B-151193, MAY 1, 1963

B-151193: May 1, 1963

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TO THE SECRETARY OF THE ARMY: THERE IS BEFORE OUR OFFICE THE MATTER OF THE ALLEGED OVERPAYMENT OF PER DIEM TO MR. HOOGASIAN WAS REQUESTED BY THE DEPARTMENT OF THE ARMY TO REPAY $106 COVERING PER DIEM FOR 26 1/2 DAYS PAID AT THE RATE OF $16 INSTEAD OF $12. CIVILIAN PERSONNEL REGULATIONS T3.4-5D (4) PROVIDES THAT: "COMMANDING OFFICERS OF SERVICE OR OTHER ARMY SCHOOLS WILL ESTABLISH APPROPRIATE RATES OF PER DIEM FOR CIVILIAN ATTENDANCE AT SUCH SCHOOLS * * MR. WE WERE ALL GIVEN SPECIFIC INSTRUCTIONS THAT WE WERE ON A $16 PER DIEM BASIS.'. IT WAS STATED IN PARAGRAPH 2 OF THE ARMY MESSAGE 569157. THAT THE FOLLOWING CHANGE WAS EFFECTIVE IMMEDIATELY: "A. LEGAL MAXIMUM PD RATE IN PARA 4-4A (1) FOR TVL WITHIN CONUS IS INCREASED TO $16.00.

B-151193, MAY 1, 1963

TO THE SECRETARY OF THE ARMY:

THERE IS BEFORE OUR OFFICE THE MATTER OF THE ALLEGED OVERPAYMENT OF PER DIEM TO MR. GEORGE HOOGASIAN, ROUTE NO. 1, BOX 1530, ZION, ILLINOIS, WHILE ATTENDING FINANCE SCHOOL, FORT BENJAMIN HARRISON, INDIANA, BETWEEN OCTOBER 22 AND NOVEMBER 17, 1961.

BY LETTER DATED FEBRUARY 4, 1963, MR. HOOGASIAN WAS REQUESTED BY THE DEPARTMENT OF THE ARMY TO REPAY $106 COVERING PER DIEM FOR 26 1/2 DAYS PAID AT THE RATE OF $16 INSTEAD OF $12, PURSUANT TO MESSAGE DA 569157, DCSPER, 172026Z, DATED AUGUST 17, 1961; CHANGES NO. 2, CIVILIAN PERSONNEL REGULATIONS T-3, DATED NOVEMBER 3, 1961, AND CON CIR 35-1, DATED SEPTEMBER 21, 1962.

CIVILIAN PERSONNEL REGULATIONS T3.4-5D (4) PROVIDES THAT:

"COMMANDING OFFICERS OF SERVICE OR OTHER ARMY SCHOOLS WILL ESTABLISH APPROPRIATE RATES OF PER DIEM FOR CIVILIAN ATTENDANCE AT SUCH SCHOOLS * *

MR. HOOGASIAN SAID THAT "WHEN WE ARRIVED THERE, WE WERE ALL GIVEN SPECIFIC INSTRUCTIONS THAT WE WERE ON A $16 PER DIEM BASIS.' HIS TRAVEL ORDERS PROVIDE FOR PAYMENT OF PER DIEM AT THE "MAXIMUM AUTHORIZED BY CPR-T -3.'

PUB.L. 87-139, 75 STAT. 339, 5 U.S.C.A. 836, EFFECTIVE AUGUST 14, 1961, INCREASED TO $16 THE LEGAL MAXIMUM ALLOWED TO BE PROVIDED BY THE DEPARTMENT CONCERNED FOR PER DIEM RATES WITHIN THE CONTINENTAL UNITED STATES. IT WAS STATED IN PARAGRAPH 2 OF THE ARMY MESSAGE 569157, DATED AUGUST 17, 1961, THAT THE FOLLOWING CHANGE WAS EFFECTIVE IMMEDIATELY:

"A. LEGAL MAXIMUM PD RATE IN PARA 4-4A (1) FOR TVL WITHIN CONUS IS INCREASED TO $16.00. THE LESS THAN LEGAL MAXIMUM ADMINISTRATIVE RATES SPECIFIED IN PARA 4-5 ARE NOT INCREASED AT THIS ME.'

SINCE IT APPEARS THAT THE PER DIEM RATE AT THE ARMY SCHOOL AT FORT BENJAMIN HARRISON FOR EMPLOYEES NOT OCCUPYING GOVERNMENT QUARTERS WAS THE MAXIMUM ($12), STEPS WERE TAKEN UPON RECEIPT OF THE MESSAGE TO CHANGE THE PER DIEM RATE TO $16. INASMUCH AS THERE WERE OTHER THAN THE LEGAL MAXIMUM RATES IN EFFECT PRESCRIBED BY THE ADMINISTRATIVE OFFICE UNDER PARAGRAPH 4- 5 (IN THE CASE OF QUARTERS BEING FURNISHED, ETC.) IT WOULD APPEAR THAT IT WAS A REASONABLE CONCLUSION BY THE COMMANDANT OF THE SCHOOL THAT THE MAXIMUM RATE OF $12 SHOULD BE CHANGED TO $16, BUT THAT THE LESS THAN MAXIMUM RATES PRESCRIBED BY THE ADMINISTRATIVE OFFICE UNDER THAT PARAGRAPH WERE NOT TO BE CHANGED. IN A REPORT TO US IN THIS CASE DATED APRIL 23, 1963, YOUR DIRECTOR OF CIVILIAN PERSONNEL, IN CONCURRING IN THE ABOVE INTERPRETATION, SAYS THAT THE COMMANDERS OF OTHER SERVICE SCHOOLS APPARENTLY INTERPRETED THE MESSAGE OF AUGUST 17, 1961, IN THE SAME MANNER AND INCREASED THE PER DIEM RATE FROM $12 TO $16 UPON RECEIPT OF THE MESSAGE.

OUR OPINION IS THAT THE ACTION TAKEN IN MR. HOOGASIAN'S CASE BY THE COMMANDING OFFICER IN INCREASING THE PER DIEM RATE TO $16 WAS WITHIN HIS AUTHORITY. THEREFORE, NO OVERPAYMENT RESULTED FROM SUCH ACTION AND NO FURTHER COLLECTION ACTION SHOULD BE TAKEN AGAINST MR. HOOGASIAN.

WE UNDERSTAND THAT THERE ARE A NUMBER OF OTHER EMPLOYEES OF THE DEPARTMENT OF THE ARMY WHO HAVE RECEIVED THE MAXIMUM PER DIEM RATE UNDER CIRCUMSTANCES SIMILAR TO THAT IN MR. HOOGASIAN'S CASE. IN THOSE CASES THE PER DIEM RATE PAID SHOULD BE PERMITTED TO STAND AND WHERE COLLECTION HAS BEEN ..END :