B-169759, OCT. 30, 1970

B-169759: Oct 30, 1970

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NO PER DIEM WILL BE PAID. WHITTINGTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 9. THE RECORD SHOWS THAT YOU WERE IN SAIGON IN CONNECTION WITH AN AUDIT ASSIGNMENT FOR THE PERIOD FEBRUARY 23 TO MARCH 20. POLICIES COVERING TEMPORARY DUTY WITHIN VIETNAM WERE NOT CLEARLY SET FORTH. THAT THE NATURE OF TEMPORARY DUTY INVOLVED DETERMINED WHETHER OR NOT TEMPORARY DUTY ORDERS AUTHORIZING PER DIEM WERE ISSUED. WHERE EMPLOYEES WERE REQUIRED TO REMAIN OVERNIGHT OR LONGER AT A PLACE OTHER THAN THEIR PERMANENT DUTY STATION. SUCH TEMPORARY DUTY TRAVEL ORDERS WERE ISSUED. IT IS REPORTED. THAT IN MOST INSTANCES CIVILIAN AUDITORS WHO WERE STATIONED AT LONG BINH WERE NOT REQUIRED TO REMAIN IN SAIGON FOR LONGER THAN THE USUAL WORKDAY.

B-169759, OCT. 30, 1970

TEMPORARY DUTY - PER DIEM - AUTHORIZATION DENIAL OF CLAIM FOR PER DIEM FOR CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY WHILE STATIONED AT LONG BINH AND ON TEMPORARY DUTY AT SAIGON, VIETNAM. "IN COUNTRY TRAVEL AUTHORITY" GRANTED EMPLOYEES THE RIGHT TO STAY IN SAIGON OVERNIGHT FOR THEIR OWN CONVENIENCE BUT DID NOT AUTHORIZE PER DIEM WITHOUT SUCH AUTHORIZATION, NO PER DIEM WILL BE PAID.

TO MR. JAMES C. WHITTINGTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1970, CONCERNING THE NONPAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO YOU AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY WHILE STATIONED AT LONG BINH AND ON TEMPORARY DUTY AT SAIGON, VIETNAM.

IN PRIOR CORRESPONDENCE WE ADVISED YOU THAT WE HAD FOUND IT NECESSARY TO REQUEST ADDITIONAL INFORMATION FROM THE DEPARTMENT OF THE ARMY, WHICH INFORMATION HAS NOW BEEN RECEIVED.

THE RECORD SHOWS THAT YOU WERE IN SAIGON IN CONNECTION WITH AN AUDIT ASSIGNMENT FOR THE PERIOD FEBRUARY 23 TO MARCH 20, 1969. THE RECORD ALSO SHOWS THAT DURING THAT TIME AND UNTIL JANUARY 1970, POLICIES COVERING TEMPORARY DUTY WITHIN VIETNAM WERE NOT CLEARLY SET FORTH. HOWEVER, IT MAY BE STATED, GENERALLY, THAT THE NATURE OF TEMPORARY DUTY INVOLVED DETERMINED WHETHER OR NOT TEMPORARY DUTY ORDERS AUTHORIZING PER DIEM WERE ISSUED. WHERE EMPLOYEES WERE REQUIRED TO REMAIN OVERNIGHT OR LONGER AT A PLACE OTHER THAN THEIR PERMANENT DUTY STATION, SUCH TEMPORARY DUTY TRAVEL ORDERS WERE ISSUED. IT IS REPORTED, HOWEVER, THAT IN MOST INSTANCES CIVILIAN AUDITORS WHO WERE STATIONED AT LONG BINH WERE NOT REQUIRED TO REMAIN IN SAIGON FOR LONGER THAN THE USUAL WORKDAY. IN THESE CASES AN "IN -COUNTRY TRAVEL AUTHORITY" SHOWING AN OFFICIAL TRAVEL STATUS BUT AUTHORIZING NO PER DIEM WAS ISSUED TO THOSE EMPLOYEES WHO WISHED TO STAY IN SAIGON OVERNIGHT FOR THEIR OWN CONVENIENCE AND OBTAIN THE USE OF GOVERNMENT FACILITIES. MOST OF SUCH TRAVEL WAS ISSUED ON USARV FL 17-R, THE FORM USED IN YOUR CASE. ALTHOUGH YOU INDICATE THAT YOU WERE ORDERED TO STAY IN SAIGON AND DID NOT DO SO BY CHOICE, WE FIND NO EVIDENCE OF RECORD TO SUPPORT SUCH ASSERTION.

AN EMPLOYEE DOES NOT HAVE A RIGHT TO PER DIEM IN LIEU OF SUBSISTENCE BY REASON OF THE FACT THAT HE HAS BEEN PLACED ON DUTY AWAY FROM HIS HEADQUARTERS. BOTH THE LAW AND THE TRAVEL REGULATIONS ARE PERMISSIVE IN THIS REGARD. SEE 5 U.S.C. 5702 AND CHAPTER 8 OF THE JOINT TRAVEL REGULATIONS, VOLUME 2. NO RIGHT TO PER DIEM ACCRUES TO AN EMPLOYEE WITHOUT PROPER ADMINISTRATIVE ACTION AUTHORIZING OR APPROVING PAYMENT AT A SPECIFIC RATE. THE "IN-COUNTRY TRAVEL AUTHORITY" ISSUED TO YOU FOR THE TRAVEL FEBRUARY 23, 1969, TO MARCH 20, 1969, CONTAINS THE FOLLOWING:

"NOTE: NO PER DIEM AUTHORIZED."

THEREFORE, ON THE BASIS OF THE RECORD WE MUST SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.

IT MAY BE, AS YOU ASSERT, THAT PER DIEM HAS BEEN PAID TO OTHER EMPLOYEES PERFORMING TEMPORARY DUTY AT SAIGON UNDER CIRCUMSTANCES SIMILAR TO YOURS. HOWEVER, THE FACT THAT SUCH ERRONEOUS PAYMENTS MAY HAVE BEEN MADE WOULD NOT IN ANY WAY SERVE TO ESTABLISH THE VALIDITY OF YOUR CLAIM. IN THIS CONNECTION, WE UNDERSTAND THAT THE DEPARTMENT OF THE ARMY IS IN THE PROCESS OF AUDITING THE PERFORMANCE OF TRAVEL IN VIETNAM AND WILL TAKE APPROPRIATE ACTION WITH RESPECT TO ANY IRREGULARITIES FOUND.