B-119798, SEP. 19, 1956

B-119798, SEP. 19, 1956

TO MR. GUILFORD MOE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1956, FORWARDED HERE BY THE NATIONAL SERVICE OFFICER OF AMVETS, WASHINGTON, D. C., REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 26, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED BY YOU AS AN ENLISTED MEMBER OF THE UNITED STATES ARMY AT HIROSHIMA, JAPAN,DURING THE PERIOD JULY 8 TO 29, 1952.

UNDER ORDERS OF HEADQUARTERS, CAMP KOBE, APO 317, DATED JULY 7, 1952, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 7 TO SAKA, HIROSHIMA, JAPAN, FOR TEMPORARY DUTY OF APPROXIMATELY 20 DAYS' DURATION IN CONNECTION WITH REPAIRS TO UNITED STATES ARMY VESSELS. THE ORDERS CONTAINED THE PROVISION "NO PER DIEM AUTHORIZED.' YOU STATED IN YOUR CLAIM THAT YOU PROCEEDED FROM CAMP KOBE TO HIROSHIMA ON JULY 8 AND RETURNED TO CAMP KOBE ON JULY 29, AND THAT NO GOVERNMENT QUARTERS OR MEALS WERE FURNISHED TO YOU DURING THE PERIOD. ALSO YOU STATED THAT YOU HAD PERFORMED TEMPORARY DUTY ATHIROSHIMA AND RECEIVED PER DIEM FOR A PERIOD OF MORE THAN FOUR MONTHS PRIOR TO JULY 1, 1952, AND THAT WHEN YOU WERE ASKED TO CARRY OUT THE DUTY DIRECTED BY THE ORDERS OF JULY 7 WITHOUT PER DIEM IT WAS PROMISED THAT PROPER ORDERS WOULD BE WRITTEN AS SOON AS FUNDS WERE AVAILABLE. EVIDENCE WAS SUBMITTED WITH YOUR CLAIM INDICATING THAT THE RESTRICTING PROVISION WAS PLACED IN YOUR ORDERS DUE TO A LACK OF FUNDS FOR PER DIEM PAYMENTS, AND THAT WHEN FUNDS WERE MADE AVAILABLE ON OR ABOUT JULY 20, 1952, IT THEN WAS CONSIDERED THAT REGULATIONS PREVENTED AN AMENDMENT TO YOUR ORDERS TO AUTHORIZE THAT ALLOWANCE.

PARAGRAPH 4256-2, CHANGE 1, JOINT TRAVEL REGULATIONS, IN EFFECT FROM APRIL 1, 1951, TO SEPTEMBER 30, 1952, AUTHORIZED THEATER COMMANDERS TO PRESCRIBE LESSER RATES OF TRAVEL PER DIEM THAN THOSE ESTABLISHED GENERALLY FOR THE ARMED FORCES IN APPENDIX B OF THOSE REGULATIONS, OR NO TRAVEL PER DIEM, FOR MEMBERS OF THEIR COMMANDS WHEN THE TRAVEL DIRECTED WAS FOR PERFORMANCE WHOLLY WITHIN THE THEATER AND A SPECIFIC TRAVEL RATE HAD NOT BEEN ESTABLISHED FOR THE COUNTRY OR PLACE INVOLVED BY NAME. PARAGRAPH 2B, CIRCULAR NO. 25, GENERAL HEADQUARTERS, FAR EAST COMMAND, DATED MAY 30, 1951, AS AMENDED BY CIRCULAR NO. 33 OF THE SAME COMMAND DATED AUGUST 3, 1951, ISSUED UNDER THAT AUTHORITY, PROVIDED "PER DIEM ALLOWANCES WILL BE PRESCRIBED ONLY WHEN THERE IS AN EXPENSE OVER AND ABOVE THE NORMAL EVERY DAY LIVING EXPENSE. AUTHORIZATION OR NONAUTHORIZATION OF PER DIEM IN ORDERS WILL BE FINAL AND CONCLUSIVE.' IT WAS CONTEMPLATED BY SUCH PROVISIONS THAT THE AUTHORITY ISSUING TRAVEL ORDERS COULD DETERMINE CIRCUMSTANCES UNDER WHICH NO PER DIEM WOULD BE PAYABLE ON THE BASIS OF HIS PERSONAL JUDGMENT AS TO THE NEED FOR FOR THE ALLOWANCE. THE AUTHORIZATIONS EFFECTED UNDER THOSE PROVISIONS WERE MADE FINAL AND CONCLUSIVE, AND CONSEQUENTLY ARE NOT OPEN TO QUESTION BY US WHEN INVOLVED IN CASES FALLING WITHIN THE AUTHORITY VESTED IN THE COMMANDER OF THE FAR EAST COMMAND BY PARAGRAPH 4256-2 OF THE JOINT TRAVEL REGULATIONS, REGARDLESS OF THE REASONS FOR THEIR INCLUSION IN TRAVEL ORDERS.

SINCE THE TRAVEL AND TEMPORARY DUTY INVOLVED WERE PERFORMED WHOLLY WITHIN THE FAR EAST THEATER OF OPERATIONS, AND INASMUCH AS A SPECIFIC PER DIEM TRAVEL RATE HAD NOT THEN BEEN ESTABLISHED FOR JAPAN, IT MUST BE CONCLUDED THAT THE "NO PER DIEM AUTHORIZED" PROVISION OF YOUR ORDERS WAS AN EFFECTIVE BAR TO YOUR RIGHT TO PER DIEM DURING THEIR PERIOD IN QUESTION. CONSEQUENTLY, NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JULY 26, 1955, IS SUSTAINED.