B-144273, NOV. 16, 1960

B-144273: Nov 16, 1960

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YOU SAY YOU DO NOT CONTEST THE POINT THAT YOU HAVE RECEIVED THE MAXIMUM PER DIEM RATE AUTHORIZED BY LAW. YOU REQUEST THAT WE REVIEW AND EVALUATE YOUR CLAIM FROM THE STANDPOINT THAT PRIOR TO YOUR DEPARTURE FROM YOUR PERMANENT STATION YOU WERE NOT SPECIFICALLY ADVISED THAT YOU MIGHT BE REQUIRED TO WORK BEYOND THE LIMITS OF THE "SEOUL AREA.'. IT WAS MERELY AN INQUIRY BETWEEN AGENCIES AS TO AVAILABLE PERSONNEL. EVEN A PROPER TRAVEL AUTHORIZATION IS NOT REGARDED AS A "CONTRACT" OR "AGREEMENT" IN THE SENSE IMPLIED BY YOU. PARAGRAPH 9 PROVIDED THAT IN LIEU OF SUBSISTENCE "MAXIMUM PER DIEM ALLOWANCES IN ACCORDANCE WITH CPR T3 IS AUTHORIZED.'. TO THE EFFECT THAT INSTALLATIONS MAY NOT FIX A TRAVELER'S DUTY STATION AT A PLACE FOR PURPOSES OF PAYING PER DIEM WHEN MOST OF HIS OFFICIAL DUTIES ARE PERFORMED AT ANOTHER PLACE.

B-144273, NOV. 16, 1960

TO MR. HENRY LYMAN:

YOUR LETTER OF OCTOBER 6, 1960, REQUESTS OUR REVIEW OF SETTLEMENT CERTIFICATE DATED SEPTEMBER 8, 1960, WHICH DISALLOWED YOUR CLAIM FOR $568.65, REPRESENTING ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE COVERING THE PERIOD OF YOUR TEMPORARY DUTY IN KOREA, FROM APRIL 18, 1959, THROUGH JULY 20, 1959, AS AN EMPLOYEE OF THE U.S. ARMY ENGINEER DIVISION, NEW ENGLAND, CORPS OF ENGINEERS, UNDER TRAVEL ORDERS DATED APRIL 10, 1959, T/O NO. 3785 PC/PTH.

YOU SAY YOU DO NOT CONTEST THE POINT THAT YOU HAVE RECEIVED THE MAXIMUM PER DIEM RATE AUTHORIZED BY LAW; HOWEVER, YOU REQUEST THAT WE REVIEW AND EVALUATE YOUR CLAIM FROM THE STANDPOINT THAT PRIOR TO YOUR DEPARTURE FROM YOUR PERMANENT STATION YOU WERE NOT SPECIFICALLY ADVISED THAT YOU MIGHT BE REQUIRED TO WORK BEYOND THE LIMITS OF THE "SEOUL AREA.'

FURTHER, YOU MAKE CERTAIN STATEMENTS CONCERNING THE INTRADEPARTMENTAL TELETYPE MESSAGE NO. ENGPV 2-248; THAT YOU "CONTRACTED" TO GO ONLY TO THE "SEOUL AREA; " THAT THE FAR EAST DISTRICT UNILATERALLY ORDERED YOU TO WORK OUTSIDE THE LIMITS OF SEOUL, NAMELY, IN THE 1ST CAVALRY DIVISION AREA 35 MILES NORTH OF SEOUL--- THEREBY, YOU SAY, "BREACHING THIS AGREEMENT.' THAT REGARD WE CAN ONLY SAY THAT THE TELETYPE MESSAGE ALONE DID NOT CONSTITUTE A TRAVEL AUTHORIZATION. IT WAS MERELY AN INQUIRY BETWEEN AGENCIES AS TO AVAILABLE PERSONNEL. ALSO, EVEN A PROPER TRAVEL AUTHORIZATION IS NOT REGARDED AS A "CONTRACT" OR "AGREEMENT" IN THE SENSE IMPLIED BY YOU.

PARAGRAPH 1 OF YOUR TRAVEL ORDERS AUTHORIZED YOU TO PROCEED FROM PORTLAND, MAINE, TO SEOUL, KOREA, REPORTING UPON ARRIVAL TO THE CIVILIAN PERSONNEL OFFICER, U.S. ARMY ENGINEER DISTRICT, FAR EAST, SEOUL, KOREA, FOR 60 TO 90 DAYS TEMPORARY DUTY AS CONTRACT MODIFICATION WRITER. THE LAST SENTENCE OF PARAGRAPH 3 OF THE ORDERS PROVIDED "EMPLOYEES MAY RESPOND TO ORAL INSTRUCTIONS TO VARY ITINERARY.' PARAGRAPH 9 PROVIDED THAT IN LIEU OF SUBSISTENCE "MAXIMUM PER DIEM ALLOWANCES IN ACCORDANCE WITH CPR T3 IS AUTHORIZED.' IN THAT REGARD CPR T3.4-LE SETS FORTH THE ESTABLISHED RULE, TO THE EFFECT THAT INSTALLATIONS MAY NOT FIX A TRAVELER'S DUTY STATION AT A PLACE FOR PURPOSES OF PAYING PER DIEM WHEN MOST OF HIS OFFICIAL DUTIES ARE PERFORMED AT ANOTHER PLACE. YOUR CLAIM WAS DISALLOWED UPON THAT GROUND.

GENERALLY, EXCEPTING WHERE SPECIFIC LAWS PROVIDE OTHERWISE, APPENDIX I OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PRESCRIBES THE AREAS AND THE MAXIMUM RATES OF PER DIEM WHICH ARE ALLOWABLE TO CIVILIAN EMPLOYEES TRAVELING ON OFFICIAL BUSINESS OUTSIDE THE CONTINENTAL UNITED STATES. THE TIME OF YOUR TEMPORARY DUTY OUTSIDE THE LIMITS OF SEOUL, THE $6 RATE WAS THE MAXIMUM RATE FIXED BY THE BUREAU OF THE BUDGET PURSUANT TO LAW, 5 U.S.C. 836. THAT LAW AND THE CITED REGULATIONS GOVERN, IN THE LIGHT OF THE FACTS OF YOUR CASE. ALTHOUGH ERRONEOUS ADVICE MAY HAVE BEEN GIVEN YOU, AND EVEN THOUGH, AS YOU SAY, THE ARMY ENGINEER DISTRICT OFFICE AT SEOUL BY ,UNILATERAL ACTION" ASSIGNED YOU TO TEMPORARY DUTY OUTSIDE SEOUL, SUCH FACTS WOULD NOT JUSTIFY AN ALLOWANCE IN EXCESS OF THE MAXIMUM OF $6 PER DAY LAWFULLY APPLICABLE IN YOUR CASE.

THEREFORE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF SEPTEMBER 8, 1960, DISALLOWING YOUR CLAIM.