B-122396, APR 11, 1955

B-122396: Apr 11, 1955

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PRECIS-UNAVAILABLE MAJOR SOL LANDSMAN: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5. YOU WERE PLACED ON TEMPORARY DUTY AT FORT SAM HOUSTON. UPON COMPLETION OF WHICH YOU WERE TO RETURN TO CAMP LEE. IT BEING SPECIFICALLY PROVIDED THAT PER DIEM WAS AUTHORIZED FOR PERIODS OF TRAVEL ONLY. THE PERIOD OF YOUR TEMPORARY DUTY WAS EXTENDED FOR 22 DAYS BY PARAGRAPH 73. YOUR RETURN TO YOUR PERMANENT STATION WAS DIRECTED BY PARAGRAPH 59. YOU WERE PAID PER DIEM FOR SIX DAYS' TRAVEL TIME. IT IS YOUR CONTENTION THAT TRAVEL REGULATIONS IN EFFECT AT THE TIME THE TEMPORARY DUTY WAS PERFORMED PROVIDED FOR PAYMENT OF PER DIEM FOR THE PERIOD OF TEMPORARY DUTY. THAT ADDITIONAL LIVING COSTS WERE INCURRED.

B-122396, APR 11, 1955

PRECIS-UNAVAILABLE

MAJOR SOL LANDSMAN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1954, REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 3, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD MARCH 13 TO AUGUST 24, 1950.

BY PARAGRAPH 6, SPECIAL ORDERS NO. 48, HEADQUARTERS, CAMP LEE, VIRGINIA, MARCH 9, 1950, YOU WERE PLACED ON TEMPORARY DUTY AT FORT SAM HOUSTON, TEXAS, FOR APPROXIMATELY 90 DAYS, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO CAMP LEE, IT BEING SPECIFICALLY PROVIDED THAT PER DIEM WAS AUTHORIZED FOR PERIODS OF TRAVEL ONLY. THE PERIOD OF YOUR TEMPORARY DUTY WAS EXTENDED FOR 22 DAYS BY PARAGRAPH 73, SPECIAL ORDERS NO. 112 DATED JUNE 1, 1950, AND FOR AN INDEFINITE PERIOD BY PARAGRAPH 81, SPECIAL ORDERS NO. 137 DATED JULY 7, 1950, BOTH ORDERS BEING ISSUED AT HEADQUARTERS, CAMP LEE. YOUR RETURN TO YOUR PERMANENT STATION WAS DIRECTED BY PARAGRAPH 59, SPECIAL ORDERS NO. 149 DATED JULY 25, 1950, SAME HEADQUARTERS. YOU DEPARTED CAMP LEE ON MARCH 13, 1950, AND ARRIVED BACK THERE, UPON COMPLETION OF THE TEMPORARY DUTY AND AUTHORIZED LEAVE, ON AUGUST 24, 1950. YOU WERE PAID PER DIEM FOR SIX DAYS' TRAVEL TIME. IT IS YOUR CONTENTION THAT TRAVEL REGULATIONS IN EFFECT AT THE TIME THE TEMPORARY DUTY WAS PERFORMED PROVIDED FOR PAYMENT OF PER DIEM FOR THE PERIOD OF TEMPORARY DUTY; THAT ADDITIONAL LIVING COSTS WERE INCURRED; AND THAT THE HEADQUARTERS WHICH ISSUED THE ORDERS WAS NOT AWARE THAT THE DUTY REQUIRED A PROLONGED STAY AT FORT SAM HOUSTON. ALSO, IN THE EVENT THE DISALLOWANCE OF YOUR CLAIM IS CONTINUED, YOU REQUEST THAT THE CORRESPONDENCE AND RELATED PAPERS BE RETURNED TO YOU.

UNDER THE STATUTORY PROVISIONS IN EFFECT DURING THE PERIOD HERE INVOLVED (SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859), PER DIEM ALLOWANCES FOR MEMBERS OF THE ARMED FORCES WERE AUTHORIZED IF PRESCRIBED IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS. PARAGRAPH 3C, ARMY REGULATIONS 35-4820, JANUARY 30, 1948, PLACED ON THE OFFICER ISSUING TRAVEL ORDERS THE RESPONSIBILITY OF DETERMINING WHEN NO PER DIEM SHOULD BE PAID FOR TRAVEL OR FOR PERIODS OF TEMPORARY DUTY ENJOINED BY ORDERS. PARAGRAPH 40C, DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35-4805-1, FEBRUARY 25, 1949, SPECIFICALLY PROVIDED THAT NO PER DIEM WOULD BE PAID FOR PERIODS OF TRAVEL OR TEMPORARY DUTY WHERE LANGUAGE RESTRICTING SUCH PAYMENTS WAS CONTAINED IN THE ORDERS.

YOUR ORDERS CONTAINED A SPECIFIC PROVISION THAT PER DIEM WAS AUTHORIZED FOR PERIODS OF TRAVEL ONLY AND, HENCE, IT SEEMS CLEAR THAT IT WAS ADMINISTRATIVELY DETERMINED, EVEN WHEN THE PERIOD OF TEMPORARY DUTY WAS EXTENDED, THAT PER DIEM WAS NOT TO BE PAID FOR SUCH DUTY, SINCE AT NO TIME DID YOUR ORDERS PROVIDE FOR SUCH PAYMENT. UNDER SUCH ORDERS THERE IS NO LEGAL BASIS FOR THE PAYMENT OF ADDITIONAL PER DIEM. ACCORDINGLY, THE SETTLEMENT IS SUSTAINED.

INASMUCH AS THE PAPERS TRANSMITTED HERE AS A PART OF YOUR CLAIM NOW CONSTITUTE A PART OF THE PERMANENT RECORD UPON WHICH THE DISALLOWANCE WAS BASED, THEY ARE REQUIRED TO BE RETAINED HERE, AND MAY NOT BE RETURNED TO YOU. 21 COMP. GEN. 819, 823.