B-147277, OCT. 5, 1961

B-147277: Oct 5, 1961

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YOUR CLAIM WAS DISALLOWED UPON THE GROUND THAT THE RATE OF PER DIEM FIXED BY TRAVEL ORDERS MAY NOT BE INCREASED RETROACTIVELY. THE ORDER ALSO STATED THAT "GOV-T QUARTERS WILL BE UTILIZED.'. WAS ISSUED PURPORTING TO AMEND YOUR ORIGINAL TRAVEL ORDER TO INCREASE THE RATE OF PER DIEM TO $11. YOU SAY THAT THE ORIGINAL TRAVEL ORDER ISSUED YOU WAS IN ERROR BECAUSE IT REQUIRED THAT YOU USE GOVERNMENT QUARTERS WHILE AT SCHOOL. YOU FURTHER SAY THAT IT WAS NOT A PREREQUISITE FOR ATTENDANCE AT THE SCHOOL THAT YOU OCCUPY GOVERNMENT QUARTERS. WHILE IT WAS NOT A PREREQUISITE FOR ATTENDANCE AT THE SCHOOL THAT YOU OCCUPY GOVERNMENT QUARTERS PARAGRAPH T3.4-1B OF THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS PROVIDES THAT WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE AND THEIR USE WOULD NOT BE IMPRACTICABLE OR INTERFERE WITH THE ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE TRAVEL WAS AUTHORIZED.

B-147277, OCT. 5, 1961

TO MR. OTELLO GIRARDI:

YOUR LETTER OF SEPTEMBER 12, 1961, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JUNE 21, 1961, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD OCTOBER 8 TO NOVEMBER 7, 1960. YOUR CLAIM WAS DISALLOWED UPON THE GROUND THAT THE RATE OF PER DIEM FIXED BY TRAVEL ORDERS MAY NOT BE INCREASED RETROACTIVELY.

THE RECORD DISCLOSES THAT TRAVEL ORDER NUMBER LO-1, DATED OCTOBER 6, 1960, AUTHORIZED TEMPORARY DUTY TO ATTEND THE USAREUR ENGINEER COURSE AT MURNAU, GERMANY, AND AUTHORIZED A PER DIEM RATE OF $6. THE ORDER ALSO STATED THAT "GOV-T QUARTERS WILL BE UTILIZED.' APPROXIMATELY FIVE MONTHS AFTER THE COMPLETION OF YOUR TEMPORARY DUTY, TRAVEL ORDER LO 3-6, DATED MARCH 14, 1961, WAS ISSUED PURPORTING TO AMEND YOUR ORIGINAL TRAVEL ORDER TO INCREASE THE RATE OF PER DIEM TO $11. YOU NOW SEEK TO RECOVER THE DIFFERENCE IN PER DIEM BETWEEN THAT PRESCRIBED IN YOUR ORIGINAL TRAVEL ORDER AND THE AMENDED TRAVEL ORDER.

YOU SAY THAT THE ORIGINAL TRAVEL ORDER ISSUED YOU WAS IN ERROR BECAUSE IT REQUIRED THAT YOU USE GOVERNMENT QUARTERS WHILE AT SCHOOL. YOU FURTHER SAY THAT IT WAS NOT A PREREQUISITE FOR ATTENDANCE AT THE SCHOOL THAT YOU OCCUPY GOVERNMENT QUARTERS. WHILE IT WAS NOT A PREREQUISITE FOR ATTENDANCE AT THE SCHOOL THAT YOU OCCUPY GOVERNMENT QUARTERS PARAGRAPH T3.4-1B OF THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS PROVIDES THAT WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE AND THEIR USE WOULD NOT BE IMPRACTICABLE OR INTERFERE WITH THE ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE TRAVEL WAS AUTHORIZED, EMPLOYEES SHOULD BE ENCOURAGED BY THEIR SUPERVISORS TO UTILIZE GOVERNMENT QUARTERS IN THE INTEREST OF ECONOMY.

WE CONSISTENTLY HAVE HELD THAT TRAVEL ORDERS 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. THERE IS NOTHING OF RECORD TO SHOW THAT AN ERROR HAD BEEN MADE IN THE ISSUANCE OF THE ORIGINAL TRAVEL ORDER, AND IN THE ADMINISTRATIVE REPORT RECEIVED IN OUR OFFICE FAVORABLE RECOMMENDATION WAS NOT MADE FOR PAYMENT OF THE INCREASED RATE OF PER DIEM. CONSEQUENTLY, THE AMENDED TRAVEL ORDER OF MARCH 14, 1961, MAY NOT BE CONSTRUED AS AUTHORITY TO INCREASE THE RATE OF PER DIEM IN LIEU OF SUBSISTENCE, AUTHORIZED UNDER YOUR TRAVEL ORDER OF OCTOBER 6, 1960. IN OUR DECISION OF MARCH 22, 1944, 23 COMP. GEN. 713, WE CONSIDERED ORDERS AUTHORIZING MILEAGE TO AN OFFICER AND WE THERE 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. THAT DECISION CONTAINED THE FOLLOWING LANGUAGE:

"* * * THE SAME PRINCIPLE APPLIES TO OTHER FORMS OF TRAVEL ALLOWANCES AND, THEREFORE, EXCEPT TO CORRECT OR 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, THERE IS NO LEGAL BASIS FOR PERMITTING REIMBURSEMENT IN EXCESS OF THE RATE ACTUALLY FIXED IN THE TRAVEL ORDER ISSUED PRIOR TO THE TRAVEL. HENCE, THE DISALLOWANCE OF YOUR CLAIM IN ..END :