B-175008, AUG 24, 1972

B-175008, AUG 24, 1972

MILITARY PERSONNEL - PER DIEM - DOCUMENTATION DECISION DENYING THE CLAIM OF LIEUTENANT COMMANDER RAY C. CLARK, FOR REIMBURSEMENT OF THE SUM OF $1,445, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT ALLEGED TO HAVE BEEN PAID FOR THE PROCUREMENT OF NON GOVERNMENT QUARTERS AND MESS (CONTRACTOR-FURNISHED) IN VIETNAM AND THE AMOUNT PAID BY THE NAVY. PAYMENT OF ANY AMOUNT OVER THAT ALREADY PAID UNDER THE PROVISIONS OF PARAGRAPH M4256-6, JTR, MAY BE MADE ONLY UPON THE SUBMISSION OF ACCEPTABLE EVIDENCE WHICH WILL ESTABLISH THAT CLAIMANT DID IN FACT PAY MORE THAN THE $347.50 INDICATED ON THE CONTRACTOR'S RECEIPTS. FURTHER, PAYMENT OF PER DIEM MAY NOT BE MADE FOR THE PERIOD NOVEMBER 20, 1968, TO JANUARY 1, 1969, BECAUSE CLAIMANT HAS FAILED TO PRODUCE ANY RECEIPTS OR CORROBORATING EVIDENCE TO SUPPORT THE CLAIM.

TO LIEUTENANT COMMANDER RAY C. CLARK:

WE AGAIN REFER TO YOUR LETTER DATED DECEMBER 16, 1971, APPEALING THE SETTLEMENT DATED DECEMBER 7, 1971, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE SUM OF $1,445, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT ALLEGED TO HAVE BEEN PAID FOR THE PROCUREMENT OF NON GOVERNMENT QUARTERS AND MESS (CONTRACTOR-FURNISHED) IN VIETNAM DURING THE PERIOD JANUARY 8 TO OCTOBER 3, 1969, AND THE AMOUNT PAID TO YOU BY THE NAVY. ALSO REFER TO YOUR CLAIM VOUCHER DATED JANUARY 11, 1972, WHICH WAS FORWARDED HERE BY THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., ON FEBRUARY 24, 1972, AND WHICH COVERS A SIMILAR CLAIM FOR THE PERIOD NOVEMBER 20, 1968, TO JANUARY 1, 1969.

BY TRAVEL ORDERS DATED JANUARY 1, 1969, AND JULY 1, 1969, RESPECTIVELY, YOU WERE DIRECTED TO PROCEED FROM YOUR DUTY STATION IN VIETNAM AND REPORT TO ANY SUBORDINATE OFFICER IN CHARGE OF CONSTRUCTION, REPUBLIC OF VIETNAM, OR TO SUCH OTHER PLACE OR PLACES WITHIN THE REPUBLIC OF VIETNAM AS DEEMED NECESSARY ON TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH CERTAIN SPECIFIED CONSTRUCTION MATTERS. THOSE ORDERS WERE VALID UNTIL JUNE 30, 1969, AND DECEMBER 31, 1969, RESPECTIVELY AND PROVIDED, AMONG OTHER THINGS, THAT REIMBURSEMENT WOULD BE ON A PER DIEM BASIS IN ACCORDANCE WITH CHAPTER 4, SECTIONS E AND F JOINT TRAVEL REGULATIONS, AS APPLICABLE. PURSUANT TO THOSE ORDERS YOU TRAVELED TO VARIOUS POINTS IN VIETNAM AND PERFORMED ADDITIONAL TEMPORARY DUTY. IT IS SHOWN THAT DURING A SUBSTANTIAL PART OF THE PERIOD JANUARY 8 TO OCTOBER 3, 1969, YOU WERE AT TAN MY WHERE NO GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE, BUT ONLY CONTRACTOR-OPERATED FACILITIES WHICH WERE UTILIZED BY YOU. AFTER COMPLETION OF THAT TRAVEL AND TEMPORARY DUTY YOU PRESENTED A CLAIM ON NOVEMBER 14, 1969, FOR THE ALLOWABLE PER DIEM.

THE U.S. NAVY REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA, DETERMINED THAT IN THE ABSENCE OF APPROPRIATE RECEIPTS COVERING PAYMENTS FOR QUARTERS AND MEALS FURNISHED TO YOU BY A PRIVATE CONTRACTOR YOU WERE ENTITLED TO PER DIEM IN THE AMOUNT OF $419.96 BASED ON THE RATES PRESCRIBED BY GOVERNING REGULATION. THIS AMOUNT WAS PAID TO YOU ON DECEMBER 2, 1969, BY CHECK. THEREAFTER YOU OBTAINED COPIES OF CONTRACTOR'S STANDARD RECEIPTS COVERING MONTHLY PAYMENTS EITHER BY MILITARY PAYMENT CERTIFICATES OR CHECK FOR THE QUARTERS AND MESS UTILIZED BY YOU DURING THE PERIOD JANUARY THROUGH SEPTEMBER 1969, WHILE AT TAN MY AND MORE FULLY DESCRIBED BELOW.

NUMBER OF DAYS

DATE OF QUARTERS AND

RECEIPT PERIOD COVERED MEALS (3) FURNISHED AMOUNT PAID

3/15/69 JANUARY AND

FEBRUARY 2 MONTHS $ 75.00

4/30/69 MARCH AND APRIL *SEE NOTE BELOW 79.00

6/17/69 MAY 1928.50

7/69 JUNE 27 40.50

8/6/69 JULY 29 43.50

9/26/69 AUGUST 30 45.00

9/26/69 SEPTEMBER 24 36.00

TOTAL AMOUNT $347.50

*MARCH - 15 BREAKFASTS, 27 LUNCHES, AND 29 DINNERS AND QUARTERS

APRIL - 29 BREAKFASTS, LUNCHES, DINNERS AND QUARTERS

ON THE BASIS OF THE ABOVE RECEIPTS AND AFTER REVIEWING YOUR ORIGINAL CLAIM, THE U.S. NAVY REGIONAL FINANCE CENTER, NORFOLK, MADE AN ADDITIONAL PAYMENT TO YOU ON JANUARY 21, 1970, BY A CHECK FOR $359 ($347.50, THE AMOUNT SHOWN BY THE RECEIPTS, PLUS $11.50 PER DIEM DETERMINED TO BE DUE FOR JANUARY 14 AND 15, 1969).

YOU PRESENTED A SUPPLEMENTAL CLAIM VOUCHER FOR $1,445 ON JULY 28, 1971, AND YOU EXPLAINED IN THAT VOUCHER, IN PERTINENT PART, AS FOLLOWS:

"AT TAN MY, WHERE CONTRACTOR FACILITIES WERE UTILIZED, UNIT MEAL AND LODGING CHARGES WERE INCURRED BY ME. MEAL COSTS WERE PAID IN CASH DIRECTLY TO AN INDIGENOUS CASHIER IN ACCORDANCE WITH ESTABLISHED AND PUBLISHED COMPANY RATES. LODGING CHARGES NORMALLY WERE PAID MONTHLY IN CASH. THE RECEIPT COPIES ACCOMPANYING MY SUPPLEMENTAL CLAIM, DATED 1/21/70 WERE PROVIDED TO ME BY THE CONTRACTOR AFTER THE FACT AT MY REQUEST. THEY WERE INCOMPLETE AND INCONSISTENT WITH ONE ANOTHER AND THE PUBLISHED RATE. RECORD KEEPING IN A REMOTE CONTRACTOR AREA SUCH AS TAN MY, WERE LAXED DUE TO ENVIRONMENTAL FACTORS. ANY ATTEMPT TO RECONSTRUCT TOTAL RECORDS AFTER THE FACT WOULD RESULT IN INCOMPLETENESS AND INACCURACIES. ORIGINAL RECORDS WERE LOST IN AN ENEMY ATTACK IN WHICH MY PERSONAL EFFECTS WERE DESTROYED AND I RECEIVED PERSONAL INJURIES FOR WHICH I WAS AWARDED THE PURPLE HEART MEDAL."

IN SUPPORT OF YOUR CLAIM YOU SUBMITTED THE CONTRACTOR'S SCHEDULE OF CHARGES, DATED OCTOBER 15, 1969. THE CHARGE FOR BASIC MEALS AND QUARTERS IS SHOWN THEREIN AS FOLLOWS:

"BREAKFAST $1.00 LUNCH

1.50 DINNER 2.00 QUARTERS

3.00"

IN VIEW OF THE SCHEDULED AGGREGATE DAILY RATE FOR QUARTERS AND MEALS, YOU BASED YOUR CLAIM FOR $1,445 ON THE FOLLOWING:

239 DAYS AT TAN MY AT $7.50 $1,792.50

LESS AMOUNT PREVIOUSLY PAID 347.50

$1,445.00

IN FURTHER SUPPORT OF YOUR CLAIM YOU SUBMITTED A STATEMENT FROM YOUR IMMEDIATE SUPERIOR OFFICER WHO SERVED AS THE U.S. NAVY DIRECTOR OF CONSTRUCTION, NORTH, REPUBLIC OF VIETNAM, DURING THE PERIOD NOVEMBER 21, 1968, TO NOVEMBER 21, 1969. HE STATED THAT IN HIS OPINION IT IS PROBABLE THAT YOUR OUT-OF-POCKET EXPENSES EXCEEDED THE AMOUNT YOU WERE REIMBURSED BY THE NAVY SINCE THE COST OF THREE MEALS AT A CONTRACTOR'S CAMP GENERALLY EXCEEDED THE DAILY REIMBURSEMENT RATE ALLOWED UNDER TRAVEL ORDERS.

THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., FORWARDED YOUR SUPPLEMENTAL CLAIM TO OUR CLAIMS DIVISION AND BY SETTLEMENT DATED DECEMBER 7, 1971, IT WAS DISALLOWED BECAUSE OF THE LACK OF RECEIPTS, CANCELLED CHECKS, OR OTHER ACCEPTABLE EVIDENCE TO ESTABLISH THAT YOUR EXPENDITURES EXCEEDED $347.50.

IN YOUR LETTER OF DECEMBER 16, 1971, YOU SAY THAT YOU DISAGREE WITH THE SETTLEMENT BECAUSE OF THE EXTENUATING CIRCUMSTANCES INVOLVED IN YOUR CLAIM. IN THIS REGARD, YOU MENTION THAT THE RECEIPTS WERE OBTAINED FROM SPARSE CAMP RECORDS, AFTER THE FACT, WERE PREPARED BY A KOREAN NATIONALIST AND AN AMERICAN CAMP MANAGER, AND FAIL TO SUPPORT THE ACTUAL COSTS FOR LODGING AND MEALS, PARTICULARLY, SINCE THEY INDICATE AN AVERAGE OF $0.50 PER MEAL, WHEREAS THE ESTABLISHED PER DIEM RATE FOR THE AREA WAS $16 PER DAY, AND SINCE THE CONTRACTOR'S RATE SCHEDULE SHOWS THE BASIC CHARGE FOR MEALS AND QUARTERS AS $7.50 PER DAY. YOU ALSO SAY THAT WHILE PARAGRAPH M4256-6 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES REIMBURSEMENT FOR THE ACTUAL CHARGES THERE ARE NO PROVISIONS IN EITHER THE JOINT TRAVEL REGULATIONS OR THE NAVY TRAVEL INSTRUCTIONS WHICH REQUIRE THE TRAVELER TO SUPPORT THE PAYMENT OF THE INVOLVED EXPENSES WITH RECEIPTS. YOU POINT OUT, TOO, THAT ACCORDING TO FOOTNOTE (3) (FOOTNOTE 4) OF THE TABLE SHOWN IN PARAGRAPH M4256-6 "THE STATEMENT OF THE MEMBER AS TO THE NON-GOVERNMENT MEALS AND/OR QUARTERS UTILIZED WILL SUPPORT PAYMENT."

UNDER THE PERTINENT STATUTE, 37 U.S.C. 405, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES CONSIDERING ALL ELEMENTS OF THE COST OF LIVING. RULE 2 OF "TABLE OF TEMPORARY DUTY UNDER CONDITIONS WHEN NON- GOVERNMENT FACILITIES ARE FURNISHED" UNDER PARAGRAPH M4256-6, JOINT TRAVEL REGULATIONS (CHANGE 192, DATED JANUARY 1, 1969), PROVIDED THAT WHEN MEALS AND/OR QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE FROM NON-GOVERNMENT SOURCES (LISTING, AMONG OTHER SOURCES, UNITED STATES GOVERNMENT CONTRACTORS), THE MEMBER WILL BE ENTITLED TO PER DIEM IN THE AMOUNT OF 8 PERCENT OF THE LOCAL TRAVEL PER DIEM RATE OR $1, WHICHEVER IS THE GREATER, WHEN BOTH MEALS AND QUARTERS ARE FURNISHED PLUS THE ACTUAL CHARGES FOR THE MEALS AND/OR QUARTERS SO FURNISHED.

IN ACCORDANCE WITH THE ABOVE REGULATION THE NAVY INITIALLY PAID YOU PER DIEM AT THE RATE OF $1.28 (8 PERCENT OF THE DAILY RATE OF $16 APPLICABLE FOR THE PARTICULAR VIETNAM ASSIGNMENT AREA) OR $304.64 FOR THE 239 DAYS YOU WERE AT TAN MY AND AN ADDITIONAL $347.50 ON THE BASIS OF THE RECEIPTS YOU LATER SUBMITTED TO SUBSTANTIATE THE ACTUAL CHARGES FOR QUARTERS AND MEALS FURNISHED BY THE CONTRACTOR.

THE CONTRACTOR'S SCHEDULE OF RATES SUBMITTED BY YOU IS DATED OCTOBER 15, 1969, A DATE SUBSEQUENT TO THE PERIOD YOU WERE QUARTERED AND SUBSISTED BY THE CONTRACTOR AT TAN MY. EVEN IF IT BORE AN EARLIER DATE SO AS TO BE EFFECTIVE DURING THE PERIOD YOU WERE AT THAT PLACE, SUCH SCHEDULE WOULD NOT BE ACCEPTABLE AS EVIDENCE OF THE FACT THAT YOU ACTUALLY PAID THE PRESCRIBED RATES FOR THE QUARTERS AND MESS. THE BEST EVIDENCE IS THE ORIGINAL RECEIPTS GIVEN AT THE TIME OF PAYMENT OR IN LIEU THEREOF COPIES FURNISHED BY THE CONTRACTOR. IF PAYMENTS WERE MADE BY CHECKS, THE PAID CHECKS OR COPIES THEREOF WOULD BE RECOGNIZED IN THE EVENT RECEIPTS OR COPIES THEREOF ARE NOT AVAILABLE.

FOOTNOTE 4 OF THE TABLE SHOWN IN PARAGRAPH M4256-6, JOINT TRAVEL REGULATIONS, MENTIONED IN YOUR LETTER OF DECEMBER 16, 1971, REFERS TO RULE 2 IN THAT TABLE AND READS AS FOLLOWS:

"WHEN LESS THAN 3 MEALS DAILY ARE FURNISHED, THIS PER DIEM WILL BE INCREASED BY 14% OF THE LOCAL TRAVEL PER DIEM RATE FOR EACH MEAL NOT FURNISHED FROM THE GOVERNMENT OR NON-GOVERNMENT SOURCE INVOLVED. THE STATEMENT OF THE MEMBER AS TO THE NON-GOVERNMENT MEALS AND OR QUARTERS UTILIZED WILL SUPPORT PAYMENT EXCEPT THAT, WHEN A FLAT DAILY CHARGE COVERING 3 MEALS IS ASSESSED WHETHER OR NOT MEALS ARE UTILIZED, PAYMENT OF THE ADDITIONAL 14% OF THE LOCAL TRAVEL PER DIEM RATE FOR EACH SUCH MEAL NOT UTILIZED WILL NOT BE ALLOWED UNLESS THE MEMBER'S STATEMENT INDICATES THAT THE NATURE OF THE DUTY PREVENTED UTILIZATION OF SUCH MEAL AND THUS REQUIRED HIM TO PROCURE A MEAL FROM A COMMERCIAL SOURCE."

UNDER THAT PROVISION OF THE REGULATIONS A MEMBER IS ENTITLED TO A RATE INCREASE OF 14 PERCENT OF THE LOCAL TRAVEL PER DIEM RATE OVER AND ABOVE THE PRESCRIBED PERCENTAGE RATE FOR EACH MEAL NOT FURNISHED BY THE GOVERNMENT OR NON-GOVERNMENT SOURCE AND HIS STATEMENT WITH REGARD TO THE MEALS AND QUARTERS FURNISHED BY A NON-GOVERNMENT SOURCE WILL BE ACCEPTED TO SUPPORT PAYMENT. IN OTHER WORDS, UNDER THAT PROVISION THE MEMBER'S STATEMENT WILL BE ACCEPTED AS TO MEALS AND QUARTERS FURNISHED FROM A NON- GOVERNMENT SOURCE, BUT, CONTRARY TO YOUR CONTENTION, IT DOES NOT DISPENSE WITH THE REQUIREMENT THAT THE MEMBER MUST SUPPORT HIS CLAIM WITH RECEIPTS OR OTHER DOCUMENTATION TO ESTABLISH THE AMOUNT PAID BY HIM FOR THE UTILIZATION OF NON-GOVERNMENT MESS AND QUARTERS.

WE HAVE EXAMINED THE CONTRACTOR'S COPIES OF THE 7 RECEIPTS AND FOUND NO DISPARITIES OR DISCREPANCIES ON THE FACE THEREOF TO SERVE AS A BASIS FOR QUESTIONING THEIR VALIDITY AND ACCURACY. AN IMPRINT ON THE RECEIPTS SHOWS THAT THE DISTRIBUTION WAS TO BE AS FOLLOWS:

"ORIGINAL - PAYEE

DUPLICATE - CHIEF ACCOUNTANT MAIN OFFICE

TRIPLICATE - CAMP MANAGER'S FILES"

THEREFORE THE CONTRACTOR APPARENTLY RETAINED DUPLICATES AND TRIPLICATES OF THE RECEIPTS AND WAS IN A POSITION TO FURNISH YOU AUTHENTIC COPIES OF THE ORIGINAL RECEIPTS UPON YOUR REQUEST. ALSO, THE RATE FOR THE QUARTERS AND MESS AS SHOWN IN THE RECEIPTS APPEARS TO BE UNIFORM - $1.50 PER DAY FOR ALMOST ALL OF THE 245 DAYS YOU WERE AT TAN MY.

PAYMENT OF ANY AMOUNT OVER AND ABOVE $347.50, THE AGGREGATE AMOUNT SHOWN IN THE 7 INVOLVED RECEIPTS, MAY BE MADE TO YOU ONLY UPON THE SUBMISSION OF ACCEPTABLE EVIDENCE WHICH WILL ESTABLISH THAT YOU DID IN FACT PAY THE CONTRACTOR MORE THAN $347.50 FOR QUARTERS AND MESS DURING THE PERIOD COVERED BY THE RECEIPTS.

ACCORDINGLY, ON THE PRESENT RECORD THE SETTLEMENT OF DECEMBER 7, 1971, IS SUSTAINED.

CONCERNING YOUR CLAIM FOR THE PERIOD NOVEMBER 20, 1968, TO JANUARY 1, 1969, AT LONG BINH, VIETNAM, THE PAID VOUCHER SHOWS THAT YOU WERE PAID THE AMOUNT OF $69.20, FOR THE ENTIRE PERIOD OF TEMPORARY DUTY UNDER ORDERS OF OCTOBER 29, 1968, I.E., NOVEMBER 6, 1968, TO JANUARY 1, 1969. THAT AMOUNT APPARENTLY WAS PAID IN THE ABSENCE OF RECEIPTS COVERING PAYMENTS FOR QUARTERS AND MESS FURNISHED BY A PRIVATE CONTRACTOR AT LONG BINH. YOU HAVE SHOWN ON THE CLAIM VOUCHER THE SAME RATES FOR THE NON-GOVERNMENT QUARTERS AND MESS ($7.50 PER DAY) FURNISHED BY THE CONTRACTOR, BUT YOU HAVE FAILED TO SUBMIT RECEIPTS OR OTHER COMPETENT EVIDENCE SHOWING THE AMOUNTS ACTUALLY PAID BY YOU TO THE CONTRACTOR.

IT IS A WELL ESTABLISHED RULE THAT CLAIMS AGAINST THE UNITED STATES CANNOT BE ALLOWED ON THE STATEMENT OF THE CLAIMANT UNLESS IT BE VERIFIED OR CORROBORATED BY GOVERNMENT RECORDS OR OFFICIAL DOCUMENTARY EVIDENCE. HENCE, IN THE ABSENCE OF RECEIPTS OR CORROBORATING EVIDENCE IN THE EVENT SUCH RECEIPTS OR AUTHENTIC COPIES THEREOF ARE NOT AVAILABLE, NO LEGAL AUTHORITY EXISTS FOR PAYMENT TO YOU OF ANY AMOUNT IN ADDITION TO THAT PAID TO YOU AS PER DIEM FOR THE PERIOD NOVEMBER 20, 1968, TO JANUARY 1, 1969. YOUR ORIGINAL TRAVEL ORDERS DATED OCTOBER 29, 1968, JANUARY 1, 1969, AND JULY 1, 1969, RESPECTIVELY, ARE RETURNED.