B-195930.OM, DEC 19, 1979

B-195930.OM: Dec 19, 1979

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CLAIMS DIVISION COMPTROLLER GENERAL: WE ARE FORWARDING THE CLAIM OF MR. THE CLAIM IS REFERRED FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928. THE PER DIEM RATE WAS REDUCED BUT HE WAS NOT ADVISED UNTIL TWO MONTHS AFTER THE REDUCTION. THE RATE REDUCTION WAS VERY SUBSTANTIAL. WE ARE. JENKINS WAS REFERRED HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928. THE CIRCUMSTANCES UNDER WHICH THIS CLAIM AROSE ARE NOT UNLIKE THOSE INVOLVED IN THE DECISION 56 COMP.GEN. 425 (1977) AND THE DECISIONS CITED THEREIN. WE BELIEVE THE CIRCUMSTANCES SURROUNDING THIS CLAIM ARE DISTINGUISHABLE FROM B-190014. WHEN RECEIVED WAS IMPROPERLY INTERPRETED. SUCH CIRCUMSTANCES THE EMPLOYEES HAD NO OPPORTUNITY OR REASON TO BELIEVE THEIR EXPENSES SHOULD BE REDUCED SINCE THE ERROR HAD NOT BE DISCOVERED UNTIL THEIR TDY ASSIGNMENTS WERE COMPLETED.

B-195930.OM, DEC 19, 1979

CLAIMS DIVISION

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MR. RALPH G. JENKINS FOR ADDITIONAL REIMBURSEMENT FOR PER DIEM EXPENSES. THE CLAIM IS REFERRED FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236 (1970).

MR. JENKINS ATTENDED A LONG-TERM TRAINING COURSE (20 WEEKS) AT A CIVILIAN COMPONENT OF A MILITARY INSTALLATION. WHILE THERE, THE PER DIEM RATE WAS REDUCED BUT HE WAS NOT ADVISED UNTIL TWO MONTHS AFTER THE REDUCTION. BASIS EXISTS FOR ALLOWING THE HIGHER PER DIEM RATE FOR THE TRAINING PERIOD PERFORMED ON OR AFTER THE DATE OF THE LOWER RATE. HOWEVER, THE OVERPAYMENTS RESULTED FROM ADMINISTRATIVE FAILURES IN IMPLEMENTING THE REGULATORY CHANGE IN THE PER DIEM RATE, THE RATE REDUCTION WAS VERY SUBSTANTIAL, AND THE EMPLOYEE ACTED IN GOOD FAITH. THEREFORE, THE EQUITIES IN THIS CASE MAY WARRANT REPORTING THE CLAIM TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928. WE ARE, THEREFORE, REFERRING THE MATTER FOR YOUR CONSIDERATION.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THE CLAIM OF RALPH G. JENKINS WAS REFERRED HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236 (1976).

THE CIRCUMSTANCES UNDER WHICH THIS CLAIM AROSE ARE NOT UNLIKE THOSE INVOLVED IN THE DECISION 56 COMP.GEN. 425 (1977) AND THE DECISIONS CITED THEREIN. HOWEVER, THE CLAIM AROSE AS THE RESULT OF THE ADMINISTRATIVE FAILURE TO PROPERLY ADMINISTER THE TELEGRAPHIC MESSAGE OF JUNE 21, 1976, ISSUED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE RESULTING IN CHANGE 132, VOLUME 2, JOINT TRAVEL REGULATIONS, AND AS SUCH HAS SIMILARITIES TO THE CASE IN B-190014, AUGUST 30, 1978. WE BELIEVE THE CIRCUMSTANCES SURROUNDING THIS CLAIM ARE DISTINGUISHABLE FROM B-190014, IN THAT, IN THAT CASE NO NOTIFICATION OF THE CHANGE IN THE REGULATION HAD BEEN RECEIVED BY THE EMPLOYING AGENCY, THE LONG BEACH NAVAL SHIPYARD, UNTIL OCTOBER 15, 1976, AND WHEN RECEIVED WAS IMPROPERLY INTERPRETED. SUCH CIRCUMSTANCES THE EMPLOYEES HAD NO OPPORTUNITY OR REASON TO BELIEVE THEIR EXPENSES SHOULD BE REDUCED SINCE THE ERROR HAD NOT BE DISCOVERED UNTIL THEIR TDY ASSIGNMENTS WERE COMPLETED. WE DO NOT FIND SIMILAR CIRCUMSTANCES IN THIS CASE.

THEREFORE, WE DO NOT FIND ELEMENTS OF UNUSUAL LEGAL LIABILITY OR EQUITY WHICH WOULD JUSTIFY REPORTING THIS CASE TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.

A SETTLEMENT SHOULD ISSUE IN ACCORDANCE WITH THE RULE AS ESTABLISHED IN 56 COMP.GEN. 425, SUPRA.