B-126117, FEB. 20, 1956
Highlights
YOU WERE PLACED ON TEMPORARY DUTY FOR APPROXIMATELY FOUR DAYS. THE ORDERS SPECIFICALLY PROVIDED THAT NO PER DIEM WAS AUTHORIZED. YOUR CLAIM FOR PER DIEM WAS DISALLOWED FOR THE REASON THAT UNDER ARMY REGULATIONS 35-4820. NO PER DIEM COULD BE PAID IF THE ORDER CONTAINED A STATEMENT TO THE EFFECT THAT NO PER DIEM IS AUTHORIZED. YOU CONTEND THAT THE PROVISION IN YOUR ORDERS PROHIBITING PAYMENT OF PER DIEM WAS IN ERROR AND THAT ORDERS ISSUED TO OTHER OFFICERS WHEN ON TEMPORARY DUTY. PER DIEM ALLOWANCES FOR MEMBERS OF THE ARMED FORCES WERE AUTHORIZED IF PRESCRIBED IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS. TEMPORARY DUTY TRAVEL "/1) IT IS THE RESPONSIBILITY OF OFFICERS ISSUING ORDERS TO DETERMINE WHEN NO PER DIEM SHOULD BE PAID FOR TRAVEL OR PERIODS OF TEMPORARY DUTY ENJOINED BY ORDERS.
B-126117, FEB. 20, 1956
TO MR. FRANK I. BROWN:
YOUR LETTER OF OCTOBER 31, 1955, REQUESTS REVIEW OF THE SETTLEMENT OF OCTOBER 24, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 10 TO APRIL 14, 1947.
THE RECORD SHOWS THAT BY PARAGRAPH 2, SPECIAL ORDERS NO. 70, DATED APRIL 9, 1947, HEADQUARTERS, FORT LEWIS, WASHINGTON, YOU WERE PLACED ON TEMPORARY DUTY FOR APPROXIMATELY FOUR DAYS, EFFECTIVE ON OR ABOUT APRIL 10, 1947, AND DIRECTED TO PROCEED TO SPOKANE, WASHINGTON, IN CONNECTION WITH SIXTH ARMY BRANCH TRANSPORTATION OFFICE ACTIVITIES, AND UPON COMPLETION OF THE TEMPORARY DUTY TO RETURN TO YOUR PROPER STATION AT SEATTLE. THE ORDERS SPECIFICALLY PROVIDED THAT NO PER DIEM WAS AUTHORIZED. YOU DEPARTED SEATTLE AT 6 A.M., APRIL 10, 1947, FOR SPOKANE, AND UPON COMPLETION OF YOUR DUTY, RETURNED TO SEATTLE, ARRIVING AT MIDNIGHT APRIL 14, 1947. YOUR CLAIM FOR PER DIEM WAS DISALLOWED FOR THE REASON THAT UNDER ARMY REGULATIONS 35-4820, DATED FEBRUARY 5, 1947, NO PER DIEM COULD BE PAID IF THE ORDER CONTAINED A STATEMENT TO THE EFFECT THAT NO PER DIEM IS AUTHORIZED. YOU CONTEND THAT THE PROVISION IN YOUR ORDERS PROHIBITING PAYMENT OF PER DIEM WAS IN ERROR AND THAT ORDERS ISSUED TO OTHER OFFICERS WHEN ON TEMPORARY DUTY, AT YOUR STATION, DID NOT CONTAIN THE PROVISION "NO PER DIEM AUTH.'
UNDER THE STATUTORY PROVISIONS IN EFFECT DURING THE PERIOD HERE INVOLVED (SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859), PER DIEM ALLOWANCES FOR MEMBERS OF THE ARMED FORCES WERE AUTHORIZED IF PRESCRIBED IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS. PARAGRAPH 3C, OF ARMY REGULATIONS 35-4820, DATED FEBRUARY 5, 1947, IN EFFECT AT THE TIME OF YOUR TRAVEL, PROVIDED AS FOLLOWS:
"C. TEMPORARY DUTY TRAVEL
"/1) IT IS THE RESPONSIBILITY OF OFFICERS ISSUING ORDERS TO DETERMINE WHEN NO PER DIEM SHOULD BE PAID FOR TRAVEL OR PERIODS OF TEMPORARY DUTY ENJOINED BY ORDERS. THE WORDS "NO PER DIEM," "NO PER DIEM AT --," OR "NO PER DIEM WHILE ON TEMPORARY DUTY" WILL BE INCLUDED IN ORDERS IN ANY CASE WHERE THE TEMPORARY DUTY ENJOINED IS PERFORMED AS AN ASSIGNED OR ATTACHED MEMBER OF A MILITARY ORGANIZATION, OR AS AN UMPIRE OR OBSERVER OF TRAINING IN THE FIELD, AND IN OTHER CASES WHERE THE OFFICER ISSUING THE ORDERS DETERMINES THAT THE TRAVEL AND/OR TEMPORARY DUTY ENJOINED WILL NOT COMPEL THE TRAVELING OFFICER TO INCUR MORE THAN THE NORMAL EXPENSE FOR SUBSISTENCE WHICH WOULD HAVE TO BE MET AT HIS PERMANENT STATION.'
YOUR ORDERS CONTAINED THE SPECIFIC PROVISION THAT NO PER DIEM WAS AUTHORIZED, AND, HENCE, IT SEEMS CLEAR THAT IT WAS ADMINISTRATIVELY DETERMINED THAT PER DIEM WAS NOT TO BE PAID FOR SUCH DUTY. UNDER SUCH ORDERS THERE IS NO LEGAL BASIS FOR THE PAYMENT OF PER DIEM. ACCORDINGLY, THE SETTLEMENT IS SUSTAINED.
THE FACT THAT TEMPORARY DUTY ORDERS ISSUED TO OTHER OFFICERS AT OR ABOUT THE SAME TIME PROVIDED FOR THE PAYMENT OF A PER DIEM ALLOWANCE AFFORDS NO BASIS FOR THE PAYMENT OF YOUR CLAIM. THE ORDERS ISSUED IN CASES SUCH AS YOURS AND THE ADMINISTRATIVE DETERMINATIONS MADE IN THOSE ORDERS CONTROL THE PAYMENT OF PER DIEM.