B-130911, APR. 9, 1957

B-130911: Apr 9, 1957

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WAS WITHOUT RETROACTIVE EFFECT SO AS TO ENTITLE YOU TO THE INCREASED RATE OF PER DIEM PRESCRIBED THEREIN. AUTHORIZED THE PAYMENT OF $4 PER DIEM IN LIEU OF SUBSISTENCE YOU ARE ENTITLED TO THAT AMOUNT FOR 18 1/2 DAYS FOR THE PERIOD OF OCTOBER 7. YOU WERE AUTHORIZED TO TRAVEL FROM YOUR OFFICIAL DUTY STATION IN NOUASSEUR. WAS ISSUED EXTENDING YOUR TEMPORARY DUTY IN SIDI SLIMANE FOR APPROXIMATELY 19 DAYS BEGINNING ON OR ABOUT OCTOBER 6. IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCE VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS. THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS.

B-130911, APR. 9, 1957

TO MR. ROBERT A. HEURGUE:

YOUR LETTER OF JANUARY 30, 1957, QUESTIONS THE PROPRIETY OF OUR OFFICE IN ALLOWING YOU ONLY $1 PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD OCTOBER 7, TO OCTOBER 25, 1954, WHILE ON TEMPORARY DUTY AT SIDI SLIMANE,FRENCH MOROCCO, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS.

BY LETTER OF JANUARY 7, 1957, OUR CLAIMS DIVISION ADVISED YOU THAT THE TRAVEL ORDER OF NOVEMBER 8, 1954, WAS WITHOUT RETROACTIVE EFFECT SO AS TO ENTITLE YOU TO THE INCREASED RATE OF PER DIEM PRESCRIBED THEREIN. APPEARS TO BE YOUR CONTENTION THAT SINCE TRAVEL ORDER NO. T-438, DATED NOVEMBER 8, 1954, AUTHORIZED THE PAYMENT OF $4 PER DIEM IN LIEU OF SUBSISTENCE YOU ARE ENTITLED TO THAT AMOUNT FOR 18 1/2 DAYS FOR THE PERIOD OF OCTOBER 7, TO OCTOBER 25, 1954. THE RECORDS SHOW THAT BY TRAVEL ORDER NO. T-272, DATED AUGUST 11, 1954, YOU WERE AUTHORIZED TO TRAVEL FROM YOUR OFFICIAL DUTY STATION IN NOUASSEUR, FRENCH MOROCCO, TO SIDI SLIMANE, FRENCH MOROCCO, FOR TEMPORARY DUTY OF APPROXIMATELY 60 DAYS. THE ORDER AUTHORIZED A PER DIEM OF $1. AT THE EXPIRATION OF YOUR TEMPORARY DUTY YOU RETURNED TO YOUR HEADQUARTERS AT NOUASSEUR ON OCTOBER 25, 1954. SUBSEQUENT THERETO TRAVEL ORDER NO. T 438, DATED NOVEMBER 8, 1954, WAS ISSUED EXTENDING YOUR TEMPORARY DUTY IN SIDI SLIMANE FOR APPROXIMATELY 19 DAYS BEGINNING ON OR ABOUT OCTOBER 6, 1954, WITH A PER DIEM OF $4 AT LOCATIONS WHERE MEALS AND LODGINGS MAY BE OBTAINED AT NOMINAL COST, OTHERWISE THE MAXIMUM PER DIEM AS PRESCRIBED IN ARMY CIVILIAN PERSONNEL REGULATIONS T3.4-4.

AS TO THE ORDERS OF NOVEMBER 8, 1954, BEING RETROACTIVELY EFFECTIVE, IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCE VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL OF THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS, 23 COMP. GEN. 713, 24 ID. 439. THE ORDERS OF AUGUST 11, 1954, WERE CLEAR AND UNAMBIGUOUS CONCERNING THE GRANT TO YOU OF $1 PER DIEM WHILE ON TEMPORARY DUTY AT SIDI SLIMANE. HENCE, NO AUTHORITY EXISTS FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THAT ALLOWED TO YOU, FOR THE PERIOD OCTOBER 7, TO OCTOBER 25, 1954, ON THE BASIS OF THE RATE SPECIFIED IN THE TRAVEL ORDER.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION WAS CORRECT AND UPON REVIEW IS SUSTAINED.