B-180970, NOV 7, 1974

B-180970: Nov 7, 1974

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SINCE AGENCY REGULATION WHICH ACCORDS WITH AGENCY POLICY THAT THE MAXIMUM PER DIEM IS TO BE ALLOWED UNLESS THERE IS A SPECIFIC INTENT TO PAY A LESSER RATE. WAS NOT FOLLOWED AND OFFICIAL AUTHORIZING TRAVEL INTENDED THAT THE MAXIMUM BE PAID. THE AGENCY STATES THE RATE WAS OBSOLETE BUT THE DOCUMENTATION PROVIDING THE NEW RATE OF $35 WAS NOT RECEIVED LOCALLY UNTIL AFTER THE EMPLOYEE HAD RETURNED FROM TEMPORARY DUTY. WHICH WAS NOT FOLLOWED: "UNLESS IT IS SPECIFICALLY INTENDED TO AUTHORIZE A PER DIEM RATE LESS THAN THE MAXIMUM ALLOWABLE. THUS SIGNIFYING THAT THE MAXIMUM ALLOWABLE PER DIEM IS TO BE PAID.". THE EMPLOYEE WAS IMPROPERLY DEPRIVED OF REIMBURSEMENT OF THE ALLOWABLE MAXIMUM. THE OFFICIAL WHO APPROVED THE TRAVEL ORDERS STATES THAT IT WAS HIS INTENTION TO AUTHORIZE THE MAXIMUM ALLOWABLE RATE.

B-180970, NOV 7, 1974

TRAVEL ORDERS AUTHORIZING $31 PER DIEM, A PRIOR MAXIMUM RATE FOR TRAVEL OUTSIDE THE UNITED STATES, MAY BE AMENDED TO $35, A NEW MAXIMUM RATE, NOTWITHSTANDING GENERAL RULE PROHIBITING RETROACTIVE CHANGE, SINCE AGENCY REGULATION WHICH ACCORDS WITH AGENCY POLICY THAT THE MAXIMUM PER DIEM IS TO BE ALLOWED UNLESS THERE IS A SPECIFIC INTENT TO PAY A LESSER RATE, WAS NOT FOLLOWED AND OFFICIAL AUTHORIZING TRAVEL INTENDED THAT THE MAXIMUM BE PAID.

SUBSISTENCE - PER DIEM - RETROACTIVE ADJUSTMENT:

AN AUTHORIZED CERTIFYING OFFICER OF THE ATOMIC ENERGY COMMISSION, NEVADA OPERATIONS OFFICE, LAS VEGAS, NEVADA, REQUESTED AN ADVANCE DECISION AS TO WHETHER HE MAY CERTIFY FOR PAYMENT A VOUCHER IN THE AMOUNT OF $131 REPRESENTING THE DIFFERENCE BETWEEN PER DIEM IN LIEU OF SUBSISTENCE PREVIOUSLY PAID MR. KENNETH N. JOY AT THE RATE OF $31 A DAY FOR 32 3/4 DAYS AND PER DIEM AT THE RATE OF $35. THE APPLICABLE ORDERS AUTHORIZING TRAVEL BETWEEN NEVADA AND HAWAII PROVIDED FOR THE $31 RATE FOR TRAVEL OUTSIDE THE CONTINENTAL UNITED STATES. THE AGENCY STATES THE RATE WAS OBSOLETE BUT THE DOCUMENTATION PROVIDING THE NEW RATE OF $35 WAS NOT RECEIVED LOCALLY UNTIL AFTER THE EMPLOYEE HAD RETURNED FROM TEMPORARY DUTY. ADDITIONALLY, THE AGENCY REFERS TO THE PROVISIONS OF A LOCAL TRAVEL REGULATION DATED MAY 1, 1973, WHICH WAS NOT FOLLOWED:

"UNLESS IT IS SPECIFICALLY INTENDED TO AUTHORIZE A PER DIEM RATE LESS THAN THE MAXIMUM ALLOWABLE, TRAVEL AUTHORIZATIONS FOR TRAVEL TO NON CONTINENTAL U.S. LOCATIONS SHALL CONTAIN THE LETTERS 'SGTR' IN BLOCK 9.A., THUS SIGNIFYING THAT THE MAXIMUM ALLOWABLE PER DIEM IS TO BE PAID."

THE CERTIFYING OFFICER BELIEVES THE ABOVE STATEMENT ESTABLISHES AN AGENCY POLICY OF AUTHORIZING THE MAXIMUM RATE AND, THUS, THROUGH ERROR IN PREPARING THE TRAVEL ORDER AND THE FAILURE TO RECEIVE THE RATE CHANGE, THE EMPLOYEE WAS IMPROPERLY DEPRIVED OF REIMBURSEMENT OF THE ALLOWABLE MAXIMUM. THE OFFICIAL WHO APPROVED THE TRAVEL ORDERS STATES THAT IT WAS HIS INTENTION TO AUTHORIZE THE MAXIMUM ALLOWABLE RATE.

GENERALLY, TRAVEL ORDERS MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS OR OBLIGATIONS ALREADY VESTED OR FIXED EXCEPT TO CORRECT ERRORS APPARENT ON THE FACE OF THE AUTHORIZATION OR TO COMPLETE AN ORDER TO SHOW THE ORIGINAL INTENT OF THE ORDER ISSUING OFFICIAL. SEE 28 COMP. GEN. 732 (1949); B-177665, MARCH 9, 1973.

THE AGENCY TRAVEL REGULATION QUOTED ABOVE APPEARS TO ESTABLISH A POLICY THAT THE MAIMUM RATE OF PER DIEM IS TO BE PAID UNLESS THERE IS SPECIFIC INTENT TO PAY A LESSER RATE. IN THE CIRCUMSTANCES WE BELIEVE THAT THE MERE ENTRY ON THE TRAVEL ORDER OF A LESSER RATE WITHOUT SOME OTHER INDICATION ON SET A RATE LESS THAN THE MAXIMUM DOES NOT SHOW AN INTENT TO INDICATION TO SET A RATE LESS THAN THE MAXIMUM DOES NOT SHOW AN INTENT TO PAY SUCH LOWER RATE WHEN, IN FACT, SUCH RATE WAS THE IMMEDIATE PRECEDING MAXIMUM RATE. SINCE THE AGENCY REGULATION WAS NOT FOLLOWED AND, IN THE LIGHT OF THE STATEMENT OF ITS TRAVEL APPROVING OFFICIAL THAT THE MAXIMUM RATE WAS INTENDED, WE FIND AN ADMINISTRATIVE ERROR HAS OCCURRED AND AN AMENDMENT OF THE TRAVEL AUTHORIZATION TO ACCORD WITH AGENCY POLICY MAY BE MADE.

ACCORDINGLY, THE VOUCHER IS RETURNED AND IF OTHERWISE CORRECT MAY BE CERTIFIED FOR PAYMENT.