accrued annual leave concurrently with active military or naval service. Panama Canal and Panama Railroad Co. employees entering the military or naval forces are not entitled under the act of August 1, 1941, as amended, authorizing payment for accumulated or current accrued annual leave concurrently with active military or naval service, to payment for any leave to their credit in excess of the 120 days maximum authorized by the Panama Canal leave regulations to be taken at any one time or commuted into cash upon termination of service, but upon return to their civilian positions after the military or naval duty, the excess may be recredited. 21 Comp. Gen. 422, distinguished. Comptroller General Warren to the Chief of Office, the Panama Canal, July 8, 1942: I have your letter of June 29, 1942, as follows: Reference is made to the act of April 7, 1942, Public Law 517, 77th Congress, amending the act of August 1, 1941, Public Law 202, 77th Congress, 55 Stat. 616 (5 U. S. C. 61a), which provides that Government employees "who, subsequent to May 1, 1940, shall have entered upon active military or naval service in the land or naval forces of the United States by voluntary enlistment or otherwise, shall be entitled to receive, in addition to their military pay, compensation in their civilian positions covering their accumulated or current accrued leave, or to elect to have such leave remain to their credit until their return from active military or naval service." It is considered that said act of April 7, 1942, applies to all Panama Canal and Panama Railroad Company employees who enter into active military or naval service. Pertinent leave provisions of the Panama Canal's Conditions of Employment Executive Order of February 2, 1914, as amended January 15, 1917 (see Canal Zone Code, title 2, section 81, as amended July 9, 1937, ch. 470, sec. 3, 50 Stat. 487, for statutory authority), provide as follows: "22. Twenty-four days annual leave will be allowed each employee for each year after entry into service and any annual leave not used prior to the end of the service year in which it is earned shall be thereafter in the same status and subject to the same rules as cumulative leave. "29. Thirty days' cumulative leave will be allowed each employee paid on a monthly or annual basis for each year of his service, and twenty days to each employee paid on an hourly basis. This leave will be due after completing ten months' service each year and may be taken when the employee's service can be spared. It may be taken annually or left to accumulate to the credit of the employee, provided, however, that the maximum number of days leave with pay of all kinds which may be granted at any one time or which may be commuted into a cash payment at termination of service is 120. “35. After accumulating leave of all kinds amounting to 120 days, an employee ceases to earn additional cumulative leave until he is granted all or part of the cumulative leave already earned, unless he shall enter on cumulative leave within two months thereafter, or be ordered by the Governor to defer taking leave for official reasons. "36. When an employee's service is terminated, a cash payment in commutation of leave will be made to him for the number of days cumulative leave due, plus the annual leave due. In the event of his death his estate will be paid the sum due." In reference to quoted sections 29 and 35, it is provided in section 52.2 of the Governor's Personnel Regulations dated March 1, 1928, that in determining the amount of cumulative leave, the annual leave should not be added to make the cumulative leave total of 120 days until the end of the year, when it becomes cumulative leave and loses its identity as annual leave, and that if, at the beginning of the new service year, the employee has a total of less than 120 days' cumulative leave previously accumulated, he continues to earn annual and cumulative leave in the regular amounts throughout that year, subject to the limitation that not more than 120 days' leave with pay of all kinds may be granted at any one time or commuted into a cash payment at termination of service. There is enclosed a copy of a circular dated May 28, 1942, stating policies which, pending a decision upon the questions herein submitted, are being followed with respect to leave in the case of employees entering active military or naval service. Such policies, particularly those stated in paragraphs 3 (c) and 3 (d) of the circular, were formulated with the understanding that the following three questions would be submitted for your decision: Question One: Where an employee entering upon active military or naval service has more than 120 days' leave, say 155 days, to his credit under the quoted Panama Canal leave provisions, does the Canal leave provision (section 29) limiting to 120 days the maximum leave with pay which may be granted at any one time or which may be commuted into a cash payment at termination of service, apply to payment of compensation for leave under the Act of April 7, 1942, so as to limit such payment to 120 days, or is the employee entitled to be paid for the entire 155 days as "accumulated or current accrued leave" within the meaning of said Act of April 7, 1942? In this connection reference is made to 21 Comp. Gen. 422 ruling that under the Act of August 1, 1941, Public Law 202, 55 Stat. 616 (5 U. S. C. 61a), postmasters were entitled to all of the accumulated and current accrued leave to their credit when they were ordered into active military service, without regard to the Postal Regulation limiting to 30 days the amount of accumulated leave which could be taken in any one fiscal year. Question Two: If, with reference to question one, the employee is entitled to compensation covering the entire 155 days' accrued leave, may he be terminated at the time he enters active military service and thereupon be paid for the entire 155 days' accrued leave in a single lump-sum payment, or does the Act of April 7, 1942, contemplate that payment thereunder should be made by pay periods as though the employee were on leave? The present policy of The Panama Canal is to terminate the services of all employees entering active military or naval service, rather than to place them in a leave or furlough status (see paragraph 3 (a) of the enclosed circular of May 28, 1942). Question Three: If, with reference to question one, payment under the Act of April 7, 1942, is limited to 120 days' accrued leave, is the accrued leave in excess of 120 days to remain to the credit of the employee until his return from active military or naval service, as stated in paragraph 3 (d) of the enclosed circular of May 28, 1942? As stated in paragraph 2 of the Panama Canal circular dated May 28, 1942, a copy of which was forwarded with your letter, employees of the Panama Canal and Panama Railroad Co. are entitled to the benefits of the act of August 1, 1941, as amended by the act of April 7, 1942, Public Law 517, 56 Stat. 200, a portion of which is quoted in the first paragraph of your letter. Paragraphs 3 (c) and 3 (d) of said circular provide as follows: 3. The following policies with respect to leave shall apply to employees entering active military or naval service: (c) Accrued leave standing to the credit of an employee at the time of his entry upon active military or naval duty may be commuted into cash, up to a maximum of 120 days, in accordance with Panama Canal leave regulations. (d) Accrued leave in excess of 120 days shall remain to the credit of the employee until his return from active military or naval service. Section 52.2 of the Governor's Personnel Regulations, referred to in your letter, provides as follows: One hundred and twenty days maximum.-In determining the amount of cumulative leave, the annual leave should not be added to make the cumulative leave total of 120 days until the end of the year, when it becomes cumulative leave and loses its identity as annual leave. If, at the beginning of the new service year, the employee has a total of less than 120 days' cumulative leave previously accumulated, he continues to earn annual and cumulative leave in the regular amounts throughout that year, but cannot at any time be granted leave of absence with pay or have leave commuted into a cash payment upon termination of service for more than the maximum number of 120 days. As stated in your letter, supra, it would be possible under the quoted regulations of the Panama Canal for an employee to have to his credit |