B-169608, MAY 19, 1970

B-169608: May 19, 1970

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IS NOT ENTITLED TO ADDITIONAL PER DIEM SINCE NON AVAILABILITY CERTIFICATE WAS NOT FURNISHED AND AMENDED ORDERS ISSUED PROVIDING THAT USE OF GOVT. FACILITIES WOULD INTEREFERE WITH PERFORMANCE OF DUTIES WERE INCONSISTENT WITH INDICATED FACTS AND INCONSISTENCY IS UNEXPLAINED. EXCEPT WHERE ORDERS ARE INCOMPLETE. AMBIGUOUS OR SOME INTENDED PROVISION WAS INADVERTENTLY OMITTED. NO EVIDENCE IS SHOWN SUCH PROVISION WAS ORIGINALLY INTENDED. FRITZ: REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY AT BANGKOK. YOU WERE DIRECTED TO PROCEED FROM APO SAN FRANCISCO 96260. YOU DID NOT FURNISH A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND THE RECORD DOES NOT SHOW WHERE YOU WERE QUARTERED.

B-169608, MAY 19, 1970

SUBSISTENCE--PER DIEM--MILITARY PERSONNEL--REDUCTION--QUARTERS AND MESSING FACILITIES FURNISHED--EVIDENCE NON-COMMISSIONED OFFICER, ORDERED TO BANGKOK, THAILAND, AND DIRECTED TO FURNISH CERTIFICATE OF NONAVAILABILITY OF GOVT. QUARTERS IF APPLICABLE, IS NOT ENTITLED TO ADDITIONAL PER DIEM SINCE NON AVAILABILITY CERTIFICATE WAS NOT FURNISHED AND AMENDED ORDERS ISSUED PROVIDING THAT USE OF GOVT. FACILITIES WOULD INTEREFERE WITH PERFORMANCE OF DUTIES WERE INCONSISTENT WITH INDICATED FACTS AND INCONSISTENCY IS UNEXPLAINED. EXCEPT WHERE ORDERS ARE INCOMPLETE, AMBIGUOUS OR SOME INTENDED PROVISION WAS INADVERTENTLY OMITTED, THEY MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE LIABILITY OF GOVT. AND NO EVIDENCE IS SHOWN SUCH PROVISION WAS ORIGINALLY INTENDED. SEE 24 COMP. GEN. 438 (1944)

TO MR. TIMOTHY M. FRITZ:

REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY AT BANGKOK, THAILAND, DURING THE PERIOD DECEMBER 13, 1968, TO APRIL 2, 1969, WHILE SERVING AS A STAFF SERGEANT, ARMY.

BY LETTER ORDERS NO. 12-834 DATED DECEMBER 10, 1968, YOU WERE DIRECTED TO PROCEED FROM APO SAN FRANCISCO 96260, TO BANGKOK, THAILAND, FOR TEMPORARY DUTY OF APPROXIMATELY 90 DAYS AS NONCOMMISSIONED OFFICER IN CHARGE OF AN R&R DETACHMENT. THE ORDERS DIRECTED THAT YOU OBTAIN A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS TO INCLUDE OFFICERS OPEN MESS AT THE TEMPORARY DUTY POINT, IF APPROPRIATE. YOU DID NOT FURNISH A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND THE RECORD DOES NOT SHOW WHERE YOU WERE QUARTERED.

THE RECORD SHOWS THAT BY MESSAGE P 181131Z, JULY 1968, THE MILITARY ASSISTANCE COMMAND, THAILAND, ADVISED THE MILITARY ASSISTANCE COMMAND, VIETNAM, THAT WITH RESPECT TO R&R TEMPORARY DUTY PERSONNEL, IT CONCURRED WITH THE PROPOSAL TO REDUCE PER DIEM COSTS BY BILLETING AIR FORCE ENLISTED MEMBERS IN THE BEL AIR COURT AND OTHER ENLISTED MEMBERS AT THE WINDSOR HOTEL. THE MESSAGE FURTHER STATED THAT GOVERNMENT MESS IS NOT AVAILABLE IN BANGKOK BUT THAT OFFICER AND NONCOMMISSIONED OFFICER OPEN MESSES ARE AVAILABLE.

APPARENTLY, THE FINANCE OFFICER WHO PAID PER DIEM IN YOUR CASE AT THE RATE OF $5.15 WAS AWARE OF THE COMMAND POLICY REFLECTED BY THE CITED MESSAGE, AND HAD REASON TO BELIEVE THAT SUCH POLICY AND LOCAL IMPLEMENTING REGULATIONS WERE APPLICABLE TO YOUR R&R TEMPORARY DUTY ASSIGNMENT. THEREFORE, YOU WERE PAID PER DIEM AT THE RATE THEN PAYABLE FOR TEMPORARY DUTY IN BANGKOK IN CIRCUMSTANCES WHEN GOVERNMENT QUARTERS ARE AVAILABLE AND A GOVERNMENT MESS IS NOT AVAILABLE BUT AN ENLISTED OPEN MESS IS AVAILABLE FOR TWO OR MORE MEALS.

AFTER THE TEMPORARY DUTY WAS COMPLETED, THE ORDERS OF DECEMBER 10, 1968, WERE AMENDED BY LETTER ORDERS NO. 6-115, DATED JUNE 3, 1969, TO INCLUDE A STATEMENT THAT WHILE PERFORMING THIS TEMPORARY DUTY THE UTILIZATION OF GOVERNMENT QUARTERS WAS NOT REQUIRED AS IT WOULD ADVERSELY AFFECT THE PERFORMANCE OF DUTY. THIS STATEMENT IS CLEARLY INCONSISTENT WITH THE COMMAND POLICY SET OUT IN THE JULY 1968 MESSAGE AND THE ONLY EXPLANATION FOR ISSUANCE OF THE AMENDATORY ORDERS IS YOUR STATEMENT IN PRESENTING YOUR CLAIM THAT ALL OF YOUR PREDECESSORS WERE PAID PER DIEM AT THE RATE OF $18 PER DAY AND YOU UNDERSTOOD YOU COULD BE PAID AT THAT RATE IF YOUR ORDERS WERE AMENDED.

PARAGRAPH M4451-1 OF THE JOINT TRAVEL REGULATIONS REQUIRES THAT AVAILABLE GOVERNMENT QUARTERS AND MESS BE UTILIZED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE EXCEPT (ITEM 1) WHEN THE ORDER-ISSUING AUTHORITY EITHER PRIOR OR SUBSEQUENT TO THE TRAVEL ISSUES A STATEMENT TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION. SUCH STATEMENT, HOWEVER, MUST BE CONSISTENT WITH THE ACTUAL FACTS. IN YOUR CASE, THE MESSAGE OF JULY 1968, REQUIRED ARMY ENLISTED MEMBERS ON R&R TEMPORARY DUTY IN BANGKOK TO BE BILLETED IN THE WINDSOR HOTEL. YOU WERE PAID PER DIEM ON THE BASIS THAT YOU WERE BILLETED THERE AND THERE IS NOTHING IN THE RECORD TO SHOW THAT SUCH WAS NOT THE CASE. IN THOSE CIRCUMSTANCES THE STATEMENT THAT THE USE OF GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF YOUR DUTY IS INCONSISTENT WITH THE INDICATED FACTS AND THE INCONSISTENCY IS UNEXPLAINED.

FURTHER, IT LONG HAS BEEN THE VIEW OF THIS OFFICE THAT EXCEPT WHERE ORDERS ARE INCOMPLETE OR AMBIGUOUS OR WHEN SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED IN A PARTICULAR CASE HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS, THE ORDERS MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE THE LIABILITY OF THE GOVERNMENT. 24 COMP. GEN. 438 (1944). IN YOUR CASE, THERE IS NOTHING TO SHOW THAT WHEN THE ORDERS OF DECEMBER 10, 1968, WERE PREPARED IT WAS INTENDED TO INCLUDE A PROVISION THAT THE USE OF GOVERNMENT FACILITIES (IN THIS CASE THE WINDSOR HOTEL) WOULD INTERFERE WITH THE PERFORMANCE OF YOUR DUTY. ON THE CONTRARY, THOSE ORDERS APPARENTLY WERE PREPARED IN CONFORMITY WITH THE MESSAGE OF JULY 1968.

WHILE IT MAY BE THAT OTHERS WHO PREVIOUSLY PERFORMED SIMILAR TEMPORARY DUTY AT BANGKOK WERE PAID PER DIEM AT THE HIGHER RATE UNDER THE CIRCUMSTANCES THEN PREVAILING, SUCH PAYMENTS WOULD NOT AFFORD A BASIS FOR PAYMENT OF ADDITIONAL PER DIEM IN YOUR CASE.

ACCORDINGLY, ON THE PRESENT RECORD YOUR CLAIM MUST BE AND IS DISALLOWED.