B-126393, FEB. 1, 1956

B-126393: Feb 1, 1956

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KRELL: REFERENCE IS MADE TO YOUR LETTER POSTMARKED OCTOBER 31. YOU WERE AUTHORIZED TO TRAVEL FROM APO 358 TO CALCUTTA. THE ORDERS PROVIDED THAT NO PER DIEM WAS AUTHORIZED. AN AMENDMENT TO THE ABOVE-MENTIONED ORDERS WAS ISSUED MARCH 22. BY THE REFERRED TO VOUCHER YOU WERE ALLOWED $70 REPRESENTING PER DIEM FOR THE PERIOD MARCH 22 TO MARCH 31. WAS DISALLOWED FOR THE REASON THAT THE RATE OF PER DIEM FIXED BY THE TRAVEL ORDERS MAY NOT BE INCREASED RETROACTIVELY. THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN EFFECT AT THE TIME YOUR TRAVEL WAS PERFORMED REQUIRED AS A CONDITION TO REIMBURSEMENT THAT A PER DIEM ALLOWANCE BE AUTHORIZED IN ADVANCE OF THE TRAVEL. THE ESTABLISHED RULE UNDER THOSE REGULATIONS IS THAT THE SPECIFIC PROVISIONS IN A TRAVEL ORDER FIXING A RATE OF PER DIEM OR DENYING PER DIEM MAY NOT BE CHANGED TO OPERATE RETROACTIVELY.

B-126393, FEB. 1, 1956

TO MR. JOSEPH E. KRELL:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED OCTOBER 31, 1955, FORWARDED TO OUR OFFICE FROM THE DEPARTMENT OF THE ARMY, REQUESTING RECONSIDERATION OF VOUCHER SETTLEMENT DATED SEPTEMBER 21, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM COVERING TRAVEL PERFORMED DURING THE PERIOD JANUARY 8, 1946, TO MARCH 21, 1946, INCLUSIVE.

THE RECORDS SHOW THAT BY SPECIAL ORDERS NO. 6, DATED JANUARY 8, 1946, HEADQUARTERS, UNITED STATES ARMY FORCES WESTERN PACIFIC, PARAGRAPH 21, YOU WERE AUTHORIZED TO TRAVEL FROM APO 358 TO CALCUTTA, INDIA, FOR THE PERFORMANCE OF TEMPORARY DUTY. THE ORDERS PROVIDED THAT NO PER DIEM WAS AUTHORIZED. AN AMENDMENT TO THE ABOVE-MENTIONED ORDERS WAS ISSUED MARCH 22, 1946 (SPECIAL ORDERS NO. 68) WHICH PURPORTED TO AUTHORIZE $7 PER DIEM IN LIEU OF SUBSISTENCE FOR PERIODS OF TRAVEL, NECESSARY DELAYS EN ROUTE AND PERIODS OF TEMPORARY DUTY.

BY THE REFERRED TO VOUCHER YOU WERE ALLOWED $70 REPRESENTING PER DIEM FOR THE PERIOD MARCH 22 TO MARCH 31, 1946. YOUR CLAIM FOR PER DIEM FOR THE PERIOD JANUARY 8, 1946, TO MARCH 21, 1946, INCLUSIVE, WAS DISALLOWED FOR THE REASON THAT THE RATE OF PER DIEM FIXED BY THE TRAVEL ORDERS MAY NOT BE INCREASED RETROACTIVELY. IT APPEARS TO BE YOUR CONTENTION THAT THE FAILURE OF YOUR ORIGINAL TRAVEL ORDERS TO AUTHORIZE PER DIEM RESULTED FROM A CLERICAL ERROR.

THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN EFFECT AT THE TIME YOUR TRAVEL WAS PERFORMED REQUIRED AS A CONDITION TO REIMBURSEMENT THAT A PER DIEM ALLOWANCE BE AUTHORIZED IN ADVANCE OF THE TRAVEL. SEE PARAGRAPH 45, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED JANUARY 30, 1942. THE ESTABLISHED RULE UNDER THOSE REGULATIONS IS THAT THE SPECIFIC PROVISIONS IN A TRAVEL ORDER FIXING A RATE OF PER DIEM OR DENYING PER DIEM MAY NOT BE CHANGED TO OPERATE RETROACTIVELY. THE ONLY EXCEPTIONS TO THAT RULE HERE PERTINENT HAVE BEEN IN CASES WHERE IT HAS BEEN SHOWN THAT A CLERICAL ERROR WAS MADE IN THE ORDERS INCORRECTLY INTERCEPTING THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL. THE ORDERS OF JANUARY 8, 1946, SPECIFICALLY PROVIDED THAT NO PER DIEM WAS AUTHORIZED. WHILE YOU STATE THAT A PER DIEM ALLOWANCE WAS DENIED BECAUSE IT WAS THE ERRONEOUS BELIEF OF THE RESPONSIBLE OFFICER THAT PER DIEM WAS NOT PAID IN THE AREA TO WHICH YOU WERE ASSIGNED, IT CANNOT BE SAID THAT THE PROVISIONS OF THE ORDERS REGARDING PER DIEM DID NOT CORRECTLY REPRESENT THE OFFICER'S INTENT AT THE TIME OF ISSUANCE THEREOF. THE FACT THAT PER DIEM WAS ALLOWABLE IN THE AREA TO WHICH YOU WERE ASSIGNED CANNOT OPERATE TO MODIFY THE AUTHORIZING OFFICER'S CLEAR INTENT IN REGARD TO ORDERS OF JANUARY 8, 1946.

SINCE THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SPECIAL ORDERS NO. 6 DO NOT SUBSTANTIATE AN ALLEGATION OF CLERICAL ERROR, THE AMENDMENT CONTAINED IN PARAGRAPH 7 OF SPECIAL ORDERS NO. 68, DATED MARCH 22, 1946, MAY BE GIVEN PROSPECTIVE EFFECT ONLY.

ACCORDINGLY, UPON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW IS SUSTAINED.