B-147492, DEC. 11, 1961

B-147492, DEC. 11, 1961

TO MR. JOHN L. SMART:

THIS REFERS TO YOUR LETTER OF OCTOBER 13, 1961, CONCERNING THE CLAIM OF MR. WESLEY CROWELL FOR ADDITIONAL PER DIEM ALLEGED TO BE DUE FOR THE PERIOD JUNE 24 THROUGH AUGUST 22, 1960, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, DISTRICT PUBLIC WORKS OFFICE, 14TH NAVAL DISTRICT, PEARL HARBOR, HAWAII.

IN OUR SETTLEMENT OF JUNE 6, 1961, MR. CROWELL'S CLAIM WAS DISALLOWED BECAUSE HE RECEIVED THE RATE OF PER DIEM AS SHOWN ON HIS TRAVEL ORDER. MR. CROWELL RECEIVED $9 PER DIEM DURING HIS TOUR OF TEMPORARY DUTY AND IS CLAIMING $7 PER DIEM ADDITIONAL FOR THE PERIOD JUNE 24, 1960, THROUGH AUGUST 22, 1960.

THE RECORD DISCLOSES THAT TRAVEL ORDER NO. T-543 AUTHORIZED MR. CROWELL TO TRAVEL FROM HONOLULU, HAWAII, TO LIHUE, KAUAI, FOR TEMPORARY DUTY AND RETURN. THE TRAVEL WAS TO BEGIN JUNE 24, 1960, AND BE COMPLETED BY SEPTEMBER 22, 1960. THE TRAVEL ORDER PROVIDED FOR A PER DIEM AT THE RATE OF $9. BY TRAVEL ORDER NO. T-00005-61 MR. CROWELL'S TEMPORARY DUTY WAS EXTENDED BY NINE DAYS TO SEPTEMBER 30, 1960. TRAVEL BEGAN ON JUNE 24, 1960, BY DEPARTURE FROM HONOLULU AT 7:30 M., AND WAS COMPLETED UPON RETURN TO HONOLULU AT 12:15 P.M., ON OCTOBER 1, 1960.

IN YOUR LETTER OF OCTOBER 13 YOU SAY THAT THE PER DIEM RATE WAS NOT BEING UNIFORMLY APPLIED TO EMPLOYEES OF THE DISTRICT PUBLIC WORKS OFFICE IN HAWAII AS OTHER EMPLOYEES HAD RECEIVED A HIGHER PER DIEM RATE WHILE ON TEMPORARY DUTY ON MAUI. WHILE YOU REFER SPECIFICALLY TO MESSRS. GROHOVAC, LOW, AND OPOLAUOHO, YOU DO NOT SAY THAT THE PERIOD OF THEIR TRAVEL FOR WHICH A $16 RATE IS STATED TO HAVE BEEN PAID WAS SUBSEQUENT TO JUNE 20, 1960, AND WHETHER IT WAS OF EXTENDED OR BRIEF DURATION. THUS, WE CANNOT CONCLUDE FROM THE RECORD BEFORE US WHETHER THEIR CASES ARE SIMILAR TO MR. CROWELL-S.

THE FIXING OF A PER DIEM RATE NOT IN EXCESS OF THE MAXIMUM AUTHORIZED BY THE APPLICABLE STATUTES AND REGULATIONS IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE PURSUANT TO SECTION 6.2A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THERE IS NOTHING IN THE ADMINISTRATIVE REPORT TO SHOW THAT THERE WAS AN INTENTION TO FIX MR. CROWELL'S PER DIEM RATE IN EXCESS OF THAT AUTHORIZED IN THE TRAVEL ORDER OR THAT THE RATE WAS INCORRECTLY FIXED WHEN THE ORDER WAS PREPARED.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES WITH RESPECT TO PER DIEM VESTS AS AND WHEN THE TRAVEL IS PERFORMED BY THE EMPLOYEE UNDER HIS ORDER, AND THAT SUCH ORDER MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDER, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDER. SEE 35 COMP. GEN. 124; ID. 148; 28 ID. 732. SINCE SUCH ELEMENTS DO NOT APPEAR TO BE PRESENT IN THIS CASE AND THE FIXING OF PER DIEM RATES WITHIN THE PURVIEW OF THE STATUTES AND REGULATIONS IS AN ADMINISTRATIVE FUNCTION, WE ARE WITHOUT AUTHORITY TO CHANGE THE TERMS OF THE TRAVEL ORDER.

THEREFORE, THE ACTION TAKEN IN OUR SETTLEMENT OF JUNE 6, 1961, IS SUSTAINED.