B-148094, MAR. 16, 1962

B-148094: Mar 16, 1962

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YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE PAID PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE RATE SPECIFIED IN YOUR TRAVEL ORDER. SUBSEQUENT TO THE COMPLETION OF YOUR TEMPORARY DUTY YOUR TRAVEL ORDER WAS AMENDED OCTOBER 17. WERE PAID $16 PER DIEM IN LIEU OF SUBSISTENCE FOR THE SAME MISSION. YOU SAY THAT YOUR CLAIM IS NOT BASED UPON AN ASSUMPTION THAT THE STATUTE OPERATED AUTOMATICALLY BUT RATHER UPON A CONCEPT THAT THERE WAS AN ERROR IN COMMUNICATION AND DIRECTIVE. THE COMMAND LETTER TO WHICH YOU APPARENTLY REFER IS THAT DATED NOVEMBER 14. THE ATTACHED CLAIM IS FORWARDED FOR DETERMINATION BY YOUR OFFICE. PROHIBITED AMENDMENT TO SPECIAL ORDERS AFTER TRAVEL WAS PERFORMED. "2. WAS 18 AUGUST 1961.

B-148094, MAR. 16, 1962

TO MR. EDWIN L. HOWARD:

YOUR LETTER OF JANUARY 20, 1962, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JANUARY 8, 1962, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD AUGUST 28, 1961, THROUGH OCTOBER 5, 1961, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE PAID PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE RATE SPECIFIED IN YOUR TRAVEL ORDER. THE FILE SHOWS THAT TRAVEL ORDER DATED AUGUST 22, 1961, AUTHORIZED YOU TO TRAVEL FROM YOUR RESIDENCE, SANTA MARIA, CALIFORNIA, TO AZUSA, CALIFORNIA, FOR TEMPORARY DUTY FOR APPROXIMATELY 39 DAYS AND FIXED A PER DIEM RATE OF $12. SUBSEQUENT TO THE COMPLETION OF YOUR TEMPORARY DUTY YOUR TRAVEL ORDER WAS AMENDED OCTOBER 17, 1961, RETROACTIVELY TO PROVIDE FOR PAYMENT OF PER DIEM OF $16 IN ACCORDANCE WITH PUBLIC LAW 87-139, APPROVED AUGUST 14, 1961.

YOU CONTEND THAT NINE OTHER EMPLOYEES WORKING FOR THE DEPARTMENT OF THE AIR FORCE, COVERING THE SAME PERIOD, WERE PAID $16 PER DIEM IN LIEU OF SUBSISTENCE FOR THE SAME MISSION. YOU SAY THAT YOUR CLAIM IS NOT BASED UPON AN ASSUMPTION THAT THE STATUTE OPERATED AUTOMATICALLY BUT RATHER UPON A CONCEPT THAT THERE WAS AN ERROR IN COMMUNICATION AND DIRECTIVE, AS EVIDENCED BY THE COMMAND LETTER AND SUBSEQUENT AMENDING TRAVEL ORDER. THE COMMAND LETTER TO WHICH YOU APPARENTLY REFER IS THAT DATED NOVEMBER 14, 1961, FROM HEADQUARTERS, 4392D AEROSPACE SUPPORT WING (SAC), UNITED STATES AIR FORCE, VANDENBERG AIR FORCE BASE, CALIFORNIA, SUBJECT,"TRAVEL CLAIM - MR. EDWIN L. HOWARD, CIVILIAN" ADDRESSED TO AFAFC (MPD), DENVER 5, COLORADO, READING, IN PART, AS FOLLOWS:

"1. THE ATTACHED CLAIM IS FORWARDED FOR DETERMINATION BY YOUR OFFICE. PUBLIC LAW 87-139 AUTHORIZES A MAXIMUM OF $16.00 PER DAY FOR CIVILIANS WHILE ON TEMPORARY DUTY. HOWEVER, SAC MESSAGE 13620 DATED 18 AUGUST 1961, SUBJECT: TRAVEL ALLOWANCE FOR CIVILIAN EMPLOYEES, PROHIBITED AMENDMENT TO SPECIAL ORDERS AFTER TRAVEL WAS PERFORMED.

"2. SPECIAL ORDER NO. T-0095, DATED 22 AUGUST 1961, ISSUED BY CONTRACT SUPPORT DET NO. 1 (PWEV), COPY ATTACHED, SHOWS EFFECTIVE DATE OF TRAVEL 28 AUGUST 1961. THE EFFECTIVE DATE OF THE $16.00 PER DIEM RATE, PER ABOVE REFERENCE MESSAGE, WAS 18 AUGUST 1961. IT WOULD APPEAR THAT THERE WAS AMPLE TIME TO AMEND THE SPECIAL ORDERS PRIOR TO PERFORMANCE OF TRAVEL.

FROM THE ABOVE-QUOTED LETTER IT IS APPARENT THAT THE ADMINISTRATIVE REGULATIONS WOULD PROHIBIT AMENDMENTS TO TRAVEL ORDERS AFTER THE TRAVEL WAS PERFORMED. ALSO, THE LETTER INDICATES THAT THERE WAS AMPLE TIME FOR REVIEW OF YOUR ORDER BEFORE YOUR TRAVEL COMMENCED HAD THE ADMINISTRATIVE OFFICE DESIRED TO AMEND IT.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCE VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME VESTED AND FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS. THIS RULE DOES NOT APPLY IF ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL OF THE FACTS AND CIRCUMSTANCES DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS. SEE 23 COMP. GEN. 713, 24 ID. 439. THE ORDER OF AUGUST 22, 1961, WHICH WAS ISSUED SUBSEQUENT TO PASSAGE OF PUBLIC LAW 87- 139 THAT INCREASED THE MAXIMUM PER DIEM RATE FROM $12 TO $16, WAS CLEAR AND UNAMBIGUOUS IN THAT IT SPECIFICALLY FIXED THE RATE OF $12 PER DIEM WHILE ON TEMPORARY DUTY. AS A LESSER RATE MIGHT LAWFULLY HAVE BEEN AUTHORIZED (SECTION 6.2--- STANDARDIZED GOVERNMENT TRAVEL REGULATIONS) WE CANNOT CONCLUDE THAT THE RATE OF $12 WAS FIXED IN ERROR.

CONCERNING THE NINE EMPLOYEES TO WHOM YOU REFER, IF THEY WERE PAID A $16 PER DIEM RATE UNDER CIRCUMSTANCES IDENTICAL WITH THOSE PRESENT IN YOUR CASE, SUCH PAYMENTS ARE UNLAWFUL, BUT WOULD NOT WARRANT ANY EXCEPTION TO THE WELL-ESTABLISHED RULE WHICH PRECLUDES RETROACTIVE CHANGES IN VALIDLY FIXED PER DIEM RATES.

THEREFORE, THE DISALLOWANCE ACTION IN OUR SETTLEMENT OF JANUARY 8, 1962, MUST BE SUSTAINED.