B-162142, SEP. 27, 1967

B-162142, SEP. 27, 1967

PER DIEM - MILITARY PERSONNEL - RATES DECISION TO INDIVIDUAL CONCERNING CONSIDERATION OF CLAIM FOR ADDITIONAL PER DIEM UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928. INDIVIDUAL WHO WHILE ATTENDING TRAINING SCHOOL WAS AUTHORIZED PER DIEM IN EXCESS OF REGULATORY LIMITATION BECAUSE WIFE WHO WAS PREGNANT ACCOMPANIED INDIVIDUAL MAY NOT HAVE CLAIM FOR ADDITIONAL PER DIEM CONSIDERED AS MERITORIOUS CLAIM SINCE FACT THAT GOVT. AGENT EXCEEDS HIS AUTHORITY IN GRANTING A BENEFIT IN EXCESS OF THAT AUTHORIZED BY LAW DOES NOT CONSTITUTE BASIS FOR EQUITABLE RELIEF.

TO MR. SOLOMON GETZ:

WE REFER TO YOUR LETTER OF AUGUST 24, 1967, REQUESTING THAT WE SUBMIT YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE WHILE ATTENDING A TRAINING SCHOOL TO THE CONGRESS FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WHICH READS AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

UNDER APPLICABLE REGULATIONS OF THE DEPARTMENT OF DEFENSE THE AUTHORIZED PER DIEM RATE INCIDENT TO ATTENDANCE AT SUCH SCHOOL WAS $7. BECAUSE OF THE PREGNANCY OF YOUR WIFE AND YOUR DOCTOR'S ADVICE THAT SHE SHOULD NOT BE LEFT ALONE, THE COMMANDING OFFICER OF YOUR INSTALLATION IN ISSUING YOUR TRAVEL ORDERS AUTHORIZED A PER DIEM AT THE RATE OF $16 WHILE ATTENDING SUCH SCHOOL. HOWEVER, YOUR CLAIM FOR PER DIEM WAS ALLOWED AT THE $7 RATE ONLY SINCE THAT WAS THE RATE SPECIFICALLY PRESCRIBED BY THE REGULATIONS WHICH WERE CONTROLLING RATHER THAN THE TRAVEL ORDERS.

IN EFFECT YOU ASK OUR OFFICE TO RECOMMEND TO THE CONGRESS THAT YOU NOW BE GRANTED PREFERENTIAL PER DIEM BENEFITS--PER DIEM AT THE RATE OF $16-- BECAUSE OF THE NECESSITY OF YOUR WIFE ACCOMPANYING YOU TO DAYTON, OHIO, WHILE YOU ATTENDED THE TRAINING SCHOOL. IT IS SIGNIFICANT THAT YOU AND THE OFFICIAL WHO ISSUED YOUR TRAVEL ORDERS WERE CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE REGULATORY $7 LIMITATION ON THE AMOUNT OF PER DIEM PAYABLE WHILE ATTENDING SUCH SCHOOL. MOREOVER, THE CONDITION OF YOUR WIFE IS NOT CONSIDERED TO BE ONE WARRANTING THE PAYMENT OF THE SPECIAL PER DIEM RATE IN YOUR CASE. WHATEVER ADDITIONAL EXPENSES THAT YOU MAY HAVE INCURRED SO THAT YOUR WIFE MIGHT ACCOMPANY YOU IS CONSIDERED TO BE A PERSONAL MATTER AND NOT ONE FOR WHICH THE GOVERNMENT SHOULD BE LIABLE.

I AM SURE YOU WILL UNDERSTAND THAT THE MERE FACT THAT AN OFFICIAL OF THE GOVERNMENT EXCEEDS HIS AUTHORITY IN GRANTING A BENEFIT IN EXCESS OF THAT AUTHORIZED BY LAW DOES NOT AND SHOULD NOT CONSTITUTE A BASIS FOR OUR OFFICE REQUESTING EQUITABLE RELIEF UNDER THE QUOTED STATUTE. NUMEROUS OVERPAYMENTS RESULT FROM ERRORS OR UNAUTHORIZED ACTS ON THE PART OF GOVERNMENT OFFICIALS OR EMPLOYEES. IF OUR OFFICE WERE TO RECOMMEND AND THE CONGRESS TO ENACT RELIEF LEGISLATION, IN ALL SUCH CASES THE EFFECT WOULD BE TO SERIOUSLY WEAKEN THE VARIOUS STATUTORY AND REGULATORY RESTRICTIONS IMPOSED TO INSURE THE EQUAL AND UNIFORM ADMINISTRATION OF EMPLOYEE BENEFITS.

ACCORDINGLY, WE DO NOT CONSIDER THAT YOUR CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, AND, THEREFORE, WE MUST DECLINE TO MAKE ANY RECOMMENDATION TO THE CONGRESS UNDER THE AUTHORITY OF SUCH STATUTE.