B-107907, FEB 28, 1952

B-107907: Feb 28, 1952

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FOR ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH. THE PERIOD OF TEMPORARY DUTY WAS EXTENDED FOR AN ADDITIONAL FOUR DAYS BY LETTER ORDER NO. 6-68. WERE REVOKED BY LETTER ORDER NO. 8-118. WERE ISSUED COVERING THE SAME TRAVEL AND TEMPORARY DUTY WHICH ORDERS PRESCRIBED PER DIEM AS AUTHORIZED IN CIRCULAR NO. 25. IT IS ASSUMED THAT IT WAS ISSUED UPON THE REVOCATION OF THE ORIGINAL ORDERS BY LETTER ORDER NO. 8-118 OF AUGUST 21. IT IS STATED THAT MAJOR OFFIE TRAVELED FROM PUSAN. THAT BOTH GOVERNMENT MESS AND QUARTERS WERE AVAILABLE DURING THE PERIOD INVOLVED. TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE UNITED STATES.

B-107907, FEB 28, 1952

PRECIS-UNAVAILABLE

CAPTAIN H. WHITTIER, FC - DEPT OF THE ARMY:

BY FIFTH INDORSEMENT OF FEBRUARY 4, 1952, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF AUGUST 30, 1951, FOR ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH, STATED IN FAVOR OF MAJOR SAMUEL J. OFFIE, IG, FOR PER DIEM AT THE RATE OF $1.80 PER DAY FOR THE PERIOD MAY 30 TO JUNE 17, 1951.

PARAGRAPH 2, LETTER ORDER NO. 5-141, MAY 25, 1951, HEADQUARTERS, SECOND LOGISTICAL COMMAND (C), APO 59, PLACED THE OFFICER ON TEMPORARY DUTY AT SASEBO AND TOKYO, JAPAN, FOR A PERIOD OF 13 DAYS, WITH DIRECTION TO PROCEED THERETO ON OR ABOUT MAY 26, 1951. THE PERIOD OF TEMPORARY DUTY WAS EXTENDED FOR AN ADDITIONAL FOUR DAYS BY LETTER ORDER NO. 6-68, ISSUED AT THE SAME HEADQUARTERS ON JUNE 11, 1951. SAID ORDERS, AS AMENDED, WERE REVOKED BY LETTER ORDER NO. 8-118, AUGUST 21, 1951. NEW ORDERS DESIGNATED AS LETTER ORDER NO. 5-141 "B", DATED MAY 25, 1951, WERE ISSUED COVERING THE SAME TRAVEL AND TEMPORARY DUTY WHICH ORDERS PRESCRIBED PER DIEM AS AUTHORIZED IN CIRCULAR NO. 25, GENERAL HEADQUARTERS, FAR EAST COMMAND, DATED MAY 30, 1951, FOR THE PERIOD OF TEMPORARY DUTY AFTER MAY 29, 1951. ALTHOUGH SUCH ORDER BEARS THE DATE OF MAY 25, 1951, IT IS ASSUMED THAT IT WAS ISSUED UPON THE REVOCATION OF THE ORIGINAL ORDERS BY LETTER ORDER NO. 8-118 OF AUGUST 21, 1951. IT IS STATED THAT MAJOR OFFIE TRAVELED FROM PUSAN, KOREA, TO TOKYO ON MAY 28 AND THAT HE LEFT YOKOHAMA, JAPAN, ON JUNE 18 AND RETURNED TO PUSAN ON JUNE 22, 1951, AND THAT BOTH GOVERNMENT MESS AND QUARTERS WERE AVAILABLE DURING THE PERIOD INVOLVED.

PARAGRAPH 4253-1, INSTRUCTION MEMORANDUM 1-1, JOINT TRAVEL REGULATIONS, MARCH 2, 1951, STATES THAT UNLESS OTHERWISE PROVIDED, THEREIN, TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE UNITED STATES, THE RATES OF SUCH TRAVEL PER DIEM BEING FIXED IN APPENDIX B OF SAID REGULATIONS. HOWEVER, PARAGRAPH 4256-2 OF SAID INSTRUCTION MEMORANDUM 1-1, AUTHORIZES A THEATER COMMANDER TO PRESCRIBE LESSER RATES OF TRAVEL PER DIEM THAN THOSE ESTABLISHED IN SAID REGULATIONS, OR NO TRAVEL PER DIEM, FOR MEMBERS OF HIS COMMAND, WHEN THE DIRECTED TRAVEL IS PERFORMED WHOLLY WITHIN THE THEATER AND NO SPECIAL TRAVEL RATE IS ESTABLISHED IN APPENDIX B FOR THE COUNTRY INVOLVED. SAID APPENDIX B DOES NOT SHOW A RATE OF TRAVEL PER DIEM FOR JAPAN. PARAGRAPH 2 OF SAID CIRCULAR NO. 25, TO WHICH REFERENCE IS MADE IN THE LAST MENTIONED ORDERS, STATES THAT WITHIN THE SCOPE OF THEIR AUTHORITY OFFICERS AUTHORIZED TO ISSUE TRAVEL ORDERS FOR TEMPORARY DUTY BOTH WITHIN AND OUTSIDE THE UNITED STATES, "WILL PRESCRIBE THE ALLOWANCES FOR PER DIEM AS PRESCRIBED IN THIS CIRCULAR" OR IN THE JOINT TRAVEL REGULATIONS. THE RATE OF PER DIEM FOR OFFICERS ON TEMPORARY DUTY IN JAPAN AT PLACES WHERE BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES ARE AVAILABLE, ARE FIXED IN PARAGRAPH 6B(1) THEREOF AT $1.80 PER DAY. CIRCULAR NO. 118, ISSUED BY THE OFFICE OF THE COMMANDING GENERAL, HEADQUARTERS, EIGHTH UNITED STATES ARMY, KOREA (EUSAK), UNDER DATE OF JULY 12, 1951, AND STATED TO BE EFFECTIVE MAY 30, 1951, REFERS TO THE FOREGOING REGULATIONS AND STATES PER DIEM SHALL BE PRESCRIBED IN THE TRAVEL ORDERS IN THE EVENT IT IS DECIDED THAT CONDITIONS WARRANT SUCH ACTION. UNDER SUCH CIRCUMSTANCES, A FAILURE TO PRESCRIBE PER DIEM IN TRAVEL ORDERS BARS PAYMENT THEREOF FOR THE TRAVEL AND DUTY DIRECTED IN SUCH ORDERS. YOU STATE THAT REGULATIONS IN EFFECT AT THE TIME THE ORDERS OF MAY 25, 1951, WERE ISSUED, DID NOT ALLOW PER DIEM FOR TEMPORARY DUTY PERFORMED IN JAPAN. WHILE CIRCULAR NO. 25 DID FIX RATES OF PER DIEM FOR SUCH TEMPORARY DUTY, THERE IS NO STATEMENT IN SAID REGULATIONS WHICH MAKES THE PROVISIONS THEREOF APPLICABLE TO TEMPORARY DUTY DIRECTED IN ORDERS ISSUED PRIOR TO MAY 30, 1951, AND THE PROVISIONS OF PARAGRAPH 2 THEREOF APPARENTLY REQUIRED AN AFFIRMATIVE PRESCRIPTION OF PER DIEM IN TRAVEL ORDERS BEFORE A RIGHT TO SUCH PER DIEM COULD ACCRUE TO AN OFFICER. IT IS APPARENT THAT SUCH WAS THE ADMINISTRATIVE INTERPRETATION OF CIRCULAR NO. 25, SINCE CIRCULAR NO. 118 INCLUDED A PROVISION FOR AMENDMENT OF ORDERS TO PROVIDE AUTHORITY FOR PAYMENT OF PER DIEM FOR TRAVEL AND TEMPORARY DUTY PERFORMED AFTER MAY 30, 1951. SUCH AMENDMENT WOULD HAVE BEEN UNNECESSARY IF THE PROVISIONS OF CIRCULAR NO. 25 WERE AUTOMATIC. HOWEVER, NO RIGHT TO PER DIEM ACCRUED UNDER THE AMENDATORY ORDERS NUMBERED 5-141 "B", SINCE IT IS WELL ESTABLISHED THAT A PER DIEM ALLOWANCE MAY NOT BE PRESCRIBED RETROACTIVELY. 24 COMP. GEN. 362, 364; ID. 439. WHILE THE LATTER ORDERS BEAR THE DATE OF MAY 25, 1951, IT SEEMS CLEAR THEY WERE NOT ISSUED ON THAT DATE SINCE THEY APPARENTLY WERE ISSUED UNDER AUTHORITY CONTAINED IN CIRCULAR NO. 118, DATED JULY 12, 1951. PRESUMABLY, THE ACTUAL DATE OF ISSUANCE WAS AUGUST 21, 1951, THE DATE THE PRIOR ORDERS WERE REVOKED.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.