B-146063, AUG. 3, 1961

B-146063, AUG. 3, 1961

TO COLONEL HOWARD A. YORK, 06632, USMO:

REFERENCE IS MADE TO YOUR COMMUNICATION DATED APRIL 5, 1961, FORWARDED HERE BY HEADQUARTERS, UNITED STATES MARINE CORPS LETTER OF MAY 19, 1961, IN WHICH YOU REQUEST REVIEW OF THAT PART OF THE SETTLEMENT OF MARCH 17, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR JANUARY 12 AND 13, 1961, WHILE AT TOKYO, JAPAN.

THE RECORD SHOWS THAT BY ORDERS DATED JANUARY 9, 1961, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JANUARY 10, 1961, FROM FUTEMA, OKINAWA, TO IWAKUNI, JAPAN, ON TEMPORARY ADDITIONAL DUTY IN A FLYING STATUS INVOLVING OPERATIONAL OR TRAINING FLIGHTS IN CONNECTION WITH THE COMMANDING GENERAL'S MONTHLY AVIATION CONFERENCE; THENCE TO ATSUGI, JAPAN, AND YOKOSUKA, JAPAN, FOR A CONFERENCE WITH COMNAB JAPAN AND COMNAVFORJAPAN FOR A PERIOD OF ABOUT FIVE DAYS. TRAVEL BY GOVERNMENT TRANSPORTATION WAS DIRECTED. THE RECORD FURTHER SHOWS THAT BY ORDERS DATED JANUARY 18, 1961, AFTER THE COMPLETION OF YOUR TRAVEL, AN ATTEMPT WAS MADE TO MODIFY THE BASIC ORDERS OF JANUARY 9, 1961, SO AS TO INCLUDE TOKYO, JAPAN, IN YOUR DIRECTED ITINERARY. THE ITINERARY SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT YOU DEPARTED YOUR STATION AT FUTEMA, OKINAWA, ON JANUARY 10, 1961, AND RETURNED TO THAT STATION ON ORDERS OF JANUARY 9, 1961. YOU WERE PAID PER DIEM IN THE AMOUNT OF $19.80 FOR YOUR TEMPORARY DUTY STATUS AT THE POINTS INDICATED IN YOUR ORDERS OF JANUARY 9, BUT THAT PART OF YOUR CLAIM FOR PER DIEM WHILE AT TOKYO WAS DISALLOWED BY SETTLEMENT DATED MARCH 17, 1961, FOR THE REASON THAT YOUR BASIC ORDERS DID NOT DIRECT TRAVEL TO THAT CITY AND THAT NO RETROACTIVE EFFECT COULD BE GIVEN TO THE MODIFICATION BY THE ORDERS DATED JANUARY 18, 1961, TO INCLUDE TOKYO AS A PLACE OF TEMPORARY DUTY. IN YOUR REQUEST FOR REVIEW YOU AVER THAT UPON YOUR ARRIVAL AT YOKOSUKA, JAPAN,"IT WAS NECESSARY THAT I GO TO TOKYO, JAPAN, IN CONNECTION WITH A CONFERENCE WITH COFMFPAC RRP.' THERE IS NO INDICATION THAT THE NECESSITY THAT YOU PROCEED TO TOKYO WAS KNOWN AT THE TIME THE ORDERS OF JANUARY 9, 1961, WERE ISSUED.

THE PAYMENT OF PER DIEM IS AUTHORIZED BY SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), AND APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS ONLY FOR PERIODS OF TRAVEL PERFORMED BY DIRECTION OF COMPETENT WRITTEN TRAVEL ORDERS. IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES WITH RESPECT TO PER DIEM AND OTHER TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED BY THE MEMBER UNDER HIS 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 AN ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. KATZOR V. UNITED STATES, 52 CT.CL. 32; 23 COMP. GEN. 713; 24 ID. 429; 34 ID. 355. NOTHING IN THE RECORD BEFORE US SHOWS SUCH ELEMENTS TO BE PRESENT IN YOUR CASE AND, THEREFORE, THE ORDERS OF JANUARY 18, 1961, MAY NOT BE VIEWED AS AN EFFECTIVE AMENDMENT OF THE ORDERS OF JANUARY 9, 1961, TO PROVIDE AUTHORITY FOR THE PAYMENT OF PER DIEM INCIDENT TO THE TEMPORARY DUTY AT TOKYO. SINCE, HOWEVER, YOU WERE PERFORMING TRAVEL AND TEMPORARY DUTY ON JANUARY 12, 1961, AT YOKOSUKA IN COMPLIANCE WITH THE ORDERS OF JANUARY 9, 1961, UNTIL YOUR DEPARTURE FROM YOKOSUKA AT 3:20 P.M. ON THAT DAY TO PROCEED TO TOKYO, AND UNDER THE INITIAL PROVISIONS OF PARAGRAPH 4253 OF THE JOINT TRAVEL REGULATIONS BECOME ENTITLED TO PER DIEM AT THE $9 RATE THERE PRESCRIBED FOR TRAVEL INVOLVING NO DELAYS OF 10 HOURS OR MORE, WE DO NOT BELIEVE THE OTHER PROVISIONS OF THAT PARAGRAPH RELATING TO PER DIEM FOR DELAYS OF 10 HOURS OR MORE ARE TO BE APPLIED IN THE PARTICULAR CIRCUMSTANCES OF YOUR CASE--- THE FAILURE OF AUTHORITY FOR PER DIEM FOR THE EXTENDED DELAY AT TOKYO COMMENCING ON THAT DAY BECAUSE NOT DIRECTED BY WRITTEN ORDERS--- TO DEFEAT YOUR RIGHT TO PER DIEM AT THE $9 RATE. IT WILL BE CONSIDERED, THEREFORE, THAT YOU ARE ENTITLED TO A PER DIEM OF $9 FOR JANUARY 12, LESS DEDUCTION FOR GOVERNMENT QUARTERS STATED BY YOU TO HAVE BEEN USED ON THAT DAY.

WITH THE INDICATED MODIFICATION, THE SETTLEMENT OF MARCH 17, 1961, IS SUSTAINED. A SETTLEMENT FOR THE NET AMOUNT OF PER DIEM DUE FOR THE DAY OF JANUARY 12, 1961, WILL ISSUE IN DUE COURSE. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.