B-172633, JUL 20, 1971

B-172633, JUL 20, 1971

PER DIEM - RETROACTIVE ALLOWANCE DECISION ALLOWING PAYMENT OF A SPECIAL PER DIEM ALLOWANCE TO DONALD A. VANTREESE, TECHNICAL SERGEANT, USAF. THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC) HAD GRANTED A SPECIAL PER DIEM RATE PURSUANT TO THE ORIGINAL REQUEST. A REQUEST FOR EXTENSION OF THE SPECIAL RATE PERIOD WAS SUBMITTED BEFORE THE EXPIRATION DATE BUT THROUGH NO FAULT OF THE REQUESTOR THE REQUEST WAS NOT RECEIVED BY THE PDTATAC UNTIL AFTER THE PERIOD HAD EXPIRED. SINCE THE REQUEST FOR AN EXTENSION WAS TIMELY WHEN SUBMITTED AND SINCE THE PDTATAC HAD INDICATED THAT IT WOULD HAVE BEEN WILLING TO EXTEND THE RATE PERIOD, THE COMP. GEN. WILL NOT OBJECT TO THE PAYMENT OF THE ADDITIONAL PER DIEM.

TO CAPTAIN J. H. RUBLE, USAF:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1971, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING A SPECIAL PER DIEM ALLOWANCE TO DONALD A. VANTREESE, TECHNICAL SERGEANT, USAF, UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 71-19, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. T-1074, DATED SEPTEMBER 21, 1970, SERGEANT VANTREESE AND OTHER MEMBERS LISTED THEREIN WERE DIRECTED TO 1MCGP TEAM 69-70, JOMALIG ISLAND, REPUBLIC OF THE PHILIPPINES, FOR TEMPORARY DUTY OF APPROXIMATELY 30 DAYS EFFECTIVE ON OR ABOUT SEPTEMBER 22, 1970. OCTOBER 22, 1970, THE ORDERS WERE AMENDED TO INCREASE THE PERIOD OF TEMPORARY DUTY TO 60 DAYS.

THE TRAVEL VOUCHER SHOWS THAT SERGEANT VANTREESE DEPARTED CLARK AIR BASE, REPUBLIC OF THE PHILIPPINES, ON SEPTEMBER 25, 1970, ARRIVING AT JOMALIG ISLAND THE SAME DAY. TEMPORARY DUTY WAS COMPLETED ON NOVEMBER 12, 1970, AND THE MEMBER RETURNED BY GOVERNMENT VESSEL, ARRIVING AT HIS DUTY STATION ON NOVEMBER 17, 1970.

THE FILE SHOWS THAT A REQUEST WAS MADE FOR AUTHORIZATION OF A SPECIAL PER DIEM RATE FOR MEMBERS OF THE 1ST MOBILE COMMUNICATION GROUP WHILE ON TEMPORARY DUTY ON DEPLOYMENT (DD 70-119) AT JOMALIG ISLAND, REPUBLIC OF THE PHILIPPINES. IT WAS SUBMITTED TO THE COMMANDER IN CHIEF, PACIFIC AIR FORCE, WHO IN TURN REQUESTED THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FOR A SPECIAL PER DIEM DETERMINATION. BY SPECIAL DETERMINATION NO. 122-70, DATED JULY 9, 1970, A DETERMINATION WAS MADE IN ACCORDANCE WITH PARAGRAPH M4352-2, JOINT TRAVEL REGULATIONS, THAT THE MEMBERS OF THE AIR FORCE WHO WERE PERFORMING TEMPORARY DUTY ON JOMALIG ISLAND TO INSTALL AND MAINTAIN AN INTERIM SERVICE RADIO BEACON WOULD BE ENTITLED TO A SPECIAL PER DIEM OF $16 ONLY WHEN BILLETED AT JOMALIG BAY RESORT DURING THE PERIOD FROM JULY 13 TO SEPTEMBER 30, 1970.

THE DETERMINATION ALSO COVERED ALTERNATES OR ADDITIONAL PERSONNEL ASSIGNED TO THAT TEMPORARY DUTY. IT STATED FURTHER THAT WHEN THE DETERMINATION WAS NOT APPLICABLE, APPENDIX A AND PART F, CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS WOULD BE APPLICABLE.

IT APPEARS THAT UPON BEING ADVISED THAT THE DEPLOYMENT WOULD BE DELAYED, THE COMMANDING OFFICER OF THE 1ST MOBILE COMMUNICATION GROUP SENT A MESSAGE DATED SEPTEMBER 23, 1970, TO HEADQUARTERS, COMMANDER IN CHIEF, PACIFIC AIR FORCE, REQUESTING AN EXTENSION OF THE SPECIAL PER DIEM. HOWEVER, ON OCTOBER 1, 1970, HEADQUARTERS ADVISED THAT COMMAND TO SUBMIT ITS REQUEST DIRECT TO THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. ON OCTOBER 2, 1970, A MESSAGE WAS SENT TO THAT COMMITTEE REQUESTING AN EXTENSION TO OCTOBER 25, 1970, AND WHEN NO ANSWER WAS RECEIVED, ANOTHER MESSAGE DATED NOVEMBER 12, 1970, WAS SENT TO THE COMMITTEE REQUESTING AN EXTENSION TO NOVEMBER 20, 1970.

THE FILE SHOWS FURTHER THAT THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE REPLIED ON DECEMBER 7, 1970, STATING THAT IT HAD RECEIVED THE MESSAGE DATED NOVEMBER 12, 1970, APPROXIMATELY TWO MONTHS AFTER THE SPECIAL DETERMINATION HAD EXPIRED. THE REPLY STATED FURTHER THAT UNDER APPLICABLE REGULATIONS RETROACTIVE AUTHORITY FOR SPECIAL PER DIEM WAS NOT AUTHORIZED. IN A MESSAGE TO HEADQUARTERS, PACIFIC AIR FORCE, DATED DECEMBER 16, 1970, THE COMMITTEE STATED THAT IT WOULD HAVE EXTENDED THE EXPIRATION DATE OF THE SPECIAL DETERMINATION FROM SEPTEMBER 30 TO NOVEMBER 20, 1970, IF THE REQUEST HAD BEEN PRESENTED PRIOR TO SEPTEMBER 30, OR IT WOULD HAVE AUTHORIZED THE REMAINING PERIOD PROSPECTIVELY IF THE REQUEST HAD BEEN PRESENTED PRIOR TO NOVEMBER 20, 1970. HOWEVER, IT WAS SAID THAT SUCH AN AMENDMENT MAY NOT BE ISSUED RETROACTIVELY AND THE PER DIEM PAID ADMINISTRATIVELY UNDER THE RULE STATED IN 23 COMP. GEN. 713 AND 24 ID. 439, PERTAINING TO RETROACTIVE ORDERS.

IN A LETTER DATED JANUARY 27, 1971, THE COMMANDING OFFICER, HEADQUARTERS, 1ST MOBILE COMMUNICATIONS GROUP, REQUESTED A DECISION AS TO THE PROPRIETY OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE EXTENDING THE EXPIRATION DATE OF THE SPECIAL PER DIEM ALLOWANCE FOR JOMALIG ISLAND AUTHORIZED IN SPECIAL DETERMINATION NO. 122-70, FROM SEPTEMBER 30 TO NOVEMBER 20, 1970. HE SAID FURTHER THAT UNFORESEEN DELAYS WERE EXPERIENCED THROUGH NO FAULT OF THE DEPLOYMENT GROUP AND IT WAS NOT UNTIL NOVEMBER 20, 1970, THAT THE DEPLOYMENT WAS TERMINATED. ALSO, HE SAID THAT THE FACTORS CAUSING THE DELAY PREVENTED THAT GROUP FROM ESTABLISHING A REALISTIC TIME FACTOR FOR THE PERIOD OF DEPLOYMENT.

IN YOUR LETTER OF FEBRUARY 10, 1971, YOU REQUEST, IN EFFECT, A DECISION WHETHER THE MEMBER MAY BE PAID A SPECIAL PER DIEM OF $16 FOR THE ENTIRE PERIOD OF TEMPORARY DUTY PERFORMED ON JOMALIG ISLAND, IN ACCORDANCE WITH SPECIAL DETERMINATION NO. 122-70 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE DATED JULY 9, 1970, WHICH AUTHORIZED THAT SPECIAL PER DIEM RATE FOR PERSONNEL ON TEMPORARY DUTY AT THAT LOCATION DURING THE PERIOD FROM JULY 13 TO SEPTEMBER 30, 1970.

IN AN ENDORSEMENT DATED APRIL 15, 1971, THE EXECUTIVE OFFICER OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE REPORTED THAT HAD THE REQUEST FOR FURTHER AUTHORIZATION BEEN TIMELY RECEIVED, THE COMMITTEE WOULD HAVE ISSUED ANOTHER SPECIAL DETERMINATION AT THE RATE OF $16 FOR THE ADDITIONAL PERIOD INVOLVED.

THE STATUTORY AUTHORITY FOR SPECIAL PER DIEM ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES IN AREAS OUTSIDE THE CONTINENTAL UNITED STATES IS CONTAINED IN 37 U.S.C. 405. PROVISION IS MADE THEREIN FOR THE SECRETARIES CONCERNED TO AUTHORIZE THE PAYMENT OF A PER DIEM TO COVER THE COST OF LIVING OF A MEMBER ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

IMPLEMENTING REGULATIONS ARE CONTAINED IN PART H, CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH M4350 THEREOF DEFINES A SPECIAL PER DIEM ALLOWANCE AS AN ALLOWANCE COMMENSURATE WITH THE ESTIMATED EXPENSES CONTEMPLATED BY PARAGRAPH M4202-1 OF THE REGULATIONS (WHICH INCLUDES THE COST OF QUARTERS, SUBSISTENCE AND OTHER NECESSARY INCIDENTAL EXPENSES) WHILE ON THE TYPE OF DUTY CONTEMPLATED IN PARAGRAPH M4351. SUCH ALLOWANCES, WHEN AUTHORIZED, ARE IN LIEU OF THE REGULAR PER DIEM RATES SPECIFIED IN APPENDIX A OF THE REGULATIONS (PARAGRAPH M4355) FOR THE PLACES NAMED IN THE AUTHORIZATION.

PARAGRAPH M4351 OF THE REGULATIONS PROVIDES IN PERTINENT PART THAT THE TRAVEL PER DIEM ALLOWANCES PRESCRIBED IN APPENDIX A ARE BASED ON AVERAGE COSTS OF FIRST CLASS ACCOMMODATIONS AT A HOTEL AND COMPARABLE SUBSISTENCE COSTS OUTSIDE THE UNITED STATES. TO QUALIFY FOR A SPECIAL PER DIEM, THERE MUST BE A CLEAR SHOWING THAT, BECAUSE OF THE UNUSUAL OR EXTRAORDINARY REQUIREMENT OF THE DUTY INVOLVED, NORMAL FIRST CLASS ACCOMMODATIONS WILL NOT SUFFICE.

PARAGRAPH M4352 THEREOF PROVIDES THAT THE SPECIAL PER DIEM ALLOWANCES MUST BE AUTHORIZED SPECIFICALLY IN EACH CASE. AND, IT PROVIDES THAT SINCE THEY MAY NOT BE PAID FOR A PERIOD PRIOR TO APPROVAL, THEY SHOULD NOT BE REQUESTED FOR TRAVEL ALREADY PERFORMED. SUCH AUTHORIZATIONS MAY BE ISSUED BY THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WITHIN CERTAIN LIMITS SPECIFIED THEREIN.

ON THE BASIS OF AN ADMINISTRATIVE FINDING THAT ALL AIR FORCE MEMBERS INVOLVED IN THE TEMPORARY DUTY DEPLOYMENT (DD 70-119) TO BE PERFORMED ON JOMALIG ISLAND WOULD BE REQUIRED TO BILLET AT THE JOMALIG BAY RESORT AND THE FACT THAT THE COST OF THE ACCOMMODATIONS IN THAT RESORT WAS MORE THAN THE NORMAL PER DIEM RATE FOR THAT AREA, A SPECIAL PER DIEM OF $16 WAS AUTHORIZED FOR THE PERIOD FROM JULY 13 TO SEPTEMBER 30, 1970, BY SPECIAL DETERMINATION NO. 122-70, DATED JULY 9, 1970. THE TERMINATION DATE OF SEPTEMBER 30, 1970, WAS PRESUMABLY BASED ON AN ESTIMATE MADE BY THE DEPLOYMENT UNIT INVOLVED AS TO THE PROBABLE DURATION OF THE TEMPORARY DUTY. HOWEVER, AS THE FILE SHOWS, SEVERAL UNFORESEEN DELAYS WERE EXPERIENCED AND THE TEMPORARY DUTY WAS PROLONGED TO NOVEMBER 20, 1970.

THE FILE SHOWS FURTHER THAT SEVERAL REQUESTS WERE MADE BY THE COMMANDING OFFICER OF THE DEPLOYMENT UNIT FOR AN EXTENSION OF THE SPECIAL PER DIEM PERIOD. HOWEVER, FOR REASONS NOT SHOWN IN THE FILE, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE APPARENTLY DID NOT RECEIVE ANY REQUEST UNTIL DECEMBER 7, 1970, WHEN IT ACKNOWLEDGED RECEIPT OF THE ONE MADE ON NOVEMBER 12, 1970, WHICH IT SAID WAS RECEIVED TOO LATE. IN A SUBSEQUENT STATEMENT, IT WAS STATED THAT IF A REQUEST HAD BEEN TIMELY SUBMITTED, IT WOULD HAVE BEEN APPROVED BY THAT COMMITTEE.

DURING THE ENTIRE PERIOD THAT THE TEMPORARY DUTY WAS ACTUALLY PERFORMED AT JOMALIG ISLAND THE SITUATION REMAINED UNCHANGED INSOFAR AS AVAILABILITY OF BILLETING FACILITIES WAS CONCERNED. ALL THE MEMBERS INVOLVED IN THE TEMPORARY DUTY DEPLOYMENT EXPERIENCED THE SAME CONDITIONS AS THOSE WHICH JUSTIFIED THE ORIGINAL SPECIAL ALLOWANCE WHILE THEY WERE AT THAT LOCATION.

SINCE THE RECORD INDICATES THAT UNSUCCESSFUL ATTEMPTS WERE MADE BEFORE THE EXPIRATION OF SPECIAL DETERMINATION NO. 122-70 TO OBTAIN AN EXTENSION OF THE SPECIAL PER DIEM PERIOD AND SINCE THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE HAS REPORTED THAT IF A REQUEST HAD BEEN TIMELY RECEIVED IT WOULD HAVE BEEN APPROVED, WE ARE NOT REQUIRED TO OBJECT TO PAYMENT OF THE SPECIAL PER DIEM OF $16 TO SERGEANT VANTREESE AND THE OTHER MEMBERS INVOLVED FOR THE ENTIRE PERIOD THAT THEY WERE REQUIRED TO BE BILLETED AT THE JOMALIG BAY RESORT.

YOUR QUESTION IS ANSWERED ACCORDINGLY AND THE VOUCHER WHICH YOU SUBMITTED IS ENCLOSED.