B-148408, APR. 30, 1962

B-148408: Apr 30, 1962

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065699: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21. THE RECORD SHOWS YOU WERE ORDERED TO SAN MARCOS AIR FORCE BASE. THE ASSIGNMENT WAS ERRONEOUSLY CONSIDERED BY THE ADMINISTRATIVE OFFICE AS CONSTITUTING A PERMANENT CHANGE OF STATION AND YOU WERE ERRONEOUSLY PAID THE SUM OF $216.60 FOR DEPENDENT TRAVEL TO AND FROM FORT SILL. THE ERRONEOUS PAYMENT WAS COLLECTED FROM YOU BY ADJUSTMENT IN YOUR PAY ACCOUNT AND YOU WERE ALLOWED THE SUM OF $80 REPRESENTING PER DIEM FOR 80 DAYS AT FORT SILL AT THE RATE OF $1 PER DAY WHICH WAS THE PER DIEM RATE APPLICABLE AT THE TIME FOR TEMPORARY DUTY FOR COURSES OF INSTRUCTION AT INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE (PARAGRAPH 4205-5.

B-148408, APR. 30, 1962

TO MAJOR DONALD H. JERSEY, 065699:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1962, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED JUNE 18, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN CONNECTION WITH TEMPORARY DUTY PERFORMED BY YOU AT FORT SILL, OKLAHOMA, DURING THE PERIOD MAY 31 TO AUGUST 23, 1952.

THE RECORD SHOWS YOU WERE ORDERED TO SAN MARCOS AIR FORCE BASE, TEXAS, AND FORT SILL, OKLAHOMA, TO ATTEND CLASSES OF INSTRUCTION IN THE ARMY AVIATION COURSES. THE ASSIGNMENT WAS ERRONEOUSLY CONSIDERED BY THE ADMINISTRATIVE OFFICE AS CONSTITUTING A PERMANENT CHANGE OF STATION AND YOU WERE ERRONEOUSLY PAID THE SUM OF $216.60 FOR DEPENDENT TRAVEL TO AND FROM FORT SILL, OKLAHOMA, ON SUCH BASIS. THE ERRONEOUS PAYMENT WAS COLLECTED FROM YOU BY ADJUSTMENT IN YOUR PAY ACCOUNT AND YOU WERE ALLOWED THE SUM OF $80 REPRESENTING PER DIEM FOR 80 DAYS AT FORT SILL AT THE RATE OF $1 PER DAY WHICH WAS THE PER DIEM RATE APPLICABLE AT THE TIME FOR TEMPORARY DUTY FOR COURSES OF INSTRUCTION AT INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE (PARAGRAPH 4205-5, JOINT TRAVEL REGULATIONS). THE AMOUNT WAS APPLIED IN PARTIAL LIQUIDATION OF THE OVERPAYMENT.

SUBSEQUENTLY, YOU SUBMITTED A CLAIM TO THE DEPARTMENT OF THE ARMY FOR ADDITIONAL PER DIEM AT THE RATE OF $5 PER DAY ON THE BASIS THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE. IN SUPPORT OF YOUR CLAIM YOU FURNISHED A CERTIFICATE DATED NOVEMBER 6, 1958, WHICH STATED THAT ADEQUATE QUARTERS WERE NOT AVAILABLE AT FORT SILL DURING THE PERIOD MAY 31 TO AUGUST 23, 1952. UPON ADMINISTRATIVE CONSIDERATION OF THE MATTER, YOUR CLAIM WAS DENIED FOR THE REASON THAT OFFICIAL RECORDS SHOWED THAT PRIOR TO SEPTEMBER 2, 1953, ALL OFFICERS ON TEMPORARY DUTY AT FORT SILL WERE PAID $1 PER DAY PER DIEM SINCE GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. BY SETTLEMENT DATED JUNE 18, 1959, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE REASON THAT THE CERTIFICATE OF NOVEMBER 6, 1958, ISSUED MORE THAN SIX YEARS AFTER YOUR TOUR OF DUTY AT FORT SILL, COULD NOT BE ACCEPTED AS OVERCOMING A CONTEMPORANEOUS ADMINISTRATIVE FINDING IN THE MATTER.

IN YOUR PRESENT LETTER YOU SAY THAT YOU DID NOT OBTAIN A CERTIFICATE OF NONAVAILABILITY IN 1952 BECAUSE AT THAT TIME YOUR ASSIGNMENT AT FORT SILL WAS CONSIDERED A PERMANENT ASSIGNMENT. THE NEED FOR A CERTIFICATE DID NOT ARISE UNTIL SEVERAL YEARS LATER WHEN IT WAS DETERMINED THAT YOUR DUTY ASSIGNMENT AT FORT SILL WAS TEMPORARY AND THEREFORE YOU CONTEND THAT THE CERTIFICATE YOU FURNISHED IS VALID AND LEGAL AND SHOULD BE ACCEPTED TO SUPPORT YOUR CLAIM.

WE HELD IN OUR DECISION OF JUNE 23, 1953, 32 COMP. GEN. 569, AMPLIFIED AND AFFIRMED IN DECISIONS OF OCTOBER 8, 1954, B-115509, AND NOVEMBER 29, 1054, 34 COMP. GEN. 260, THAT UNDER THE PROVISIONS OF PARAGRAPH 7000 OF THE JOINT TRAVEL REGULATIONS, A MEMBER WHO WAS ASSIGNED TO TWO OR MORE PLACES AS A STUDENT FOR COURSES OF INSTRUCTION OF A TOTAL OF 20 WEEKS OR MORE, BUT LESS THAN 20 WEEKS DURATION AT ANY ONE PLACE, WAS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS. SINCE YOUR ASSIGNMENT AT FORT SILL WAS FOR LESS THAN 20 WEEKS IT WAS A TEMPORARY ASSIGNMENT AND YOU WERE ENTITLED ONLY TO THE RIGHTS AND BENEFITS INCIDENT TO YOUR TEMPORARY DUTY STATUS. THE FACT THAT THE ADMINISTRATIVE OFFICE ERRONEOUSLY CONSIDERED YOUR ASSIGNMENT AT FORT SILL AS A PERMANENT ASSIGNMENT CANNOT SERVE AS A LEGAL BASIS TO CHANGE YOUR RIGHTS AND LIABILITIES AS FIXED BY YOUR TEMPORARY DUTY STATUS AT FORT SILL. SEE 24 COMP. GEN. 667, 670. IT IS A WELL- ESTABLISHED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515.

PARAGRAPH 4205-7 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME, PROVIDES THAT VOUCHERS COVERING PER DIEM FOR TEMPORARY DUTY FOR MEMBERS PURSUING A COURSE OF INSTRUCTION WILL BE SUPPORTED BY CERTIFICATE OF THE INSTALLATION COMMANDER THAT GOVERNMENT QUARTERS AND MESSING FACILITIES (IF APPLICABLE) WERE NOT AVAILABLE. SUCH PROVISION CONTEMPLATED THAT THE INSTALLATION COMMANDERS CHARGED WITH THAT RESPONSIBILITY SHOULD MAKE A CONTEMPORANEOUS DETERMINATION AS TO WHETHER, IN THEIR JUDGMENT, EXISTING FACILITIES AT THE POSTS OF THEIR COMMAND CONSTITUTED GOVERNMENT QUARTERS OR GOVERNMENT MESSING FACILITIES FOR PURPOSES OF ESTABLISHING RIGHTS TO PER DIEM ALLOWANCES FOR STUDENT OFFICERS. IN VIEW OF THE REQUIREMENT OF THE CITED REGULATIONS THAT PER DIEM PAYMENTS MUST BE SUPPORTED BY CERTIFICATES OF THE INSTALLATION COMMANDER AS TO THE NONAVAILABILITY OF QUARTERS AND/OR MESSING FACILITIES, IT IS CLEAR THAT THE CERTIFICATE DATED NOVEMBER 6, 1958, WHICH APPARENTLY IS NOT BASED ON ANY RECORDS CONTEMPORANEOUSLY MADE, MAY NOT BE ACCEPTED AS OVERCOMING THE ADMINISTRATIVE DETERMINATION IN THE MATTER. MOREOVER, THE ADMINISTRATIVE REPORT THAT GOVERNMENT QUARTERS WERE AVAILABLE AT FORT SILL AT THE TIME INVOLVED TO MEMBERS ON TEMPORARY DUTY IS SUBSTANTIATED BY YOU IN YOUR PRESENT LETTER AS FOLLOWS:

"I IN FACT DID ATTEMPT TO GET A BOQ ROOM IN ORDER TO HAVE A PLACE TO CHANGE CLOTHES AND SHOWER AND I WAS TURNED DOWN FOR THE REASON THAT BOQ'S WERE ONLY AVAILABLE FOR PERSONNEL ON TDY OR PCS PERSONNEL WITHOUT DEPENDENTS IN THE FORT SILL IMMEDIATE AREA. * * *"

APPARENTLY, YOU WERE DENIED QUARTERS FOR THE REASON THAT YOU WERE REGARDED AS SERVING UNDER A PERMANENT ASSIGNMENT WITH YOUR DEPENDENTS IN THE AREA. HOWEVER, AS WE STATED ABOVE, THE FACT THAT YOU WERE ERRONEOUSLY CONSIDERED AS ON PERMANENT DUTY WITH DEPENDENTS CANNOT AFFECT YOUR RIGHT TO PER DIEM. SINCE YOU WERE PAID THE PER DIEM AUTHORIZED BY PARAGRAPH 4205-5 OF THE REGULATION FOR TEMPORARY DUTY AT FORT SILL ON THE BASIS THAT QUARTERS AND MESSING FACILITIES WERE AVAILABLE, NO FURTHER AMOUNT IS DUE YOU. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF JUNE 18, 1959, IS SUSTAINED.

WE MAY NOT RETURN THE PAPERS PERTAINING TO YOUR CLAIM AS REQUESTED BY YOU (EXCEPT THE SETTLEMENT OF JUNE 18, 1959), SINCE ALL PAPERS FILED IN CONNECTION WITH A CLAIM AGAINST THE UNITED STATES AND CONSIDERED IN REACHING A DECISION WITH RESPECT TO THE CLAIMANT'S RIGHTS BECOME A PART OF THE OFFICIAL FILES OF THIS OFFICE.