A-18104, APRIL 25, 1927, 6 COMP. GEN. 693

A-18104: Apr 25, 1927

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SAID ORDER WAS NOT MODIFIED BY COMPETENT AUTHORITY. THE EMPLOYEE IS ENTITLED TO NO MORE THAN $4 PER DIEM FOR THE DAYS HE WAS IN A TRAVEL STATUS ON AND AFTER JULY 1. WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF MAJ. THE PAYEE OF THE VOUCHER WAS IN A TRAVEL STATUS AND THE ONLY QUESTION INVOLVED IS AS TO THE RATE OF PER DIEM ALLOWABLE FOR THE PERIOD INVOLVED. THE EMPLOYEE'S TRAVEL ORDER WAS ISSUED JUNE 19. WAS COMPLETED JULY 28. IN MAKING UP THE VOUCHER AFTER THE COMPLETION OF THE TRAVEL PER DIEM ALLOWANCE WAS COMPUTED AT THE RATE OF $4 FROM JUNE 17 TO 30. ARMY REGULATIONS 35-4060 WHICH WERE IN EFFECT ON THE DATE OF THE TRAVEL ORDER AND. UNTIL SUCH TIME AS STANDARD REGULATIONS ARE APPROVED.

A-18104, APRIL 25, 1927, 6 COMP. GEN. 693

SUBSISTENCE - PER DIEM IN LIEU OF WHERE THE TRAVEL ORDER OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT DATED JUNE 10, 1926, PRESCRIBED A FLAT PER DIEM OF $4 IN ACCORDANCE WITH THE PROVISIONS OF ARMY REGULATIONS 35-4060, AND SAID ORDER WAS NOT MODIFIED BY COMPETENT AUTHORITY, THE EMPLOYEE IS ENTITLED TO NO MORE THAN $4 PER DIEM FOR THE DAYS HE WAS IN A TRAVEL STATUS ON AND AFTER JULY 1, 1926, UNDER THE ORDER.

DECISION BY ASSISTANT COMPTROLLER GENERAL GINN, APRIL 25, 1927:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT K-5208-W, DATED MARCH 22, 1927, WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF MAJ. E. T. COMEGYS FOR $53 PER DIEM IN LIEU OF SUBSISTENCE PAID ON VOUCHER 2458, TO EDGAR B. KAY, CIVILIAN EMPLOYEE OF THE QUARTERMASTER CORPS, WAR DEPARTMENT.

THE PAYEE OF THE VOUCHER WAS IN A TRAVEL STATUS AND THE ONLY QUESTION INVOLVED IS AS TO THE RATE OF PER DIEM ALLOWABLE FOR THE PERIOD INVOLVED.

THE EMPLOYEE'S TRAVEL ORDER WAS ISSUED JUNE 19, 1926, AND PROVIDED FOR A "FLAT PER DIEM OF $4 WHILE TRAVELING AND WHILE ON THIS TEMPORARY DUTY, IN ACCORDANCE WITH THE PROVISIONS OF ARMY REGULATIONS 35-4060.' THE JOURNEY BEGAN ON JUNE 17, 1926, AND WAS COMPLETED JULY 28, 1926. IN MAKING UP THE VOUCHER AFTER THE COMPLETION OF THE TRAVEL PER DIEM ALLOWANCE WAS COMPUTED AT THE RATE OF $4 FROM JUNE 17 TO 30, 1926, INCLUSIVE, AND AT THE RATE OF $6 FROM JULY 1 TO 28, INCLUSIVE.

ARMY REGULATIONS 35-4060 WHICH WERE IN EFFECT ON THE DATE OF THE TRAVEL ORDER AND, TO WHICH THE ORDERS SPECIFICALLY REFERRED PROVIDE FOR FLAT PER DIEM OF $4 WHEN THE ORDERS SO PRESCRIBE. THE ACT OF JUNE 3, 1926, 44 STAT. 689, PROVIDES AS FOLLOWS:

SEC. 4. THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS, IN LIEU OF THE ACTUAL EXPENSES AUTHORIZED BY SECTION 3, MAY PRESCRIBE A PER DIEM ALLOWANCE NOT TO EXCEED $6 FOR ANY ONE CALENDAR DAY OR PORTIONS THEREOF FOR ABSENCES OF LESS THAN TWENTY-FOUR HOURS.

SEC. 7. THE ALLOWANCE AND PAYMENT OF ACTUAL EXPENSES AND THE FIXING AND PAYMENT OF PER DIEM ALLOWANCE, OR PORTIONS THEREOF, SHALL BE IN ACCORDANCE WITH REGULATIONS WHICH SHALL BE PROMULGATED BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS AND WHICH SHALL BE STANDARDIZED AS FAR AS PRACTICABLE AND SHALL NOT BE EFFECTIVE UNTIL APPROVED BY THE PRESIDENT OF THE UNITED STATES.

SEC. 13. THIS ACT SHALL TAKE EFFECT ON JULY 1, 1926, BUT ANY INCREASES DEEMED NECESSARY TO BE MADE IN THE RATES OF ACTUAL EXPENSES OR PER DIEM ALLOWANCE UNDER THE AUTHORITY OF THIS ACT SHALL NOT BE AUTHORIZED BY HEADS OF DEPARTMENTS AND ESTABLISHMENTS TO THE EXTENT OF INCURRING A DEFICIENCY IN APPROPRIATIONS AVAILABLE FOR THE PAYMENT THEREOF DURING THE FISCAL YEAR 1927.

EXECUTIVE ORDER NO. 4466, DATED JUNE 29, 1926, PROVIDES:

EFFECTIVE JULY 1, 1926, THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS AS DEFINED IN THE SUBSISTENCE EXPENSE ACT OF 1926, APPROVED JUNE 3, 1926 (PUBLIC NO. 328) MAY, IN DIRECTING TRAVEL, FIX SUBSISTENCE ALLOWANCES OF RATES NOT EXCEEDING THOSE PROVIDED IN THAT ACT, SUBJECT TO THE PROVISIONS OF SECTION 13 THEREOF, AND MAY OPERATE UNDER THEIR RESPECTIVE EXISTING LAWFUL REGULATIONS RELATING TO PER DIEM ALLOWANCE AND SUBSISTENCE EXPENSES, SO FAR AS APPLICABLE, UNTIL SUCH TIME AS STANDARD REGULATIONS ARE APPROVED.

CIRCULAR 39, WAR DEPARTMENT, DATED JULY 1, 1926, PROVIDES:

2. UNDER AUTHORITY OF THE EXECUTIVE ORDER QUOTED, AND PENDING REVISION OF ARMY REGULATIONS ON THE SUBJECT, OFFICERS OF, OR SERVING UNDER, THE WAR DEPARTMENT, IN DIRECTING OFFICIAL TRAVEL TO BE PERFORMED BY CIVILIAN EMPLOYEES, MAY AUTHORIZE REIMBURSEMENT OF SUCH EMPLOYEES FOR TRAVELING EXPENSES OF THE CHARACTER INDICATED IN EXISTING ARMY REGULATIONS AT NOT TO EXCEED $7.00 PER DAY COMPUTED ON AN ACTUAL EXPENSE BASIS, OR $6.00 COMPUTED ON A PER DIEM BASIS, FOR TRAVEL PERFORMED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES: * * *

3. THE ATTENTION OF ALL OFFICERS DIRECTING TRAVEL IS CALLED TO THE FACT THAT UNDER THE PROVISIONS OF SECTION 13 OF THE ACT OF JUNE 3, 1926, ABOVE CITED, INCREASES IN TRAVEL ALLOWANCE UNDER SUCH LAW ARE NOT TO BE DEEMED AUTHORIZED TO THE EXTENT OF INCURRING A DEFICIENCY IN APPROPRIATIONS DURING THE FISCAL YEAR 1927. THE ALLOWANCE TO BE AUTHORIZED WITHIN THE MAXIMUM SUMS INDICATED WILL BE FIXED, THEREFORE, IN EACH PARTICULAR CASE WITH REFERENCE TO THE LOCALITY AND CIRCUMSTANCES OF THE TRAVEL AND TO THE NORMAL NECESSITIES OF TRAVEL OF AN EMPLOYEE OF THE GRADE OR CLASS INVOLVED.

IT WILL BE NOTED THAT THE ACT OF JUNE 3, 1926, THE EXECUTIVE ORDER OF JUNE 29, 1926, AND WAR DEPARTMENT CIRCULAR 39, ALL PROVIDE THAT A PER DIEM ALLOWANCE NOT TO EXCEED $6 MAY BE PRESCRIBED. IN ORDER TO BE ENTITLED TO BE PAID PER DIEM ALLOWANCE AT THE RATE OF $6, SUCH RATE MUST BE PRESCRIBED IN A PROPER ORDER ISSUED BY COMPETENT AUTHORITY. IN THIS INSTANCE THE ORDER BY AUTHORITY OF WHICH THE EMPLOYEE PERFORMED OFFICIAL TRAVEL SPECIFICALLY PRESCRIBED A PER DIEM RATE OF $4 IN ACCORDANCE WITH THE PROVISIONS OF ARMY REGULATIONS 35-4060.

IN VIEW OF THE PERMISSIVE CHARACTER OF THE STATUTE, AND OF THE EXECUTIVE ORDER AND WAR DEPARTMENT CIRCULAR ISSUED UNDER THE AUTHORITY OF THE STATUTE, AND OF THE FACT THAT THE ORIGINAL TRAVEL ORDER WAS NOT MODIFIED BY COMPETENT AUTHORITY, IT MUST BE HELD THAT THE EMPLOYEE WAS ENTITLED TO NO MORE THAN $4 PER DIEM FOR THE PERIOD THAT HE WAS IN A TRAVEL STATUS UNDER THE TRAVEL ORDER OF JUNE 10, 1926.

ACCORDINGLY, THE DISALLOWANCE OF CREDIT FOR $53, BEING THE AMOUNT OF THE EXCESS OVER $4 PER DIEM FOR THE PERIOD THE EMPLOYEE WAS IN A TRAVEL STATUS ON AND AFTER JULY 1, 1926, MUST BE AND IS SUSTAINED.