B-173927(1), OCT 27, 1971

B-173927(1): Oct 27, 1971

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SINCE APPENDIX C OF THE JOINT TRAVEL REGULATIONS IS ONLY A REPRINT OF THE STANDARDIZED REGULATIONS. THE DATE OF ANY JTR CHANGE REPORTING THE NEW PER DIEM RATE IS IMMATERIAL ON THE ISSUE OF ENTITLEMENT AT THE OLD RATE. THERE IS NO BASIS UPON WHICH THE CLAIM MAY BE GRANTED. PERTMAN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13. THE CLAIM WAS ORIGINALLY DENIED BY OUR CLAIMS DIVISION ON JULY 29. YOUR TRAVEL ORDER RECITED THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS (JTR). IT IS THE STATE DEPARTMENT REGULATIONS THAT CONTROL RATES OF PER DIEM PAYABLE TO CIVILIAN EMPLOYEES TRAVELING IN FOREIGN AREAS ON GOVERNMENT BUSINESS. THIS IS EXPLAINED IN JTR. WHICH PROVIDE IN SUBSTANCE THAT THE PER DIEM RATES SHOWN IN APPENDIX C ARE "REPRINTED" FROM APPROPRIATE DEPARTMENT OF STATE DOCUMENTS.

B-173927(1), OCT 27, 1971

CIVILIAN EMPLOYEE - PER DIEM - CHANGE OF RATE DENIAL OF REQUEST FOR RECONSIDERATION OF A CLAIM FOR ADDITIONAL PER DIEM IN CONNECTION WITH TEMPORARY DUTY PERFORMED IN SAIGON, SOUTH VIETNAM. THE STANDARDIZED REGULATIONS ISSUED BY THE DEPARTMENT OF STATE CONTROL RATES OF PER DIEM PAYABLE TO CIVILIAN EMPLOYEES TRAVELING IN FOREIGN AREAS ON GOVERNMENT BUSINESS. SINCE APPENDIX C OF THE JOINT TRAVEL REGULATIONS IS ONLY A REPRINT OF THE STANDARDIZED REGULATIONS, THE DATE OF ANY JTR CHANGE REPORTING THE NEW PER DIEM RATE IS IMMATERIAL ON THE ISSUE OF ENTITLEMENT AT THE OLD RATE. THEREFORE, THERE IS NO BASIS UPON WHICH THE CLAIM MAY BE GRANTED.

TO MR. ALLAN E. PERTMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1971, WITH ENCLOSURES, IN WHICH YOU REQUEST RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM IN CONNECTION WITH TEMPORARY DUTY YOU PERFORMED IN SAIGON, SOUTH VIETNAM, DURING NOVEMBER AND DECEMBER 1970. THE CLAIM WAS ORIGINALLY DENIED BY OUR CLAIMS DIVISION ON JULY 29, 1971.

IN SUMMARY, THE RECORD INDICATES THAT AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY AND PURSUANT TO TRAVEL ORDER NO. T-1808-71, ISSUED NOVEMBER 16, 1970, YOU PERFORMED TEMPORARY DUTY IN SAIGON FROM NOVEMBER 23, 1970, THROUGH DECEMBER 25, 1970. YOUR TRAVEL ORDER RECITED THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS (JTR).

VOLUME 2 OF JTR APPLIES TO CIVILIAN EMPLOYEES IN ALL BRANCHES AND SUBDIVISIONS OF THE DEPARTMENT OF DEFENSE. IT IMPLEMENTS THOSE STATUTORY PROVISIONS IN TITLE 5 OF THE U.S.C. (AND CERTAIN OTHER STATUTES) WHICH PERTAIN TO PER DIEM, TRAVEL, OR TRANSPORTATION ALLOWANCES AND FURTHER IMPLEMENTS VARIOUS STATUTORY REGULATIONS AND EXECUTIVE REGULATIONS ISSUED THEREUNDER. IN ADDITION, JTR INCORPORATES AND REPORTS PROVISIONS BASED ON BOTH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (CIRCULAR NO. A-7) ISSUED BY THE OFFICE OF MANAGEMENT AND BUDGET AND THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) ISSUED BY THE DEPARTMENT OF STATE.

IT IS THE STATE DEPARTMENT REGULATIONS THAT CONTROL RATES OF PER DIEM PAYABLE TO CIVILIAN EMPLOYEES TRAVELING IN FOREIGN AREAS ON GOVERNMENT BUSINESS. THIS IS EXPLAINED IN JTR, VOLUME 2, APPENDIX C, PART I, PARAGRAPHS 2 AND 3, WHICH PROVIDE IN SUBSTANCE THAT THE PER DIEM RATES SHOWN IN APPENDIX C ARE "REPRINTED" FROM APPROPRIATE DEPARTMENT OF STATE DOCUMENTS. SEE ALSO PARAGRAPH C1001 OF JTR, VOLUME 2, AND SECTION 6.2B(3) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE DOCUMENTS REFERRED TO ARE THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). BY DEPARTMENT OF STATE TRANSMITTAL LETTER TL:SR-203 DATED NOVEMBER 1, 1970, THE PER DIEM RATE FOR SAIGON, VIETNAM, WAS CHANGED FROM $26 TO $16, EFFECTIVE NOVEMBER 1, 1970. THIS CHANGE WAS CIRCULARIZED AND ANNOUNCED TO DEPARTMENT OF DEFENSE AGENCIES AND SUBDIVISIONS BY A MEMORANDUM DATED NOVEMBER 5, 1970, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE WHICH COMPLIES MATERIAL FOR INCLUSION WITH JTR.

SINCE APPENDIX C OF JTR IS ONLY A REPRINT OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), THE DATE OF ANY JTR CHANGE REPORTING THE NEW RATE ($16) IS IMMATERIAL ON THE ISSUE OF ENTITLEMENT AT THE OLD ($26) RATE. FURTHERMORE, SINCE ENTITLEMENT RESTS UPON THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), RATHER THAN JTR, THERE IS NO QUESTION BUT THAT THE NEW RATE OPERATES PROSPECTIVELY FROM NOVEMBER 1, 1970, RATHER THAN RETROACTIVELY AS YOU ALLEGE. THE REGULATIONS OF THE DEPARTMENT OF STATE ARE STATUTORY IN NATURE AND EMPLOYEES ARE REGARDED AS ON CONSTRUCTIVE NOTICE OF THE EFFECTIVE DATE THEREOF REGARDLESS OF WHEN THEY RECEIVE ACTUAL NOTICE OF ANY CHANGES IN SUCH REGULATIONS.

WHILE THE APPARENT DELAY IN YOUR RECEIVING INFORMATION OF THE REDUCED RATE IS UNFORTUNATE, IT DOES NOT AFFORD OUR OFFICE ANY BASIS ON WHICH TO WAIVE THE APPLICATION OF PER DIEM RATES DULY PRESCRIBED BY CORRECTLY PROMULGATED REGULATIONS; NOR DOES IT CONSTITUTE A BASIS FOR ASSERTING THE LIABILITY OF THE UNITED STATES ON ACCOUNT OF THE ERRONEOUS ADVICE OF RESPONSIBLE OFFICIALS.

IN VIEW OF THE FOREGOING DISCUSSION WE CONCLUDE THAT YOU WERE PROPERLY PAID PER DIEM AT THE RATE OF $16. ACCORDINGLY, THE DENIAL OF YOUR CLAIM IS HEREBY SUSTAINED.