B-132439, JUL. 22, 1957

B-132439: Jul 22, 1957

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PER DIEM IN LIEU OF SUBSISTENCE IS PAYABLE TO AN EMPLOYEE ONLY WHEN ABSENT FROM HIS OFFICIAL HEADQUARTERS ON TEMPORARY DUTY UNDER ORDERS AUTHORIZING A PER DIEM IN LIEU OF SUBSISTENCE. MOREOVER THE EVIDENCE SUBMITTED BY THE ADMINISTRATIVE OFFICE SHOWS THAT THE OMISSION OF THE PER DIEM AUTHORIZATION IN THE TRAVEL ORDER WAS INTENTIONAL. THE ESTABLISHED RULE 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 EXCEPTION TO THAT RULE HERE PERTINENT IS WHERE A CLERICAL ERROR IS SHOWN TO HAVE BEEN MADE IN THE ORDERS INCORRECTLY INTERPRETING THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL. WHILE YOU SAY THAT PER DIEM ALLOWANCE WAS AUTHORIZED IN THE AREA TO WHICH YOU WERE ASSIGNED WE FIND NO WARRANT FOR HOLDING THE PROVISIONS OF YOUR ORDERS REGARDING PER DIEM DID NOT CORRECTLY REPRESENT THE OFFICER'S INTENT AT THE TIME OF ISSUANCE THEREOF.

B-132439, JUL. 22, 1957

TO MRS. JANET C. FLANAGAN:

YOUR LETTER OF JUNE 19, 1957, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT OF MAY 8, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD APRIL 2, 1956, TO JUNE 30, 1956, INCIDENT TO TRAVEL AND TEMPORARY DUTY AUTHORIZED BY TRAVEL ORDER DATED APRIL 1, 1956, AS AN EMPLOYEE OF OFFICE OF DEFENSE MOBILIZATION, WASHINGTON, D.C.

PER DIEM IN LIEU OF SUBSISTENCE IS PAYABLE TO AN EMPLOYEE ONLY WHEN ABSENT FROM HIS OFFICIAL HEADQUARTERS ON TEMPORARY DUTY UNDER ORDERS AUTHORIZING A PER DIEM IN LIEU OF SUBSISTENCE, OR WHEN SUBSEQUENTLY APPROVED.

THE ORDERS OF APRIL 1, 1956, DID NOT AUTHORIZE A PER DIEM. MOREOVER THE EVIDENCE SUBMITTED BY THE ADMINISTRATIVE OFFICE SHOWS THAT THE OMISSION OF THE PER DIEM AUTHORIZATION IN THE TRAVEL ORDER WAS INTENTIONAL. THE ESTABLISHED RULE 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 EXCEPTION TO THAT RULE HERE PERTINENT IS WHERE A CLERICAL ERROR IS SHOWN TO HAVE BEEN MADE IN THE ORDERS INCORRECTLY INTERPRETING THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL. WHILE YOU SAY THAT PER DIEM ALLOWANCE WAS AUTHORIZED IN THE AREA TO WHICH YOU WERE ASSIGNED WE FIND NO WARRANT FOR HOLDING THE PROVISIONS OF YOUR ORDERS REGARDING PER DIEM DID NOT CORRECTLY REPRESENT THE OFFICER'S INTENT AT THE TIME OF ISSUANCE THEREOF. IN FACT AS ABOVE INDICATED, THE EVIDENCE SHOWS THE ORDERS REFLECTED THE ADMINISTRATIVE INTENT IN THAT REGARD.

THEREFORE, UPON THE RECORD PRESENTED, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW THAT ACTION MUST BE, AND IS, SUSTAINED.