B-170876, OCT. 23, 1970

B-170876, OCT. 23, 1970

PER DIEM - RETROACTIVE INCREASE DECISION TO EMPLOYEE OF DEPARTMENT OF AGRICULTURE SUSTAINING THE DENIAL OF A CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE FOR TRAVEL WITHIN THE GRAND MESA, UNCOMPAHGRE NATIONAL FOREST. WHERE CLAIMANT IS AUTHORIZED A PER DIEM RATE CONSISTENT WITH THE RATE OF EMPLOYEES IN THE REGION OF HIS TRAVEL, AN INCREASE IN THE PER DIEM IN THAT REGION IS NOT CONTROLLING ON THE WASHINGTON, D.C. OFFICE AND IT IS WELL ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE RETROACTIVELY AMENDED TO INCREASE OR DECREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT AND THERE IS NO EVIDENCE THE TRAVEL ORDER WAS AMBIGUOUS, INCOMPLETE OR IRREGULAR ON ITS FACE, OR A PROVISION ORIGINALLY INTENDED TO BE INCLUDED WAS OMITTED THROUGH ERROR OR INADVERTENCE AND THEREFORE THE CLAIM FOR RETROACTIVE PER DIEM ALLOWANCE MUST BE DENIED.

TO MR. G. STANLEY GERE:

YOUR LETTER OF AUGUST 31, 1970, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD OF JULY 15, 1969, THROUGH AUGUST 7, 1969, WHICH WAS DISALLOWED BY OUR OFFICE SETTLEMENT DATED MAY 28, 1970.

YOU REQUEST FURTHER REVIEW ON THE GROUND THAT YOU FEEL YOUR TRAVEL ORDERS WOULD HAVE BEEN AMENDED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, TO PROVIDE FOR AN INCREASE IN THE AUTHORIZED PER DIEM RATE FROM $11 TO $14 FOR THE PERIOD IN QUESTION HAD IT BEEN KNOWN TO THEM THAT THE LATTER RATE WAS BEING PAID EMPLOYEES OF REGION 2, TO WHICH REGION YOU WERE DETAILED, FOR TRAVEL WITHIN THE GRAND MESA, UNCOMPAHGRE NATIONAL FOREST.

BY TRAVEL ORDER DATED MAY 26, 1969, YOU WERE AUTHORIZED TO TRAVEL ON TEMPORARY DUTY FROM JUNE 16, 1969, TO SEPTEMBER 20, 1969. THE PER DIEM RATE AUTHORIZED TO BE PAID TO YOU WHILE IN DENVER WAS $14. BY AMENDMENT OF JULY 15, 1969, A REDUCED RATE OF $11 WAS PROVIDED FOR IN ACCORDANCE WITH THE GENERAL POLICY OF THE WASHINGTON OFFICE TO PERMIT ITS EMPLOYEES ON TEMPORARY DUTY WITHIN A REGION, THE SAME PER DIEM ESTABLISHED BY THAT REGION FOR ITS EMPLOYEES. AT THE TIME OF THAT AMENDMENT, REGION 2 EMPLOYEES SIMILARLY DETAILED WERE AUTHORIZED A PER DIEM RATE OF $11. JULY 25, 1969, THE DENVER STATION RECEIVED AN AMENDMENT TO THE BLANKET TRAVEL AUTHORIZATION FOR REGION 2 EMPLOYEES, ISSUED ON JULY 1, 1969, INCREASING THE PER DIEM RATE TO $14 FOR TRAVEL OF SUCH EMPLOYEES WITHIN GRAND MESA. THE RECORD INDICATES THAT EARLY IN AUGUST THE WASHINGTON OFFICE LEARNED OF THIS AMENDMENT AND ACCORDINGLY AMENDED YOUR TRAVEL AUTHORIZATION ON AUGUST 11, 1969, TO PROVIDE FOR PER DIEM AT THE INCREASED RATE OF $14 FROM AUGUST 8, 1969, TO SEPTEMBER 20, 1969.

YOU ARE REQUESTING THAT THE AUGUST 11, 1969, AMENDMENT BE GIVEN EFFECT RETROACTIVE TO THE DATE ON WHICH THE HIGHER PER DIEM RATE WAS AUTHORIZED FOR REGION 2 EMPLOYEES UNDER THEIR TRAVEL ORDER. IT IS WELL ESTABLISHED THAT A TRAVEL ORDER MAY NOT BE RETROACTIVELY AMENDED OR MODIFIED TO INCREASE OR DECREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT EXCEPT WHEN IT IS AMBIGUOUS, INCOMPLETE OR IRREGULAR ON ITS FACE, OR WHEN A PROVISION ORIGINALLY INTENDED TO BE INCLUDED WAS OMITTED THROUGH ERROR OR INADVERTENCE. 23 COMP. GEN. 713 (1944); 24 ID 439. THE AMENDMENT TO YOUR TRAVEL ORDER PROVIDING FOR THE $11 RATE WAS CLEAR AND UNAMBIGUOUS ON ITS FACE AND THERE IS NO EVIDENCE THAT SUCH RATE WAS PRESCRIBED IN ERROR.

FURTHER, WE ARE INFORMED BY YOUR AGENCY THAT THE REGION 2 RATE WAS VIEWED AS A SUGGESTED RATE AND THAT ALTHOUGH IT IS GENERALLY THE POLICY TO PAY THE RATE OF PER DIEM ESTABLISHED BY THE REGION FOR ITS EMPLOYEES, THAT RATE IS NOT CONTROLLING UPON THE WASHINGTON OFFICE.

FOR THE ABOVE REASONS, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.