B-112255, DEC 29, 1952

B-112255: Dec 29, 1952

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PRECIS-UNAVAILABLE SECRETARY OF DEFENSE: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF PHILIP N. THE ENLISTED MAN WAS DIRECTED TO PROCEED FROM HIS PERMANENT STATION AT CAMP LEJEUNE AND REPORT TO BRANCH OUTPATIENT CLINIC. WERE SELECTED FROM PERSONNEL WHO RESIDED IN WILMINGTON. THAT IT WAS NOT INTENDED THAT PERSONNEL ORDERED TO SUCH TEMPORARY DUTY SHOULD BE ENTITLED TO PER DIEM SINCE NO ADDITIONAL EXPENSE TO THEM WAS INVOLVED. IT IS EXPRESSLY PROVIDED THAT SUCH AUTHORITY "MAY NOT BE REDELEGATED.". IT BEING WELL ESTABLISHED THAT RIGHTS WHICH HAVE VESTED AND BECOME FIXED UPON THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. 23 COMP.

B-112255, DEC 29, 1952

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF PHILIP N. MURPHY, HOSPITAL CORPSMAN, SECOND CLASS, NO. 268-63-62, UNITED STATES NAVAL RESERVE, FOR PER DIEM IN THE SUM OF $956 INCIDENT TO TEMPORARY ADDITIONAL DUTY PERFORMED AT WILMINGTON, NORTH CAROLINA, DURING THE PERIOD SEPTEMBER 28, 1951, TO FEBRUARY 3, 1952, LESS $148.65 PREVIOUSLY PAID FOR COMMUTED RATIONS.

BY PARAGRAPH 3, CAMP SPECIAL ORDERS NO. 270-51, SEPTEMBER 27, 1951, MARINE BARRACKS, CAMP LEJEUNE, NORTH CAROLINA, THE ENLISTED MAN WAS DIRECTED TO PROCEED FROM HIS PERMANENT STATION AT CAMP LEJEUNE AND REPORT TO BRANCH OUTPATIENT CLINIC, JAMES WALKER MEMORIAL HOSPITAL, WILMINGTON, NORTH CAROLINA, FOR TEMPORARY ADDITIONAL DUTY AS RELIEF FOR ANOTHER NAMED ENLISTED MAN. FIRST ENDORSEMENT OF MAY 28, 1952, FROM THE COMMANDING GENERAL AT CAMP LEJEUNE, TO THE CHIEF OF NAVAL PERSONNEL, STATES THAT MEDICAL PERSONNEL OF HIS COMMAND ORDERED TO TEMPORARY DUTY AT THE ABOVE- MENTIONED HOSPITAL, WERE SELECTED FROM PERSONNEL WHO RESIDED IN WILMINGTON, THAT SUCH ACTION RESULTED IN AN ADVANTAGE TO SUCH PERSONNEL IN THAT IT ELIMINATED THE NECESSITY FOR TRAVEL TO AND FROM CAMP LEJEUNE EACH DAY, A TOTAL DISTANCE OF 125 MILES, AND THAT IT WAS NOT INTENDED THAT PERSONNEL ORDERED TO SUCH TEMPORARY DUTY SHOULD BE ENTITLED TO PER DIEM SINCE NO ADDITIONAL EXPENSE TO THEM WAS INVOLVED. BY COMMUNICATION OF JUNE 20, 1950, THE CHIEF OF NAVAL PERSONNEL REFUSED TO APPROVE THE CLAIM FOR PER DIEM FOR THE TEMPORARY DUTY AT WILMINGTON.

PARAGRAPHS 4200 AND 4201, JOINT TRAVEL REGULATIONS, AUTHORIZE THE PAYMENT OF PER DIEM "FOR ALL PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION THEREWITH," WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. WHILE THE REGULATIONS PROVIDE THAT THE SECRETARY OF THE DEPARTMENT CONCERNED MAY RESTRICT PAYMENT OF PER DIEM WHERE THE CIRCUMSTANCES OF THE TRAVEL AND TEMPORARY DUTY SO WARRANT, AND THAT SUCH AUTHORITY MAY BE DELEGATED TO A CHIEF OF AN APPROPRIATE BUREAU OR STAFF AGENCY OF THE HEADQUARTERS OF THE DEPARTMENT CONCERNED, IT IS EXPRESSLY PROVIDED THAT SUCH AUTHORITY "MAY NOT BE REDELEGATED." SEE FOOTNOTE Z TO PARAGRAPH 4205-5 OF SUCH REGULATIONS. THE ORDERS IN THE PRESENT CASE DID NOT RESTRICT OR PURPORT TO RESTRICT THE RIGHT TO PER DIEM AND, IN VIEW OF THE CITED REGULATIONS, IT SEEMS CLEAR THAT THE OFFICER WHO ISSUED SUCH ORDERS HAD NO AUTHORITY TO RESTRICT SUCH PER DIEM. NOR DOES IT APPEAR THAT THE SUBSEQUENT DISAPPROVAL OF THE CLAIM BY THE CHIEF OF NAVAL PERSONNEL COULD AFFECT THE CLAIMANT'S RIGHT TO THE PER DIEM PREVIOUSLY ACCRUING TO HIM UNDER HIS ORDERS AND THE JOINT TRAVEL REGULATIONS, IT BEING WELL ESTABLISHED THAT RIGHTS WHICH HAVE VESTED AND BECOME FIXED UPON THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. 23 COMP. GEN. 713. HENCE THERE APPEARS TO BE NO LEGAL BASIS UNDER THE EXISTING JOINT TRAVEL REGULATIONS FOR THIS OFFICE TO DENY THE ENLISTED MAN'S CLAIM, NOTWITHSTANDING IT SEEMS CLEAR THAT ALLOWANCE OF HIS CLAIM WILL RESULT IN HIS UNJUST ENRICHMENT AT THE EXPENSE OF THE GOVERNMENT, SINCE THE ORDERS OF SEPTEMBER 27 DID NOT RESULT IN ANY INCREASE IN HIS COSTS OF LIVING.

THE FOREGOING CASE WOULD NOT APPEAR TO PRESENT AN UNUSUAL OR UNCOMMON SITUATION BUT ILLUSTRATES THAT THE CURRENT TRAVEL REGULATIONS NOT ONLY PERMIT BUT REQUIRE WASTEFUL AND IMPROVIDENT EXPEDITURES OF PUBLIC FUNDS BECAUSE THE COMMANDING OFFICERS IN THE FIELD WHO ISSUE THE GREAT BULK OF TRAVEL ORDERS HAVE NO AUTHORITY AND ARE NOT PERMITTED TO RESTRICT PER DIEM PAYMENTS REGARDLESS OF THE FACTS IN PARTICULAR CASES DICTATING SUCH RESTRICTIONS.

THE FOREGOING IS BROUGHT TO YOUR ATTENTION WITH THE SUGGESTION THAT CONSIDERATION BE GIVEN TO AMENDING THE REGULATIONS SO AS TO ELIMINATE THE BASIS FOR SUCH UNWARRANTED PAYMENTS. AN EXPRESSION OF YOUR VIEWS IN THE MATTER WILL BE APPRECIATED.