B-163891, MAY 29, 1968

B-163891: May 29, 1968

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YOU WERE PROVIDED QUARTERS BY THE GOVERNMENT AND INFORMED BY THE AIR FORCE FINANCE OFFICE AT TAN SON RHUT AIR FORCE BASE THAT YOUR PER DIEM WOULD BE AT THE RATE OF $15.60 WHILE OCCUPYING SUCH QUARTERS AND THAT YOU LATER RECEIVED PAYMENT AT THAT RATE. YOU WERE ADVISED THAT THE PER DIEM RATE FOR SAIGON. WHEN GOVERNMENT QUARTERS ARE OCCUPIED. YOU SAY THAT IT IS CLEAR FROM THE DATES THAT YOU HAD NO OPPORTUNITY TO BE ADVISED OF THE RETROACTIVE CHANGE IN THE PER DIEM RATE. THE PER DIEM RATE WHILE OCCUPYING GOVERNMENT QUARTERS IN THE SAIGON AREA WAS CHANGED BY DEPARTMENT OF DEFENSE TRAVEL DETERMINATION NUMBER 21-67. WAS EFFECTIVE THE SAME DATE. THE FACT THAT YOU WERE NOT NOTIFIED OR OTHERWISE AWARE OF THE CHANGE IN THE REGULATIONS.

B-163891, MAY 29, 1968

TO MR. LOUSI T. SHOOK:

THIS REFERS TO YOUR LETTER OF MARCH 5, 1968, WITH ENCLOSURES, CONCERNING OVERPAYMENT OF PER DIEM TO YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY WHILE TEMPORARILY ASSIGNED TO DUTY AT SAIGON, VIETNAM.

YOU SAY THAT YOUR TRAVEL ORDERS AUTHORIZED A PER DIEM RATE OF $26. UPON ARRIVAL AT SAIGON, YOU WERE PROVIDED QUARTERS BY THE GOVERNMENT AND INFORMED BY THE AIR FORCE FINANCE OFFICE AT TAN SON RHUT AIR FORCE BASE THAT YOUR PER DIEM WOULD BE AT THE RATE OF $15.60 WHILE OCCUPYING SUCH QUARTERS AND THAT YOU LATER RECEIVED PAYMENT AT THAT RATE. UPON RETURNING TO THE UNITED STATES, YOU WERE ADVISED THAT THE PER DIEM RATE FOR SAIGON, WHEN GOVERNMENT QUARTERS ARE OCCUPIED, HAD BEEN CHANGED TO $10 PER DAY, EFFECTIVE AUGUST 28, 1967, BY A CHANGE TO THE JOINT TRAVEL REGULATIONS, DATED DECEMBER 1, 1967. YOU SAY THAT IT IS CLEAR FROM THE DATES THAT YOU HAD NO OPPORTUNITY TO BE ADVISED OF THE RETROACTIVE CHANGE IN THE PER DIEM RATE.

THE PER DIEM RATE WHILE OCCUPYING GOVERNMENT QUARTERS IN THE SAIGON AREA WAS CHANGED BY DEPARTMENT OF DEFENSE TRAVEL DETERMINATION NUMBER 21-67, DATED AUGUST 28, 1967, AND WAS EFFECTIVE THE SAME DATE. APPARENTLY, THE DISTRIBUTION OF SUCH AMENDMENT TO THE FIELD INSTALLATIONS DID NOT REACH VIETNAM UNTIL AFTER YOUR TEMPORARY DUTY AT THAT LOCATION HAD BEEN COMPLETED. THE FACT THAT YOU WERE NOT NOTIFIED OR OTHERWISE AWARE OF THE CHANGE IN THE REGULATIONS, ALTHOUGH REGRETTABLE, MAY NOT BE USED AS A BASIS FOR PERMITTING YOU TO RETAIN THE DIFFERENCE BETWEEN THE $15.60 RATE AND THE $10 RATE FOR THE PERIOD IN QUESTION.

WHILE THE CHANGE IN THE PER DIEM RATE DUE TO OCCUPANCY OF GOVERNMENT QUARTERS WAS NOT INCORPORATED INTO THE JOINT TRAVEL REGULATIONS UNTIL DECEMBER 1, 1967, NEVERTHELESS, SUCH CHANGE WAS ISSUED ON AUGUST 28, 1967, AND EFFECTIVE ON THAT DATE, THERE BEING NO REQUIREMENT IN SUCH TRAVEL REGULATIONS THAT ANY AMENDMENTS THERETO WOULD BE EFFECTIVE ONLY WHEN INCLUDED IN THE PUBLISHED REGULATIONS. NO ATTEMPT WAS MADE TO HAVE THE CHANGE RETROACTIVE TO ANY PERIOD PRIOR TO DATE OF ISSUE. THEREFORE, SUCH AMENDATORY REGULATION HAD THE FORCE AND EFFECT OF LAW AND WAS APPLICABLE FROM THE STATED EFFECTIVE DATE REGARDLESS OF WHETHER INDIVIDUAL EMPLOYEES RECEIVED TIMELY NOTICE THEREOF. WE POINT OUT THAT THE SAME RULE WOULD HAVE BEEN APPLICABLE IF AN INCREASE IN THE PER DIEM RATE HAD BEEN MADE UNDER SIMILAR CIRCUMSTANCES.

IN VIEW OF THE FOREGOING, OUR VIEW IS THAT THE ACTION OF YOUR AGENCY IN ASKING YOU TO REFUND THE EXCESS OF $5.60 PER DAY OVER THE PERIOD INVOLVED IS LEGALLY REQUIRED.