B-134853, FEB. 26, 1958

B-134853: Feb 26, 1958

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YOUR CLAIM WAS ORIGINALLY DISALLOWED BY OUR OFFICE SETTLEMENT Z 1854943. FOR THE REASON THAT PER DIEM RATES WHICH ARE FIXED BY THE TRAVEL ORDER MAY NOT BE INCREASED RETROACTIVELY IN THE ABSENCE OF A SHOWING THAT A CLERICAL OR OTHER ERROR WAS MADE IN THE ORDERS INCORRECTLY INTERPRETING THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL. THE RECORD DISCLOSES THAT TRAVEL ORDER NUMBER 138 WAS ISSUED TO YOU ON DECEMBER 26. YOU WERE FURTHER AUTHORIZED IN THE TRAVEL ORDER PER DIEM NOT TO EXCEED FIVE DOLLARS ($5.00) PER DAY WHEN GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. CHAPTER 9 OF AIR FORCE MANUAL 40-10 AND PERMITTED PROSPECTIVELY EFFECTIVE AMENDMENTS TO OUTSTANDING TRAVEL ORDERS INCREASING THE PER DIEM RATE TO $6.00 PER DAY IF GOVERNMENT QUARTERS WERE USED.

B-134853, FEB. 26, 1958

TO MR. PAUL MANAKER:

YOUR LETTER OF DECEMBER 20, 1957, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD JANUARY 7 TO APRIL 16, 1957. YOUR CLAIM WAS ORIGINALLY DISALLOWED BY OUR OFFICE SETTLEMENT Z 1854943, DATED NOVEMBER 25, 1957, FOR THE REASON THAT PER DIEM RATES WHICH ARE FIXED BY THE TRAVEL ORDER MAY NOT BE INCREASED RETROACTIVELY IN THE ABSENCE OF A SHOWING THAT A CLERICAL OR OTHER ERROR WAS MADE IN THE ORDERS INCORRECTLY INTERPRETING THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL.

THE RECORD DISCLOSES THAT TRAVEL ORDER NUMBER 138 WAS ISSUED TO YOU ON DECEMBER 26, 1956, AUTHORIZING TEMPORARY DUTY OF APPROXIMATELY 102 DAYS TO COMMENCE ON OR ABOUT JANUARY 7, 1957, FOR THE PURPOSE OF ATTENDING A COURSE OF GOVERNMENT INSTRUCTION AT CHANUTE AIR FORCE BASE, ILLINOIS. YOU WERE FURTHER AUTHORIZED IN THE TRAVEL ORDER PER DIEM NOT TO EXCEED FIVE DOLLARS ($5.00) PER DAY WHEN GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. IN ACCORDANCE WITH THIS TRAVEL ORDER YOU DEPARTED YOUR HEADQUARTERS ON JANUARY 7, 1957, FOR CHANUTE AIR FORCE BASE, HOWEVER, DURING YOUR ATTENDANCE AT THE COURSE OF INSTRUCTION, HQS LETTER AFPCP, 25 JANUARY 1957, APPLICABLE TO TRAVEL BEGINNING ON OR AFTER JANUARY 15, 1957, REVISED PARAGRAPH 14C, CHAPTER 9 OF AIR FORCE MANUAL 40-10 AND PERMITTED PROSPECTIVELY EFFECTIVE AMENDMENTS TO OUTSTANDING TRAVEL ORDERS INCREASING THE PER DIEM RATE TO $6.00 PER DAY IF GOVERNMENT QUARTERS WERE USED. ALTHOUGH NO ACTION APPEARS TO HAVE BEEN TAKEN UNTIL LETTER ORDER NO. 151 WAS ISSUED ON MAY 23, 1957, PURPORTING TO AMEND YOUR ORIGINAL TRAVEL ORDER OF DECEMBER 26, 1956, YOU NOW SEEK TO RECOVER THE DIFFERENCE IN PER DIEM BETWEEN THAT PRESCRIBED IN YOUR ORIGINAL TRAVEL ORDER AND THE AMOUNT YOU CONSIDER ALLOWABLE UNDER HQS LETTER AFPCP OF JANUARY 25, 1957.

YOU SAY THAT THE ORDERS WERE NOT AMENDED BECAUSE OF CLERICAL ERROR AND THE INTENT OF THE OFFICER AUTHORIZING THE TRAVEL ORDERS WAS TO AMEND THE TRAVEL ORDERS. WE CONSISTENTLY HAVE HELD THAT, IN THE ABSENCE OF CLEAR AUTHORITY THEREFOR, ALTHOUGH ADMINISTRATIVE ORDERS, REGULATIONS, OR DISCRETIONARY POLICIES MAY BE AMENDED FROM TIME TO TIME CONSISTENT WITH APPLICABLE LAW, THEY MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS OR OBLIGATIONS ALREADY VESTED OR FIXED EXCEPT TO CORRECT OBVIOUS ERRORS. SEE 24 COMP. GEN. 439. UNDER CIRCUMSTANCES, SUCH AS HERE PRESENTED, WHERE AN ADMINISTRATIVE CHANGE IN THE MAXIMUM ALLOWABLE PER DIEM RATE WAS NOT MADE MANDATORY, AN OVERSIGHT RESULTING IN FAILURE TO TIMELY ISSUE AMENDATORY TRAVEL ORDERS WOULD NOT SERVE AS A LEGAL BASIS FOR RETROACTIVE MODIFICATIONS TO CHANGE FIXED RIGHTS AND TO CAST AN ADDITIONAL LIABILITY UPON THE UNITED STATES. CONSEQUENTLY, THE LETTER ORDER OF MAY 23, 1957, MAY NOT BE CONSTRUED AS AUTHORITY TO INCREASE THE PER DIEM, IN LIEU OF SUBSISTENCE, AUTHORIZED UNDER YOUR TRAVEL ORDERS OF DECEMBER 26, 1956. IN OUR DECISION OF MARCH 22, 1944, 23 COMP. GEN. 713, THERE WAS FOR CONSIDERATION ORDERS ENTITLING AN OFFICER TO MILEAGE, IT BEING HELD THAT UNDER SUCH ORDERS A LEGAL RIGHT TO SUCH MILEAGE ACCRUED TO AND VESTED IN THE OFFICER AS AND WHEN THE TRAVEL WAS PERFORMED UNDER THE ORDERS AND THAT SUCH LEGAL RIGHT MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. THE DECISION CONTAINED THE FOLLOWING LANGUAGE:

"* * * THE SAME PRINCIPLE APPLIES TO OTHER FORMS OF TRAVEL ALLOWANCES AND, THEREFORE, EXCEPT TO CORRECT OR TO COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED.'

THEREFORE, WHILE YOUR ORDERS COULD HAVE BEEN AMENDED TO PROSPECTIVELY INCREASE THE PER DIEM RATE AT ANY TIME DURING THE TRAVEL PERIOD INVOLVED, THERE IS NOW NO BASIS FOR PERMITTING REIMBURSEMENT IN EXCESS OF THE RATE ACTUALLY FIXED IN THE TRAVEL ORDERS ISSUED PRIOR TO THE TRAVEL. HENCE, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF NOVEMBER 25, 1957, WAS CORRECT AND IS SUSTAINED.