B-103344, JUN 4, 1952

B-103344: Jun 4, 1952

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PRECIS-UNAVAILABLE MISS MARY LOUISE SMITH: REFERENCE IS MADE TO YOUR UNDATED LETTER AND ENCLOSURES RECEIVED IN THIS OFFICE ON MARCH 26. THE DEMAND MADE UPON YOU FOR REFUND OF THAT AMOUNT IS BASED UPON AN AUDIT EXCEPTION TAKEN BY THIS OFFICE IN THE AUDIT OF SAID VOUCHER. YOU STATE THAT YOU HAVE BEEN WORKING IN TOKYO. THAT TWO SETS OF ORDERS WERE ISSUED BY THE CIVILIAN PERSONNEL OFFICE IN TOKYO. THAT THESE LATTER ORDERS WERE NOT USED UNTIL YOUR LEAVE WAS COMPLETED AND YOU STARTED TRAVELING BACK TO TOKYO ON JULY 27. UPON REPORTING TO THE PERSONNEL OFFICE WERE TOLD PER DIEM AND MILEAGE RATES HAD BEEN INCREASED ON JULY 1. THAT YOU WERE GIVEN AMENDED ORDERS. YOU FURTHER STATE THAT YOU NOW ARE TOLD THAT THE PERSONNEL OFFICE MADE A MISTAKE IN ISSUING THE AMENDED ORDERS AND THAT YOU ARE.

B-103344, JUN 4, 1952

PRECIS-UNAVAILABLE

MISS MARY LOUISE SMITH:

REFERENCE IS MADE TO YOUR UNDATED LETTER AND ENCLOSURES RECEIVED IN THIS OFFICE ON MARCH 26, 1951, WHEREIN YOU PROTEST THE ACTION OF THE ARMY FINANCE CENTER IN REQUESTING REFUND OF THE OVERPAYMENT OF $77.16, REPRESENTING PART OF THE PER DIEM AND MILEAGE PAID TO YOU ON VOUCHER 5141, SEPTEMBER 1949 ACCOUNT OF J.M. BARRETTE, LIEUTENANT COLONEL, F.D., SYMBOL 215-009. THE DEMAND MADE UPON YOU FOR REFUND OF THAT AMOUNT IS BASED UPON AN AUDIT EXCEPTION TAKEN BY THIS OFFICE IN THE AUDIT OF SAID VOUCHER.

YOU STATE THAT YOU HAVE BEEN WORKING IN TOKYO, JAPAN, FOR THE DEPARTMENT OF THE ARMY SINCE APRIL 1947; THAT IN 1949 YOU CAME TO WASHINGTON, D.C., ON REEMPLOYMENT LEAVE; THAT TWO SETS OF ORDERS WERE ISSUED BY THE CIVILIAN PERSONNEL OFFICE IN TOKYO, THE ONE AUTHORIZING TRAVEL FROM TOKYO TO WASHINGTON, AND THE OTHER, CP 102-12, GHQ, FEC, APO 500, DATED APRIL 12, 1949, AUTHORIZING RETURN TRAVEL FROM WASHINGTON TO TOKYO; THAT THESE LATTER ORDERS WERE NOT USED UNTIL YOUR LEAVE WAS COMPLETED AND YOU STARTED TRAVELING BACK TO TOKYO ON JULY 27, 1949; THAT YOU ARRIVED IN TOKYO ON AUGUST 27, 1949, AND UPON REPORTING TO THE PERSONNEL OFFICE WERE TOLD PER DIEM AND MILEAGE RATES HAD BEEN INCREASED ON JULY 1, 1949; THAT YOU WERE GIVEN AMENDED ORDERS, CP 241 10 DATED AUGUST 29, 1949 - WHICH PURPORTED TO INCREASE THE PER DIEM RATE FROM $6 TO $9 AND THE MILEAGE RATE FROM 5 CENTS TO 7 CENTS PER MILE - AND THAT THE FINANCE OFFICE PAID YOU IN ACCORDANCE WITH THE AMENDED ORDERS.

YOU FURTHER STATE THAT YOU NOW ARE TOLD THAT THE PERSONNEL OFFICE MADE A MISTAKE IN ISSUING THE AMENDED ORDERS AND THAT YOU ARE, THEREFORE, ENTITLED ONLY TO THE PER DIEM AND MILEAGE AUTHORIZED IN YOUR ORIGINAL ORDERS OF APRIL 12, 1949. YOU STATE, HOWEVER, THAT UPON INVESTIGATION, YOU FIND THAT CIVILIAN PERSONNEL AND PAYROLL LETTER NO. 10-49 AUTHORIZED PAYMENT AT THE INCREASED PER DIEM AND MILEAGE RATES, AND SPECIFICALLY PROVIDES FOR THE AMENDMENT OF OUTSTANDING ORDERS. THEREFORE, YOU STATE, IT IS YOUR OPINION THE MISTAKE MADE BY THE CIVILIAN PERSONNEL OFFICE IN TOKYO WAS IN NOT AMENDING YOUR ORDERS PRIOR TO JULY 27, 1949, THE DATE YOUR TRAVEL STARTED, AND THAT IT WAS CLEARLY THE INTENT OF THE CONGRESS IN PASSING THE LAW THAT ALL PERSONS WHO TRAVELED AFTER JULY 1 WOULD RECEIVE THE HIGHER RATES AND THAT THE INTENT OF THE AUTHORITIES IN TOKYO WAS TO PAY THE HIGHER RATES SINCE THEY DID AMEND THE ORDERS. HENCE, YOU STATE IT WOULD BE OBVIOUSLY UNFAIR TO HAVE TWO INDIVIDUALS TRAVELING TOGETHER RECEIVE DIFFERENT RATES, SIMPLY BECAUSE THE ORDERS WERE WRITTEN DIFFERENTLY, AND THAT YOU FEEL SURE THE UNITED STATES GOVERNMENT DOES NOT INTEND THAT ITS CIVILIAN EMPLOYEES BE PENALIZED BECAUSE OF THE NEGLIGENCE OR INCOMPETENCE OF PERSONNEL CLERKS.

SPECIFICALLY, YOU REQUEST ADVICE AS TO WHETHER THE INTERPRETATION OF THE ARMY FINANCE CENTER REGARDING THE DEMAND MADE UPON YOU FOR THE ABOVE- DESCRIBED OVERPAYMENT IS CORRECT, AND WHETHER THERE IS ANY FURTHER ACTION YOU SHOULD TAKE.

THE JURISDICTION OF THIS OFFICE IS SUCH THAT DECISIONS ARE NEITHER REQUIRED NOR AUTHORIZED BY LAW TO BE RENDERED AT THE REQUEST OF OTHER THAN A DISBURSING OFFICER, A CERTIFYING OFFICER, OR THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER ESTABLISHMENT, EXCEPT IN CONNECTION WITH THE REVIEW OF SPECIFIC CLAIMS THAT HAVE BEEN SETTLED BY THIS OFFICE. 31 U.S.C. 74 (THIRD PARAGRAPH) AND 82D. HENCE, DECISION MAY NOT BE RENDERED AT YOUR REQUEST UPON THE MATTER PRESENTED. OF COURSE, SHOULD YOU REFUND THE AMOUNT TO WHICH THE AUDIT EXCEPTION HAS BEEN TAKEN YOU WOULD BE PRIVILEGED TO FILE A CLAIM THEREFOR IN THIS OFFICE, AT WHICH TIME THERE MAY BE PRESENTED FOR CONSIDERATION SUCH EVIDENCE OR REASONS AS YOU MAY DEEM ADEQUATE TO SUPPORT A RECLAIM THEREOF BY YOU.

HOWEVER, IT MAY BE STATED BY WAY OF INFORMATION, THAT THE WELL ESTABLISHED RULE IS THAT TRAVEL ORDERS MAY NOT BE AMENDED RETROACTIVELY TO INCREASE PAYMENTS THEREUNDER. IN OTHER WORDS, PAYMENT AT INCREASED RATES FOR EXPENSES OF TRAVEL PERFORMED PRIOR TO THE DATE OF AMENDED ORDERS USUALLY MAY NOT BE AUTHORIZED. SEE 28 COMP. GEN. 732. COMPARE 24 COMP. GEN. 439, AND 23 ID. 713. THE AMENDED ORDERS TO INCREASE THE PER DIEM AND MILEAGE RATES IN YOUR CASE WERE ISSUED AUGUST 29, 1949, A DATE SUBSEQUENT TO COMPLETION OF YOUR TRAVEL FROM WASHINGTON, D.C., TO TOKYO, JAPAN.

WHILE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL AND PAYROLL LETTER NO. 10 -49 DATED JUNE 20, 1949, REFERRED TO BY YOU, DOES PROVIDE THAT ORDERS DIRECTING TRAVEL AFTER JULY 1, 1949, "WHICH ARE OUTSTANDING ON RECEIPT OF THIS PUBLICATION MAY BE AMENDED TO PRESCRIBE A HIGHER RATE FOR PER DIEM AND/OR MILEAGE FOR TRAVEL AFTER 1 JULY 1949," IN ACCORDANCE WITH THE PROVISIONS OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, IT SHOULD BE NOTED THAT LETTER OF JUNE 20 FURTHER PROVIDES THAT "ORDERS MAY NOT PRESCRIBE THE HIGHER ALLOWANCES FOR TRAVEL PRIOR TO 1 JULY 1949 NOR MAY THEY BE AMENDED RETROACTIVELY TO PRESCRIBE A HIGHER RATE."

ACCORDINGLY, THE INTERPRETATION OF THE LAW AND REGULATIONS BY THE ARMY FINANCE CENTER, IN CONNECTION WITH THE PAYMENT OF PER DIEM AND MILEAGE ALLOWANCES HERE INVOLVED, APPEARS PROPER, AND IN ACCORDANCE WITH THE CITED DECISIONS OF THIS OFFICE.