May
19, 2009
CBCA
1461-TRAV
In the
Matter of RUTHANNE S. DARLING
RuthAnne S. Darling, Stafford,
VA, Claimant.
Sheila Melton, Acting Chief,
Travel Mission Area, Standards and Compliance, Defense Finance and Accounting
Service, Indianapolis, IN, appearing for Department of Defense.
SHERIDAN, Board Judge.
Claimant, RuthAnne S. Darling,
n_e Toner, a civilian employee of the Products Support Division of the
Air Force Petroleum Agency, was deployed on temporary duty assignment (TDY) to
the Al Udeid Air Base, Qatar (Air Base).
Pursuant to an audit of the division=s travel
pay vouchers, it was determined that claimant had been reimbursed at a higher
per diem rate than had been authorized.
Defense Finance and Accounting Service (DFAS) seeks to recover the
overpayment and claimant requests that the Board review the DFAS recoupment
decision. For the reasons stated below,
the DFAS decision is affirmed.
Background
Since November 2002, the
Products Support Division of the Air Force Petroleum Agency has been
responsible for providing an ongoing rotation of military and civilian
personnel to the Air Base, in support of an aerospace fuels laboratory. This rotation was within the United States
Central Command Air Force (CENTAF) area of operation (AOR).
The CENTAF Commander has the
authority to determine the policy on the type of per diem payable to military
and civilian personnel within the CENTAF AOR.
JTR C4550. Such policy was set
forth by the CENTAF Commander in a Memorandum for All Personnel issued on April
7, 2003:
Government furnished meals
(dining facilities, boxed lunches, or Meals Ready to Eat (MREs)) are readily
available. Current reporting
instructions state AAll available meals are directed@ and the member will receive an incidental expense
rate of $3.50 a day. As such,
installation commanders are not authorized to change the per diem rate on any
member=s orders. In
accordance with established policy, all personnel are to make maximum use of
available government furnished meals even when official duties necessitate
off-installation travel. Personnel who
eat elsewhere do so as a matter of choice or convenience and at their own expense.
Personnel were advised that Aas a last resort@ they
could seek compensation for meals consumed at commercial dining facilities, but
they would need special approval by the installation commander at their TDY
location.
Claimant, a civilian employee
of the Products Support Division, was issued TDY travel authorization TE-0388
on June 13, 2003. The authorization
provided: APROPORTIONAL
PER DIEM RATE: A. ALL GOVT MEALS ARE
AVAILABLE AND DIRECTED. B. PARTIAL GOVT
MEALS ARE AVAILABLE AND DIRECTED. C.
GOVT MEALS ARE NOT AVAILABLE OR DIRECTED.@ The agency indicates that TE-0388 shows
option A as having been circled; claimant represents that TE-0388 shows
initials of the authorizing official next to option C. The copy of the orders is not fully legible,
but the Board=s copy of TE-0388 shows option A as being circled. The TE-0388 orders did not set forth per diem
or M&IE (meals and incidental expenses) rates.
Claimant was on TDY at the Air
Base from June 23, 2003, to October 23, 2003.
While at the Air Base, meals were available to claimant at no cost in
the mess hall. Claimant did not eat at
the mess hall but instead ate commercial meals.
When she returned from TDY, claimant submitted a travel voucher which
was reimbursed by the agency using the commercial per diem rate of $80, which
included $16 per day for incidental expenses.
In May 2007, the Air Force
Audit Agency, Wright-Patterson Area Audit Office, issued findings in audit
F2007-0024-FCW000 regarding Product Support Division travel pay vouchers. The
audit identified certain overpayments, including overpayments made for per diem
that used rates that were higher than the authorized rates. As a result of the audit findings, several
vouchers were recomputed to reflect an authorized per diem rate of $3.50,
including compensation for
meals and incidental expenses. The
agency informed claimant that because she had only been authorized government
meals, she should not have been paid for the meals and should have only
received $3.50 per day for incidental expenses.
The agency recomputed claimant=s
voucher using the incidental rate of $3.50 and determined that the claimant
owed a debt of $9116. The agency=s collection of the $9116 was suspended pending
resolution of this matter. While there
was some discussion of the agency issuing a statement of no availability (SNA),
so that the claimant could be paid a higher per diem rate, there is no
indication in the record that a SNA was ever issued. Claimant asks the Board to review the agency
decision and find she is not is liable for the $9116 repayment.
Discussion
Department of
Defense Joint Travel Regulations (JTR) that were applicable when claimant
traveled in 2003 provided that when it can be determined the per diem rates
contained in the JTR are in excess of need for a particular duty assignment,
authorizing and order-issuing officials should seek authority to prescribe a
lower per diem rate. JTR C4550-C
(2003). The JTR provided further that: ASuch authority must be requested and approved in
advance of the travel. . . . The authorized fixed per diem rate must be stated
on the travel authorization. This rate
shall be the per diem rate payable on the travel voucher without any receipts
and/or itemization by the employee.@ Id.
The Federal Travel Regulation (FTR) also allowed the agency to prescribe
a reduced per diem rate under certain circumstances, but noted that the reduced
per diem rate must be stated on the travel authorization in advance of
travel. 41 CFR 301‑11.200 (2003).
By issuance of
the April 7, 2003, policy memorandum, the CENTAF Commander directed military
and civilian personnel to make use of all available meals and determined that
military and civilian personnel were to receive an incidental expense rate of $3.50
a day. Personnel were warned that, if
they ate other than government provided meals, they did so as a matter of
choice or convenience and at their own expense.
The direction applied to military and civilian personnel of the Products
Support Division deployed to the Air Base.
Claimant=s TDY orders stated that AALL GOVT MEALS ARE AVAILABLE AND DIRECTED,@ but did not set forth any authorized per diem
rate.
The FTR
addressed situations where meals were furnished at no cost to civilian
personnel by the Government:
What
M&IE rate will I receive if a meal(s) is furnished at nominal or no cost by
the Government or is included in the registration fee?
Your M&IE rate must be
adjusted for a meal(s) furnished to you (except as provided in ' 301-11.17), with or without cost, by deducting the
appropriate amount shown in the chart in this section for CONUS travel,
reference Appendix B of this chapter for OCONUS travel, or any method
determined by your agency. If you pay
for a meal that has been previously deducted, your agency will reimburse you up
to the deduction amount. The total
amount of deductions made will not cause you to receive less than the amount
allowed for incidental expenses.
41 CFR 301‑11.18. The JTR also addressed the amount to be paid
for incidental expenses, where, as here, an employee was lodged on base and all
meals were provided without cost:
On days that all meals and
lodging are provided without cost to an employee incident to a TDY or training
assignment, the per diem allowance is:
. . . .
2. $3.50 incident to an OCONUS assignment when
the lodgings are on a . . . base . . . owned or operated by the U.S., unless
the order-issuing official determines that the $3.50 is not adequate and
authorizes/approves the incidental expense rate in http:/www.dtic.mil/perdiem/opdrform.html
(in this case, payment of the http:/www.dtic.mil/perdiem/opdrform.html rate
must be stated in the travel order) . . . .
JTR C4556.
Claimant argues that her
orders stated AGOVT MEALS ARE NOT AVAILABLE OR DIRECTED,@ and that nowhere in the orders was she warned that
her per diem would be limited to $3.50 a day for incidental expenses. We disagree with claimant=s first assertion.
While the copy of the orders that was provided for Board review was of
poor quality, the orders clearly showed option A, AALL GOVT MEALS ARE AVAILABLE AND DIRECTED,@ as having been selected, because that option was
circled. As to claimant=s assertion that the travel orders did not state the
reduced per diem rate, she is correct.
No per diem rate was stated in the orders. However, that does not negate the fact that
claimant was only authorized government meals, and the regulations provide a
mechanism for calculation of the proper rate of per diem for days where all
meals and lodging are provided without cost to an employee.
It stands to reason, and the
CENTAF policy memorandum directs, that personnel who choose to eat something
other than the government provided meals do so as a matter of choice and at
their own expense. The policy memorandum
also directed, and the JTR C4556 mandates, that a rate of $3.50 is to be used
for OCONUS assignments where all meals and lodging are provided without cost to
the traveler. The $3.50 rate for
incidental expenses is set by the JTR, and the agency used that rate in reaching
its determination that claimant had been overpaid $9116. The agency=s
assessment of the $9116 is affirmed.
While we believe that the
regulations read together dictate a finding that the agency is entitled to recoup
the $9116 overpayment, we are troubled by the fact that the agency failed to
include clear notice of the reduced per diem rate in claimant=s travel orders.
Further, it appears to us that by initially paying the commercial per
diem rate of $80, the agency itself may not have understood that the claimant
should be reimbursed at a reduced per diem rate. While we are sympathetic to the fact that the
agency has placed the claimant in a difficult position by determining it should
collect a $9116 debt due to poorly written travel orders, compounded by a
mistaken overpayment of the voucher which resulted in the creation of a debt
more than five years after the travel, the Board does not have the authority to
waive repayment of the debt. The
authority to waive a debt belongs to the head of the agency from which the debt
arose. Sam Hankins, CBCA 1309‑RELO,
slip op. at 3-4 (Apr. 8, 2009); Helene Mikes, GSBCA 15374‑RELO, 00‑2
BCA & 31,138; Michael J. Kunk, GSBCA 14721‑RELO,
99‑1 BCA & 30,164 (1998).
To the extent the agency is persuaded that claimant suffered an adverse
impact as a result of its failure to specify the lower per diem rate in the
travel orders in accordance with regulations, and the head of the agency
determines that collection of the debt Awould be
against equity and good conscience and not in the best interests of the United
States,@ the agency has the authority to waive repayment of
the debt. 5 U.S.C. ' 5584(a); Michael J. Kearney, CBCA 483‑RELO,
07‑1 BCA & 33,557; Marsha K. Schmitt, GSBCA 16828‑RELO,
06‑2 BCA & 33,331; Cindy L. Luciano, GSBCA 16403‑RELO,
04‑2 BCA & 32,715.
Decision
Accordingly, the Board must
deny this claim.
_____________________________
PATRICIA J. SHERIDAN
Board Judge
