B-45708, DECEMBER 9, 1944, 24 COMP. GEN. 439

B-45708, DECEMBER 9, 1944, 24 COMP. GEN. 439

TRAVEL ORDERS - RETROACTIVE MODIFICATION TO CHANGE METHOD OF REIMBURSEMENT THE EXISTENCE AT THE TIME A NAVY OFFICER'S TRAVEL ORDERS AUTHORIZING MILEAGE WERE ISSUED OF AN ADMINISTRATIVE PRACTICE TO AUTHORIZE PER DIEM INSTEAD OF MILEAGE FOR THE CLASS OF TRAVEL AND TEMPORARY DUTY INVOLVED- - WHERE NOT MADE MANDATORY BY COMPETENT REGULATIONS--- WOULD NOT BE SUFFICIENT TO DIVEST THE OFFICER OF HIS RIGHT TO MILEAGE FOR TRAVEL PERFORMED, ALTHOUGH THE ORDERS MAY HAVE BEEN ISSUED IN DISREGARD OR IGNORANCE OF SUCH USUAL PRACTICE, AND, HENCE, CANNOT SERVE AS A LEGAL BASIS FOR RETROACTIVE MODIFICATION OF THE ORDERS TO CHANGE THE RIGHT TO MILEAGE VESTED IN THE OFFICER AND TO CAST ADDITIONAL LEGAL LIABILITY ON THE UNITED STATES. 23 COMP. GEN. 713, AMPLIFIED. THE CIRCUMSTANCES IN WHICH AN ATTEMPTED RETROACTIVE MODIFICATION OR CORRECTION OF A NAVY OFFICER'S TRAVEL ORDER MAY BE RECOGNIZED AS AUTHORIZING AN ADDITIONAL PAYMENT FOR PRIOR TRAVEL ARE SO EXCEPTIONAL THAT CLAIMS BASED THEREON SHOULD BE SUBMITTED TO THIS OFFICE FOR SETTLEMENT, ACCOMPANIED BY A COMPLETE STATEMENT OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED IN EACH CASE, INSTEAD OF BEING PAID ADMINISTRATIVELY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 9, 1944:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1944, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH CHANGE OF DUTY ORDERS ISSUED BY THE CHIEF OF NAVAL PERSONNEL TO LIEUTENANT (JG) WILLIAM B. COLE, D-V (S), USNR, DATED APRIL 10, 1944, WITH ENCLOSURE OF CLAIM OF THIS OFFICER FOR PER DIEM ALLOWANCE BASED ON CORRECTION OF ORDERS AND ACCOMPANYING ENDORSEMENTS RELATIVE THERETO.

IT WILL BE OBSERVED FROM THE ENCLOSED CORRESPONDENCE THAT THE CIRCUMSTANCES NECESSITATING THE CORRECTION IN THE CASE OF LIEUTENANT (JG) COLE AND OTHER SIMILAR CASES ARE SET FORTH IN THE SECOND INDORSEMENT OF SEPTEMBER 30, 1944, FROM THE BUREAU OF NAVAL PERSONNEL. WHILE IT APPEARS THEREFROM THAT UNDER THE COMPTROLLER GENERAL'S DECISION OF MARCH 22, 1944 (23 COMP. GEN. 713), CORRECTIONS IN ORDERS TO SHOW THEIR ORIGINAL INTENT ARE COMPETENT TO CHANGE THE METHOD OF REIMBURSEMENT INITIALLY PRESCRIBED, THE QUESTION ARISES IN THIS AND SIMILAR CASES AS TO WHAT, IF ANY, CORROBORATIVE EVIDENCE MUST BE REQUIRED BEFORE PAYMENT BASED ON SUCH CORRECTIONS PROPERLY MAY BE MADE OR WHETHER STATEMENT BY THE BUREAU OF NAVAL PERSONNEL AS CONTAINED IN THE ENCLOSED " CORRECTION OF ORDERS" IN THE CASE OF LIEUTENANT (JG) COLE, DATED SEPTEMBER 15, 1944, IS SUFFICIENT.

YOUR DECISION IN THIS MATTER IS REQUESTED, WITH REQUEST FOR RETURN OF THE ENCLOSED CLAIMS.

THE CIRCUMSTANCES RELATIVE TO THE CORRECTION OF ORDERS IN THE CASE OF LIEUTENANT (JG) COLE, AND IN OTHER SIMILAR CASES, ARE SET FORTH IN SAID SECOND ENDORSEMENT OF SEPTEMBER 30, 1944, FROM THE BUREAU OF NAVAL PERSONNEL, AS FOLLOWS:

* * * WITH THE PRESENT WAR TIME EXPANSION OF THE PERSONNEL OF THE OFFICER DISTRIBUTION DIVISION IT IS INEVITABLE THAT SOME OF THE OFFICER AND CLERICAL PERSONNEL ARE NOT ALWAYS FULLY AWARE OF ALL THE TECHNICALITIES INVOLVED IN WRITING ORDERS TO OFFICERS. IT HAS THEREFORE BEEN FOUND NECESSARY FROM TIME TO TIME TO ISSUE CORRECTIONS TO ORDERS PREVIOUSLY ISSUED. THE GREATER PORTION OF THESE CORRECTIONS ARE IN CONNECTION WITH THE METHOD OF REIMBURSEMENT FOR TRAVEL.

2. WHETHER THE ALLEGED ERROR IS DISCOVERED IN THE BUREAU OR IS CALLED TO THE BUREAU'S ATTENTION, IT HAS BEEN THE PRACTICE TO INVESTIGATE THE MATTER AND DETERMINE THE INTENTION AT THE TIME THE ORDERS WERE ISSUED. DURING THE PAST YEAR THE PER DIEM METHOD OF REIMBURSEMENT FOR OFFICERS IN CARRYING OUT CHANGE OF DUTY ORDERS HAS BEEN ADOPTED GRADUALLY. AS NEW FEATURES HAVE PRESENTED THEMSELVES THE BUREAU'S PLANS HAVE BEEN CHANGED FROM TIME TO TIME WHEN IT WAS CLEAR THAT THEY WERE IN ACCORD WITH THE INTERPRETATIONS BY THE GENERAL ACCOUNTING OFFICE. WHENEVER AN ALLEGED ERROR IN ORDERS IS CITED IT IS NECESSARY TO INVESTIGATE AND DETERMINE WHAT THE PRACTICE AND INTENTION WERE AT THE TIME THE PARTICULAR ORDERS WERE ISSUED. WHEN THIS HAS BEEN DETERMINED THE OFFICER IS INFORMED EITHER THAT THE ORDERS AS ISSUED ARE CORRECT IN ACCORDANCE WITH THE PRACTICE AND INTENTION AT THE TIME, OR THAT THE BUREAU IN ERROR INCLUDED OR OMITTED, AS THE CASE MAY BE, CERTAIN INSTRUCTIONS WITH REFERENCE TO REIMBURSEMENT, ACCOMPANIED BY A STATEMENT THAT THE ORIGINAL ORDERS WILL BE CONSIDERED AS CORRECTED ACCORDINGLY. SUCH A LETTER WAS ISSUED TO LIEUTENANT (JG) WILLIAM B. COLE, D-V (S), USNR, 307731, ON 15 SEPTEMBER 1944, AND IS ATTACHED TO THE BASIC CLAIM. THIS PROCEDURE WAS APPROVED IN A DECISION OF THE COMPTROLLER GENERAL B-40616, DATED 22 MARCH 1944, AND IT HAS BEEN THIS BUREAU'S UNDERSTANDING AND INTENTION THAT SUCH CORRECTIONS WOULD HAVE THE SAME EFFECT AS THOUGH THE ORIGINAL ORDERS HAD EMBODIED THE CORRECTION AS MADE.

THE BUREAU OF NAVAL PERSONNEL ON APRIL 10, 1944, ISSUED THE FOLLOWING ORDERS TO LIEUTENANT COLE:

UPON REPORTING TO THE COMMANDANT, EIGHTH NAVAL DISTRICT, YOU WILL REGARD YOURSELF DETACHED FROM TEMPORARY DUTY IN THE EIGHTH NAVAL DISTRICT, AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; WILL PROCEED TO WASHINGTON, D.C., AND REPORT TO THE CHIEF OF NAVAL OPERATIONS, NAVY DEPARTMENT, FOR TEMPORARY DUTY UNDER INSTRUCTION.

IT APPEARS FROM ENDORSEMENTS ON SUCH ORDERS THAT THE OFFICER LEFT NEW ORLEANS, LOUISIANA, ON APRIL 17, 1944; THAT HE ARRIVED IN WASHINGTON, D.C., AND REPORTED FOR DUTY ON APRIL 23, 1944; AND THAT ON MAY 2, 1944, HE WAS PAID MILEAGE FOR SUCH TRAVEL IN THE AMOUNT OF $81.93. IT FURTHER APPEARS THAT SOME FIVE MONTHS LATER THE BUREAU OF NAVAL PERSONNEL PURPORTED TO MODIFY SUCH ORDERS BY A LETTER ADDRESSED TO LIEUTENANT COLE ON SEPTEMBER 15, 1944, AS FOLLOWS:

1. IN ISSUING ORDERS OF 10 APRIL 1944, THIS BUREAU IN ERROR OMITTED THE FOLLOWING PARAGRAPH:

"DURING THE NECESSARY TRAVEL TIME AND WHILE ON TEMPORARY DUTY, YOU WILL BE ENTITLED TO TRANSPORTATION AND A PER DIEM OF $7.00 IN LIEU OF SUBSISTENCE FOR A PERIOD NOT EXCEEDING NINETY DAYS EXCEPT WHILE OCCUPYING GOVERNMENT QUARTERS ASHORE, WHEN THE PER DIEM WILL BE $3.00, AND EXCEPT WHILE IN A VESSEL OR WHILE ON AUTHORIZED DELAY WHEN NO PER DIEM WILL BE ALLOWED.'

2. YOUR ORDERS OF 10 APRIL 1944 WILL BE CONSIDERED AS CORRECTED ACCORDINGLY.

THE DECISION OF MARCH 22, 1944, 23 COMP. GEN. 713, CITED IN THE ENDORSEMENT OF THE BUREAU OF NAVAL PERSONNEL, CONTAINED THE FOLLOWING:

AS INDICATED IN THE LETTER, THE PROVISION QUOTED THEREIN FROM THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 197, PUBLIC LAW 92, APPROVED JUNE 26, 1943, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT FOR OFFICERS WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS AS AUTHORIZED UNDER BASIC LAWS. THE STATUTORY PROVISION IS NOT SELF-EXECUTING, HOWEVER, AND GIVES NO RIGHT TO PER DIEM PAYMENTS, EXCEPT WHEN DULY PRESCRIBED, AND APPARENTLY SUCH PROVISION CONTEMPLATES THAT, GENERALLY, THE DETERMINATION WILL BE MADE PRIOR TO THE COMMENCEMENT OF THE ORDERED TRAVEL. IT CLEARLY DOES NOT CONTEMPLATE A COMBINATION OF MILEAGE AND PER DIEM UNDER THE SAME ORDERS COSTING THE GOVERNMENT MORE THAN IT WOULD HAVE COST ON EITHER BASIS SEPARATELY. CF. DECISIONS OF MARCH 8, 1943, B-28221 AND B-30168, AND DECISION OF JUNE 24, 1943, B- 31588. IT IS PROPOSED THAT WHERE MILEAGE ORDERS HAVE BEEN ISSUED BUT UNANTICIPATED CONDITIONS, ETC., MAKE IT APPEAR THAT MILEAGE PAYMENTS ARE INADEQUATE, THE ORDERS WILL BE MODIFIED TO PROVIDE FOR REIMBURSEMENT ON A PER DIEM BASIS, FROM THE BEGINNING OF THE TRAVEL PERIOD, WITH A DEDUCTION FROM THE ACCOUNT AS COMPUTED ON A PER DIEM BASIS OF ANY MILEAGE PAYMENTS WHICH HAVE BEEN MADE. SUCH PROPOSED ACTION DOES NOT APPEAR TO TAKE INTO CONSIDERATION THE VESTED RIGHTS OF THE TRAVELER WHICH ACCRUED DURING THE PERIOD OF HIS TRAVEL STATUS UNDER ORDERS AUTHORIZING REIMBURSEMENT ON A MILEAGE BASIS, PRIOR TO THE PROPOSED CHANGE TO A PER DIEM BASIS, TO BE EFFECTED BY A MODIFICATION OF HIS ORDERS. UNDER TRAVEL ORDERS ENTITLING AN OFFICER TO MILEAGE, A LEGAL RIGHT TO SUCH MILEAGE ACCRUES TO AND VESTS IN THE OFFICER AS AND WHEN TRAVEL IS PERFORMED UNDER THE ORDERS AND SUCH LEGAL RIGHT MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. SEE KATZER V. UNITED STATES, 52 C.1CLS. 32. THE SAME PRINCIPLE APPLIES TO OTHER FORMS OF TRAVEL ALLOWANCES AND, THEREFORE, EXCEPT TO CORRECT OR TO COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUS, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. HOWEVER, IN VIEW OF THE APPARENT PURPOSE, INTER ALIA, OF THE CITED PROVISION CONTAINED IN THE NAVAL APPROPRIATION ACT, 1944, TO PERMIT THE AUTHORIZATION OF A PER DIEM ALLOWANCE WHERE BY REASON OF THE LENGTH OF ABSENCE FROM THE DESIGNATED POST OF DUTY IN A TRAVEL STATUS IT IS CONSIDERED THAT MILEAGE WOULD BE AN INADEQUATE BASIS OF REIMBURSEMENT, AND AS THE ORDERED TRAVEL MAY BE AFFECTED BY CHANGED OR UNANTICIPATED CONDITIONS AFTER THE ORIGINAL ORDERS ARE ISSUED, AS DISCUSSED IN THE LETTER FROM THE CHIEF OF NAVAL PERSONNEL, THERE WOULD APPEAR TO BE NO OBJECTION TO PAYMENTS IN SUCH CASES BASED ON THE PROSPECTIVE MODIFICATION OF ORDERS ORIGINALLY ISSUED FOR TRAVEL ON A MILEAGE BASIS, SO AS TO PRESCRIBE A PER DIEM FOR THE REMAINDER, ONLY, OF THE TRAVEL PERIOD, PROVIDED THAT THE TOTAL COST TO THE GOVERNMENT OF THE TRAVEL THERETOFORE PERFORMED IN A MILEAGE STATUS TOGETHER WITH THE TRAVEL THEREAFTER PERFORMED IN A PER DIEM STATUS DOES NOT EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT IF THE ORIGINAL ORDERS HAD PRESCRIBED A PER DIEM. CF. 18 COMP. GEN. 975. AS THERE WOULD BE NO AUTHORITY FOR PAYMENTS BASED ON RETROACTIVE MODIFICATION OF THE ORDERS THERE WOULD BE NO BASIS, OF COURSE, TO MODIFY THE ORDERS AND MAKE ADDITIONAL PAYMENTS IN CASES WHERE THE ORDERED TRAVEL HAS BEEN COMPLETED.

APPARENTLY THE STATEMENT, TAKEN FROM ITS CONTEXT, THAT, THEREFORE,"EXCEPT TO CORRECT OR TO COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT," TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY, HAS BEEN UNDERSTOOD MORE BROADLY BY THE BUREAU OF NAVAL PERSONNEL THAN INTENDED. THE GENERAL LANGUAGE OF THE EXCEPTION SO INDICATED WAS NOT INTENDED TO AUTHORIZE OR RECOGNIZE ANY RELAXATION OF, OR DEPARTURE FROM, THE ESTABLISHED RULES AGAINST RETROACTIVE MODIFICATION OF TRAVEL ORDERS. IT WAS INCLUDED IN THE DISCUSSION IN RECOGNITION THAT IN THE FUTURE, AS IN THE PAST, EXCEPTIONAL CASES OCCASIONALLY MIGHT ARISE WHERE TRAVEL ORDERS, ON THEIR FACE, WOULD BE INCOMPLETE OR AMBIGUOUS OR WHERE ALL THE FACTS AND CIRCUMSTANCES WOULD CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDER. FOR EXAMPLE, CASES HAVE ARISEN WHERE THE TRAVEL ORDER AUTHORIZED A PER DIEM ALLOWANCE WITHOUT FIXING THE RATE; WHERE THE TRAVEL ORDER STIPULATED NEITHER A PER DIEM ALLOWANCE NOR REIMBURSEMENT OF ACTUAL EXPENSES, ALTHOUGH THE GOVERNING REGULATIONS EXPRESSLY REQUIRED THAT ONE OR THE OTHER BE STIPULATED; AND CASES WHERE THE TRAVELER HAD BEEN VERBALLY BUT SPECIFICALLY AUTHORIZED TO USE HIS OWN AUTOMOBILE ON A MILEAGE BASIS BUT A COVERING PROVISION WAS INADVERTENTLY OMITTED FROM THE WRITTEN TRAVEL ORDER.

NO SUCH ELEMENTS APPEAR IN THE PRESENT CASE. THE TRAVEL ORDER WAS COMPLETE IN THE USUAL FORM ENTITLING THE OFFICER TO MILEAGE UPON PERFORMANCE OF THE ORDERED TRAVEL. UPON PERFORMANCE OF THE TRAVEL, A LEGAL RIGHT TO MILEAGE AS PROVIDED BY STATUTE VESTED IN THE OFFICER AND HE CLAIMED AND WAS PAID SUCH MILEAGE. HAD HE REMAINED IN WASHINGTON ON TEMPORARY DUTY BUT A SHORT TIME, THAT FORM OF REIMBURSEMENT WOULD HAVE BEEN TO HIS ADVANTAGE AND IT IS CLEAR THAT HE COULD NOT HAVE BEEN REQUIRED TO REFUND THE MILEAGE SO VESTED IN HIM UPON A SUBSEQUENT RETROACTIVE MODIFICATION OF THE TRAVEL ORDER PURPORTING TO AUTHORIZE A PER DIEM INSTEAD OF MILEAGE. FOR THE SAME REASON, HE MAY NOT BE PERMITTED TO REFUND THE MILEAGE AND BE PAID A PER DIEM ON THE BASIS OF SUCH RETROACTIVE MODIFICATION OF THE ORDERS, WHERE A LONGER STAY IN WASHINGTON MAKES PER DIEM THE MORE ADVANTAGEOUS FORM OF REIMBURSEMENT. THE EXISTENCE OF SOME ADMINISTRATIVE PRACTICE OR POLICY AT THE TIME THE ORDERS WERE ISSUED TO AUTHORIZE PER DIEM INSTEAD OF MILEAGE FOR CERTAIN CLASSES OF TRAVEL AND TEMPORARY DUTY--- WHERE NOT MADE MANDATORY BY COMPETENT REGULATIONS--- WOULD NOT SUFFICE TO DIVEST AN OFFICER OF HIS RIGHT TO MILEAGE FOR TRAVEL PERFORMED UNDER LEGAL AND PROPER MILEAGE ORDERS, ALTHOUGH ISSUED IN DISREGARD OR IGNORANCE OF SUCH USUAL PRACTICE, AND IT FOLLOWS THAT THE EXISTENCE OF SUCH A PRACTICE CANNOT SERVE AS A LEGAL BASIS FOR RETROACTIVE MODIFICATIONS OF SUCH ORDERS TO CHANGE FIXED RIGHTS AND TO CAST ADDITIONAL LEGAL LIABILITY ON THE UNITED STATES. COMPARE DECISION ADDRESSED TO YOU NOVEMBER 7, 1944, B 44497, 24 COMP. GEN. 362, RESPECTING A SOMEWHAT SIMILAR SITUATION.

ACCORDINGLY, I HAVE TO ADVISE THAT THE EXPLANATION SUBMITTED DOES NOT ESTABLISH THAT LIEUTENANT COLE IS ENTITLED TO THE ADDITIONAL PAYMENT CLAIMED. THE CIRCUMSTANCES IN WHICH AN ATTEMPTED RETROACTIVE MODIFICATION OR CORRECTION OF A TRAVEL ORDER MAY BE RECOGNIZED AS AUTHORIZING AN ADDITIONAL PAYMENT FOR PRIOR TRAVEL ARE SO EXCEPTIONAL THAT CLAIMS BASED THEREON SHOULD BE SUBMITTED TO THIS OFFICE FOR SETTLEMENT, ACCOMPANIED BY A COMPLETE STATEMENT OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED IN EACH CASE, INSTEAD OF BEING PAID ADMINISTRATIVELY.

THE OFFICER'S CLAIM TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH, AS REQUESTED.