B-167246, JUL. 25, 1969

B-167246: Jul 25, 1969

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CIVIL PAY - PER DIEM - DETAILS DECISION TO CERTIFYING OFFICER OF BUREAU OF RECLAMATION AS TO WHETHER EMPLOYEE MAY HAVE PER DIEM REDUCED FROM $13.00 TO $4.20 RETROACTIVELY WHEN AGENCY LEARNED HE HAD MOVED HIS FAMILY TO THE STATION TO WHICH HE WAS DETAILED FOR A PERIOD OF A YEAR AND 3 MONTHS. WHILE THE PER DIEM RATE SHOULD HAVE BEEN REDUCED OR THE EMPLOYEE TRANSFERRED THE RULE IS ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE VESTED RIGHTS UNLESS ERROR IS APPARENT. SINCE NOTHING IN FILE SHOWS THAT AT TIME ORDERS WERE AMENDED IT WAS INTENTION TO PRESCRIBE OTHER THAN $13.00 RATE. WHOSE HEADQUARTERS WAS SPOKANE. WAS SENT TO SEATTLE. WAS TO RETURN TO HIS PERMANENT DUTY STATION AT LEAST MONTHLY FOR A PROGRESS REPORT AND CONSULTATION.

B-167246, JUL. 25, 1969

CIVIL PAY - PER DIEM - DETAILS DECISION TO CERTIFYING OFFICER OF BUREAU OF RECLAMATION AS TO WHETHER EMPLOYEE MAY HAVE PER DIEM REDUCED FROM $13.00 TO $4.20 RETROACTIVELY WHEN AGENCY LEARNED HE HAD MOVED HIS FAMILY TO THE STATION TO WHICH HE WAS DETAILED FOR A PERIOD OF A YEAR AND 3 MONTHS. WHILE THE PER DIEM RATE SHOULD HAVE BEEN REDUCED OR THE EMPLOYEE TRANSFERRED THE RULE IS ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE VESTED RIGHTS UNLESS ERROR IS APPARENT. SINCE NOTHING IN FILE SHOWS THAT AT TIME ORDERS WERE AMENDED IT WAS INTENTION TO PRESCRIBE OTHER THAN $13.00 RATE, SUCH RATE MAY NOT BE REDUCED RETROACTIVELY. AS TO QUESTION OF AUTHORIZING PER DIEM WHEN EMPLOYEE RETURNED FROM DETAIL TO PERMANENT STATION, REGULATIONS PRECLUDE PER DIEM.

TO MRS. NEDRA A. BLACKWELL:

THIS REFERS TO YOUR LETTER OF JUNE 5, 1969, REFERENCE 360, WITH ENCLOSURES, CONCERNING THE RETROACTIVE ADJUSTMENT OF PER DIEM OF AN EMPLOYEE OF THE BUREAU OF RECLAMATION WHILE PERFORMING TEMPORARY DUTY.

THE INFORMATION FURNISHED SHOWS THAT MR. B. E. MANDERSCHEID, WHOSE HEADQUARTERS WAS SPOKANE, WASHINGTON, WAS SENT TO SEATTLE, WASHINGTON, EFFECTIVE NOVEMBER 11, 1967, ON A DETAIL FOR APPROXIMATELY 8 MONTHS. WAS TO RETURN TO HIS PERMANENT DUTY STATION AT LEAST MONTHLY FOR A PROGRESS REPORT AND CONSULTATION. THE DETAIL WAS SUBSEQUENTLY EXTENDED TO FEBRUARY 4, 1969. BECAUSE OF THE LENGTH OF THE DETAIL, MR. MANDERSCHEID MOVED HIS FAMILY TO SEATTLE. DURING THE PERIODS NOVEMBER 11 THROUGH DECEMBER 4, 1967, AND DECEMBER 6-19, 1967, FULL PER DIEM OF $16 WAS PAID TO HIM. WHEN IT WAS LEARNED THAT HE HAD MOVED HIS FAMILY AND HOUSEHOLD GOODS TO SEATTLE, HIS TEMPORARY DUTY STATION, HIS PER DIEM WAS REDUCED TO $13. THIS RATE WAS BASED ON (1) THE AMOUNTS HE WOULD HAVE BEEN ENTITLED TO HAD HIS STATION BEEN CHANGED TO SEATTLE AND THEN BACK TO SPOKANE, (2) ADDITIONAL EXPENSES INCURRED WHEN HE TRAVELLED BACK TO SPOKANE BECAUSE OF HIS FAMILY BEING IN SEATTLE AND (3) HIGHER COST OF LIVING IN SEATTLE. THE $13 RATE OF PER DIEM WAS PAID TO MR. MANDERSCHEID FROM DECEMBER 20, 1967, THROUGH FEBRUARY 4, 1969. SUBSEQUENT TO THE COMPLETION OF THE DETAIL, A COMPARATIVE STUDY OF THE COST OF LIVING IN THE SEATTLE AND SPOKANE AREAS WAS MADE BY THE AUTHORIZING OFFICIAL AND IT WAS RECOMMENDED THAT THE PER DIEM RATE FOR MR. MANDERSCHEID BE DECREASED FROM $13 TO $4.20 RETROACTIVE TO SEPTEMBER 2, 1968, WHICH WAS BASED ON THE HIGHER COST OF LIVING IN THE SEATTLE AREA.

APPARENTLY, THE PER DIEM RATE OF $4.20 DOES NOT TAKE INTO CONSIDERATION THE EXPENSES THE EMPLOYEE WILL INCUR WHILE ON DUTY IN SPOKANE FROM TIME TO TIME UNTIL THE DETAIL IS TERMINATED. IN VIEW THEREOF, YOU ALSO REQUEST INFORMATION WHETHER THE EMPLOYEE COULD BE AUTHORIZED PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIODS WHEN HE IS ON DUTY AT SPOKANE, WHICH IS STILL HIS PERMANENT DUTY STATION.

SECTION 6.2 (D) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES THAT IN ANY CASE WHERE THE EMPLOYEE'S TOUR OF TRAVEL REQUIRES MORE THAN 2 MONTHS' STAY AT A TEMPORARY DUTY STATION CONSIDERATION SHOULD BE GIVEN TO EITHER A CHANGE IN OFFICIAL STATION OR A REDUCTION IN THE PER DIEM ALLOWANCE. AFTER MR. MANDERSCHEID HAD BEEN AT HIS TEMPORARY DUTY STATION APPROXIMATELY 6 WEEKS, HIS PER DIEM RATE WAS REDUCED. WHILE IT MAY BE THE PER DIEM RATE SHOULD HAVE BEEN FURTHER REDUCED OR THE EMPLOYEE TRANSFERRED, NEVERTHELESS, THE RULE IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES RESTS AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 24 COM. GEN. 439; 23 ID. 713.

SINCE THERE IS NOTHING IN THE FILE TO SHOW THAT AT THE TIME THE TRAVEL ORDERS WERE AMENDED IT WAS THE INTENTION TO PRESCRIBE OTHER THAN THE $13 RATE THE PER DIEM RATE MAY NOT BE AMENDED RETROACTIVELY.

CONCERNING YOUR QUESTION OF AUTHORIZING PER DIEM IN LIEU OF SUBSISTENCE TO MR. MANDERSCHEID FOR THE PERIODS HE IS AT HIS PERMANENT DUTY STATION (SPOKANE) YOU ARE ADVISED THAT PARAGRAPH 6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PRECLUDES THE PAYMENT OF PER DIEM TO AN EMPLOYEE AT HIS HEADQUARTERS.