October 1992

B-243671, October 8, 1992
Military Personnel

Pay

Payroll deductions

| Survivor benefits

Refunds

Under 10 U.S.C. § 1452(b) the retired pay of a member who elects child-only Reserve Component Survivor Benefit Plan (RCSBP) coverage shall be reduced to provide coverage only as long as he has an eligible beneficiary. A retired reservist whose pay continued to be reduced after his daughter ceased to be eligible for an RCSBP annuity is entitled to a refund of amounts withheld from his retired pay since the time his child became ineligible for an annuity. Interest on such refund is not payable.

Matter of: Lieutenant Colonel Hubert E. Marymee, USAF (Retired)— Survivor Benefit Plan Deductions

This is in response to an appeal of our Claims Group's denial of the claim of Lt. Col. Hubert E. Marymee, USAF (Retired), for termination of Survivor Benefit Plan (SBP) deductions and refund with interest of amounts already deducted. For the reasons presented below, those deductions should be terminated and the amounts improperly deducted refunded without interest.

In November 1978, the Air Force notified Lt. Col. Marymee that the law concerning SBP coverage had recently been amended to allow SBP coverage for reservists such as himself who qualified for retired pay but were under 60 years of age and, therefore, were not yet eligible to receive it. The information provided to him by the Air Force indicated that if he elected child-only coverage for his dependent daughter and if she became ineligible due to age before he began collecting retired pay at age 60, no deductions would be made from his retired pay for her coverage. Lt. Col. Marymee, whose daughter was 16 years old at that time, made that election.

In 1980 the Department of Defense (DOD) SBP policy was amended to require permanent SBP deductions from the retired pay of reservists who elect immediate child-only coverage where the child ceases to be an eligible beneficiary due to age.

Lt. Col. Marymee's daughter became ineligible for SBP coverage on March 24, 1985, her 22nd birthday, and the Air Force continued to make deductions from Lt. Col. Marymee's retired pay for SBP coverage for her. Lt. Col. Marymee re

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quests termination of SBP deductions and a refund with interest of amounts already deducted.

The SBP program, 10 U.S.C. §§ 1447-1455, is an income maintenance program for the surviving dependents of deceased service members. Section 1452(b) provides as follows concerning deductions from the retired pay of a member who elects child-only coverage:

The retired pay of a person to whom section 1448 of this title applies who has a dependent child but does not have an eligible spouse or former spouse . but has elected to provide an annuity for dependent children only, shall, as long as he has an eligible dependent child, be reduced by an amount prescribed under regulations of the Secretary of Defense.

Reservists qualified for retired pay but not yet eligible to receive it due to age became entitled to elect immediate coverage for their dependents effective October 1, 1978. Pub. L. No. 95-397, § 202, 92 Stat. 843, 844. At the time of implementation, premiums were deducted from a reservist's retired pay only for as long as he had an eligible child. Because many children of reservists lose eligibility due to age before their sponsors begin receiving retired pay at age 60, the potential exists for such children to receive free coverage for the period they were eligible. In recognition of this potential, DOD changed its policy and revised its SBP cost tables effective January 1, 1980, to provide for permanent deductions for reservists' children, even after the children become ineligible due to age. DOD states that the policy change was necessary to administer Reserve Component SBP on an actuarially sound basis and to charge reservists for their children's coverage in a fair manner. The deductions made from a member's retired pay do not exceed the actuarially computed cost of providing coverage for dependent children during their period of eligibility. The deductions are simply extended over a longer period of time for payment. We understand that the amount deducted from Lt. Col. Marymee's retired pay is less than $3 per month. However, deduction of premiums from the retired pay of a member with childonly coverage when he no longer has an eligible beneficiary ignores the unambiguous language of 10 U.S.C. § 1452(b), which provides that the reduction in retired pay shall continue only as long as he or she has an eligible beneficiary. We recognize that DOD's 1980 policy change was intended to make the program fair and actuarially sound. However, we cannot ignore the plain language of the statute. Accordingly, the amounts improperly deducted from Lt. Col. Marymee's retired pay should be refunded to him.

Lt. Col. Marymee also claims interest on the amounts to be refunded. However, it is well settled that the government may not pay interest on claims unless the statute involved specifically provides for payment of interest. M. Rene Santoni, B-187877, April 14, 1977. Since the SBP law does not provide for payment of interest on refunded premiums, Lt. Col. Marymee may not properly be paid interest.

Accordingly, SBP deductions from Lt. Col. Marymee's retired pay for coverage of his daughter should be terminated, and the amounts improperly deducted should be refunded without interest.

At the same time, we appreciate DOD's contention that continuing deductions from reservists' retired pay is the only way to administer Reserve Component SBP in a fair and actuarially sound manner. We have therefore written to the Chairmen of the Armed Services Committees of both Houses of Congress to inform them of the problem.

B-241953.2, October 9, 1992

Civilian Personnel

Travel

Temporary duty
Per diem

Additional expenses

Rest periods

When an intermediate rest stop is precluded or not authorized for travel beginning or ending outside CONUS (the 48 contiguous states and the District of Columbia), the FTR, 41 C.F.R. § 301-7.11(e) (1991), permits agencies to schedule the arrival time at the temporary duty point to allow a reasonable rest period before reporting for duty. In the exercise of its sound discretion an agency may allow an additional rest period at destination when an employee is scheduled to arrive too late at night to permit adequate rest before reporting for duty. We will not overturn an agency's action unless it is unreasonable or an abuse of discretion. Thus, where two employees flew directly from Alaska to CONUS arriving late at night, an agency's allowance of an additional rest period before reporting for duty is upheld as reasonable.

Matter of: Kathleen Pinette and Warner J. Rhodes-Temporary Duty Travel Outside CONUS-Reasonable Rest Period at Destination

This decision is in response to a request from an Authorized Certifying Officer, Federal Aviation Administration (FAA), Department of Transportation.1 It concerns the entitlement of two employees to be paid per diem for additional rest periods at destination incident to temporary duty travel from Anchorage, Alaska, to separate locations in the continental United States. For the following reasons, we conclude that the employees may be paid per diem for the authorized periods of additional rest before reporting for duty.

Background

The first situation involves travel by Ms. Kathleen Pinette, an employee of the FAA stationed in Anchorage, Alaska. She was authorized temporary duty travel to Oklahoma City, Oklahoma, for training from August 21 to September 4, 1991, with travel to begin on or about August 19, 1991. Her travel orders noted that she was to be scheduled to arrive at her destination with sufficient time to allow a reasonable rest period before reporting for duty.

1 Ms. Claudia Hoversten, Manager, Accounting Branch, AAL-42.

According to her itinerary, she left Anchorage at 8:10 a.m., Alaska time, on August 19, 1991, and arrived in Oklahoma City at 10:07 p.m., central time, the same day. The elapsed time for that scheduled travel was 12 hours. Although she was not required to report for duty until the morning of August 21, the official who authorized her travel orders believed that the 1-day early arrival at Oklahoma City was reasonable as a rest period prior to her beginning duty. However, the certifying officer paid her on a constructive basis as though she had traveled at the same time on August 20, on a finding that there was no authority to pay per diem for rest periods in excess of 24 hours.

The certifying officer points out that Ms. Pinette could have departed Anchorage at 1:30 a.m., Alaska time, on August 20, 1991, and arrived at Oklahoma City 12:35 p.m., central time, the same day. However, the certifying officer questions the reasonableness of requiring employees to begin travel between midnight and 6 a.m., just so that they will arrive at their destination within 24 hours of their reporting for duty.

The second situation involves travel by Mr. Warner J. Rhodes, who is also an FAA employee stationed in Anchorage. He was authorized temporary duty travel to Washington, D.C., to attend a meeting which was to begin on the morning of October 22, 1991. Although the scheduled travel time from Anchorage to Washington did not exceed 14 hours, Mr. Rhodes's travel orders authorized him a 1-day rest stop en route.

Mr. Rhodes began his travel from Anchorage at 7 a.m., Alaska time, on October 20, 1991. However, instead of utilizing the authorized rest stop en route, he flew straight through to Washington, arriving there at 11:55 p.m., eastern time, the same day. This schedule provided him with an additional rest period of 24 hours at destination. While that same flight schedule was available to him for travel on October 21, 1991, the only other way he could have arrived within 24 hours of the start of the meeting would have been for him to use a flight scheduled to leave Anchorage between 1 a.m. and 2 a.m. Alaska time, on August 21, 1991. Had he used that flight, he would have arrived in Washington at approximately 5:30 p.m., eastern time, the same day. The voucher was paid based on the actual travel because the agency did not believe that Mr. Rhodes should be required to begin travel after midnight just to have him arrive earlier in the day before reporting for duty.

Opinion

The provisions of the Federal Travel Regulation (FTR) regarding payment of per diem for permissible rest periods, when travel outside the continental United States (CONUS)2 is involved, are found in section 301-7.11(a)-(e) of the FTR.3

2 CONUS is defined to mean the 48 contiguous states and the District of Columbia. 41 C.F.R. § 301-7.1(b)(2) (1991). 3 41 C.F.R. § 301-7.11(a)-(e) (1991).

The basic conditions which must be met in order for an employee to be authorized a rest stop while en route to or from a temporary duty location are stated in section 301-7.11(a) of the FTR, as follows:

(a) When travel is direct between authorized origin and destination points which are separated by several time zones and either the origin or destination point is outside CONUS, a rest period not in excess of 24 hours may be authorized or approved when air travel between the two points is by lessthan-premium-class accommodations and the scheduled flight time, including stopovers, exceeds 14 hours by a direct or usually traveled route.

Under that provision, several time zones and a scheduled flight time in excess of 14 hours are the minimum requirements which must be met before a rest stop en route may be authorized. In Mr. Rhodes's case, although his travel involved several time zones, he did not qualify for a rest stop en route since his scheduled flight time did not exceed 14 hours. Hence, it was improper to authorize a rest stop in his travel orders. Likewise, the scheduled flight time in Ms. Pinette's case was less than 14 hours.

The only rest period they qualified for is the one at destination permitted under section 301-7.11(e) of the FTR. Those provisions state in part:

(e) When . . . an intermediate . . . rest stop is not authorized, it is recommended that the employee be scheduled to arrive at the temporary duty point with sufficient time to allow a reasonable rest period before reporting for duty.

The agency paid the voucher based on the early arrival in Mr. Rhodes's case, but disallowed per diem for the early arrival in Ms. Pinette's case because the certifying official in that case found no authority for a rest period of more than 24 hours. Because this issue is a major area of concern for employees stationed in Alaska, the FAA asks us for our interpretation of reasonable rest periods. We have endeavored to interpret the rest period regulation to allow agencies a broad degree of flexibility in applying its provisions to widely varying arrival times depending on origin and destination points and airline schedules. As stated above, a rest stop en route may not exceed 24 hours and may only be allowed if the scheduled flight time, including stopovers, exceeds 14 hours. FTR § 301-7.11(a). However, FTR § 301-7.11(e) recommends that agencies schedule a "reasonable" rest period at destination when a rest stop either is precluded by carrier schedules or is not authorized.

The word "reasonable" connotes flexibility and the exercise of sound judgment in scheduling rest periods and, in our opinion, permits an agency in its discretion to determine what is a reasonable rest period at destination before an employee is required to report for duty. We will not substitute our judgment for that of the agency. Unless the agency's action is clearly unreasonable or represents an abuse of discretion, we will not overturn an agency's determination as to a reasonable rest period at destination.

These two cases illustrate why agencies should have discretion to determine what is an adequate rest period at destination. We agree with FAA that em

4 See Karels and Lynch, 70 Comp. Gen. 656 (1991).