B-163066, JAN. 17, 1968

B-163066: Jan 17, 1968

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REPORTED TWO DAYS EARLIER AND WHO AFTER TEMPORARY DUTY WAS PERFORMED HAD ORDERS MODIFIED ACCORDINGLY MAY NOT BE PAID ADDITIONAL PER DIEM FOR REPORTING EARLIER THAN FEB. 24. SINCE ORDERS AS ORIGINALLY ISSUED WERE AS INTENDED AND ANY RETROACTIVE MODIFICATION IS WITHOUT LEGAL EFFECT. USN: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 20. YOU WERE DIRECTED TO REPORT FOR TEMPORARY ADDITIONAL DUTY AS INSTRUCTOR IN MILITARY JUSTICE AT MARINE CORPS BASE. UPON COMPLETION OF SUCH ASSIGNMENT YOU WERE TO RETURN TO YOUR DUTY STATION. THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE. YOU WERE PAID TRAVEL ALLOWANCE FOR THE TRAVEL PERFORMED UNDER THE ORDERS OF FEBRUARY 2. APPEAR TO HAVE BEEN RETROACTIVELY MODIFIED TO REQUIRE A REPORTING DATE OF FEBRUARY 22.

B-163066, JAN. 17, 1968

PER DIEM - MILITARY PERSONNEL - RETROACTIVE APPROVAL DECISION TO NAVY MEMBER SUSTAINING DISALLOWANCE OF CLAIM FOR ADDITIONAL PER DIEM AS INSTRUCTOR IN MILITARY JUSTICE AT CAMP PENDLETON, CALIFORNIA. NAVY MEMBER WHO, UNDER ORDERS REQUIRING REPORTING TO TEMPORARY DUTY STATION NOT LATER THAN FEB. 24, 1967, REPORTED TWO DAYS EARLIER AND WHO AFTER TEMPORARY DUTY WAS PERFORMED HAD ORDERS MODIFIED ACCORDINGLY MAY NOT BE PAID ADDITIONAL PER DIEM FOR REPORTING EARLIER THAN FEB. 24, SINCE ORDERS AS ORIGINALLY ISSUED WERE AS INTENDED AND ANY RETROACTIVE MODIFICATION IS WITHOUT LEGAL EFFECT.

TO YNCS ALBERT N. DELL-ANGELO, USN:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 20, 1967, TRANSMITTED TO OUR OFFICE BY FIRST ENDORSEMENT DATED NOVEMBER 27, 1967, BY THE COMMANDING OFFICER, NAVAL JUSTICE SCHOOL, NEWPORT, RHODE ISLAND. YOUR LETTER REQUESTS RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION IN SETTLEMENT DATED NOVEMBER 3, 1967, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM UNDER ORDERS OF FEBRUARY 2, 1967.

BY ORDERS DATED FEBRUARY 2, 1967, U.S. NAVAL JUSTICE SCHOOL, U.S. NAVAL BASE, NEWPORT, RHODE ISLAND, YOU WERE DIRECTED TO REPORT FOR TEMPORARY ADDITIONAL DUTY AS INSTRUCTOR IN MILITARY JUSTICE AT MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, AND UPON COMPLETION OF SUCH ASSIGNMENT YOU WERE TO RETURN TO YOUR DUTY STATION. THE ORDERS PROVIDED FOR A DELAY OF 8 DAYS TO BE COUNTED AS LEAVE AND DIRECTED YOU TO REPORT AT YOUR TEMPORARY DUTY STATION NOT LATER THAN FEBRUARY 25, 1967. ADDITIONAL INSTRUCTIONS DIRECTED YOU TO REPORT NOT EARLIER THAN FEBRUARY 24, 1967. ENDORSEMENTS ON THE ORDERS SHOW THAT YOU REPORTED AT CAMP PENDLETON ON FEBRUARY 22, 1967; THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE; THAT YOUR TEMPORARY DUTY TERMINATED ON APRIL 14, 1967, AND THAT YOU RETURNED TO YOUR DUTY STATION ON APRIL 19, 1967.

THE RECORD SHOWS THAT ON APRIL 20, 1967, YOU WERE PAID TRAVEL ALLOWANCE FOR THE TRAVEL PERFORMED UNDER THE ORDERS OF FEBRUARY 2, 1967, PLUS PER DIEM FOR TEMPORARY DUTY AT CAMP PENDLETON, CALIFORNIA, FROM FEBRUARY 24 THROUGH APRIL 14, 1967. ON THAT DATE, THE ORDERS OF FEBRUARY 2, 1967, APPEAR TO HAVE BEEN RETROACTIVELY MODIFIED TO REQUIRE A REPORTING DATE OF FEBRUARY 22, 1967, INSTEAD OF FEBRUARY 24, 1967.

YOUR CLAIM DATED APRIL 26, 1967, FOR SUPPLEMENTAL PER DIEM FOR FEBRUARY 22-23, 1967, WAS TRANSMITTED TO OUR OFFICE FOR SETTLEMENT BECAUSE OF THE RETROACTIVE MODIFICATION. YOUR COMMANDING OFFICER'S ENDORSEMENT DATED MAY 2, 1967, RECOMMENDED APPROVAL OF THE CLAIM, STATING THAT ,HINDSIGHT INDICATES THAT A REPORT-IN DATE OF 22 FEBRUARY 1967 VICE 24 FEBRUARY 1967 WAS NECESSARY FOR ADEQUATE ADVANCE PREPARATION OF THE ENLISTED COURSE CONDUCTED AT CAMP PENDLETON.' A SUPPLEMENTAL REPORT BY YOUR COMMANDING OFFICER, DATED AUGUST 22, 1967, STATED THAT YOU WERE NOT ADVISED TO REPORT IN EARLY AT THE TIME YOU DEPARTED YOUR DUTY STATION ON FEBRUARY 17, 1967, AND THAT THE REPORTING DATE WAS CHANGED TO FEBRUARY 22, 1967, UPON YOUR REQUEST AFTER YOU FILED YOUR INITIAL CLAIM.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON NEVEMBER 3, 1967,FOR THE REASONS STATED. IN YOUR LETTER OF NOVEMBER 20, 1967,REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU CONTEND THAT THE ADMINISTRATIVE ACTION IN APPROVING THE CHANGE IN REPORTING DATE SHOULD BE SUFFICIENT TO JUSTIFY ALLOWANCE OF YOUR CLAIM. YOU SAY THAT YOU FULLY UNDERSTOOD YOUR ORDERS, BUT SINCE CLASSES WERE TO COMMENCE ON MONDAY (FEBRUARY 27, 1967), YOU CHOSE VOLUNTARILY TO REPORT ON FEBRUARY 22, 1967, TWO DAYS PRIOR TO THE "NOT EARLIER THAN" DATE FEBRUARY 24, 1967, STATED IN YOUR ORDERS, SO AS TO ALLOW YOURSELF ADDITIONAL TIME TO PREPARE FOR YOUR ASSIGNMENT. YOU STATED FURTHER THAT YOU HAD EXPECTED QUARTERS AND SUBSISTENCE WOULD BE FURNISHED AND BECAUSE THEY WERE NOT AVAILABLE AT YOUR TEMPORARY DUTY STATION UPON ARRIVAL, YOU ENCOUNTERED UNEXPECTED ADDITIONAL EXPENSES FOR THE TWO DAYS INVOLVED.

YOU INDICATE THAT AFTER YOUR RETURN TO YOUR DUTY STATION YOU ATTEMPTED TO OBTAIN ADDITIONAL PER DIEM FOR THE TWO DAYS' EXPENSES AND ALTHOUGH AT FIRST YOUR REQUEST FOR MODIFICATION OF YOUR ORDERS WAS DENIED, IT WAS SUBSEQUENTLY APPROVED BY YOUR COMMANDING OFFICER UPON YOUR EXPLANATION OF THE CIRCUMSTANCES INVOLVED. ALSO, YOU SAY THAT ANOTHER MEMBER HAD HIS REPORTING DATE CHANGED UNDER SIMILAR CIRCUMSTANCES AND WAS PAID PER DIEM ON THE BASIS OF THAT CHANGE.

YOUR LETTER WAS FORWARDED HERE TOGETHER WITH A FURTHER FAVORABLE RECOMMENDATION DATED NOVEMBER 27, 1967, BY YOUR COMMANDING OFFICER, STATING THAT UPON BEING INFORMED OF ALL THE FACTS AND CIRCUMSTANCES OF YOUR REPORTING, IT WAS DECIDED THAT IF THOSE FACTS HAD BEEN KNOWN ON THE DATE OF THE BASIC ORDERS, YOU WOULD HAVE BEEN DIRECTED TO REPORT FOR TEMPORARY ADDITIONAL DUTY AT CAMP PENDLETON NOT LATER THAN FEBRUARY 22, 1967.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C. 404, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, ONLY WHILE ACTUALLY IN A ,TRAVEL STATUS.' THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.

SUPPLEMENTAL REGULATIONS PERTAINING TO PER DIEM PAYMENTS FOR MILITARY PERSONNEL REPORTING EARLY FOR TEMPORARY DUTY ASSIGNMENTS, ARE CONTAINED IN BUPERS INSTRUCTION 1320-9, DATED FEBRUARY 2, 1965. PARAGRAPH 2 SETS FORTH THE PURPOSE OF THE INSTRUCTION WHICH WAS TO CORRECT PREVIOUS POLICY WHICH PERMITTED AN UNDUE DEPENDENCE ON INDEPENDENT JUDGMENT OF MEMBERS IN REPORTING TO TEMPORARY DUTY STATIONS PRIOR TO THE TIME SUCH DUTY WAS SCHEDULED TO BEGIN, RESULTING IN UNNECESSARY PER DIEM PAYMENTS. PARAGRAPH 5 PROVIDES THAT ORDER ISSUING AUTHORITIES SHALL DETERMINE AND FIX A REQUIRED DATE FOR REPORTING (A REPORT NOT LATER THAN DATE) AT A TEMPORARY DUTY STATION IN ALL CASES WHERE THE DUTIES MUST BE ACCOMPLISHED DURING A SPECIFIED PERIOD, SUCH AS A COURSE OF INSTRUCTION WITH A CLASS CONVENING ON A CERTAIN DATE. THE INSTRUCTION INDICATED THAT, NORMALLY, ONE WORKING DATE PRIOR TO THE SCHEDULED COMMENCEMENT OF A CLASS WAS A REASONABLE TIME TO ACCOMPLISH THE NECESSARY PROCESSING.

PARAGRAPH 5 FURTHER DIRECTS THAT THE ORDERS WILL PROVIDE NOT ONLY THAT A MEMBER WILL "REPORT NOT LATER THAN" A CERTAIN DATE, BUT ALSO THAT THE MEMBER WILL "REPORT NOT EARLIER THAN" A CERTAIN DATE, WHICH IN MOST CASES WILL BE ONE WORKING DAY PRIOR TO THE "REPORT NOT LATER THAN" DATE. THE INSTRUCTION ALSO PROVIDES THAT THE ORDERS WILL STATE THAT IF THE MEMBER REPORTS BEFORE THE "NOT EARLIER THAN" DATE, PER DIEM WILL NOT COMMENCE UNTIL THAT DATE, UNLESS THE ORDERS CONTAIN AN ENDORSEMENT THAT EARLY COMMENCEMENT OF TEMPORARY DUTY WAS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. IN THAT CONNECTION, THE INSTRUCTION PROVIDES THAT THE RECEIVING COMMAND TO WHICH THE MEMBER REPORTS FOR TEMPORARY DUTY SHOULD REVIEW THE ORDERS, INCLUDING ANY DETACHMENT ENDORSEMENT, UPON REPORTING TO DETERMINE WHETHER THE MEMBER ARRIVED BEFORE HE WAS REQUIRED TO COMMENCE THE TEMPORARY DUTY DIRECTED IN HIS ORDERS. WHILE YOUR ORDERS WERE ENDORSED BY THE COMMANDING OFFICER AT CAMP PENDLETON TO SHOW THAT YOU REPORTED THERE ON FEBRUARY 22, HE DID NOT STATE THAT YOUR EARLY REPORTING WAS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS OR THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD CLEARLY ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713; 24 ID. 439, AND B-158887, AUGUST 12, 1966, COPY ENCLOSED.

THE TIME FOR COMMENCEMENT OF THE COURSE OF INSTRUCTION APPEARS TO HAVE BEEN SCHEDULED FOR FEBRUARY 27, 1967, AND ON THAT BASIS YOU WERE DIRECTED TO REPORT NOT LATER THAN FEBRUARY 25, NOR EARLIER THAN FEBRUARY 24, 1967. PRESUMABLY, AT THE TIME THE ORDERS WERE ISSUED THE TIME ALLOWED FOR ADVANCE PREPARATION BY THE ORDER-ISSUING AUTHORITY WAS CONSIDERED ADEQUATE FOR YOUR ASSIGNMENT AND IT SEEMS CLEAR THAT THE ORDERS WERE WRITTEN AS INTENDED. HOWEVER, YOU CHOSE VOLUNTARILY TO REPORT TWO DAYS PRIOR TO THE "NOT EARLIER THAN" DATE AND IT WAS NOT UNTIL AFTER THE TRAVEL HAD BEEN PERFORMED AND PAYMENT THEREOF HAD BEEN MADE THAT YOU OBTAINED THE MODIFICATION OF YOUR ORDERS.

AS INDICATED ABOVE, THE RECORD DOES NOT SHOW THAT THE RECEIVING COMMAND MADE ANY DETERMINATION THAT THE EARLY REPORTING WAS IN THE BEST INTEREST OF THE GOVERNMENT. SINCE IT SEEMS APPARENT FROM THE RECORD THAT THE PROVISION FOR YOU TO REPORT NOT EARLIER THAN FEBRUARY 24, 1967, WAS INTENDED AT THE TIME THE ORDERS WERE WRITTEN, THE RETROACTIVE MODIFICATION OF THE ORDERS WAS WITHOUT LEGAL EFFECT TO EXTEND YOUR PERIOD OF TEMPORARY DUTY. THEREFORE, IT MAY NOT BE CONCLUDED THAT YOU WERE IN A NECESSARY TEMPORARY ADDITIONAL DUTY STATUS WITHIN THE MEANING OF PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS ON THE TWO DAYS INVOLVED. AS FOR YOUR STATEMENT RELATIVE TO A PAYMENT MADE IN A SIMILAR CASE, IF THE FACTS ARE NOT DISTINGUISHABLE FROM THOSE PRESENTED IN YOUR CLAIM, IT WOULD APPEAR THAT THE PAYMENT WAS ERRONEOUS AND IT WOULD FURNISH NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM.