B-170739, OCT. 27, 1970

B-170739: Oct 27, 1970

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WHERE CLAIMANT'S HOME IS LESS THAN 50 MILES FROM FORT DEVENS HE IS CONSIDERED TO HAVE COMMUTED DAILY FOR THE PERFORMANCE OF THE ORDERED DUTY AND SUCH DETERMINATION IS CORRECT NOTWITHSTANDING ALLEGATION THAT CLAIMANT WAS ADVISED THAT THE DISTANCE INVOLVED WAS MORE THAN 50 MILES AND THAT HE WOULD BE PAID A PER DIEM. THE OFFICIAL DISTANCE PARAGRAPH OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT OFFICIAL DISTANCES ARE ESTABLISHED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY. WHICH DETERMINED THAT THE OFFICIAL DISTANCE INVOLVED WAS 49 MILES. IT SHOULD BE NOTED THAT MILEAGE PAID PAID TO CLAIMANT WAS COMPUTED ON THIS OFFICIAL ONE-WAY DISTANCE OF 49 MILES. IF EVIDENCE IS FURNISHED TO ESTABLISH THAT CLAIMANT IN FACT DID NOT COMMUTE.

B-170739, OCT. 27, 1970

PER DIEM ALLOWANCES - ACTIVE DUTY FOR TRAINING SUSTAINING PRIOR DECISION DISALLOWING CLAIM FOR PER DIEM ALLOWANCES DURING PERIOD OF ACTIVE DUTY FOR TRAINING AT FORT DEVENS, MASS. WHERE CLAIMANT'S HOME IS LESS THAN 50 MILES FROM FORT DEVENS HE IS CONSIDERED TO HAVE COMMUTED DAILY FOR THE PERFORMANCE OF THE ORDERED DUTY AND SUCH DETERMINATION IS CORRECT NOTWITHSTANDING ALLEGATION THAT CLAIMANT WAS ADVISED THAT THE DISTANCE INVOLVED WAS MORE THAN 50 MILES AND THAT HE WOULD BE PAID A PER DIEM. IT HAS LONG BEEN HELD, IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING PAYMENT, THE ERRONEOUS ADVICE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF A CLAIM. THE OFFICIAL DISTANCE PARAGRAPH OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT OFFICIAL DISTANCES ARE ESTABLISHED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY, FURNISHED BY THE FINANCE CENTER, INDIANAPOLIS, IND. WHICH DETERMINED THAT THE OFFICIAL DISTANCE INVOLVED WAS 49 MILES, AND IT SHOULD BE NOTED THAT MILEAGE PAID PAID TO CLAIMANT WAS COMPUTED ON THIS OFFICIAL ONE-WAY DISTANCE OF 49 MILES. HOWEVER, IF EVIDENCE IS FURNISHED TO ESTABLISH THAT CLAIMANT IN FACT DID NOT COMMUTE, THE CLAIM WILL BE GIVEN FURTHER CONSIDERATION.

TO MAJOR ROBERT K. MALCOLM:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 4 AND 24, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 11, 1970, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD AUGUST 17 TO 30, 1969, WHILE PERFORMING TRAINING DUTY AT FORT DEVENS, MASSACHUSETTS.

BY PARAGRAPH 145, DEPARTMENT OF THE ARMY LETTER ORDER USAR T-06 11727, DATED JUNE 21, 1969, AS AMENDED AUGUST 19, 1969, ADDRESSED TO YOU AT HINGHAM, MASSACHUSETTS, YOU WERE ORDERED TO ANNUAL ACTIVE DUTY FOR TRAINING AT FORT DEVENS, MASSACHUSETTS, FOR 14 DAYS BEGINNING AUGUST 17, 1969. YOU PERFORMED THE DUTY DURING THE PERIOD AUGUST 17 TO 30, 1969, AND PRESENTED A CLAIM FOR PER DIEM SHOWING THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE. YOUR CLAIM WAS DENIED BY THE FINANCE AND ACCOUNTING OFFICER AT FORT DEVENS FOR THE REASON THAT SINCE YOUR HOME, HINGHAM, MASSACHUSETTS, IS LESS THAN 50 MILES FROM FORT DEVENS, YOU WERE CONSIDERED UNDER THE GOVERNING REGULATIONS TO HAVE COMMUTED DAILY TO FORT DEVENS FOR THE PERFORMANCE OF THE ORDERED DUTY. BY LETTER OF OCTOBER 1, 1969, YOU STATED THAT UPON YOUR ARRIVAL AT FORT DEVENS YOU HAD BEEN ADVISED YOU WOULD BE PAID PER DIEM AND THAT THE DISTANCE INVOLVED IS MORE THAN 50 MILES.

IN LETTER OF OCTOBER 13, 1969, FORT DEVENS ADVISED YOU THAT PRIOR TO THE DUTY INVOLVED IT WAS DETERMINED THAT ANYONE WHO RESIDED WITHIN 50 HIGHWAY MILES OF FORT DEVENS WOULD BE CONSIDERED A COMMUTER UNLESS HE ACCEPTED AVAILABLE GOVERNMENT QUARTERS. YOU WERE ADVISED THAT THE OFFICIAL HIGHWAY DISTANCE BETWEEN HINGHAM AND FORT DEVENS WAS 49 MILES, AND THAT SUCH DISTANCE WAS RESEARCHED AND DETERMINED BY THE FINANCE CENTER, U.S. ARMY, AND CONFIRMED ON SEPTEMBER 8, 1969. YOU WERE FURTHER ADVISED THAT SINCE IT APPEARED YOU HAD BEEN ERRONEOUSLY ADVISED THAT YOU WERE ENTITLED TO PER DIEM YOUR CLAIM COULD BE GIVEN CONSIDERATION IF YOU COULD FURNISH DOCUMENTARY EVIDENCE IN THE FORM OF A PAID HOTEL OR MOTEL BILL FOR THE PERIOD OF YOUR ACTIVE DUTY FOR TAINING. IT WAS EXPLAINED THAT IF THIS COULD BE FURNISHED IT WOULD ELIMINATE DOUBT THAT YOU COMMUTED DAILY.

YOU THEN SUBMITTED A STATEMENT SHOWING THAT YOU OCCUPIED A ROOM AT THE BRADFORD HOTEL, BOSTON, MASSACHUSETTS, DURING THE PERIOD AUGUST 17 TO 31, 1969. HOWEVER, THE MANAGER OF THE ACCOUNTING BRANCH OF THE HOTEL COULD NOT CONFIRM YOUR RESIDENCE DURING THAT PERIOD, STATING THERE WAS NO RECORD OF YOUR REGISTRATION, AND YOUR CLAIM WAS REJECTED A SECOND TIME BY FORT DEVENS.

THE CLAIM WAS FORWARDED TO THIS OFFICE BY THE FINANCE CENTER, U.S. ARMY, WITH THE RECOMMENDATION THAT PAYMENT NOT BE MADE. IT WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT YOUR HOME WAS WITHIN THE COMMUTING DISTANCE OF 50 MILES ESTABLISHED BY THE COMMANDING GENERAL AT FORT DEVENS BASED ON OFFICIAL MILEAGE BETWEEN FORT DEVENS AND HINGHAM. ALSO, REFERENCE WAS MADE TO THE QUESTIONABLE BILLING STATEMENT FROM THE BRADFORD HOTEL, AND THE FACT THAT THE ORDERS OF JUNE 21, 1969, DIRECTED ANNUAL ACTIVE DUTY FOR TRAINING.

IN YOUR PRESENT LETTERS YOU CONTEND THAT THE DUTY DIRECTED BY THE ORDERS OF JUNE 21, 1969, WAS ACTIVE DUTY FOR TRAINING, NOT ANNUAL ACTIVE DUTY FOR TRAINING SINCE THE LATTER HAD BEEN PERFORMED PREVIOUSLY AT FORT MONROE, VIRGINIA. YOU SAY THE HOTEL BILL WAS GIVEN TO YOU BY THE MANAGER WHO CAN CERTIFY YOU WERE AT THE HOTEL. YOU REPEAT YOUR STATEMENT THAT WHEN YOU FIRST ARRIVED AT FORT DEVENS YOU WERE INFORMED THAT HINGHAM WAS BEYOND COMMUTING DISTANCE AND SAY THAT, WHILE WE MAY BE ADVISED THE "OFFICIAL DISTANCE" FROM FORT DEVENS TO HINGHAM IS 49 MILES, THE ACTUAL DISTANCE IS CLOSER TO 60 MILES AND IN ANY EVENT MORE THAN 50 MILES.

IN SUPPORT OF YOUR STATEMENT AS TO THE DISTANCE INVOLVED YOU POINT OUT THAT YOUR CLAIM WAS SUPPORTED BY EVIDENCE FROM THE MASSACHUSETTS DEPARTMENT OF PUBLIC UTILITIES AND THE MASSACHUSETTS PUBLIC WORKS DEPARTMENT, HIGHWAY DIVISION, INDICATING A DISTANCE OF MORE THAN 50 MILES, AND REQUEST THAT YOU BE FURNISHED A ROUTING SHOWING THE BASIS FOR THE OFFICIAL DISTANCE. IN ADDITION, YOU SAY IT SHOULD BE NOTED AND CAN BE READILY PROVEN, IF NECESSARY, THAT OTHERS FROM THE SAME AREA DID COMMUTE DAILY AND WERE PAID PER DIEM, THAT THOSE BEYOND 50 MILES WERE PAID $16 PER DAY AND THOSE WITHIN 50 MILES A LESSER RATE.

SECTION 404(A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORM SERVICE WHEN AWAY FROM HOME TO PERFORM DUTY FOR WHICH HE IS ENTITLED TO PAY. IN DECISION OF FEBRUARY 7, 1969, 48 COMP. GEN. 517, IT WAS HELD THAT THE PURPOSE OF CLAUSE (4) IS TO PROVIDE, BY PAYMENT OF A PER DIEM, A MEANS OF REIMBURSING THE RESERVISTS CONCERNED FOR THE COST OF QUARTERS AND SUBSISTENCE WHICH THEY MUST PROCURE FOR THEMSELVES WHEN "AWAY FROM HOME," AND THAT A PER DIEM ALLOWANCE MAY NOT PROPERLY BE AUTHORIZED FOR PAYMENT TO A RESERVIST WHO COMMUTES DAILY FROM HIS HOME TO HIS DUTY STATION.

THAT DECISION FURTHER STATED THAT PUBLIC LAW 90-168 DOES NOT AUTHORIZE PER DIEM FOR TWO WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION "WHERE QUARTERS AND MESSING ARE, IN FACT, AVAILABLE." SINCE GOVERNMENT QUARTERS AND MESS APPARENTLY WERE NOT AVAILABLE IN YOUR CASE THE QUESTION OF WHETHER YOU WERE ORDERED TO ANNUAL ACTIVE DUTY FOR TRAINING AS STATED IN THE ORDERS OR TO ACTIVE DUTY FOR TRAINING AS CONTENDED BY YOU IS NOT DETERMINATIVE OF YOUR ENTITLEMENT TO PER DIEM.

PARAGRAPH M6001-1A OF THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO PUBLIC LAW 90-168 PROVIDES THAT NO PER DIEM ALLOWANCES ARE PAYABLE FOR TRAVEL BETWEEN HOME OR PLACE FROM WHICH THE MEMBER IS ORDERED TO ACTIVE DUTY AND THE PERMANENT STATION WHERE THE INSTALLATION COMMANDER DETERMINES THAT BOTH ARE LOCATED WITHIN REASONABLE COMMUTING DISTANCE OF EACH OTHER AND THAT THE NATURE OF THE DUTY INVOLVED DOES NOT PREVENT THE MEMBER FROM SO COMMUTING.

THE RECORDS SHOW THAT, FOR THE PURPOSE OF THOSE REGULATIONS AND IN ACCORDANCE WITH PARAGRAPH 11, ARMY REGULATION 135-200, THE TERM "COMMUTING DISTANCE" WAS DEFINED AS ANY DISTANCE WITHIN 50 MILES OF FORT DEVENS. IS REPORTED THAT ON JUNE 20, 1969, MEMBERS OF RESERVE COMPONENTS ON ACTIVE DUTY AT FORT DEVENS WERE ADVISED OF THAT DEFINITION, AND INFORMED THAT A DETERMINATION THAT A MEMBER'S HOME IS WITHIN COMMUTING DISTANCE OF THE DUTY STATION PRECLUDES PAYMENT OF PER DIEM.

WITH REGARD TO THE MATTER OF OFFICIAL DISTANCE PARAGRAPH M4155-1 OF THE JOINT TRAVEL REGULATIONS, BASED ON STATUTORY AUTHORITY CONTAINED IN 37 U.S.C. 404D(1), PROVIDES THAT OFFICIAL DISTANCES ARE ESTABLISHED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY. SUBPARAGRAPH 5 OF THE REGULATIONS PROVIDES THAT OFFICIAL DISTANCES WILL BE FURNISHED BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA. THE RECORD SHOWS THAT THE FINANCE CENTER MADE THE DETERMINATION THAT THE OFFICIAL DISTANCE BETWEEN HINGHAM AND FORT DEVENS IS 49 MILES AND VERIFIED THAT DETERMINATION ON SEPTEMBER 8, 1949. UNDER THE STATUTE AND GOVERNING REGULATIONS THAT DETERMINATION IS BINDING ON THIS OFFICE IN THE SETTLEMENT OF CLAIMS FOR TRAVEL ALLOWANCES. IN THIS REGARD IT IS NOTED THAT THE MILEAGE PAID TO YOU INCIDENT TO REPORTING FOR AND UPON RELEASE FROM THE ORDERED DUTY WAS COMPUTED ON AN OFFICIAL ONE-WAY DISTANCE OF 49 MILES.

IT IS REGRETTED THAT YOU MAY HAVE BEEN ERRONEOUSLY ADVISED BY PERSONNEL AT FORT DEVENS AS TO YOUR ENTITLEMENT TO PER DIEM. IN CLAIMS AGAINST THE GOVERNMENT, HOWEVER, WHERE THERE IS NO ENTITLEMENT UNDER THE LAW BUT WHERE THE CLAIMANT URGES THAT HIS CLAIM SHOULD BE PAID BECAUSE OF ERRONEOUS ADVICE OR ACTIONS BY GOVERNMENT PERSONNEL, IT LONG HAS BEEN HELD THAT IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING SUCH PAYMENT THE ERRONEOUS ADVICE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF THE CLAIM. SEE 54 AM. JUR., UNITED STATES, 92 AND 94; GERMAN BANK V UNITED STATES, 148 U.S. 573; ROBERTSON V SICHEL, 127 U.S. 507. WE ARE NOT AWARE OF ANY STATUTORY PROVISION WHICH WOULD AUTHORIZE THE ALLOWANCE OF YOUR CLAIM FOR SUCH REASON.

IF YOU WILL FURNISH THE NAMES OF MEMBERS WHO YOU SAY WERE PAID PER DIEM UNDER THE SAME CIRCUMSTANCES AS INVOLVED IN YOUR CASE, THIS OFFICE WILL INITIATE APPROPRIATE ACTION TO RECOVER ANY ERRONEOUS PAYMENTS THAT MAY HAVE BEEN MADE. SUCH ERRONEOUS PAYMENTS, HOWEVER, DO NOT AFFORD A BASIS FOR PAYMENT OF YOUR CLAIM.

SINCE, ON THE PRESENT RECORD, YOUR HOME WAS WITHIN COMMUTING DISTANCE OF YOUR DUTY STATION AND THE RECORD DOES NOT CLEARLY ESTABLISH THAT YOU DID NOT COMMUTE DAILY TO THAT STATION NO BASIS IS FOUND FOR PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF MAY 11, 1970, IS SUSTAINED. IF YOU ARE ABLE TO SUBMIT EVIDENCE TO ESTABLISH THAT YOU MADE PAYMENT TO THE HOTEL OF THE AMOUNT BILLED ON THE STATEMENT (CANCELED CHECK, CERTIFIED STATEMENT BY THE MANAGER, ETC.) YOUR CLAIM WILL BE GIVEN FURTHER CONSIDERATION.