B-40616, MARCH 22, 1944, 23 COMP. GEN. 713

B-40616: Mar 22, 1944

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DOES NOT CONTEMPLATE A COMBINATION OF MILEAGE AND PER DIEM UNDER THE SAME ORDERS COSTING THE GOVERNMENT MORE THAN IT WOULD HAVE COST ON EITHER BASIS SEPARATELY AND IS NOT SELF EXECUTING. - THAT IS. THE DETERMINATION AS TO THE MODE OF REIMBURSEMENT WILL BE MADE PRIOR TO THE COMMENCEMENT OF THE ORDERED TRAVEL. THERE IS NO OBJECTION TO THE PROSPECTIVE MODIFICATION OF TRAVEL ORDERS ORIGINALLY ISSUED ON A MILEAGE BASIS SO AS TO AUTHORIZE A PER DIEM FOR THE REMAINDER. A LEGAL RIGHT TO SUCH MILEAGE ACCRUES TO AND VESTS IN THE OFFICER AS AND WHEN TRAVEL IS PERFORMED UNDER THE ORDERS AND SUCH LEGAL RIGHT MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE APPLICABLE STATUTES.

B-40616, MARCH 22, 1944, 23 COMP. GEN. 713

SUBSISTENCE - PER DIEMS - NAVAL OFFICERS - CHANGE FROM MILEAGE BASIS DURING TEMPORARY DUTY STATUS THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, WHICH, IN EFFECT, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT FOR NAVAL OFFICERS WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, DOES NOT CONTEMPLATE A COMBINATION OF MILEAGE AND PER DIEM UNDER THE SAME ORDERS COSTING THE GOVERNMENT MORE THAN IT WOULD HAVE COST ON EITHER BASIS SEPARATELY AND IS NOT SELF EXECUTING--- THAT IS, IT GIVES NO RIGHT TO PER DIEM PAYMENTS EXCEPT WHEN DULY PRESCRIBED--- BUT, RATHER, IT CONTEMPLATES THAT, GENERALLY, THE DETERMINATION AS TO THE MODE OF REIMBURSEMENT WILL BE MADE PRIOR TO THE COMMENCEMENT OF THE ORDERED TRAVEL. IN VIEW OF THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, WHICH, IN EFFECT, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT FOR NAVAL OFFICERS TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, IN CASES WHERE, DUE TO UNANTICIPATED CONDITIONS, LENGTH OF ABSENCE FROM THE DESIGNATED POST OF DUTY, ETC., MILEAGE PAYMENTS WOULD BE INADEQUATE, THERE IS NO OBJECTION TO THE PROSPECTIVE MODIFICATION OF TRAVEL ORDERS ORIGINALLY ISSUED ON A MILEAGE BASIS SO AS TO AUTHORIZE A PER DIEM FOR THE REMAINDER, ONLY, OF THE TRAVEL PERIOD, PROVIDED THE TOTAL COST TO THE GOVERNMENT OF THE TRAVEL THERETOFORE PERFORMED IN A MILEAGE STATUS TOGETHER WITH THE TRAVEL THEREAFTER PERFORMED IN A PER DIEM STATUS DOES NOT EXCEED THE COST HAD THE ORIGINAL ORDERS PRESCRIBED A PER DIEM. UNDER TRAVEL ORDERS ENTITLING AN OFFICER TO MILEAGE, A LEGAL RIGHT TO SUCH MILEAGE ACCRUES TO AND VESTS IN THE OFFICER AS AND WHEN TRAVEL IS PERFORMED UNDER THE ORDERS AND SUCH LEGAL RIGHT MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION, AND, THEREFORE, EXCEPT TO CORRECT OR TO COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 22, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 8, 1944, FORWARDING A LETTER FROM THE CHIEF OF NAVAL PERSONNEL, NAVY DEPARTMENT, DATED MARCH 1, 1944, AND REQUESTING A DECISION ON THE QUESTION PRESENTED THEREIN AS TO WHETHER CREDIT WILL BE ALLOWED IN DISBURSING OFFICER'S ACCOUNTS FOR PAYMENTS MADE UNDER MODIFIED ORDERS PRESCRIBING PAYMENT OF PER DIEM FOR TEMPORARY DUTY, WITH DEDUCTION OF ANY MILEAGE PAYMENTS THERETOFORE MADE UNDER SUCH ORDERS.

THE CIRCUMSTANCES MAKING DESIRABLE THE MODIFICATION OF MILEAGE ORDERS TO PROVIDE FOR REIMBURSEMENT ON A PER DIEM BASIS AND THE BASIS OF THE PROPOSED ACTION IN SUCH RESPECT ARE SET OUT IN THE SAID LETTER OF MARCH 1, 1944, FROM THE CHIEF OF NAVAL PERSONNEL, AS FOLLOWS:

1. THE NAVAL APPROPRIATION ACT, 1944, CONTAINS THE FOLLOWING PROVISION:

"THAT THE SECRETARY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCES IN ACCORDANCE WITH LAW, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM, WHETHER OR NOT ORDERS ARE GIVEN TO 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.'

2. THE QUOTED PROVISION IN EFFECT, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT OF OFFICERS UNDER ORDERS INVOLVING TRAVEL OR TEMPORARY DUTY AWAY FROM THEIR PERMANENT STATIONS. THE AUTHORIZATION FOR PAYMENT OF PER DIEM TO OFFICERS (EXCEPT IN CONNECTION WITH AIR TRAVEL) IS RELATIVELY RECENT, WHEREAS MILEAGE IS THE USUAL METHOD OF REIMBURSEMENT. CONSEQUENTLY, IT HAS BEEN THE GENERAL PRACTICE TO ISSUE MILEAGE ORDERS EXCEPT WHERE IT WAS KNOWN IN ADVANCE THAT THE PERIOD OF TEMPORARY DUTY, OR A PROBABLE DELAY IN TRAVEL, WOULD NECESSITATE THE OFFICER'S ABSENCE FROM HIS PERMANENT STATION FOR SO LONG A PERIOD THAT REIMBURSEMENT ON A MILEAGE BASIS WOULD BE INADEQUATE TO COVER HIS EXPENSES.

RECENTLY NUMEROUS SITUATIONS HAVE ARISEN WHERE MILEAGE ORDERS HAVE BEEN ISSUED TO OFFICERS WITH THE EXPECTATION THAT THEIR ABSENCE FROM A PERMANENT STATION WOULD BE OF BRIEF DURATION BUT WHERE, OWING TO UNEXPECTED CONDITIONS, THE OFFICERS HAVE BEEN OBLIGED TO MAINTAIN THEMSELVES AWAY FROM A PERMANENT STATION FOR CONSIDERABLE PERIODS, THUS INCURRING SUBSTANTIAL LOSSES. THESE CASES FALL MAINLY INTO TWO CLASSES:

(A) AN OFFICER MAY BE ORDERED TO A PARTICULAR POINT TO AWAIT TRANSPORTATION, OR TO A POINT WHERE HE IS TO PERFORM CERTAIN TEMPORARY DUTY PRIOR TO EMBARKATION. WHERE PASSAGE OVERSEAS IS DELAYED BECAUSE OF LACK OF SPACE, WEATHER CONDITIONS, CHANGES IN OPERATIONAL PLANS, ETC., OR WHERE THE PERFORMANCE OF TEMPORARY DUTY REQUIRES MORE TIME THAN WAS ANTICIPATED THE OFFICER MAY BE OBLIGED TO MAINTAIN HIMSELF FOR SEVERAL WEEKS AWAY FROM HIS PERMANENT STATION.

(B) AN OFFICER ORDERED TO TRAVEL AWAY FROM HIS PERMANENT STATION FOR TEMPORARY DUTY ELSEWHERE, WITH THE EXPECTATION THAT HE WILL RETURN TO HIS PERMANENT STATION AFTER A SHORT TIME, FINDS THAT THE PERFORMANCE OF THE TEMPORARY DUTY REQUIRES MORE TIME THAN WAS ANTICIPATED. IN THIS SITUATION, ALSO, THE OFFICER MAY BE OBLIGED TO MAINTAIN HIMSELF AWAY FROM HIS PERMANENT STATION FOR AN EXTENDED PERIOD.

4. IN BOTH OF THE SITUATIONS DESCRIBED IN (A) AND (B) OF THE PRECEDING PARAGRAPH. IN CASES WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, OFFICERS ARE ORDINARILY PUT TO CONSIDERABLE EXPENSE. BEING UNCERTAIN OF THE DURATION OF THEIR STAY AT THE EMBARKATION PORT OR OTHER TEMPORARY DUTY POINT, THEY ARE IN MOST CASES OBLIGED TO MAKE LIVING ARRANGEMENTS ON A DAY -TO-DAY BASIS IN HOTELS RATHER THAN SECURE MORE ECONOMICAL ACCOMMODATIONS WHICH MIGHT BE AVAILABLE IF THE DATE OF DEPARTURE WERE KNOWN IN ADVANCE.

5. THE FINANCIAL LOSS WHICH THE OFFICER SUFFERS IN THESE CASES RESULTS NOT FROM AN INADEQUACY OF THE LAWS RELATING TO REIMBURSEMENT FOR HIS EXPENSES, BUT FROM THE FACT THAT HIS ORDERS CALLED FOR REIMBURSEMENT ON A MILEAGE BASIS WHEREAS SUBSEQUENT EVENTS PROVED THEY SHOULD HAVE PROVIDED FOR REIMBURSEMENT ON A PER DIEM BASIS. ALTHOUGH THE ELECTION PERMITTED UNDER THE LAW WAS MADE, IT WAS MADE WITHOUT FULL KNOWLEDGE OF THE FACTS. SINCE THE ORDERS COULD HAVE BEEN ISSUED ON EITHER BASIS IN THE FIRST INSTANCE, IT WOULD SEEM PROPER TO MODIFY THE ORDERS TO PROVIDE FOR REIMBURSEMENT ON THE PER DIEM BASIS WHICH WOULD HAVE BEEN SPECIFIED IN THE ORDERS IF THE FACTS HAD BEEN KNOWN WHEN THE ORDERS WERE ISSUED. ACCORDINGLY, IT IS CONTEMPLATED THAT IN SITUATIONS SUCH AS THOSE DESCRIBED IN (A) AND (B) OF PARAGRAPH 3, WHERE COMPLAINTS ARE RECEIVED THAT MILEAGE PAYMENTS ARE INADEQUATE ORDERS WILL BE MODIFIED TO PROVIDE FOR REIMBURSEMENT ON A PER DIEM BASIS FROM THE START OF THE TRAVEL PERIOD, ANY MILEAGE PAYMENT TO BE DEDUCTED FROM THE ACCOUNT AS COMPUTED ON A PER DIEM BASIS.

6. A SIMILAR SITUATION HAS ARISEN IN CASES INVOLVING ORDERS TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF VESSELS, AND ORDERS TO TEMPORARY DUTY UNDER INSTRUCTION. WHEN IT BECAME APPARENT THAT MILEAGE PAYMENTS WOULD BE INADEQUATE TO COVER EXPENSES INCURRED AWAY FROM THE OFFICER'S PERMANENT STATION IN THESE CASES, OWING TO INCREASED LIVING COSTS AND THE LACK OF SUFFICIENT GOVERNMENT QUARTERS FOR PERSONNEL ON SUCH TEMPORARY DUTY, ORDERS WERE ISSUED PROVIDING FOR THE PAYMENT OF PER DIEM FOR PERIODS NOT EXCEEDING 90 DAYS. PAYMENT UNDER ORDERS OF THIS TYPE WAS APPROVED IN THE COMPTROLLER GENERAL'S DECISION OF 20 JANUARY 1944, B- 39007. WHILE THIS SITUATION HAS BEEN CLARIFIED BY THAT DECISION, THERE HAVE BEEN BROUGHT TO THE ATTENTION OF THE BUREAU OF NAVAL PERSONNEL NUMEROUS INSTANCES OF INEQUITIES WHICH AROSE DURING THE PERIOD WHEN OFFICERS WHO REPORTED FOR SUCH TEMPORARY DUTY UNDER ORDERS PRESCRIBING REIMBURSEMENT ON A PER DIEM BASIS, WITH A RESULTING INEQUITY WHICH IS READILY APPARENT FROM THE FOLLOWING EXAMPLE.

7. PER DIEM ORDERS INVOLVING DUTY IN CONNECTION WITH THE FITTING OUT OF VESSELS WERE FIRST ISSUED LATE IN SEPTEMBER 1943, BUT THE ISSUANCE OF SUCH ORDERS DID NOT BECOME GENERAL UNTIL OCTOBER 1943. THUS, CASES HAVE ARISEN WHERE AN OFFICER WHO REPORTED ON SEPTEMBER 15 FOR TEMPORARY DUTY UNDER MILEAGE ORDERS IN CONNECTION WITH THE FITTING OUT OF A SHIP HAS BEEN JOINED BY OTHER OFFICERS ORDERED TO TEMPORARY DUTY IN OCTOBER UNDER PER DIEM ORDERS IN CONNECTION WITH THE FITTING OUT OF THE SAME SHIP. THE OFFICER WHO FIRST REPORTED NATURALLY INCURS GREATER EXPENSE THAN THE OFFICERS WHO REPORTED SUBSEQUENTLY AND YET THE LATTER ARE REIMBURSED FOR THEIR EXPENSES WHILE ON TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF THE VESSEL WHILE THE FORMER IS NOT. SIMILARLY, IN CONNECTION WITH ORDERS TO TEMPORARY DUTY UNDER INSTRUCTION, THE ISSUANCE OF WHICH BECAME GENERAL IN NOVEMBER 1943, PERSONNEL ORDERED TO SUCH DUTY UNDER MILEAGE ORDERS HAVE BEEN JOINED BY OTHERS WHOSE ORDERS TO THE SAME TEMPORARY DUTY INCLUDE A PROVISION FOR PER DIEM PAYMENTS, WITH THE SAME RESULTING INEQUITIES AS HAVE OCCURRED IN THE CASES OF THOSE ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OF VESSELS.

8. IN A FEW INSTANCES, EVEN AFTER THE PRACTICE OF ISSUING PER DIEM ORDERS FOR SUCH TEMPORARY DUTY BECAME GENERAL, A FEW ORDERS TO TEMPORARY DUTY UNDER INSTRUCTION OR IN CONNECTION WITH FITTING OUT OF VESSELS WERE, THROUGH ADMINISTRATIVE OVERSIGHT, ISSUED WITHOUT THE PROVISION FOR PER DIEM. IN SUCH INSTANCES, THE ORDERS HAVE BEEN MODIFIED TO PROVIDE FOR A PER DIEM, THE MODIFICATION IN SUCH CASES BEING MERELY FOR THE PURPOSE OF CORRECTING AN ADMINISTRATIVE ERROR. IN THE OTHER CASES, IT IS CONSIDERED NECESSARY THAT THE ORDERS BE AMENDED SO THAT ALL PERSONNEL ORDERED TO A PARTICULAR SHIP, OR TO A PARTICULAR ACTIVITY UNDER INSTRUCTION, WILL RECEIVE PER DIEM FROM THE EARLIEST DATE ON WHICH ANY OFFICER ORDERED TO TEMPORARY DUTY AT THE PARTICULAR SHIP OR ACTIVITY REPORTED WITH ORDERS AUTHORIZING PAYMENT OF A PER DIEM. IN ORDER TO ELIMINATE ENTIRELY THE PRESENT INEQUITIES, IT WOULD BE NECESSARY TO MODIFY ORDERS IN SOME CASES WHERE THE TEMPORARY DUTY HAS BEEN COMPLETED, AS WELL AS IN CASES WHERE THE PERSONNEL INVOLVED ARE STILL ENGAGED IN SUCH TEMPORARY DUTY. IN NO CASE IS IT CONTEMPLATED THAT THE MODIFIED ORDERS WOULD PROVIDE FOR PAYMENT OF A PER DIEM PRIOR TO OCTOBER 1, 1943.

AS INDICATED IN THE LETTER, THE PROVISION QUOTED THEREIN FROM THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 197, PUBLIC LAW 92, APPROVED JUNE 26, 1943, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT FOR OFFICERS WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS AS AUTHORIZED UNDER BASIC LAWS. THE STATUTORY PROVISION IS NOT SELF-EXECUTING, HOWEVER, AND GIVES NO RIGHT TO PER DIEM PAYMENTS, EXCEPT WHEN DULY PRESCRIBED, AND APPARENTLY SUCH PROVISION CONTEMPLATES THAT, GENERALLY, THE DETERMINATION WILL BE MADE PRIOR TO THE COMMENCEMENT OF THE ORDERED TRAVEL. IT CLEARLY DOES NOT CONTEMPLATE A COMBINATION OF MILEAGE AND PER DIEM UNDER THE SAME ORDERS COSTING THE GOVERNMENT MORE THAN IT WOULD HAVE COST ON EITHER BASIS SEPARATELY. CF. DECISIONS OF MARCH 8, 1943, B-28221 AND B-30168, AND DECISION OF JUNE 24, 1943, B- 31588. IT IS PROPOSED THAT WHERE MILEAGE ORDERS HAVE BEEN ISSUED BUT UNANTICIPATED CONDITIONS, ETC., MAKE IT APPEAR THAT MILEAGE PAYMENTS ARE INADEQUATE, THE ORDERS WILL BE MODIFIED TO PROVIDE FOR REIMBURSEMENT ON A PER DIEM BASIS, FROM THE BEGINNING OF THE TRAVEL PERIOD, WITH A DEDUCTION FROM THE ACCOUNT AS COMPUTED ON A PER DIEM BASIS OF ANY MILEAGE PAYMENTS WHICH HAVE BEEN MADE. SUCH PROPOSED ACTION DOES NOT APPEAR TO TAKE INTO CONSIDERATION THE VESTED RIGHTS OF THE TRAVELER WHICH ACCRUED DURING THE PERIOD OF HIS TRAVEL STATUS UNDER ORDERS AUTHORIZING REIMBURSEMENT ON A MILEAGE BASIS, PRIOR TO THE PROPOSED CHANGE TO A PER DIEM BASIS, TO BE EFFECTED BY A MODIFICATION OF HIS ORDERS. UNDER TRAVEL ORDERS ENTITLING AN OFFICER TO MILEAGE, A LEGAL RIGHT TO SUCH MILEAGE ACCRUES TO AND VESTS IN THE OFFICER AS AND WHEN TRAVEL IS PERFORMED UNDER THE ORDERS AND SUCH LEGAL RIGHT MAY NOT BE DIVESTED OR MODIFIED BY SUBSEQUENT ADMINISTRATIVE ACTION. SEE KATZER V. UNITED STATES, 52 C.1CLS. 32. THE SAME PRINCIPLE APPLIES TO OTHER FORMS OF TRAVEL ALLOWANCES AND, THEREFORE, EXCEPT TO CORRECT OR TO COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. HOWEVER, IN VIEW OF THE APPARENT PURPOSE, INTER ALIA, OF THE CITED PROVISION CONTAINED IN THE NAVAL APPROPRIATION ACT, 1944, TO PERMIT THE AUTHORIZATION OF A PER DIEM ALLOWANCE WHERE BY REASON OF THE LENGTH OF ABSENCE FROM THE DESIGNATED POST OF DUTY IN A TRAVEL STATUS IT IS CONSIDERED THAT MILEAGE WOULD BE AN INADEQUATE BASIS OF REIMBURSEMENT, AND AS THE ORDERED TRAVEL MAY BE AFFECTED BY CHANGED OR UNANTICIPATED CONDITIONS AFTER THE ORIGINAL ORDERS ARE ISSUED, AS DISCUSSED IN THE LETTER FROM THE CHIEF OF NAVAL PERSONNEL, THERE WOULD APPEAR TO BE NO OBJECTION TO PAYMENTS IN SUCH CASES BASED ON THE PROSPECTIVE MODIFICATION OF ORDERS ORIGINALLY ISSUED FOR TRAVEL ON A MILEAGE BASIS, SO AS TO PRESCRIBE A PER DIEM FOR THE REMAINDER, ONLY, OF THE TRAVEL PERIOD, PROVIDED THAT THE TOTAL COST TO THE GOVERNMENT OF THE TRAVEL THERETOFORE PERFORMED IN A MILEAGE STATUS TOGETHER WITH THE TRAVEL THEREAFTER PERFORMED IN A PER DIEM STATUS DOES NOT EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT IF THE ORIGINAL ORDERS HAD PRESCRIBED A PER DIEM. CF. 18 COMP. GEN. 975. AS THERE WOULD BE NO AUTHORITY FOR PAYMENTS BASED ON RETROACTIVE MODIFICATION OF THE ORDERS THERE WOULD BE NO BASIS, OF COURSE, TO MODIFY THE ORDERS AND MAKE ADDITIONAL PAYMENTS IN CASES WHERE THE ORDERED TRAVEL HAS BEEN COMPLETED.