B-126026, FEB. 15, 1956

B-126026: Feb 15, 1956

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WILL BE CONSIDERED AS A REQUEST FOR THE REVIEW OF OUR SETTLEMENT OF SEPTEMBER 12. BY WHICH THE CLAIM WAS DISALLOWED. YOUR CLAIM WAS DISALLOWED BECAUSE SUCH EXPRESS PROVISIONS IN THE ORDERS WERE CONSIDERED AS BARRING PAYMENT OF THE ALLOWANCE CLAIMED INCIDENT TO THE TRAVEL AND TEMPORARY DUTY DIRECTED. FOR APPLICATION TO 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. "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.'.

B-126026, FEB. 15, 1956

TO COLONEL D. F. BUCHWALD:

YOUR LETTER OF SEPTEMBER 19, 1955, CONCERNING YOUR CLAIM FOR PER DIEM FOR THE PERIODS JUNE 8 TO 12, JUNE 30 TO JULY 4, JULY 23 TO 26, AUGUST 10 TO 13, AND AUGUST 21 TO 24, 1952, FORWARDED HERE BY THE DEPARTMENT OF THE ARMY, WILL BE CONSIDERED AS A REQUEST FOR THE REVIEW OF OUR SETTLEMENT OF SEPTEMBER 12, 1955, BY WHICH THE CLAIM WAS DISALLOWED.

THE PER DIEM CLAIMED COVERS PERIODS OF TRAVEL AND TEMPORARY DUTY PERFORMED UNDER ORDERS OF JUNE 7, JUNE 30, JULY 22, AUGUST 9, AND AUGUST 19, 1952, OF HEADQUARTERS, EIGHTH UNITED STATES ARMY KOREA (EUSAK), EACH OF WHICH DIRECTED TRAVEL FROM YOUR STATION IN KOREA TO JAPAN FOR THE PERFORMANCE OF TEMPORARY DUTY AND RETURN TO KOREA, AND CONTAINED THE PROVISION "NO PER DIEM.' YOUR CLAIM WAS DISALLOWED BECAUSE SUCH EXPRESS PROVISIONS IN THE ORDERS WERE CONSIDERED AS BARRING PAYMENT OF THE ALLOWANCE CLAIMED INCIDENT TO THE TRAVEL AND TEMPORARY DUTY DIRECTED.

PARAGRAPH 4256-2, CHANGE 1, JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD 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 APPLICATION TO 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, APO 500, DATED MAY 30, 1951, AS AMENDED BY CIRCULAR NO. 33 OF THE SAME HEADQUARTERS 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 PROVISION THAT THE AUTHORITY ISSUING TRAVEL ORDERS COULD DETERMINE CIRCUMSTANCES UNDER WHICH NO PER DIEM WOULD BE PAYABLE, BASED UPON HIS JUDGMENT AS TO WHETHER LIVING EXPENSES WOULD BE INCREASED APPRECIABLY BECAUSE OF THE TEMPORARY DUTY ASSIGNMENT. 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, CITED ABOVE.

SINCE ALL OF THE TRAVEL AND TEMPORARY DUTY IN QUESTION WAS PERFORMED IN AND BETWEEN KOREA AND JAPAN AND CONSEQUENTLY WITHIN THE FAR EAST THEATER OF OPERATIONS, AND INASMUCH AS A SPECIFIC PER DIEM TRAVEL RATE HAD NOT THEN BEEN ESTABLISHED FOR KOREA OR JAPAN, IT MUST BE CONCLUDED THAT THE ,NO PER DIEM" PROVISIONS OF YOUR ORDERS WERE AN EFFECTIVE BAR TO YOUR RIGHT TO PER DIEM AND CONSEQUENTLY THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 12, 1955, IS SUSTAINED.