B-141260, DEC. 30, 1959

B-141260, DEC. 30, 1959

TO MR. HARRY B. BERNHARD:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1959, WHICH REQUESTS FURTHER CONSIDERATION OF THE CONCLUSION THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $49.50 AND AN EXPLANATION OF OUR DECISION B- 122508, JUNE 8, 1955. ALSO YOU SUBMIT AN OFFER OF COMPROMISE OF YOUR DEBT IN THE SUM OF $10.

THE INDEBTEDNESS TO WHICH YOU REFER AROSE INCIDENT TO YOUR MILITARY SERVICE WHILE STATIONED AT FORT LEE, VIRGINIA. THE RECORD INDICATES THAT DURING THE PERIOD MAY 16, 1955, TO JUNE 22, 1955, YOU WERE PAID PER DIEM ALLOWANCE AT THE RAGE OF $1.65 PER DAY. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 95, DATED MAY 13, 1955, CHANGED YOUR THEN TEMPORARY DUTY ASSIGNMENT AT FORT LEE, VIRGINIA, TO PERMANENT DUTY EFFECTIVE JUNE 23, 1955. PER DIEM WAS PAID TO YOU UNDER THE PROVISIONS OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS, EFFECTIVE AT THAT TIME, WHICH PROVIDED AS FOLLOWS:

"A MEMBER WHO IS AT A TEMPORARY DUTY STATION (OR ON LEAVE FROM SUCH TEMPORARY DUTY STATION) WHEN PERMANENT CHANGE OF STATION ORDERS ARE ISSUED DESIGNATING THE TEMPORARY DUTY STATION AS HIS PERMANENT STATION WILL NOT RECEIVE PER DIEM FOR ANY PERIOD ON OR AFTER THE DATE THE PERMANENT CHANGE OF STATION ORDERS ARE RECEIVED AT HIS TEMPORARY DUTY STATION, UNLESS THE PERMANENT CHANGE OF STATION ORDERS BECOME EFFECTIVE AT SOME FUTURE DATE.'

BY DECISION OF JUNE 8, 1955, B-122508, THE SECRETARY OF DEFENSE WAS ADVISED THAT THE UNDERLINED PORTION OF PARAGRAPH 4209 "APPEARS TO BE INCONSISTENT WITH THE STATUTE" (SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813), SINCE SUCH LANGUAGE PURPORTED TO AUTHORIZE PAYMENT OF PER DIEM FOR DUTY AT A STATION AFTER THAT PLACE WAS DESIGNATED AS THE MEMBER'S NEW DUTY STATION. A REGULATION WHICH IS INCONSISTENT WITH THE PROVISIONS OF LAW ON WHICH IT IS BASED HAS NO FORCE OR EFFECT AND HENCE, THERE WAS NO AUTHORITY FOR THE PAYMENT OF PER DIEM TO YOU AFTER MAY 16, 1955, THE APPARENT DATE OF YOUR RECEIPT OF SPECIAL ORDERS NO. 95. ACCORDINGLY, EXCEPTION WAS TAKEN TO THE PAYMENT OF PER DIEM TO YOU IN THE AMOUNT OF $49.50 ON D.O. VOUCHER NO. 813665 OF THE JUNE 1955 ACCOUNTS OF MAJOR D. M. HARRIS.

YOU STATE THAT THE USE OF THE WORD "APPEARS" IN OUR DECISION OF JUNE 8, 1955, REFERRING TO THE INCONSISTENCY OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS WITH THE BASIC STATUTE, INDICATES THAT OUR DECISION WAS NOT OF A POSITIVE AND FINAL NATURE. ONE OF THE ACCEPTED DEFINITIONS OF THE WORD "APPEAR" GIVEN IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, 2ND EDITION, 1951, IS AS FOLLOWS:

"TO BECOME CLEAR TO THE APPREHENSION OF THE MIND; TO BE KNOWN AS A SUBJECT OF OBSERVATION OR COMPREHENSION, OR AS A THING PROVED; TO BE OBVIOUS OR MANIFEST.'

THE COURTS HAVE ALSO HAD OCCASION TO DEFINE THE WORD "APPEAR.' IN THE CASE OF GORHAM V. LUKETT, 45 KY. 146, 165, IT WAS STATED THAT:

"* * * THE WORD "APPEAR" OR "APPEARING," IS ONE OF FREQUENT USE IN JUDICIAL PROCEEDINGS * * * AS MEANING "CLEAR TO THE COMPREHENSION," WHEN APPLIED TO MATTERS OF OPINION OR REASONING, AND ,SATISFACTORILY OR LEGALLY KNOWN, OR MADE KNOWN" WHEN USED IN REFERENCE TO FACTS OR EVIDENCE.'

SEE ALSO LECKLEIDER V. CHICAGO CITY RAILROAD CO., 172 ILL.APP. 557.

IT WAS IN THE SENSE EXPRESSED BY THESE DEFINITIONS THAT THE WORD "APPEARS" WAS USED IN OUR DECISION OF JUNE 8, 1955. THE LEGAL EFFECT OF THE ABOVE-QUOTED REGULATION WAS AGAIN CONSIDERED IN DECISION OF OCTOBER 22, 1959, B-140879, COPY ENCLOSED, IN THE CASE OR GORDON L. WILLIAMS WHOSE NAME ALSO APPEARS IN YOUR ORDERS OF MAY 13, 1955, AND IT WAS HELD THAT THERE WAS NO AUTHORITY OF LAW FOR PAYMENT OF PER DIEM DURING THE PERIOD INVOLVED.

CONCERNING YOUR OFFER TO FORWARD A CHECK FOR $10 IF IT WILL BE ACCEPTED IN FULL SETTLEMENT OF YOUR DEBT, WE DO NOT BELIEVE THAT THIS IS A REASONABLE OFFER IN VIEW OF THE SIZE OF YOUR DEBT AND YOUR CLEAR LEGAL LIABILITY FOR ITS PAYMENT. ACCORDINGLY, YOUR COMPROMISE OFFER MAY NOT BE ACCEPTED.

PAYMENT OF YOUR DEBT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND SHOULD BE FORWARDED TO THE U.S. GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, INDIANAPOLIS 49, INDIANA.