B-108925, MAY 15, 1952

B-108925: May 15, 1952

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USCG: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10. YOU WERE DIRECTED TO PROCEED AND REPORT TO THE COMMANDER. SUCH INDORSEMENT WAS AMENDED THE FOLLOWING DAY TO AUTHORIZE PAYMENT OF PER DIEM AS PRESCRIBED IN ARTICLE 421 OF THE COAST GUARD PAY AND SUPPLY INSTRUCTIONS. FOR WHICH YOU HAVE BEEN PAID PER DIEM. WERE AMENDED BY THE COMMANDANT ON MARCH 13. PROVIDES THAT PER DIEM ALLOWED AT A TEMPORARY DUTY STATION WILL BE LIMITED TO A PERIOD OF 90 DAYS AT EACH TEMPORARY DUTY STATION VISITED WHILE IN A CONTINUOUS TRAVEL STATUS. "UNLESS THE 90-DAY PERIOD IS EXTENDED BY THE COMMANDANT (P).". WHILE THE ORDERS OF JULY 30 AND INDORSEMENTS THEREON DID NOT LIMIT THE PERIOD OF TEMPORARY DUTY CONTEMPLATED UNDER SUCH ORDERS AND YOU WERE REQUIRED TO PERFORM TEMPORARY DUTY AT PORTLAND FOR A PERIOD IN EXCESS OF 90 DAYS.

B-108925, MAY 15, 1952

PRECIS-UNAVAILABLE

LIEUTENANT (JG) ANDREW F. NIXON, USCG:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1952, RELATIVE TO THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED OCTOBER 8, 1951, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD NOVEMBER 21 TO 29, 1949.

BY ORDERS FROM THE COMMANDING OFFICER, USCGC WINONA (WPC-65) DATED JULY 30, 1950, YOU WERE DIRECTED TO PROCEED AND REPORT TO THE COMMANDER, 13TH COAST GUARD DISTRICT, FOR ASSIGNMENT TO TEMPORARY DUTY FOR AN UNDEFINITE PERIOD. THIRD INDORSEMENT OF THE SAME DATE FROM THE LAST MENTIONED OFFICER, MODIFED SUCH ORDERS SO AS TO DIRECT YOU TO PROCEED AND REPORT TO THE OFFICER-IN-CHARGE, MARINE INSPECTION OFFICE, PORTLAND, OREGON, FOR FURTHER TEMPORARY DUTY. SUCH INDORSEMENT WAS AMENDED THE FOLLOWING DAY TO AUTHORIZE PAYMENT OF PER DIEM AS PRESCRIBED IN ARTICLE 421 OF THE COAST GUARD PAY AND SUPPLY INSTRUCTIONS. IT APPEARS THAT YOU PERFORMED TEMPORARY DUTY AT PORTLAND UNDER SUCH ORDERS AND INDORSEMENTS THEREON FOR PERIODS AGGREGATING 90 DAYS ENDING NOVEMBER 20, 1950, FOR WHICH YOU HAVE BEEN PAID PER DIEM, AND THAT YOU CONTINUED TO PERFORM DUTY THEREAT AS DIRECTED UNTIL NOVEMBER 30, 1950, WHEN YOU LEFT THAT PLACE EN ROUTE BACK TO YOUR REGULAR STATION. UNDER DATE OF FEBRUARY 7, 1951, THE COMMANDER OF THE 13TH COAST GUARD DISTRICT ADVISED THE COMMANDANT OF THE COAST GUARD THAT AN EXIGNECY OF THE SERVICE MADE IT NECESSARY TO RETAIN YOU ON TEMPORARY DUTY BEYOND 90 DAYS, AND THE ORDERS OF JULY 30, 1950, WERE AMENDED BY THE COMMANDANT ON MARCH 13, 1951, SO AS TO EXTEND THE PROVISION FOR PAYMENT OF PER DIEM TO COVER THE PERIOD NOVEMBER 21 TO 29, 1950.

ARTICLE 422-9(A), AMENDMENT 141 OF THE PAY AND SUPPLY INSTRUCTIONS, PROVIDES THAT PER DIEM ALLOWED AT A TEMPORARY DUTY STATION WILL BE LIMITED TO A PERIOD OF 90 DAYS AT EACH TEMPORARY DUTY STATION VISITED WHILE IN A CONTINUOUS TRAVEL STATUS, "UNLESS THE 90-DAY PERIOD IS EXTENDED BY THE COMMANDANT (P)." WHILE THE ORDERS OF JULY 30 AND INDORSEMENTS THEREON DID NOT LIMIT THE PERIOD OF TEMPORARY DUTY CONTEMPLATED UNDER SUCH ORDERS AND YOU WERE REQUIRED TO PERFORM TEMPORARY DUTY AT PORTLAND FOR A PERIOD IN EXCESS OF 90 DAYS, THE ABOVE CITED REGULATIONS HELD THE EFFECT OF RESTRICTING PAYMENT OF PER DIEM FOR SUCH DUTY TO 90 DAYS. HENCE, NO RIGHT TO PER DIEM ACCRUED TO YOU WHILE YOU WERE PERFORMING TEMPORARY DUTY AT PORTLAND DURING THE PERIOD NOVEMBER 21 TO 29, 1950. ALTHOUGH THE COMMANDANT'S ORDER OF MARCH 13, 1951, PURPORTED TO AUTHORIZE PAYMENT OF PER DIEM FOR SUCH PERIOD, SUCH ADMINISTRATIVE ACTION DID NOT INCREASE YOUR RIGHTS IN THE PREMISES. THE DECISIONS OF THIS OFFICE HAVE HELD CONSISTENTLY THAT A PER DIEM ALLOWANCE MAY NOT BE PRESCRIBED RETROACTIVELY. SEE 23 COMP. GEN. 713; 24 ID. 362, 364; ID. 439.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 8, 1951, IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.