B-108841, AUG 1, 1952

B-108841, AUG 1, 1952

PRECIS-UNAVAILABLE

CAPTAIN LEO J. THORSON, TC:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1952, AND TO YOUR UNDATED LETTER POSTMARKED JUNE 16, 1952, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 31, 1952, BY WHICH YOU WERE ALLOWED PER DIEM FOR THE PERIOD FEBRUARY 20 TO MARCH 3, 1951, AND WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM JANUARY 3 TO FEBRUARY 19, 1951, INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED PURSUANT TO THE PROVISIONS OF PARAGRAPH 23, SPECIAL ORDERS NO. 362, HEADQUARTERS, FORT EUSTIS, VIRGINIA, DATED DECEMBER 28, 1950, AS AMENDED BY PARAGRAPH 9, SPECIAL ORDERS NO. 51, OF THAT COMMAND DATED FEBRUARY 20, 1951.

THE SAID ORDERS OF DECEMBER 28, 1950, DIRECTED THAT YOU AND OTHER DESIGNATED OFFICER AND ENLISTED PERSONNEL PROCEED ON OR ABOUT JANUARY 3, 1951, ON TEMPORARY DUTY AT FORT MYER, VIRGINIA, FOR A PERIOD OF APPROXIMATELY 60 DAYS, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. SUCH ORDERS PROVIDED "PER DIEM NOT AUTH." THE ORDERS OF FEBRUARY 20, 1951, PROVIDED THAT SO MUCH OF THE ORDERS OF DECEMBER 28, 1950, "AS READS PER DIEM NOT AUTH IS AMENDED TO READ PER DIEM AUTH OFF." YOU PROCEEDED FROM YOUR STATION AT FORT EUSTIS TO FORT MYER UNDER THOSE ORDERS ON JANUARY 3, 1951, AND LEFT FORT MYER AND RETURNED TO FORT EUSTIS ON MARCH 3, 1951. YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM JANUARY 3 TO FEBRUARY 19, 1951, WAS DISALLOWED BECAUSE OF THE SPECIFIC RESTRICTION AGAINST ITS PAYMENT IN THE ORDERS OF DECEMBER 28, 1950, THE AUTHORIZING PROVISION OF THE AMENDING ORDERS OF FEBRUARY 20, 1951, BEING CONSIDERED TO HAVE NO RETROACTIVE EFFECT TO CHANGE YOUR RIGHTS INCIDENT TO THE TRAVEL AND TEMPORARY DUTY THERETOFORE PERFORMED.

WITHIN CERTAIN STATUTORY LIMITATIONS THE PRESCRIBING OF PER DIEM ALLOWANCES FOR PAYMENT TO MEMBERS OF THE ARMED FORCES IS GOVERNED BY ADMINISTRATIVE REGULATIONS. PARAGRAPH 3C OF ARMY REGULATIONS 35-4820, JANUARY 30, 1948, IN EFFECT DURING THE PERIOD HERE IN QUESTION, PLACED ON THE OFFICER ISSUING TRAVEL ORDERS THE RESPONSIBILITY TO DETERMINE WHEN NO PER DIEM SHOULD BE PAID FOR TRAVEL OR PERIODS OF TEMPORARY DUTY ENJOINED BY ORDERS AND, WHERE HE DETERMINES THAT THE TRAVELING OFFICER WILL NOT BE COMPELLED TO INCUR MORE THAN NORMAL SUBSISTENCE EXPENSES, TO INCLUDE RESTRICTIVE LANGUAGE IN THE ORDERS. PARAGRAPH 40C OF DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35-4805-1, FEBRUARY 25, 1949, PROVIDES THAT NO PER DIEM WILL BE PAID FOR PERIODS OF TRAVEL OR TEMPORARY DUTY WHERE LANGUAGE RESTRICTING SUCH PAYMENTS IS CONTAINED IN THE ORDERS.

IT IS WELL ESTABLISHED THAT EXCEPT TO CORRECT OR TO COMPLETE ORDERS TO SHOW THE ORIGINAL INTENT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER APPLICABLE STATUTES AND REGULATIONS FOR TRAVEL ALREADY PERFORMED. 23 C.G. 713, 24 ID. 439. IN SUPPORT OF YOUR CONTENTION THAT IT WAS INTENDED THAT PER DIEM SHOULD BE AUTHORIZED IN THE ORDERS OF DECEMBER 28, 1950, YOU HAVE SUBMITTED COPIES OF THE REQUEST FOR THE ORDERS, DATED DECEMBER 27, 1950, WHICH WERE IN THE FORM AUTHORIZING PER DIEM, AND A CERTIFICATE OF THE ACTING ADJUTANT GENERAL, HEADQUARTERS, THE TRANSPORTATION CENTER AND FORT EUSTIS, FORT EUSTIS, VIRGINIA, DATED JUNE 25, 1951, STATING THAT DUE TO ADMINISTRATIVE ERROR IN THE ORDERS OF DECEMBER 28, 1950, PER DIEM WAS NOT AUTHORIZED AND THAT PER DIEM SHOULD HAVE BEEN AUTHORIZED INASMUCH AS THE OFFICERS WERE FORCED TO MESS AT CIVILIAN ESTABLISHMENTS. WHILE THE REQUEST FOR ORDERS, DATED DECEMBER 27, 1950, INDICATES A DESIRE THAT ORDERS SHOULD BE ISSUED IN A FORM AUTHORIZING PER DIEM, NO EVIDENCE IS ADVANCED TO SHOW THAT THE OFFICER ISSUING THE ORDERS OF DECEMBER 28, 1950, WAS REQUIRED TO INCORPORATE IN THE ORDERS THE PROVISIONS SUGGESTED IN THE REQUEST, IT BEING HIS RESPONSIBILITY UNDER THE ABOVE-CITED REGULATIONS TO DETERMINE INDEPENDENTLY WHETHER PER DIEM SHOULD BE AUTHORIZED UNDER GIVEN CIRCUMSTANCES. THE STATEMENTS IN THE CERTIFICATE OF JUNE 25, 1951, INDICATE THAT ADMINISTRATIVE ERROR WAS CONSIDERED AS HAVING BEEN MADE IN THE ISSUANCE OF THE ORDERS BECAUSE OF A LACK OF KNOWLEDGE ON THE PART OF THE ISSUING OFFICER AS TO AVAILABILITY OF MESSING FACILITIES AT THE TEMPORARY STATION, SINCE IT LATER DEVELOPED THAT MESSING FACILITIES WERE NOT AVAILABLE FOR THE OFFICERS INVOLVED. THE FACT THAT THE RESTRICTIVE PROVISION MIGHT HAVE RESULTED FROM INADEQUATE INFORMATION, HOWEVER, MAY NOT BE CONSIDERED AS ESTABLISHING THAT THE ORDERS WERE NOT ISSUED AS INTENDED BY THE ISSUING OFFICER. SEE DECISION OF JANUARY 2, 1948; B- 70514.

IN VIEW OF THE SPECIFIC PROVISION IN THE ORDERS OF DECEMBER 28, 1950, THAT THE PAYMENT OF PER DIEM IS NOT AUTHORIZED, AND IN THE ABSENCE OF EVIDENCE THAT THE INCLUSION OF SUCH PROVISION WAS NOT INTENDED, THERE IS NO PROPER BASIS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED FOR THE PERIOD FROM JANUARY 3 TO FEBRUARY 19, 1951. ACCORDING, THE SETTLEMENT OF JANUARY 31, 1952, IS SUSTAINED.