Disallowance of Claim for Additional per Diem While Participating in Full Time Training

B-177246, JAN 3, 1973

CIVILIAN PERSONNEL - PER DIEM - ACADEMIC TRAINING COURSES DECISION AFFIRMING THE DENIAL OF THE CLAIM OF MR. [REDACTED] FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE FOR PART OF THE PERIOD HE PARTICIPATED IN FULL TIME TRAINING AT THE UNIVERSITY OF INDIANA AS A RECEPIENT OF A CAREER EDUCATION AWARD WHILE EMPLOYED BY THE DEPARTMENT OF THE ARMY, FT. MONMOUTH, N.J. THE EMPLOYEE'S PER DIEM RATE OF $14 WHILE ATTENDING ACADEMIC YEAR TRAINING COURSES AT ANY COLLEGE OR UNIVERSITY WAS EFFECTIVE FEBRUARY 1, 1971, EVEN IF THE ORDERS AUTHORIZING TRAVEL FOR THE ENTIRE ACADEMIC YEAR WERE ISSUED BEFORE THAT DATE, CF. B-160985, MARCH 17, 1967 AND EVEN IF THE EMPLOYEE WAS NOT NOTIFIED OF THE RATE CHANGE. SEE B 163891, MAY 29, 1968.

TO MR. [REDACTED]:

WE REFER TO YOUR LETTER OF SEPTEMBER 15, 1972, BY WHICH YOU REQUEST OUR REVIEW OF THE CLAIMS SETTLEMENT ISSUED SEPTEMBER 12, 1972, DISALLOWING YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE FOR PART OF THE PERIOD YOU WERE PARTICIPATING IN FULL-TIME TRAINING AT THE UNIVERSITY OF INDIANA AS A RECIPIENT OF A CAREER EDUCATION AWARD WHILE EMPLOYED BY THE DEPARTMENT OF THE ARMY, FORT MONMOUTH, NEW JERSEY.

IN CONNECTION WITH YOUR TRAINING ASSIGNMENT YOU WERE ISSUED A SERIES OF TRAVEL ORDERS RATHER THAN A SINGLE ORDER AS A MEANS OF AUTHORIZING YOUR RETURN TO YOUR OFFICIAL STATION DURING BREAKS IN TRAINING DUE TO SCHOOL HOLIDAYS. EACH OF THE ORDERS UNDER WHICH YOU TRAVELED WAS ISSUED ON MAY 26, 1970, AND, IN ACCORDANCE WITH REGULATIONS IN FORCE AT THAT TIME, THE ORDERS PROVIDED FOR PER DIEM AT THE MAXIMUM RATE FOR THE FIRST 30 DAYS OF TRAINING AND AT A RATE OF $20 FOR THE REMAINDER OF THE ACADEMIC YEAR. HOWEVER, PER DIEM ALLOWED YOU FOR THE LATTER PART OF YOUR TRAINING DUTY WAS REDUCED TO $14 UNDER PARAGRAPH C8101 OF THE JOINT TRAVEL REGULATIONS AS AMENDED EFFECTIVE FEBRUARY 1, 1971.

THE AMENDED PARAGRAPH PROVIDES AS FOLLOWS:

"(EFFECTIVE 1 FEBRUARY 1971)

"M. PER DIEM RATES FOR ACADEMIC YEAR TRAINING COURSES.

A PER DIEM RATE OF $14 IS PRESCRIBED WHILE ATTENDING ACADEMIC YEAR TRAINING COURSES AT ANY COLLEGE OR UNIVERSITY WITHIN THE CONTINENTAL UNITED STATES, EXCEPT AS OTHERWISE SPECIFIED IN APPENDIX C, PART III."

WHILE YOU WERE NOT ADVISED OF THE CHANGE IN THE PER DIEM RATE AUTHORIZED FOR ACADEMIC YEAR TRAINING THE AMENDMENT OF THE JOINT TRAVEL REGULATIONS BY WHICH THAT CHANGE WAS MADE BECAME EFFECTIVE FEBRUARY 1, 1971, AND NO PROVISION WAS MADE FOR A DELAY IN THAT EFFECTIVE DATE BASED ON PREVIOUSLY ISSUED TRAVEL ORDERS WHICH AUTHORIZED SOME OTHER RATE OF PER DIEM. THE AMENDED REGULATION HAD THE FORCE AND EFFECT OF LAW AND WAS APPLICABLE FROM THE STATED EFFECTIVE DATE REGARDLESS OF WHETHER INDIVIDUAL EMPLOYEES INVOLVED RECEIVED TIMELY NOTICE OF THE CHANGE. THEREFORE, THE FACT THAT YOU WERE NOT NOTIFIED OF THE CHANGE IN THE ALLOWABLE PER DIEM RATE UNTIL SOME TIME AFTER THE CHANGE WAS MADE, ALTHOUGH REGRETTABLE, MAY NOT BE USED AS A BASIS FOR ALLOWING YOU PER DIEM AT A RATE IN EXCESS OF THAT PRESCRIBED BY REGULATION. SEE B 163891, MAY 29, 1968, COPY ENCLOSED.

CONCERNING YOUR CONTENTION THAT THE QUOTED REGULATION IS NOT APPLICABLE IN YOUR CASE BECAUSE YOU WERE PROVIDED A SERIES OF TRAVEL ORDERS NONE OF WHICH AUTHORIZED TRAVEL FOR A FULL ACADEMIC YEAR, IT WAS RECOGNIZED WHEN THE TRAVEL ORDERS WERE ISSUED THAT YOU WERE TO PARTICIPATE IN TRAINING FOR A FULL ACADEMIC YEAR. THE QUOTED REGULATION IS APPLICABLE TO EMPLOYEES ATTENDING SUCH ACADEMIC YEAR TRAINING COURSES. NO SPECIAL REQUIREMENTS WERE PRESCRIBED LIMITING THE APPLICABILITY OF SUCH RATE BASED ON THE ISSUANCE OF A SINGLE OR MULTIPLE TRAVEL ORDER OR ON THE BASIS OF THE EMPLOYEE'S RETURN TO HIS OFFICIAL STATION DURING SCHOOL VACATION PERIODS. SINCE YOU WERE ASSIGNED TO AN ACADEMIC YEAR TRAINING COURSE THE REGULATION IS CONSIDERED APPLICABLE TO YOUR TRAVEL EVEN THOUGH THE FULL PERIOD OF YOUR TRAINING DUTY WAS NOT COVERED BY A SINGLE TRAVEL ORDER. CF. B 160985, MARCH 17, 1967, COPY ENCLOSED.

SINCE NO SPECIAL RATE OF PER DIEM WAS AUTHORIZED FOR TRAINING AT THE UNIVERSITY OF INDIANA THE RATE PRESCRIBED IN THE QUOTED REGULATION OF $14 WAS THE ONLY RATE PROPERLY PAYABLE TO YOU FOR TRAINING DUTY PERFORMED AFTER THE EFFECTIVE DATE OF THAT REGULATION.

FOR THE REASONS STATED THE SETTLEMENT OF THE TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.