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.