B-140657, NOV. 19, 1959

B-140657, NOV. 19, 1959

TO HONORABLE JOHN A. MCCONE, CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

ON SEPTEMBER 1, 1959, YOUR DEPUTY GENERAL MANAGER REQUESTED OUR ADVICE CONCERNING THE ALLOWANCE OF CLAIMS FOR PER DIEM MADE BY FOUR EMPLOYEES FOR TIME SPENT IN TRAINING PROGRAMS AT CERTAIN EDUCATIONAL INSTITUTIONS. THE INDIVIDUALS IN QUESTION WERE EMPLOYED IN JUNE 1957 UNDER THE JUNIOR PROFESSIONAL DEVELOPMENT PROGRAM IN NUCLEAR TECHNOLOGY UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES.

RECRUITMENT FOR THE PROGRAM WAS INITIATED BY THE MAILING OF A LETTER AND A BROCHURE WHICH DESCRIBED THE NATURE OF THE EMPLOYMENT AND STATED THAT THE EMPLOYEES (CALLED "TRAINEES") WERE TO RECEIVE INSTRUCTION AT EITHER NORTH CAROLINA STATE COLLEGE OR PENNSYLVANIA STATE UNIVERSITY AND ALSO AT ARGONNE NATIONAL LABORATORY FOR A PERIOD OF NINE MONTHS AND THAT THE SEG WOULD PAY $2,000 INSTRUCTION FEES PLUS $8 PER DIEM LIVING ALLOWANCE WHILE ATTENDING THE SCHOOLS. IN ADDITION THE INDIVIDUALS WERE INFORMED BY INTERVIEWING OFFICERS ON VISITS AT THE CANDIDATES' SCHOOLS AND IN SUBSEQUENT INTERVIEWS IN WASHINGTON THAT THEY WOULD RECEIVE PER DIEM OF $8 WHILE ATTENDING SCHOOL.

ON MARCH 26, 1957, PRIOR TO THE EMPLOYMENT OF THE TRAINEES IN JUNE 1957, SECTION 1512-024 OF THE AEC MANUAL WAS AMENDED TO READ AS FOLLOWS:

"* * * IN THE CASE OF FULL TIME TRAINING AUTHORIZED FOR EXTENDED PERIODS OF TIME (OVER 60 DAYS) CONSIDERATION SHALL BE GIVEN TO CHANGING THE EMPLOYEE'S OFFICIAL STATION IN ORDER TO MINIMIZE THE COST OF THE TRAINING TO THE AEC. IN RECRUITING PERSONS FOR EMPLOYMENT WITH THE AEC NO COMMITMENT SHALL BE MADE CONCERNING A FIXED RATE OF PER DIEM WHEN THEY ARE ASSIGNED TO OUTSIDE ORGANIZATIONS OR AEC COST-TYPE CONTRACTORS FOR TRAINING.'

THE INTERVIEWING OFFICERS, IN THEIR SUBSEQUENT CORRESPONDENCE WITH THE CANDIDATES, DID NOT INFORM THEM OF THE CHANGED PLICY CONCERNING PER DIEM WHILE IN COLLEGE BECAUSE THE NEW POLICY WAS NOT REGARDED AS HAVING RETROACTIVE EFFECT. THE TRAINEES WERE NOT INFORMED OF THE CHANGE IN POLICY UNTIL THEY REPORTED TO HEADQUARTERS LATE IN JUNE 1957 TO ENTER AEC EMPLOYMENT AND TO PARTICIPATE IN AN ORIENTATION PROGRAM.

PRIOR TO THE TRAINEE'S TRANSFERS TO THEIR RESPECTIVE SCHOOLS, THREE OF THE FOUR TRAINEES RECEIVED CHANGE OF OFFICIAL DUTY STATION AUTHORIZATIONS FOR THEIR MOVES AND WERE REIMBURSED FOR TRAVEL EXPENSES AND TRANSPORTATION OF EFFECTS ON THAT BASIS. THE FOURTH TRAINEE RECEIVED AN ORDER TO TEMPORARY DUTY STATING THAT NO PER DIEM WAS TO BE PAID DURING THE PERIOD OF ATTENDANCE. THESE ACTIONS APPARENTLY WERE BASED UPON THE CHANGE IN THE REGULATIONS AS QUOTED ABOVE. THE DEPUTY GENERAL MANAGER URGES THAT THE TRAVEL ORDERS OF THE TRAINEES SHOULD BE AMENDED RETROACTIVELY TO ALLOW PER DIEM FOR THE PERIOD WHILE IN COLLEGE UPON THE BASIS OF PROMISES MADE TO THEM PRIOR TO THEIR EMPLOYMENT. ALSO, HE SAYS THAT THE CHANGE OF POLICY WAS NOT ORIGINALLY INTENDED TO APPLY TO THOSE EMPLOYED WITH THE UNDERSTANDING THAT PER DIEM WAS TO BE PAID DURING THE PERIOD OF INSTRUCTION.

THE GENERAL RULE CONCERNING THE RETROACTIVE AMENDMENT OF TRAVEL ORDERS IS THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS OF TRAVELERS OR TO ALTER LIABILITY OF THE GOVERNMENT EXCEPT WHEN ORDERS ARE AMBIGUOUS OR INCOMPLETE ON THEIR FACE OR A PROVISION ORIGINALLY INTENDED FOR INCLUSION IS OMITTED THROUGH ERROR OR INADVERTENCE. SEE 28 COMP. GEN. 732. HERE THE ORDERS ARE NEITHER AMBIGUOUS NOR INCOMPLETE, AND THEY CONFORM TO THE REGULATIONS IN EFFECT AT THE TIME THEY WERE ISSUED TO THE TRAINEES. WHILE TH TRAINEES MAY HAVE BEEN INFLUENCED INITIALLY TO SOME EXTENT BY THE CHANGE IN THE PER DIEM POLICY WHEN THEY REPORTED TO AEC HEADQUARTERS LATE IN JUNE 1957 FOR EMPLOYMENT AND TO PARTICIPATE IN AN ORIENTATION PROGRAM.

UNDER THE RELATED FACTS AND CIRCUMSTANCES, OUR VIEW IS THAT RETROACTIVE AMENDMENT OF THE ORDERS MAY NOT BE PROCESSED FOR THE PURPOSES OF AUTHORIZING PER DIEM DURING THE PERIODS THE TRAINEES SPENT IN THE TRAINING PROGRAMS AT THE EDUCATIONAL INSTITUTIONS.