B-30168, MAR 8, 1943

B-30168: Mar 8, 1943

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UTAH: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12. IS AUTHORIZED. THE ITINERARY AND STATEMENT OF THE CLAIM IN THE VOUCHER IS AS FOLLOWS: TABLE OMITTED ATTACHED TO THE VOUCHER ARE CERTIFIED COPIES OF ORDERS AS FOLLOW: "HEADQUARTERS ARMY AIR BASE "CORRECTED COPY WENDOVER FIELD. WILL PROCEED TO LANSING. OFFICERS WILL REPORT TO THE ARMY INSPECTOR OF ORDNANCE AT THE OLDMOBILE COMPANY MAY 16. UPON COMPLETION OF THIS TEMPORARY DUTY THEY WILL RETURN TO THEIR PROPER STATION. A FLAT PER DIEM OF SIX DOLLARS ($6.00) IS AUTHORIZED WHILE TRAVELING AND WHILE ABSENT FROM PERMANENT STATION IN ACCORDANCE WITH SEC. FARRIS 0-288204 "DEPENDENTS WILL NOT ACCOMPANY OFFICERS. IF TRAVEL IS PERFORMED BY PRIVATELY OWNED CONVEYANCE TWO (2) DAYS IN ADDITION TO RAIL TRAVEL TIME IS AUTHORIZED.

B-30168, MAR 8, 1943

FOOTNOTES-UNAVAILABLE PRECIS-UNAVAILABLE

LIEUTENANT COLONEL G. KLEIN, F.D., U. S. ARMY, FINANCE OFFICE, FORT DOUGLAS, UTAH:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1942, REQUESTING DECISION WHETHER PAYMENT TO SECOND LIEUTENANT ERNEST C. FARRIS OF TRANSPORTATION EXPENSE AND A $6 PER DIEM ALLOWANCE FROM MAY 11 TO AUGUST 19, 1942, IN LIEU OF MILEAGE, IS AUTHORIZED. THE VOUCHER SUBMITTED HAS NOT BEEN COMPLETED TO SHOW THE TOTAL AMOUNT CLAIMED. THE ITINERARY AND STATEMENT OF THE CLAIM IN THE VOUCHER IS AS FOLLOWS:

TABLE OMITTED

ATTACHED TO THE VOUCHER ARE CERTIFIED COPIES OF ORDERS AS FOLLOW:

"HEADQUARTERS ARMY AIR BASE

"CORRECTED COPY WENDOVER FIELD, UTAH

MAY 9, 1942

"SPECIAL ORDER )

NO. . . . . . 43.)

EXTRACT

"5. PURSUANT TO AUTHORITY CONTAINED IN LETTER, HQ. 2AF, FORT GEORGE WRIGHT, WASHINGTON, THE FOLLOWING NAMED OFFICERS OF THE 425TH ORDNANCE COMPANY, THIS STATION, WILL PROCEED TO LANSING, MICHIGAN, TO ATTEND A FOUR WEEKS COURSE OF INSTRUCTION ON 20 AND 37 MM AC CANNON AND 30 AND 50 CALIBER MACHINE GUNS AT THE OLDSMOBILE MOTOR CAR MANUFACTURING COMPANY COMMENCING ON MAY 18, 1942. OFFICERS WILL REPORT TO THE ARMY INSPECTOR OF ORDNANCE AT THE OLDMOBILE COMPANY MAY 16, 1942. UPON COMPLETION OF THIS TEMPORARY DUTY THEY WILL RETURN TO THEIR PROPER STATION. A FLAT PER DIEM OF SIX DOLLARS ($6.00) IS AUTHORIZED WHILE TRAVELING AND WHILE ABSENT FROM PERMANENT STATION IN ACCORDANCE WITH SEC. VI, WD CIR 150, 1942.

2ND LT. JOHN T. THREADGILL 0-291186

2ND LT. ERNEST C. FARRIS 0-288204

"DEPENDENTS WILL NOT ACCOMPANY OFFICERS. IF TRAVEL IS PERFORMED BY PRIVATELY OWNED CONVEYANCE TWO (2) DAYS IN ADDITION TO RAIL TRAVEL TIME IS AUTHORIZED. TDN.FD 34 P-02 0425-23.

"BY ORDER OF COLONEL PECK:

D. G. SMITH

MAJOR, AIR CORPS,

ADJUTANT."

FT. GEO. WRIGHT, WASH, JUNE 9, 1004

"2ND LT. ERNEST C. FARRIS OD

2ND LT. FREDERICK J. PATTERSON OD

C/O ARMY INSPECTOR OF ORDNANCE

OLDSMOBILE MANUFACTURING COMPANY LANSING MICHIGAN

2AF U378G PERIOD THE FOLLOWING OFFICERS SECOND LIEUTENANT ERNEST C FARRIS COMMA NAUGHT TWO EIGHT EIGHT TO NAUGHT FOUR COMMA ORDNANCE DEPARTMENT COMMA ASSIGNED TO THE FOUR HUNDRED TWENTY FIFTH ORDNANCE COMPANY ARMY AIR BASE WENDOVERFIELD UTAH AND SECOND LIEUTENANT FREDERICK J PATTERSON COMMA NAUGHT TWO EIGHT SIX THREE THREE ONE COMMA ORDNANCE DEPARTMENT COMMA ASSIGNED TO ARMY AIR BASE COWENFIELD BOISE IDAHO COMMA WILL PROCEED NOT LATER THAN JUNE TWELVE NINETEEN FORTY TWO TO THE NAVAL TORPEDO STATION COMMA NEWPORT COMMA RHODE ISLAND REPORTING UPON ARRIVAL TO THE INSPECTOR OF ORDNANCE AT THE NAVAL TORPEDO STATION NOT LATER THAN JUNE THIRTEENTH NINETEEN FORTY TWO FOR THE PURPOSE OF ATTENDING A NINE WEEKS COURSE ON AERIAL TORPEDOS PERIOD UPON COMPLETION OF THIS TEMPORARY DUTY THEY WILL RETURN TO THEIR PROPER STATIONS PERIOD THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE AND PAYMENT WHEN MADE IS CHARGEABLE TO FD THREE FOUR P DASH NAUGHT TWO A NAUGHT FOUR TWO FIVE DASH TWO THREE

AGAF TWO"

TABLE OMITTED

2AF A628G PERIOD CITE TWO AF U THREE SEVEN EIGHT G PERIOD SO MUCH OF CITED RADIO AS PERTAINS TO SECOND LT ERNEST C FARRIS COMMA NAUGHT TWO EIGHT EIGHT TWO NAUGHT FOUR COMMA OD COMMA IS AMENED TO ADD COLON QUOTE IN LIEU OF SUBSISTENCE FLAT PER DIEM OF SIX DOLLARS IS AUTHORIZED WHILE TRAVELING AND WHILE ABSENT FROM PERMANENT STATION IN ACCORDANCE WITH SEC SIX CIR NO ONE FIVE NAUGHT COMMA WD COMMA NINETEEN FORTY TWO PERIOD PAYMENT OF MILEAGE IS NOT AUTHORIZED PERIOD UNQUOTE

AGAF TWO

"2. THIS REQUEST IS MADE IN VIEW OF THE FACT THAT I SUSTAINED A MONETARY LOSS ON THIS TRIP, AS FOLLOWS:

LIST OMITTED:

"3. ORDERS SENDING ME TO SCHOOL IN LANSING, MICHIGAN, DID NOT CONTEMPLATE A PER DIEM, DUE TO IT BEING A FOUR WEEKS COURSE, AND POSSIBLY AT THAT TIME MEMBERS OF THIS FIELD NOT BEING ACQUAINTED WITH PUBLIC LAW 528, 77TH CONGRESS, APPROVED APRIL 28, 1942.

"4. THE TWX, DIRECTING ME TO NAVAL TORPEDO SCHOOL, NEWPORT, RHODE ISLAND, FOR A NINE WEEKS COURSE, DID NOT AUTHORIZED A PER DIEM, AFTER ARRIVAL AT NEWPORT R.I., I FOUND OUT THAT OTHER OFFICERS ATTENDING THE SCHOOL WERE AUTHORIZED A PER DIEM OF SIX DOLLARS PER DAY. IMMEDIATELY I ENDEAVORED TO SECURE THE SAME AUTHORIZATION THROUGH REGULAR CHANNELS. A LETTER FROM PERSONNEL ADJUTANT, WENDOVER FIELD, UTAH, DATED JULY 27, 1942 DIRECTED THAT THE OFFICE ISSUING ORDERS FOR ME TO PROCEED FROM LANSING MICHIGAN TO NEWPORT R.I., WOULD HAVE TO AMEND THE ORDERS AUTHORIZING A PER DIEM FOR THAT PORTION OF THE JOURNEY. ON AUGUST 8, 1942, I RECEIVED, A TWX AMENDING THE ORDERS FROM LANSING TO NEWPORT WAS RECEIVED, AUTHORIZING A PER DIEM WHILE TRAVELING AND ABSENT FROM PERMANENT STATION.

"5. FINANCE SECTION, FT. DOUGLAS, UTAH, HELD THAT A PER DIEM AUTHORIZATION FOR PART OF THE TRIP WAS NOT VALID, THAT THE COMPLETE JOURNEY WOULD HAVE TO BE ON A PER DIEM BASIS. FURTHER AUTHORIZATIONS WERE OBTAINED TO INCLUDE A PER DIEM FROM THE BEGINNING OF THE JOURNEY. NOW THE PER DIEM IS DECLINED ON THE BASIS, OF INTERPRETATION OF EXISTING LAW AND REGULATION BY THE COMPTROLLER GENERAL AS SET FORTH IN HIS DECISION NO. 28221 AUGUST 31, 1942.

"6. IN VIEW OF THE FACT, THAT I DO KNOW OTHER OFFICERS ATTENDING THIS SCHOOL DID COLLECT A PER DIEM, AND THAT I DID SUSTAIN A MONETARY LOSS, THIS LETTER IS SUBMITTED.

"7. I DID RECEIVE A TOTAL OF $208.55 MILEAGE FROM WENDOVER, UTAH TO LANSING MICHIGAN. LANSING, MICH., TO NEWPORT, R.I. NOT KNOWING AT THE TIME IT MIGHT POSSIBLY JEOPARDIZE COLLECTION OF PER DIEM. ***"

THE "CORRECTED COPY" OF THE ORDERS OF MAY 9, 1942, PURPORT TO SHOW AN ADVANCE AUTHORIZATION OF A PER DIEM OF $6 FOR THE OFFICER WHILE TRAVELING AND WHILE ABSENT FROM HIS PERMANENT STATION. HOWEVER, THE COPIES OF OTHER ORDERS AND THE STATEMENT OF THE CLAIMANT SHOW THAT THE ORIGINAL ORDERS SENDING THE CLAIMANT TO SCHOOL AT LANSING, MICHIGAN, AND THE FURTHER ORDERS DIRECTING HIM TO PROCEED TO THE NAVAL TORPEDO SCHOOL, AT NEWPORT, RHODE ISLAND, DID NOT AUTHORIZE OR CONTEMPLATE THE PAYMENT OF A PER DIEM ALLOWANCE.

THE ACT OF APRIL 28, 1942, PUBLIC LAW 528, TEMPORARILY AUTHORIZED THE SECRETARY OF WAR TO PRESCRIBE PER DIEM RATES OF ALLOWANCE FOR TRAVEL UNDER CERTAIN CONDITIONS THEREFORE ENTITLING OFFICERS TO MILEAGE ONLY AND NOT A PER DIEM. THIS STATUTORY PROVISION WAS NOT SELF EXECUTING AND CONFERRED NO RIGHTS TO PER DIEM PAYMENTS EXCEPT AS MIGHT BE PRESCRIBED BY THE SECRETARY OF WAR. REGULATIONS WERE PROMULGATED IN WAR DEPARTMENT CIRCULAR 150, MAY 19, 1942, GOVERNING THE PRESCRIPTION IN TRAVEL ORDERS OF SUCH PER DIEM ALLOWANCES. THE REGULATIONS EXPRESSLY PROVIDE, INTER ALIA, THAT--

"*** THE PRESCRIBING OF A PER DIEM ALLOWANCE IN A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE, AND VICE VERSA, IS PROHIBITED.

THE REASON FOR THIS PROHIBITION IS READILY APPARENT. AS MILEAGE INCLUDES AN AMOUNT TO COVER THE INCREASED COST OF SUBSISTENCE, ETC., WHILE TRAVELING, THE PAYMENT OF A PER DIEM WHERE MILEAGE IS INVOLVED WOULD RESULT IN DOUBLE ALLOWANCE FOR SUBSISTENCE EXPENSES. LIEUTENANT FARRIS' ORIGINAL TRAVEL ORDERS OF MAY 9, 1942, AND JUNE 9, 1942, DID NOT PRESCRIBE A PER DIEM AND FOR TRAVEL PERFORMED THEREUNDER HE WAS BY LAW ENTITLED TO MILEAGE. WHEN HE TRAVELED UNDER SUCH ORDERS FROM WENDOVER FIELD, UTAH, TO LANSING, MICHIGAN, AND FROM LANSING TO NEWPORT, RHODE ISLAND, A LEGAL RIGHT COULD NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. AS A MATTER OF FACT, IT IS ADMITTED THAT MILEAGE FOR SUCH TRAVEL ACTUALLY WAS CLAIMED AND PAID, BUT IRRESPECTIVE OF THAT, A LEGAL RIGHT TO MILEAGE HAVING VESTED IN THE OFFICER FOR TRAVEL ALREADY PERFORMED UNDER THE TRAVEL ORDERS, EACH OF SUCH ORDERS WAS AND REMAINED "A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE" AND THE SUBSEQUENTLY ATTEMPTED MODIFICATION THEREOF TO PROVIDE FOR THE PAYMENT OF A PER DIEM IN LIEU OF MILEAGE WAS CONTRARY TO THE EXPRESS PROHIBITION IN THE REGULATIONS AND MAY NOT BE RECOGNIZED AS CONFERRING ON THE OFFICER ANY LEGAL RIGHT TO THE PER DIEM CLAIMED. EVEN THOUGH THE OFFICER WERE PERMITTED BY LAW TO WAIVE HIS VESTED RIGHT TO MILEAGE, IN WHICH CONNECTION SEE UNITED STATES V. ANDREWS, 240 U.S. 90, THE LAW DOES NOT AUTHORIZE A RETROACTIVE MODIFICATION OF TRAVEL ORDERS EITHER TO INCREASE OR DECREASE THE ALLOWANCES ACCRUED THEREUNDER FOR TRAVEL PREVIOUSLY PERFORMED.

RESPECTING THE OFFICER'S STATEMENT THAT OTHER OFFICERS ATTENDING THE SCHOOL AT NEWPORT WERE PAID A PER DIEM ALLOWANCE, IT MAY BE THAT SUCH OTHER OFFICERS DID NOT TRAVEL THE DISTANCES AND WOULD NOT HAVE BEEN ENTITLED TO THE SUBSTANTIAL MILEAGE PAYMENTS THAT ACCRUED TO LIEUTENANT FARRIS. RESPECTING HIS STATEMENT THAT HE SUSTAINED A MONETARY LOSS OF $222.90 ON THE TRIP, IT IS NOTED THAT WHILE HE SETS DOWN THE SUM OF $303 AS THE COST OF MEALS FOR 101 DAYS, HE DOES NOT DEDUCT THEREFORE THE AMOUNT HIS MEALS WOULD HAVE COST HIM FOR THE SAME PERIOD AT HIS PERMANENT STATION. THIS MAY ACCOUNT FOR A SUBSTANTIAL PART IF NOT ALL, OF THE ALLEGED MONETARY LOSS. BUT HOWEVER THOSE MATTERS MAY BE, THE RIGHT TO PAYMENT OF A PER DIEM WHILE IN A TRAVEL STATUS DEPENDS ON A PROPER AUTHORIZATION UNDER THE STATUTES AND GOVERNING REGULATIONS AND SUCH RIGHT IS NOT ESTABLISHED IN THIS CASE. B-28221, AUGUST 31, 1942; B-30727, JANUARY 4, 1943.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.