B-31588, JUN 24, 1943

B-31588, JUN 24, 1943

PRECIS-UNAVAILABLE

COLONEL A. C. HARDEN, F.D., U.S. ARMY:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 7, 1942, TRANSMITTING FOR DECISION A MILEAGE VOUCHER STATED IN FAVOR OF RANALD T. ADAMS, LIEUTENANT COLONEL, I.G.D., IN THE AMOUNT OF $6.88, COVERING TRAVEL PERFORMED FROM WASHINGTON, D.C. TO BALTIMORE, MARYLAND, AND RETURN ON OCTOBER 22 AND OCTOBER 23, 1942. THE REASONS FOR SUBMITTING THE VOUCHER ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

"THE DOUBT IN THIS CASE ARISES IN CONNECTION WITH WHAT IS THE PROPER CONSIDERATION TO BE GIVEN THE ORDER ATTACHED TO THE VOUCHER, DATED OCTOBER 21, 1942, WHICH DIRECTED LT. COL. ADAMS TO PROCEED FROM HIS TEMPORARY DUTY STATION WASHINGTON, D.C., TO FORT HOLABIRD, MD. (A STATION WITHIN THE CITY LIMITS OF HIS PERMANENT STATION) AND RETURN. THE ORDER FROM THE ADJUTANT GENERAL, DATED OCTOBER 8, 1942, DIRECTED LT. COL. ADAMS TO PROCEED FROM BALTIMORE, MD., TO WASHINGTON, D.C., ON TEMPORARY DUTY AND PROVIDED FOR A PER DIEM OF $6.00 PER DAY WHILE ON THIS TEMPORARY DUTY AND DIRECTED HIS RETURN TO HIS PERMANENT DUTY STATION.

"IF THE ORDER DATED OCTOBER 21, 1942, MAY BE CONSIDERED AS A MILEAGE ORDER AND THERE IS NO CONNECTION BETWEEN IT AND THE ORDER DATED OCTOBER 8, 1942, IT WOULD APPEAR THAT MILEAGE IS PROPERLY PAYABLE AND THAT THE VOUCHER, AS SUBMITTED, CONSTITUTES THE BASIS FOR A PROPER PAYMENT. ON THE OTHER HAND, IF THE ORDER DATED OCTOBER 21, 1942, MAY BE CONSIDERED AS A PART OF THE MISSION DIRECTED, IN THE ORDER DATED OCTOBER 8, 1942, IT WOULD APPEAR THAT LT. COL. ADAMS IS ENTITLED TO TRANSPORTATION AND PER DIEM FROM WASHINGTON TO BALTIMORE AND THE SAME FOR THE RETURN JOURNEY, PER DIEM NOT BEING PAYABLE FOR THE PERIOD LT. COL. ADAMS WAS AT FORT HOLABIRD, SAID STATION BEING WITHIN THE CITY LIMITS OF HIS PERMANENT DUTY STATION."

AUTHORITY FOR THE PRESCRIBING OF A PER DIEM IN CONNECTION WITH THE TRAVEL OF ARMY OFFICERS WITHIN THE UNITED STATES DURING THE PERIOD AND UNDER THE CONDITIONS INVOLVED IN THE PRESENT MATTER IS CONTAINED IN THE APPROPRIATION ACT OF APRIL 28, 1942, 56 STAT. 226, 227, AS SUBSTANTIALLY REPEATED-- TO INCLUDE TRAVEL UNDER THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, 364-- IN THE APPROPRIATION ACT OF JULY 2, 1942, 56 STAT. 614, 615, AS FOLLOWS:

"*** THAT THE SECRETARY OF WAR, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE, FOR OFFICERS AND WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, PURSUANT TO THE FIRST AND SECOND PARAGRAPHS OF SECTION 12 OF THE ACT APPROVED JUNE 16, 1942 (PUBLIC LAW 607), IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM RATES OF ALLOWANCE, WHETHER OR NOT ORDERS ARE GIVEN TO SUCH OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS."

PARAGRAPH 9B OF ARMY REGULATIONS 35-4820, SEPTEMBER 19, 1942, IS AS FOLLOWS:

"TEMPORARY PER DIEM ALLOWANCE.-- UNDER THE PROVISIONS OF THE ACT OF APRIL 28, 1942 (PARA. 1B), PER DIEM WILL BE AUTHORIZED ONLY IN CONNECTION WITH TRAVEL WHERE BY REASON OF THE LENGTH OF TEMPORARY DUTY IT IS CONSIDERED THAT EXPENSES INCURRED MAY OR WILL EXCEED THE REIMBURSEMENT ON A MILEAGE BASIS AND THUS CAUSE THE TRAVELER TO SUFFER A LOSS. IN ALL OTHER CASES MILEAGE IS TO BE CONSIDERED AS THE NORMAL FORM OF REIMBURSEMENT FOR THE ORDINARY TRAVEL IN A MILEAGE STATUS. THE ADMINISTRATIVE AUTHORITY ISSUING A TRAVEL ORDER IN ANY CASE IS CHARGEABLE WITH THE DUTY AND RESPONSIBILITY OF DETERMINING WHETHER PER DIEM IS NECESSARY TO AVOID A LOSS TO THE TRAVELER. WHERE IT IS SO DETERMINED BY SUCH ADMINISTRATIVE AUTHORITY, THE ORDERS TO BE ISSUED WILL PRESCRIBE PER DIEM NOT IN EXCESS OF THE MAXIMUM RATE OF $6 TO BE ALLOWED AND, WHEN MAKING SUCH DETERMINATION AS TO THE RATE OF PER DIEM, CARE WILL BE EXERCISED TO PREVENT THE FIXING OF SUCH RATE AS WILL RESULT IN A REIMBURSEMENT TO THE TRAVELER OF AN AMOUNT IN EXCESS OF THAT REQUIRED TO MEET THE ADDITIONAL SUBSISTENCE EXPENSES INVOLVED. THE PRESCRIBING OF A PER DIEM ALLOWANCE IN A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE AND VICE VERSA, IS PROHIBITED, EXCEPT WHERE A PORTION OF THE JOURNEY IS TO BE PERFORMED BY AIR OR EXTENDS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES."

A FLAT PER DIEM OF $6 FOR LIEUTENANT COLONEL ADAMS FOR TRAVEL AND FOR TEMPORARY DUTY WAS PRESCRIBED BY WAR DEPARTMENT ORDERS DATED OCTOBER 8, 1942, AS FOLLOWS:

"1. THE SECRETARY OF WAR DIRECTS AS NECESSARY IN THE MILITARY SERVICE THAT YOU PROCEED AT THE PROPER TIME FROM BALTIMORE, MARYLAND, TO WASHINGTON, D.C., REPORTING ON OCTOBER 17, 1942, TO THE ADJUTANT GENERAL FOR TEMPORARY DUTY FOR THE PURPOSE OF UNDERGOING A COURSE OF INSTRUCTION IN THE DUTIES OF THE INSPECTOR GENERAL'S DEPARTMENT, AND UPON COMPLETION OF THIS TEMPORARY DUTY RETURN TO YOUR PROPER STATION.

"2. IN LIEU OF SUBSISTENCE A FLAT PER DIEM OF $6.00 IS AUTHORIZED FOR TRAVEL AND FOR THE PERIOD OF TEMPORARY DUTY IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS. FD34 P 434-02 A 0425-23."

WHILE LIEUTENANT COLONEL ADAMS WAS PERFORMING THE ORDERED TEMPORARY DUTY AT WASHINGTON, ORDERS WERE ISSUED BY THE OFFICE OF THE INSPECTOR GENERAL UNDER DATE OF OCTOBER 21, 1942, AS FOLLOWS:

"1. THE FOLLOWING OFFICERS BEING ON TEMPORARY DUTY IN THIS OFFICE ARE HEREBY DIRECTED, AS NECESSARY IN THE MILITARY SERVICE, TO PROCEED, ON OR ABOUT OCTOBER 22, 1942, FROM WASHINGTON, D.C. TO HOLABIRD ORDNANCE MOTOR BASE, MD., FOR THE PURPOSE OF INSTRUCTION IN THE OPERATION AND MAINTENANCE OF MOTOR TRANSPORTATION, AND UPON COMPLETION OF THIS TEMPORARY DUTY, TO RETURN TO THEIR TEMPORARY STATION, WASHINGTON, D.C.

"LT. COLONEL RANALD T. ADAMS, (0-9620), *** I.G.D.

"2. THE TRAVEL INVOLVED IS CHARGEABLE TO FD 34 P 434-02 A 0425 23."

THE TRAVEL FROM WASHINGTON TO BALTIMORE AND RETURN UNDER THE ORDERS OF OCTOBER 21, 1942, APPARENTLY WAS IN CONNECTION WITH THE TEMPORARY DUTY OF TAKING THE COURSE OF INSTRUCTION ENJOINED IN THE BASIC ORDER OF OCTOBER 8, 1942. BUT HOWEVER THAT MAY BE, THE TEMPORARY DUTY ENJOINED IN SAID BASIC ORDER, PRESCRIBING A $6 PER DIEM DURING THE PERIOD OF SUCH TEMPORARY DUTY, HAD NOT BEEN COMPLETED WHEN THE TRAVEL UNDER THE SECOND ORDER WAS PERFORMED. THAT IS, THE TRAVEL UNDER THE SECOND ORDER WAS PERFORMED DURING THE PERIOD OF TEMPORARY DUTY FOR WHICH THE BASIC ORDER PRESCRIBED A PER DIEM. AS SUCH TRAVEL WAS ON TEMPORARY DUTY AND DID NOT SUSPEND THE TEMPORARY DUTY STATUS UNDER THE BASIC ORDER, NO REASON IS APPARENT FOR SUSPENDING THE PAYMENT OF THE PER DIEM PRESCRIBED IN THE BASIC ORDER AND CHANGING TO A MILEAGE BASIS FOR TRAVEL ORDERED AND PERFORMED DURING THE PERIOD OF TEMPORARY DUTY. THE REGULATIONS PROHIBIT "THE PRESCRIBING OF A PER DIEM ALLOWANCE IN A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE, AND VICE VERSA." THE PURPOSE OF SUCH PROHIBITION WOULD BE CIRCUMVENTED BY AUTHORIZING TRAVEL ON A MILEAGE BASIS DURING A PERIOD OF TEMPORARY DUTY ON A PER DIEM BASIS, THUS DOING INDIRECTLY WHAT THE REGULATION PROHIBITS DOING DIRECTLY. MOREOVER, THE STATUTORY PROVISIONS AUTHORIZING THE PRESCRIPTION OF A PER DIEM FOR TRAVEL INSTEAD OF MILEAGE MAY NOT BE REGARDED AS REASONABLY CONTEMPLATING MIXTURE OF THE TWO DURING THE SAME TRAVEL STATUS PERIOD.

ACCORDINGLY, YOU ARE ADVISED THAT LIEUTENANT COLONEL ADAMS IS NOT ENTITLED TO MILEAGE FOR THE TRAVEL PERFORMED UNDER THE ORDERS OF OCTOBER 21, 1942, BUT TO THE PER DIEM OTHERWISE PROPERLY PAYABLE FOR THE PERIOD INVOLVED, AS PRESCRIBED IN THE ORDERS OF OCTOBER 8, 1942. AS PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED, IT WILL BE RETAINED IN THE FILES OF THIS OFFICE.