BNUMBER: B-257926.2
DATE: October 2, 1996
TITLE: Dimitri & Eugenia Arensburger-Temporary Duty-Overseas
Location-Per Diem
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Matter of:Dimitri & Eugenia Arensburger-Temporary Duty-Overseas
Location-Per Diem
File: B-257926.2
Date:October 2, 1996
DIGEST
1. An employee of the Department of State owns a residence at his
permanent duty station in Washington, D.C., and also owns a residence
in Geneva, Switzerland. Whenever he performed temporary duty travel
to Geneva, he occupied the residence there. He is entitled to
transportation to and from Geneva, and the meals and incidental
expenses portion of per diem, but not the lodging portion of per diem
where he did not incur any lodging costs in excess of the usual
expenses of maintaining his residence there.
2. An individual employed as a contract interpreter by the Department
of State on an as required basis has no official station other than
her residence. Therefore, for the purposes of the Federal Travel
Regulation, currently 41 C.F.R. sec. 301-1.3(c)(4) (1995), her residence
at the time she received an assignment is the equivalent of her
official station.
3. An individual employed as a contract interpreter by the Department
of State on an as required basis owns a residence in the Washington,
D.C., area, and also owns a residence in Geneva, Switzerland. When
she performed an assignment in Geneva, she occupied the residence
there. When assigned to Geneva while residing in the Washington,
D.C., area, she is entitled to transportation to and from Geneva, the
meals and incidental expenses portion of per diem, but not the lodging
portion of per diem where she did not incur any lodging costs in
excess of the usual expenses of maintaining the residence there.
However, when she was living at her residence in Geneva upon receiving
an assignment, her Geneva residence became her official station for
the purpose of that assignment; therefore, she is not entitled to per
diem while on that assignment in Geneva nor to any transportation at
government expense between Geneva and Washington at the completion of
that Geneva assignment.
DECISION
This decision responds to a request from the Acting Inspector General
of the United States Arms Control and Disarmament Agency (ACDA).[1]
The issue is whether two individuals who own a residence at a
temporary duty location overseas and resided there while performing
that duty, are entitled to per diem. As discussed below, partial per
diem may be paid in certain circumstances.
BACKGROUND
Mr. Dimitri Arensburger, a staff interpreter employed in the Language
Services branch of the Department of State, is officially stationed in
Washington, D.C. His wife, Mrs. Eugenia Arensburger, is employed as a
contract interpreter with the same branch of the Department of State;
but, since she is not a regular employee of the federal government,
she has no official duty station.
Mr. and Mrs. Arensburger own a residence in the Washington area, which
they purchased in 1977. They also own a residence in Geneva,
Switzerland, which they purchased in 1978. Whenever either or both of
them receive an assignment in Geneva, they occupy their residence in
Geneva.
When Mr. Arensburger received a temporary duty assignment to Geneva,
his travel would usually begin at Washington, D.C., his permanent duty
station, but that was not necessarily the case with Mrs. Arensburger.
When her services as a contract interpreter were required in Geneva,
she occasionally began her assignment travel from her residence in the
Washington, D.C. area. However, there were other times when Mr.
Arensburger traveled to Geneva on official business that she simply
accompanied him at personal expense. After they arrived in Geneva,
and occupied their residence there, occasionally she was asked to
serve as an interpreter in Geneva under her basic ordering agreement
with the Department of State.
During the period October 1, 1986, to September 30, 1990, Mr. and Mrs.
Arensburger were on assignment in Geneva 7 times and 6 times,
respectively, and submitted 13 travel vouchers claiming the maximum
per diem authorized for Geneva. Each of these vouchers was approved
and payment was made to the Arensburgers. Of the amount paid,
approximately $33,000 represented the lodging portion of the per diem
for Geneva, even though Mr. and Mrs. Arensburger were living in their
own residence there.
The question raised is whether Mr. and Mrs. Arensburger are entitled
to full per diem while on assignment in Geneva. In this regard, the
ACDA advises that in 1983, a question was raised in the Department of
State concerning the entitlement of a contract interpreter to receive
per diem while on assignment where the location of the assignment is
at or near the individual's residence. A legal opinion dated January
17, 1983, prepared by the Office of the Legal Advisor, Department of
State, concluded that an individual who is under contract with the
Department of State and who resides at the location of his/her
assignment, even at an overseas location, is not entitled to per diem
because he or she did not have to perform travel beyond the commuting
distance from that residence. By memorandum dated May 26, 1993, Mr.
A. Richard Richstein, ACDA Office of General Counsel, concluded that
the earlier position expressed in the Department of State legal
opinion was proper.
OPINION
Title I of Public Law 99-234[2], amended 5 U.S.C. sec. 5702 (1988) to
establish the type of reimbursement system to be used by federal
agencies for all travel by federal employees within and outside CONUS,
including foreign areas. Pursuant to that authority, Part 1-7 of the
Federal Travel Regulations (FTR)[3] was amended in part to establish a
worldwide per diem system as the predominant travel reimbursement
system.
Section 1-7.2c of the FTR[4] provided that, for civilian travel to
foreign areas outside the United States and its possessions, the per
diem rate may not exceed the rate prescribed in the Standardized
Regulations (Government Civilians, Foreign Areas). Reductions in
those rates were authorized under section 1-7.7 of the FTR[5] to
insure that the per diem paid is not in excess of that required to
meet the employee's necessary subsistence expenses. The rule is
currently stated in 41 C.F.R. sec. 301-7.12 (1995), as follows:
"An agency may, in individual cases or situations, authorize a
reduced per diem rate under certain circumstances such as when .
. . the per diem costs to be incurred by the employee can be
determined in advance. In exercising its responsibilities
outlined in sec. 301-7.2(b), the agency should consider any known
factors that will cause the traveler's per diem expenses in a
specific situation to be less than the applicable maximum rates .
. . ."
The FTR provision in sec. 301-7.2(b), cited in the above quotation,
provides that it is the involved agency's responsibility to allow per
diem only as justified by the circumstances and to consider known
arrangements showing that lodging at the temporary duty location can
be obtained without cost, particularly where repetitive travel or
extended stays are involved. With regard to extended stays, FTR para.
1-7.7c[6] specified that when lodging or meals can be obtained at a
lower cost, "the per diem rate should be reduced accordingly."
In Bornhoft v. United States, 137 Ct. Cl. 134 (1956), the Court of
Claims held that the only subsistence expenses incurred by an employee
that properly may be reimbursed are those expenses which are incurred
by reason of travel and are in addition to the usual cost of
maintaining the employee's own table and place of abode. Thus, where
an employee travels to a temporary duty location where he or she owns
a residence and stays in that residence while performing temporary
duty, we have uniformly denied reimbursement for lodging expenses.[7]
In Mr. Arensburger's case, it appears that he began his temporary duty
assignments to Geneva from his official duty station, Washington, D.C.
Based on our decisions, therefore, he is entitled to transportation to
and from Geneva, and the meals and incidental expense (M&IE) portion
of his per diem, but he is not entitled to the lodging portion of per
diem for any day he stayed in his residence in Geneva while performing
temporary duty there.
As to Mrs. Arensburger, she is not a federal employee. She is under
contract with the Department of State to provide interpreter services
on an as required basis. Article 1 of the additional terms and
conditions of her "Basic Ordering Agreement," specifies that she is an
independent contractor and, thus, for the purposes of her entitlement
to per diem, she has no official duty station, as that term is defined
in FTR para. 1-1.3c(1).[8] Therefore, for the purpose of the travel
regulations, the place where she resides when she receives her
assignments is the equivalent of her official station.
Article 5 of the additional terms and conditions to her agreement
states further that, in the event that the Contractor is required to
travel beyond commuting distance from the area of her residence in
connection with the services contracted for under the agreement,
travel shall be allowed in accordance with the Standardized Government
Travel Regulations, as amended, and per diem shall not exceed the
maximum allowable under those regulations. Article 5 further provides
that, when on assignment outside the continental United States, the
contractor will be allowed the established per diem rate prescribed
for the area in the Standardized Regulations (Government Civilians,
Foreign Areas), if such rate is higher than the rate otherwise
authorized for the assignment.
This authorization is subject to the same limitations and restrictions
applicable to government employees traveling under the same
circumstances. Therefore, when Mrs. Arensburger received an
assignment to Geneva while living in her residence in the Washington
area, her basic travel, transportation and per diem entitlement is
subject to the same limitations as those applicable to Mr.
Arensburger. However, if she was living in her residence in Geneva
when she received an assignment there, her Geneva residence became her
official station for the purpose of that assignment and she is not
entitled to per diem while on that assignment nor to any
transportation at government expense between Geneva and Washington at
the completion of such assignment.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. Mr. John C. Payne
2. 99 Stat. 1756, Jan. 2, 1986.
3. FTR Supp. 20, May 30, 1986, Incorp. by ref., 41 C.F.R. sec. 101-7.003
(1986). See also FTR Supp. 24, July 15, 1987, for travel performed on
or after August 1, 1987, and 41 C.F.R. Part 301-7 (1989) for travel
performed on or after May 10, 1989.
4. See 41 C.F.R. sec. 301-7.3(c) (1995), for travel performed on or after
May 10, 1989.
5. See 41 C.F.R. sec. 301-7.7, for travel performed on or after May 10,
1989, currently found at 41 C.F.R. sec. 301-7.12 (1995).
6. See 41 C.F.R. sec. 301-7.7(c) for travel performed on or after May 10,
1989, currently found at 41 C.F.R. sec. 301-7.12(b) (1995).
7. Sanford O. Silver, 56 Comp. Gen. 223 (1977); Burney P.C. Boote,
B-189623, Mar. 2, 1981; Danny Sarine, B-201894, Feb. 23, 1982; Durel
R. Patterson, B-211818, Feb. 14, 1984. Cf. James H. Quiggle,
B-192435, June 7, 1979.
8. Incorp. by ref., 41 C.F.R. sec. 101-7.003(1981). See 41 C.F.R. sec.
301-1.3(c)(4) for travel on or after May 10, 1989.