B-170278, OCT. 29, 1970
Highlights
WHERE CLAIMANT WAS DIRECTED TO TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 10 DAYS AND A LETTER ORDER OF RETROACTIVE AMENDMENT LATER EXTENDED THE TEMPORARY DUTY TO 54 DAYS (ACTUAL TIME OF DUTY). THIS DOES NOT AFFORD A BASIS FOR ADDITIONAL PER DIEM IN EXCESS OF 10 DAYS BECAUSE TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDER - WHICH DOES NOT APPEAR HERE. THE WORD "APPROXIMATELY" MAY NOT BE CONSIDERED AS AUTHORITY FOR PAYMENT OF PER DIEM IN EXCESS OF 10 DAYS AND THEREFORE THE CLAIM IS DISALLOWED. SMITH: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING REVIEW OF THAT PART OF SETTLEMENT OF APRIL 14.
B-170278, OCT. 29, 1970
PER DIEM ALLOWANCE - ADDITIONAL TEMPORARY DUTY SUSTAINING PRIOR DECISION DENYING CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE INCIDENT TO TEMPORARY DUTY AT SAIGON, VIETNAM. WHERE CLAIMANT WAS DIRECTED TO TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 10 DAYS AND A LETTER ORDER OF RETROACTIVE AMENDMENT LATER EXTENDED THE TEMPORARY DUTY TO 54 DAYS (ACTUAL TIME OF DUTY), THIS DOES NOT AFFORD A BASIS FOR ADDITIONAL PER DIEM IN EXCESS OF 10 DAYS BECAUSE TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDER - WHICH DOES NOT APPEAR HERE. FURTHER, THE WORD "APPROXIMATELY" MAY NOT BE CONSIDERED AS AUTHORITY FOR PAYMENT OF PER DIEM IN EXCESS OF 10 DAYS AND THEREFORE THE CLAIM IS DISALLOWED.
TO MR. CAMERON D. SMITH:
FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING REVIEW OF THAT PART OF SETTLEMENT OF APRIL 14, 1970, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FEBRUARY 24 TO APRIL 6, 1968, WHILE ON TEMPORARY DUTY AT SAIGON, VIETNAM.
BY LETTER ORDERS NO. 2-14, DATED FEBRUARY 13, 1968, DEPARTMENT OF THE ARMY, HEADQUARTERS, 765TH TRANSPORTATION BATTALION (AM&S) "MUI TEN THANG" APO 96291, YOU WERE DIRECTED TO PROCEED ON FEBRUARY 13, 1968, ON TEMPORARY DUTY WITH THE 56TH TRANSPORTATION COMPANY (ADS) APO 96309 FOR A PERIOD OF APPROXIMATELY 10 DAYS. LETTER ORDERS 5-10, DATED MAY 4, 1969, PURPORTED TO AMEND THE ORDERS OF FEBRUARY 13, 1968, TO SHOW THE PERIOD OF TEMPORARY DUTY AS APPROXIMATELY 54 DAYS.
BY SETTLEMENT DATED APRIL 14, 1970, YOU WERE ALLOWED TEMPORARY DUTY ALLOWANCES FOR 10 DAYS. IN YOUR PRESENT LETTER YOU SAY THAT YOU SHOULD BE ALLOWED PER DIEM FOR THE ADDITIONAL PERIOD ON THE BASIS OF THE AMENDING ORDERS OF MAY 4, 1969.
THE PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES IS LIMITED TO THE AMOUNT AUTHORIZED BY APPLICABLE LAW AND REGULATIONS. THE PERTINENT STATUTE, 37 U.S.C. 404(A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.
COMPETENT ORDERS FOR PER DIEM PURPOSES ARE DEFINED IN PARAGRAPHS M3000- M3002, JOINT TRAVEL REGULATIONS, WHICH PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR REIMBURSEMENT OF EXPENSES OF TRAVEL. IF COMPETENT ORDERS ARE NOT ISSUED AS REQUIRED IN SUCH REGULATIONS, THERE IS NO BASIS FOR REIMBURSEMENT FOR EXPENSES OF TRAVEL.
WITH RESPECT TO THE EFFECT OF THE ORDERS OF MAY 4, 1969, THEY DO NOT PURPORT TO CONFIRM ANY PRIOR OFFICIAL ACTION TO EXTEND THE PERIOD OF YOUR TEMPORARY DUTY AND IT IS WELL ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDER AND ALL FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); 44 ID. 405 (1965); 46 ID. 214 (1966); 47 ID. 127, 130 (1967); 48 ID. 119 (1968); AND 49 ID. 38, 40 (1969). NO ERROR IN YOUR ORDERS IS APPARENT. THEREFORE, THE AMENDING ORDERS OF MAY 4, 1969, DO NOT AFFORD US A LEGAL BASIS TO ALLOW YOUR CLAIM.
AS INDICATED ABOVE, YOUR ORDERS OF FEBRUARY 13, 1968, PRESCRIBED A PERIOD OF TEMPORARY DUTY OF APPROXIMATELY 10 DAYS' DURATION. YOUR PERIOD OF TEMPORARY DUTY, HOWEVER, COVERED A PERIOD OF 54 DAYS, SUCH PERIOD BEARING NO REASONABLE RELATIONSHIP TO THE PERIOD PRESCRIBED IN YOUR ORDERS.
IT HAS LONG BEEN THE RULE THAT ORDERS DIRECTING TRAVEL OR TEMPORARY DUTY FOR AN APPROXIMATE PERIOD DO NOT CONSTITUTE AUTHORITY FOR PAYMENT OF TRAVEL ALLOWANCES FOR A MATERIALLY LONGER PERIOD IN THE ABSENCE OF ADDITIONAL COMPETENT ORDERS EXTENDING THE PERIOD. CONSEQUENTLY, THE ORDERS OF FEBRUARY 13, 1968, EVEN THOUGH CONTAINING THE WORD "APPROXIMATELY," MAY NOT BE CONSIDERED AS AUTHORITY FOR PAYMENT OF PER DIEM ALLOWANCES IN EXCESS OF 10 DAYS.
ACCORDINGLY, THERE IS NO AUTHORITY TO ALLOW YOUR CLAIM FOR THE ADDITIONAL AMOUNT CLAIMED EITHER ON THE BASIS OF THE RETROACTIVE AMENDMENT OF MAY 4, 1969, OR THE ORIGINAL ORDERS OF FEBRUARY 13, 1968. THE SETTLEMENT OF APRIL 14, 1970, IS CORRECT AND IS SUSTAINED.