BNUMBER:  B-260780
DATE:  July 16, 1996
TITLE:  George E. Sims

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Matter of:George E. Sims

File:     B-260780

Date:July 16, 1996

DIGEST

Payment may be made to the employee for his dependents' per diem for 
the period in Hawaii from July 13 through July 17, 1993, while en 
route from the old duty station in Albuquerque, New Mexico, to the new 
duty station in the Kwajalein Atoll, Marshall Islands, pursuant to the 
employee's permanent change of station.  The delay in Hawaii was 
beyond the control of the employee, was not for his personal 
convenience, and the employee acted as a prudent person would have 
acted under the same circumstances. 

DECISION

This advance decision is made at the request of John F. Best, an 
authorized certifying officer, U.S. Army Corps of Engineers, 
Department of the Army, to determine whether he may certify for 
payment certain travel expenses, including per diem, for the family of 
a civilian employee of the U.S. Army Corps of Engineers, Mr. George E. 
Sims.  Mr. Sims' family traveled concurrently with him in connection 
with his permanent station from Albuquerque, New Mexico, to Kwajalein 
Atoll, Marshall Islands, in 1993.

BACKGROUND

Mr. Sims' travel orders gave him authorization to travel concurrently 
with his wife and four dependent children (ages 9, 6, 3, and 1).  
Concurrent travel was in accordance with United States Army Kwajalein 
Atoll Regulation 210-10, USASDC, 21 October 1986, which states that 
family members may enter Kwajalein without prior approval only when 
accompanied by the sponsor and travelling on official orders.  

The employee and his family arrived in Honolulu, Hawaii, on Tuesday 
afternoon, July 13, 1993, so that the employee could "in-process" for 
2 days at Fort Shafter, a requirement before entering Kwajalein.  The 
employee's spouse and dependents stayed in Hawaii during this time, 
planning to depart on the next available U.S. military flight for 
Kwajalein on Friday morning, July 16.  Due to mechanical problems, 
this flight returned to Hickam Air Force Base in Honolulu three 
separate times before arriving in Kwajalein at 10:45 p.m. on the 
evening of July 17.  

The certifying officer asks whether Mr. Sims may receive per diem for 
his spouse and dependent children from July 13 through July 17 for 
their stay in Hawaii while en route to his permanent station in 
Kwajalein.  Mr. Sims' request for per diem for his spouse and 
dependents was denied by the agency on the basis that per diem for 
dependents is limited to that allowable for uninterrupted travel by 
the authorized route between the old and new duty stations.  As a 
result, per diem for the interrupted stay in Hawaii was considered in 
excess of the constructive travel time and was denied for the 
dependents.

ANALYSIS
     
The payment of travel and transportation expenses of transferred 
government employees and their dependents is authorized under 5 U.S.C.  sec.  
5724a, as implemented by the Joint Travel Regulations (JTR).  
Paragraph C7000 of the JTR provides that travel and transportation 
expenses of dependents at government expense may be authorized or 
approved in connection with permanent duty travel of the employee 
concerned.  Per diem, which is a daily allowance for lodging, meals, 
and related incidental expenses, is limited for dependents to that 
allowable for uninterrupted travel by the authorized mode over a 
usually traveled route between the old and new duty stations.  The 
issue in this matter is whether the dependents' layover in Hawaii can 
be considered part of "uninterrupted travel" over a usually traveled 
route so that they would be entitled to per diem during their stay 
there from July 13 through July 17.

In the case of Hank Meshorer, 68 Comp. Gen. 37 (1988), a transferred 
employee traveled to his new duty station by an indirect route to 
avoid a severe heat wave.   His claim for per diem associated with 
that route was remanded to the agency to consider whether the indirect 
route was acceptable to the agency based on the following criteria:  
(1) whether the cause of the delay was beyond the control of the 
employee, (2) whether the delay was for the employee's personal 
convenience, and (3) whether circumstances revealed that the employee 
acted as a prudent person would have acted under the same 
circumstances.[1]

Applying these criteria to the case at hand, the delay was the result 
of the employee spending 2 days "in-processing" in Hawaii, a necessary 
condition precedent for a permanent change of station to the Kwajalein 
Atoll, and another delay of approximately a day and a half because of 
mechanical difficulties with the airplane.   Since the 2-day delay for 
"in-processing" was administratively considered and approved as being 
officially necessary and on government business, and the second delay 
for mechanical difficulties with the airplane was clearly beyond the 
control of the employee, the first criteria for the reimbursement for 
per diem for the employee's dependents is met. 

Regarding the second criteria, neither the "in-processing" nor the 
delay due to the airplane's mechanical troubles were for the personal 
convenience of the employee.  Concurrent travel was not only 
authorized, but was strongly encouraged by the Army.  The employee was 
"in-processing" in Hawaii prior to his assignment in Kwajalein, as 
directed in his travel orders, and the delay was beyond the employee's 
control.  

In the case of Kiyoji Tomita, B-180736, June 18, 1974, we held that, 
although Mr. Tomita's family traveled by an indirect route via Hawaii 
to the Kwajalein Atoll incident to the employee's permanent change of 
station and incurred additional expenses by their delay, the 
authorized certifying officer may certify for payment a travel voucher 
for 15 days per diem for the employee's family since the indirect 
travel and delay was caused by the government, was beyond the control 
of the employee, and was not for his personal convenience.  

Finally, the employee appears to have acted prudently under the 
circumstances, the third criteria.  By traveling with his spouse and 
four children under the age of 10 during a permanent change of 
station, the employee was in a position to assist them with the travel 
that involved not only changes in airlines, but, because of the 
relationship of the separate airlines with each other, hand carrying 
15 pieces of luggage between terminals in Los Angeles.   When 
unexpected mechanical difficulties arose, necessitating boarding and 
reboarding the aircraft in Hawaii four separate times, the prudence of 
concurrent travel where two adults were available to direct and 
supervise four young children became obvious.  

As provided in C7006 of the JTR, when the spouse accompanies the 
employee, the spouse is authorized three-fourths of the per diem rate 
to which the employee is entitled and each member of the employee's 
immediate family under the age of 12 is authorized one-half of the per 
diem rate to which the employee is entitled.  Further, the per diem 
rate for Hawaii, is the applicable rate.  

Accordingly, we do not object to certification for payment to the 
employee of his dependents' per diem for the period in Hawaii from 
July 13 through July 17, 1993, while en route from the old duty 
station in Albuquerque, New Mexico, to the new duty station in the 
Kwajalein Atoll pursuant to the employee's permanent change of 
station.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. See also Robert T. Bolton 62 Comp. Gen. 629 (1983), where an 
employee was granted additional per diem due to the breakdown of his 
mobile home en route to his new duty station, and Thomas S. Swan, Jr. 
64 Comp. Gen 173 (1984), where an employee whose automobile broke down 
en route to his new duty station was allowed additional per diem for 
the delay deemed beyond his control and acceptable to the agency.