B-174662, MAY 3, 1972

B-174662: May 3, 1972

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ISAKSEN'S TEMPORARY DUTY ASSIGNMENT IT WOULD APPEAR THAT A CHANGE OF STATION SHOULD HAVE BEEN EFFECTED OR THAT THE PER DIEM ALLOWANCE SHOULD HAVE BEEN REDUCED. IT IS WELL ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED AT THE TIME THE TRAVEL IS PERFORMED. 47 COMP. ALTHOUGH IT IS RECOMMENDED THAT IN THE FUTURE SIMILAR SITUATIONS SHOULD BE GIVEN MORE CAREFUL CONSIDERATION. DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 30. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE PER DIEM. ISAKSEN WAS ON A TEMPORARY DUTY ASSIGNMENT AT LEXINGTON. THE FACT THAT DURING SUCH TIME HE WAS PAID PER DIEM IN LIEU OF SUBSISTENCE NOTWITHSTANDING HIS FAMILY RESIDED AT THE TEMPORARY DUTY STATION.

B-174662, MAY 3, 1972

DIGEST: CIVILIAN EMPLOYEE - TEMPORARY DUTY - PER DIEM AND TRAVEL ALLOWANCES PROPRIETY OF PAYMENT CONCERNING THE PROPRIETY OF PAYMENT TO OLAF L. ISAKSEN FOR TRAVEL EXPENSES AND PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY FROM JANUARY 1969 THROUGH MAY 19, 1971. IN VIEW OF THE DURATION OF MR. ISAKSEN'S TEMPORARY DUTY ASSIGNMENT IT WOULD APPEAR THAT A CHANGE OF STATION SHOULD HAVE BEEN EFFECTED OR THAT THE PER DIEM ALLOWANCE SHOULD HAVE BEEN REDUCED. HOWEVER, IT IS WELL ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED AT THE TIME THE TRAVEL IS PERFORMED. 47 COMP. GEN. 127 (1967). ACCORDINGLY, PAYMENT TO MR. ISAKSEN MAY NOT BE DISTURBED, ALTHOUGH IT IS RECOMMENDED THAT IN THE FUTURE SIMILAR SITUATIONS SHOULD BE GIVEN MORE CAREFUL CONSIDERATION.

SIDNEY RUBIN, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1971, REFERENCE SELFA FA- AZZ, ENCLOSING A VOUCHER IN FAVOR OF MR. OLAF L. ISAKSEN IN THE AMOUNT OF $821.85 FOR TRAVEL EXPENSES AND PER DIEM DURING THE PERIOD APRIL 7 THROUGH MAY 19, 1971, AND REQUESTING OUR ADVANCE DECISION AS TO THE PROPRIETY OF PAYING SUCH VOUCHER. YOU ALSO REQUEST A DECISION WHETHER ANY COLLECTION ACTION SHOULD BE TAKEN AGAINST MR. ISAKSEN FOR PER DIEM PAYMENTS MADE DURING THE PERIOD JANUARY 1969 THROUGH APRIL 6, 1971, IN VIEW OF THE CIRCUMSTANCES HEREINAFTER RELATED. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, PDTATAC CONTROL NO. 71-55, BY 2ND INDORSEMENT DATED DECEMBER 1, 1971.

THE REQUEST FOR THE DECISION ARISES IN VIEW OF THE PROLONGED PERIOD MR. ISAKSEN WAS ON A TEMPORARY DUTY ASSIGNMENT AT LEXINGTON, KENTUCKY, AND THE FACT THAT DURING SUCH TIME HE WAS PAID PER DIEM IN LIEU OF SUBSISTENCE NOTWITHSTANDING HIS FAMILY RESIDED AT THE TEMPORARY DUTY STATION.

INFORMATION OF RECORD FURNISHED WITH YOUR REQUEST SHOWS THAT MR. ISAKSEN IS EMPLOYED BY THE DEPARTMENT OF THE ARMY AS A TECHNICAL WRITER AND EDITOR, ELECTRONICS, GS-12, WITH THE MAINTENANCE FACILITIES BRANCH OF THE MAINTENANCE ENGINEERING DIVISION, USECOM. HIS PERMANENT DUTY STATION IS DESIGNATED AS FORT MONMOUTH, NEW JERSEY. IT APPEARS THAT MR. ISAKSEN'S FIRST TDY ASSIGNMENTS TO LEXINGTON COMMENCED IN THE FALL OF 1967. THESE FIRST ASSIGNMENTS WERE FROM 2 TO 3 WEEKS DURATION. IT APPEARS THAT THE SUBSEQUENT INCREASE OF PROJECTS AT LEXINGTON NECESSITATED MORE EXTENDED TOURS OF TDY AND THAT ALTHOUGH ADMINISTRATIVE CONSIDERATION WAS GIVEN TO HAVING A TECHNICAL WRITER ASSIGNED TO LEXINGTON ON A PERMANENT BASIS, THE DECISION WAS MADE NOT TO DO SO BECAUSE OF THE UNSTABLE NATURE OF THE WORKLOAD. DURING THE PERIOD OCTOBER 1967 THROUGH JANUARY 1969, MR. ISAKSEN'S FAMILY RESIDED ALTERNATIVELY BETWEEN LEXINGTON, KENTUCKY, AND HIS RESIDENCE IN THE VICINITY OF FORT MONMOUTH, NEW JERSEY. THE RESIDENCE IN FORT MONMOUTH WAS SOLD IN JANUARY 1969. PART OF THE FURNITURE WAS STORED AND SOME SHIPPED TO LEXINGTON AT THE EMPLOYEE'S EXPENSE. ALTHOUGH MR. ISAKSEN'S SUPERVISORS KNEW THAT HIS FAMILY RESIDED IN LEXINGTON, THEY WERE NOT AWARE THAT THE RESIDENCE AT FORT MONMOUTH HAD BEEN SOLD. DURING PERIODS MR. ISAKSEN WAS ON DUTY AT FORT MONMOUTH, SUBSEQUENT TO THE SALE OF HIS RESIDENCE, THE FAMILY RESIDED WITH RELATIVES IN THAT AREA. THE RECORD INDICATES THAT BETWEEN OCTOBER 1, 1967, AND MARCH 26, 1971, MR. ISAKSEN WAS ON TEMPORARY DUTY AT LEXINGTON 1,015 DAYS OUT OF THE 1,271 DAYS IN THAT PERIOD. HIS PER DIEM RATE WAS $16 UNTIL NOVEMBER 13, 1969, THIS BEING THE MAXIMUM RATE AT THAT TIME. PUBLIC LAW 91-114, APPROVED NOVEMBER 10, 1969, 83 STAT. 190, INCREASED THE MAXIMUM PER DIEM ALLOWANCE FROM $16 TO $25. MR. ISAKSEN'S PER DIEM WAS THEN ESTABLISHED AT $18, IT HAVING BEEN ADMINISTRATIVELY DETERMINED THAT SUCH RATE WAS A FAIR RATE IN VIEW OF THE EMPLOYEE'S REPORTED EXPENSES. SUCH REPORTED EXPENSES WERE ADMINISTRATIVELY CONSIDERED TO HAVE BEEN OVER AND ABOVE THOSE THE EMPLOYEE WOULD HAVE INCURRED HAD HE NOT BEEN ON THE TEMPORARY DUTY ASSIGNMENT.

THE GOVERNING PROVISION OF LAW IS CODIFIED AT 5 U.S.C. 5702 AND PROVIDES IN PERTINENT PART:

"(A) AN EMPLOYEE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, IS ENTITLED TO A PER DIEM ALLOWANCE PRESCRIBED BY THE AGENCY CONCERNED. ***"

SECTION 6.2(D) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND PARAGRAPH C 8051-2D, VOLUME 2, JOINT TRAVEL REGULATIONS (JTR), PROVIDE THAT IN ANY CASE WHERE THE EMPLOYEE'S TOUR OF DUTY WILL EXCEED 2 MONTHS STAY AT A TEMPORARY DUTY STATION CONSIDERATION SHOULD BE GIVEN TO EITHER A CHANGE IN OFFICIAL STATION OR A REDUCTION IN THE PER DIEM ALLOWANCE. THE RECORD INDICATES THAT CONSIDERATION WAS GIVEN TO A CHANGE OF STATION BUT REJECTED. ALSO, THAT THE RATE OF PER DIEM WAS REVIEWED FROM TIME TO TIME. IN RETROSPECT IT WOULD APPEAR THAT A CHANGE OF STATION SHOULD HAVE BEEN EFFECTED AND, IF NOT, THAT THE PER DIEM ALLOWANCE SHOULD HAVE BEEN REDUCED AT LEAST FOR THE PERIOD SUBSEQUENT TO THE SALE OF THE RESIDENCE AT FORT MONMOUTH ON THE BASIS THAT THE EMPLOYEE'S EXPENSE WAS THEREBY REDUCED. HOWEVER, THE RULE IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944); 47 ID. 127 (1967).

UNDER THE CIRCUMSTANCES RELATED, WE DO NOT VIEW THE ADMINISTRATIVE DETERMINATION THAT THE ASSIGNMENT WAS "TEMPORARY" AND NOT "PERMANENT" IN NATURE SO CLEARLY ERRONEOUS AS TO REQUIRE A CONTRARY VIEW BY OUR OFFICE. WITH RESPECT TO THE PER DIEM, WE BELIEVE THERE SHOULD HAVE BEEN A MORE THOROUGH ADMINISTRATIVE REVIEW OF THE RATES SET IN THIS CASE AND THAT IN THE FUTURE SIMILAR SITUATIONS SHOULD BE GIVEN CAREFUL SCRUTINY TO BE CERTAIN THE PER DIEM RATES TO BE AUTHORIZED ARE NOT EXCESSIVE. HOWEVER, SINCE THE RATES PRESCRIBED WERE AS ADMINISTRATIVELY INTENDED, ACTION TO REDUCE THEM RETROACTIVELY MAY NOT BE TAKEN IN VIEW OF THE ABOVE-CITED RULE.

INSOFAR AS THE PERFORMANCE OF TEMPORARY DUTY AT THE PLACE HIS FAMILY RESIDED IS CONCERNED, PARAGRAPH C 8050-5, VOLUME 2, JTR, PROVIDES:

"*** AN EMPLOYEE, WHO PERFORMS TEMPORARY DUTY AT THE PLACE OF HIS FAMILY DOMICILE WHICH IS OTHER THAN THE PLACE FROM WHICH HE COMMUTES TO WORK EACH DAY WHEN ON DUTY AT HIS PERMANENT DUTY STATION, MAY BE AUTHORIZED PAYMENT OF PER DIEM EVEN THOUGH MEALS AND LODGINGS ARE TAKEN AT SUCH DOMICILE. AUTHORITY WILL BE FOR ONLY SUCH PER DIEM AS IS JUSTIFIED BY THE CIRCUMSTANCES AND WILL NOT EXCEED THE AMOUNT REQUIRED TO MEET NECESSARY ALLOWABLE EXPENSES. THE TRAVEL APPROVING OFFICIAL WILL BE RESPONSIBLE FOR DETERMINING AN APPROPRIATE REDUCTION. (35 COMP. GEN. 554)."

PURSUANT TO THE FOREGOING THE FACT THAT THE FAMILY RESIDED AT THE PLACE OF TEMPORARY DUTY DOES NOT PRECLUDE PAYMENT OF PER DIEM.

IN LINE WITH THE ABOVE YOU ARE ADVISED THAT THE SUBMITTED VOUCHER MAY BE PAID IF OTHERWISE CORRECT, AND THAT NO ACTION NEED BE TAKEN TOWARD RETROACTIVE ADJUSTMENT OF THE PER DIEM PREVIOUSLY PAID.

THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED.