B-176236, OCT 30, 1972

B-176236, OCT 30, 1972

MILITARY PERSONNEL - PER DIEM RATE - REIMBURSEMENT CONCERNING RECONSIDERATION OF A SETTLEMENT WHICH DISALLOWED A CLAIM BY CAPTAIN JAMES D. DILLARD, MSC, FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY PERFORMED AT FORT SAM HOUSTON, TEX., DURING THE PERIOD OF JULY 9, 1971, TO SEPTEMBER 3, 1971. THE GENERAL RULE IS THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS WHEN THE ORDERED TRAVEL HAS BEEN PERFORMED. 23 COMP. GEN. 713 (1944). SINCE THE ORDERS OF SEPTEMBER 21, 1971, MAY NOT BE GIVEN RETROACTIVE EFFECT AND SINCE THE CLAIM WAS PREVIOUSLY SETTLED AT THE PROPER PER DIEM RATE ACCORDING TO APPENDIX G OF THE JOINT TRAVEL REGULATIONS, THE PRIOR SETTLEMENT DISALLOWING THE CLAIM IS SUSTAINED.

TO CAPTAIN JAMES D. DILLARD:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 14, 1972, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 24, 1972, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY PERFORMED AT FORT SAM HOUSTON, TEXAS, DURING THE PERIOD JULY 9, 1971, TO SEPTEMBER 3, 1971.

THE RECORD SHOWS THAT BY LETTER ORDERS NUMBER A-06-09 OFFICE OF PERSONNEL OPERATIONS, FORT BENJAMIN HARRISON, INDIANA, DATED JUNE 1, 1971, YOU WERE ORDERED TO ACTIVE DUTY WITH TEMPORARY DUTY EN ROUTE AT THE UNITED STATES ARMY MEDICAL FIELD SERVICE SCHOOL, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, TO ATTEND AMEDD OFFICER BASIC (MSC) COURSE, CLASS NUMBER 1, AND ORIENT TO AMEDD EYE CLINIC, CLASS NUMBER 1, FOR A PERIOD OF APPROXIMATELY 9 WEEKS AND 1 WEEK, RESPECTIVELY, FOR A TOTAL OF 70 DAYS TEMPORARY DUTY. THE ORDERS PROVIDED FOR REPORTING DATES OF JULY 9 AND SEPTEMBER 3, 1971. AFTER COMPLETION OF THE TEMPORARY DUTY YOU WERE TO BE ASSIGNED TO THE UNITED STATES ARMY MEDICAL DEPARTMENT ACTIVITY, FORT BRAGG, NORTH CAROLINA, WITH A REPORTING DATE OF SEPTEMBER 22, 1971.

WHILE YOU WERE ON TEMPORARY DUTY ATTENDING THE COURSES AT FORT SAM HOUSTON AMENDING ORDERS WERE ISSUED BY THE UNITED STATES ARMY MEDICAL FIELD SERVICE SCHOOL (LETTER ORDERS NUMBER 269 DATED AUGUST 13, 1971) CHANGING YOUR ASSIGNED DUTY STATION TO THE UNITED STATES ARMY MEDICAL DEPARTMENT ACTIVITY, WHITE SANDS, NEW MEXICO, WITH A REPORTING DATE OF SEPTEMBER 18, 1971. THE BASIC ORDERS WERE FURTHER AMENDED BY LETTER ORDERS NUMBER 307 DATED AUGUST 24, 1971, ISSUED BY THE UNITED STATES ARMY MEDICAL FIELD SERVICE SCHOOL, CHANGING THE REPORTING DATE (TDY STATION) FROM SEPTEMBER 3 TO AUGUST 30, 1971, AND ADDING THAT THE GRADUATING DATE FOR THE OPTOMETRY COURSE WOULD BE SEPTEMBER 3, 1971. THE RECORD ALSO INDICATES THAT YOU REPORTED TO FORT SAM HOUSTON ON JULY 9, 1971, AND DEPARTED THAT LOCATION ON SEPTEMBER 3, 1971.

THEREAFTER, BY LETTER ORDERS NUMBER 381, UNITED STATES ARMY MEDICAL FIELD SERVICE SCHOOL, DATED SEPTEMBER 23, 1971, THE REPORTING DATE FOR THE START OF YOUR TEMPORARY DUTY WAS CHANGED TO JULY 6, 1971, AND THE PERIOD OF TEMPORARY DUTY WAS REDUCED FROM APPROXIMATELY 10 WEEKS (70 DAYS) TO APPROXIMATELY 8 WEEKS (56 DAYS). HOWEVER, SINCE THE RECORD INDICATES YOU REPORTED TO FORT SAM HOUSTON ON JULY 9, 1971, THIS PURPORTED AMENDMENT COULD NOT HAVE THE EFFECT OF CHANGING YOUR ACTUAL REPORTING DATE.

YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT YOU WERE PAID THE PROPER PER DIEM AT THE RATE OF $17.00 LESS $1.90 PER MEAL AS PRESCRIBED IN PARAGRAPH 1, APPENDIX G, JOINT TRAVEL REGULATIONS, FOR PERIODS OF TEMPORARY DUTY AT A COURSE OF INSTRUCTION AT A MILITARY INSTALLATION WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE. THIS IS THE RATE PRESCRIBED IN THE REGULATIONS WHEN THE DURATION OF THE COURSE IS SCHEDULED FOR 60 DAYS OR MORE AND WHICH WAS IN EFFECT DURING THE PERIOD OF YOUR CLAIM. THE SETTLEMENT INADVERTENTLY REFERRED TO THE SCHEDULED PERIOD OF 45 DAYS OR MORE WHICH BECAME EFFECTIVE OCTOBER 1, 1971, AFTER YOUR TEMPORARY DUTY.

IT APPEARS TO BE YOUR CONTENTION THAT SINCE YOUR TEMPORARY DUTY WAS FOR LESS THAN 60 DAYS (56 DAYS) AND SINCE YOU SAY THE JOINT TRAVEL REGULATIONS WERE NOT AMENDED UNTIL OCTOBER 1, 1971, YOUR PER DIEM SHOULD HAVE BEEN COMPUTED AT THE RATE OF $19.20 IN ACCORDANCE WITH PARAGRAPH 4205-5D(3) OF THE REGULATIONS. IN THIS CONNECTION, CHANGE 225 EFFECTIVE OCTOBER 1, 1971, JOINT TRAVEL REGULATIONS, AMENDED APPENDIX G, PERTAINING TO PER DIEM RATES, BY REDUCING THE SCHEDULED DURATION OF COURSES OF INSTRUCTION FROM "60 DAYS OR MORE" TO "45 DAYS OR MORE."

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR WHEN THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORIGINAL ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944).

THE ORDERS OF JUNE 1, 1971, UNDER WHICH YOU REPORTED TO YOUR TEMPORARY DUTY STATION, ESTABLISHED YOUR ENTITLEMENT TO PER DIEM ON THE BASIS OF A CUMULATIVE 10 WEEKS (70DAYS) OF INSTRUCTION AT FORT SAM HOUSTON. THE AMENDATORY ORDERS OF AUGUST 24, 1971, ISSUED AFTER THE COURSE OF INSTRUCTION STARTED HAD THE CHANGE IN THE GRADUATION DATE FOR YOUR COURSE AS THE ONLY SIGNIFICANT ITEM. THE ATTEMPTED CHANGE OF THE COMMENCEMENT DATE FROM JULY 9 TO JULY 6 WOULD NOT BE APPLICABLE SINCE YOU HAD ALREADY REPORTED ON JULY 9 AND THEREFORE COULD NOT REPORT AT AN EARLIER DATE.

FURTHER, THE ORDERS OF SEPTEMBER 23, 1971, PURPORTING TO AMEND YOUR BASIC ORDERS BY REDUCING THE PERIOD OF TEMPORARY DUTY FROM APPROXIMATELY 10 WEEKS TO APPROXIMATELY 8 WEEKS MAY NOT BE GIVEN RETROACTIVE EFFECT, SINCE SUCH ORDERS WERE ISSUED AFTER THE TEMPORARY DUTY WAS PERFORMED. MOREOVER, IT SHOULD HAVE BEEN APPARENT TO YOU THAT YOU WERE ENTITLED ONLY TO THE PER DIEM RATE OF $17.00 SINCE THE RECORD SHOWS YOU WERE PAID AN ADVANCE TRAVEL ALLOWANCE IN JULY 1971 COMPUTED ON THE BASIS OF THAT RATE.

PARAGRAPH 1 OF APPENDIX G, JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME OF YOUR TEMPORARY DUTY, SETS FORTH THE RATES PAYABLE FOR PERIODS OF TEMPORARY DUTY UNDER ORDERS DIRECTING ASSIGNMENT TO A COURSE OR COURSES OF INSTRUCTION THE CUMULATIVE DURATION OF WHICH IS SCHEDULED FOR 60 DAYS OR MORE AT A MILITARY INSTALLATION WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. THE RATE SET FORTH FOR FORT SAM HOUSTON WAS $17.00. HOWEVER, THE REGULATION ALSO PROVIDED THAT IF A GOVERNMENT MESS IS AVAILABLE A DEDUCTION OF $1.90 PER MEAL WILL BE MADE FOR OFFICER MEMBERS.

ON THE RECORD BEFORE US YOU WERE PROPERLY PAID IN ACCORDANCE WITH THE ABOVE REFERENCED APPENDIX G AT THE DAILY RATE OF $17.00 LESS $5.70 ($1.90 FOR EACH OF 3 MEALS) FOR A NET OF $11.30 PER DAY.

ACCORDINGLY, OUR PRIOR ACTION OF MARCH 24, 1972, DISALLOWING YOUR CLAIM FOR ADDITIONAL PER DIEM IS SUSTAINED.