B-130146, FEBRUARY 4, 1957, 36 COMP. GEN. 569

B-130146: Feb 4, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - PERMANENT CHANGE OF STATION ORDERS - RETROACTIVE AMENDMENT - PER DIEM AFTER MEMBERS OF THE UNIFORMED SERVICES HAVE ACTUALLY REPORTED TO A NEW STATION FOR DUTY UNDER INSTRUCTION FOR A PERIOD OF SIX MONTHS PURSUANT TO PERMANENT CHANGE OF STATION ORDERS. THE AMENDMENT OF THE ORDERS TO REFER TO THE DUTY AS TEMPORARY IS INEFFECTIVE TO AUTHORIZE THE PAYMENT OF PER DIEM. 1957: FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 14. THE OFFICERS WERE DIRECTED TO PROCEED ON A PERMANENT CHANGE OF STATION FROM THE MARINE CORPS AIR STATION. THAT ORDER WAS AMENDED BY ORDERS OF APRIL 13. IN A MANNER NOT MATERIAL HERE AND THAT AMENDMENT WAS CANCELED BY PARAGRAPH 4. UPON COMPLETION OF WHICH THE OFFICERS WERE TO RETURN TO EL TORO.

B-130146, FEBRUARY 4, 1957, 36 COMP. GEN. 569

MILITARY PERSONNEL - PERMANENT CHANGE OF STATION ORDERS - RETROACTIVE AMENDMENT - PER DIEM AFTER MEMBERS OF THE UNIFORMED SERVICES HAVE ACTUALLY REPORTED TO A NEW STATION FOR DUTY UNDER INSTRUCTION FOR A PERIOD OF SIX MONTHS PURSUANT TO PERMANENT CHANGE OF STATION ORDERS, THE AMENDMENT OF THE ORDERS TO REFER TO THE DUTY AS TEMPORARY IS INEFFECTIVE TO AUTHORIZE THE PAYMENT OF PER DIEM.

TO THE SECRETARY OF THE NAVY, FEBRUARY 4, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 14, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE NOTICES OF EXCEPTION ISSUED IN THE CASES OF CHIEF WARRANT OFFICER PHILIP W. SLOCUM AND CAPTAIN ELMER H. SORLEY, UNITED STATES MARINE CORPS.

BY PARAGRAPH 1, AIRFMFPAC, SPECIAL ORDER NO. 123-54, APRIL 9, 1954, THE OFFICERS WERE DIRECTED TO PROCEED ON A PERMANENT CHANGE OF STATION FROM THE MARINE CORPS AIR STATION, EL TORO, SANTA ANA, CALIFORNIA, TO THE HUGHES AIRCRAFT COMPANY, CULVER CITY, CALIFORNIA, AND REPORT FOR DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT SIX MONTHS AND FURTHER TRANSFER UPON COMPLETION. THAT ORDER WAS AMENDED BY ORDERS OF APRIL 13, 1954, IN A MANNER NOT MATERIAL HERE AND THAT AMENDMENT WAS CANCELED BY PARAGRAPH 4, SPECIAL ORDER NO. 159-54, ISSUED AT EL TORO UNDER DATE OF APRIL 29, 1954. PARAGRAPH 3 OF THE LATTER ORDER AMENDED THE ORIGINAL ORDER SO AS TO DELETE ALL REFERENCE TO A PERMANENT CHANGE OF STATION AND DIRECTED A TEMPORARY CHANGE OF STATION TO CULVER CITY FOR TEMPORARY DUTY UNDER INSTRUCTION, UPON COMPLETION OF WHICH THE OFFICERS WERE TO RETURN TO EL TORO. PAYMENT OF PER DIEM WAS EXPRESSLY AUTHORIZED ON AND AFTER DATE OF CMC MESSAGE OF APRIL 28, 1954.

WARRANT OFFICER SLOCUM WAS PAID MILEAGE AT THE RATE OF SIX CENTS PER MILE FOR THE TRAVEL ON APRIL 12, 1954, TO CULVER CITY AND AT THE RATE OF FIVE CENTS PER MILE FOR THE TRAVEL ON OCTOBER 1, 1954, BACK TO EL TORO ON VOUCHER NO. TA-59, OCTOBER 1954 ACCOUNT OF R. L. WILLIAMS. THE SAME PAYMENT WAS MADE TO CAPTAIN SORLEY ON VOUCHER NO. TA-60. THE VOUCHERS ALSO COVERED PER DIEM FOR THE PERIOD APRIL 28 TO OCTOBER 1, 1954, A FULL PER DIEM OF $9 BEING ALLOWED CAPTAIN SORLEY FOR OCTOBER 1, 1954, WHEREAS $4.50 WAS PAID WARRANT OFFICER SLOCUM FOR THAT DAY BASED ON A REPORTED EARLIER RETURN TO EL TORO ON THAT DAY. THE AUDIT EXCEPTIONS COVERED PAYMENT OF PER DIEM FOR THE PERIOD APRIL 28 TO SEPTEMBER 30, 1954, AND WERE BASED ON A REPORT SHOWING THAT THE OFFICERS COMMUTED DAILY FROM THEIR PERMANENT HOMES IN SANTA ANA AND THAT THEY REMAINED AT HOME ON SATURDAYS, SUNDAYS, AND HOLIDAYS.

A REDUCTION IN THE AMOUNT OF THE AUDIT EXCEPTIONS WAS REQUESTED ON THE BASIS OF OUR DECISION OF APRIL 27, 1955, 34 COMP. GEN. 549, IN WHICH IT WAS HELD THAT THE RIGHT TO A FRACTIONAL PER DIEM ACCRUES FOR DAYS A MEMBER'S TEMPORARY DUTY, PERFORMED UNDER COMPETENT ORDERS, REQUIRES HIM TO BE ABSENT FROM HIS STATION (HOME) FOR MORE THAN TEN HOURS EACH DAY. ITINERARIES WERE SUBMITTED SHOWING THAT THE TRAVEL AND DUTY PERFORMED AT CULVER CITY NECESSITATED AN ABSENCE FROM THE OFFICERS' HOMES FOR A PERIOD IN EXCESS OF TEN HOURS ON EACH WEEKDAY. THE NOTICES OF EXCEPTION THEN WERE REVISED TO COVER THE ENTIRE AMOUNT PAID ON EACH VOUCHER. A DECISION DATED SEPTEMBER 26, 1930, 10 COMP. GEN. 138, RELATING TO FORFEITURE OF CLAIMS WHICH ARE BASED ON FALSE STATEMENTS OF FACT, WAS CITED AS AUTHORITY FOR SUCH ACTION.

IN A LETTER FROM THE COMMANDANT OF THE MARINE CORPS, DATED NOVEMBER 8, 1956, WHICH WAS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER, THE OPINION WAS EXPRESSED THAT FAILURE OF THE OFFICERS TO FURNISH A DETAILED ITINERARY OF THEIR TRAVEL AT THE TIME OF SUBMITTING THEIR ORIGINAL CLAIMS, WAS NOT AN ATTEMPT TO DEFRAUD THE GOVERNMENT, BUT RATHER, WAS DUE TO THEIR MISUNDERSTANDING OF THE SIGNIFICANCE OF SUCH INFORMATION. IN THIS CONNECTION, IT MAY BE SAID THAT IF THE OFFICERS' ACTIONS WERE TAINTED BY FRAUD, IT WAS NOT DUE SO MUCH TO THEIR FAILURE TO FURNISH DETAILED ITINERARIES SHOWING THE EXACT HOURS OF THEIR TRAVEL TO AND FROM CULVER CITY AS IT WAS TO THE SUBMISSION OF CLAIMS FOR, AND ACCEPTANCE OF PAYMENT OF, PER DIEM FOR WEEKENDS AND HOLIDAYS WITHOUT DISCLOSING THAT THEY WERE AT THEIR HOMES ON SUCH DAYS AND HENCE PERFORMED NO DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY PURSUANT TO THEIR ORDERS. PAYMENT OF PER DIEM IN SUCH CIRCUMSTANCES HAS NOT BEEN REGARDED AS PROPER UNDER PROVISIONS OF LAW SUCH AS SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A/--- APPLICABLE HERE--- WHICH AUTHORIZE SUCH PAYMENTS TO MEMBERS WHILE TRAVELING "AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' SEE DECISION OF JUNE 17, 1953, B-113961.

IT APPEARS HARDLY NECESSARY TO CONSIDER THE MATTER OF POSSIBLE FRAUD HOWEVER, SINCE THE AMENDATORY ORDERS OF APRIL 29, 1954, FURNISH NO BASIS FOR PAYMENT OF PER DIEM. THE ORIGINAL ORDERS OF APRIL 9, 1954, DIRECTED A PERMANENT CHANGE OF STATION TO CULVER CITY AND UPON REPORTING FOR DUTY AT THAT PLACE, THE OFFICERS ARRIVED AT THEIR DESIGNATED POST OF DUTY AND THEIR TRAVEL STATUS ENDED. B-128830, SEPTEMBER 5, 1956. WHILE IT WAS HELD IN DECISION OF SEPTEMBER 1, 1953, 33 COMP. GEN. 103, THAT A TRANSFER OF A MEMBER TO A STUDENT DETACHMENT AT A STATION FOR TEMPORARY DUTY PENDING FURTHER ORDERS--- REPORTED TO HAVE BEEN A COURSE OF INSTRUCTION FOR A PERIOD OF OVER 20 WEEKS--- ENTITLES HIM TO PER DIEM FOR SUCH TEMPORARY DUTY, IT ALSO HAS BEEN HELD THAT WHERE AN OFFICER IS ORDERED TO REPORT FOR "ACTIVE DUTY UNDER INSTRUCTION," AS DISTINGUISHED FROM "TEMPORARY ACTIVE DUTY UNDER INSTRUCTION," FOR A COURSE OF INSTRUCTION ANTICIPATED TO BE FOR A PERIOD OF FIVE MONTHS, THAT STATION WAS A PERMANENT DUTY STATION AND NO RIGHT TO PER DIEM ACCRUED FOR SUCH DUTY. 117413, JANUARY 7, 1954. PARAGRAPH 1150-10B OF THE CURRENT JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED TO AN INSTALLATION AS A STUDENT TO PURSUE A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE UNDER PERMANENT CHANGE OF STATION ORDERS, SUCH INSTALLATION IS HIS PERMANENT DUTY STATION.

THE RECORD INDICATES THAT THE ORIGINAL ORDERS OF APRIL 9, 1954, WERE AMENDED AS A RESULT OF A REQUEST TO THAT EFFECT CONTAINED IN WARRANT OFFICER SLOCUM'S LETTER/OF APRIL 14, 1954, IN WHICH HE REPORTED THE " EXTREMELY HEAVY EXPENSES INCURRED BY THIS ASSIGNMENT TO DUTY IN THE LOS ANGELES METROPOLITAN AREA," AND THAT OFFICERS AND MEN FROM OTHER SERVICES ATTENDING THE SAME COURSE OF INSTRUCTION, WERE ON PER DIEM ORDERS. ALL OFFICERS WHO ARE ASSIGNED TO DUTY IN A PARTICULAR AREA MUST MEET THE COSTS OF LIVING PREVAILING AT THAT PLACE WHETHER THE COSTS ARE LARGE OR SMALL. THE FACT THAT OTHER PERSONS WHO ARE DIRECTED TO PERFORM TEMPORARY DUTY AT THAT PLACE WHILE ASSIGNED TO DUTY AT ANOTHER PLACE, ARE PAID PER DIEM, FURNISHES NO BASIS FOR MAKING SIMILAR PAYMENTS TO AN OFFICER PERMANENTLY STATIONED THERE, SINCE A TRAVEL STATUS IS ESSENTIAL TO A RIGHT TO PER DIEM. AN ATTEMPT TO AUTHORIZE SUCH PAYMENTS BY MEANS OF AMENDING A MEMBER'S PERMANENT CHANGE OF STATION ORDERS AFTER HE REPORTS FOR DUTY, TO REFER TO THAT DUTY AS TEMPORARY, IS WITHOUT EFFECT.

IN THE CIRCUMSTANCES SHOWN, A RIGHT TO MILEAGE ONLY AT THE RATE OF SIX CENTS PER MILE ACCRUED TO THE OFFICERS FOR THEIR TRAVEL ON PERMANENT CHANGE OF STATION FROM EL TORO TO CULVER CITY AND FOR THE SUBSEQUENT RETURN TRAVEL TO EL TORO. THE AUDIT EXCEPTIONS WILL BE REVISED ACCORDINGLY.