B-44497, NOVEMBER 7, 1944, 24 COMP. GEN. 362

B-44497, NOVEMBER 7, 1944, 24 COMP. GEN. 362

SUBSISTENCE - PER DIEMS - NAVY OFFICER - VESSEL-CONVERSION DUTY; LACK OF LODGING OR MESSING FACILITIES WHILE TRAVELING ON VESSELS THE RIGHT OF A NAVY OFFICER TO PER DIEM IN LIEU OF SUBSISTENCE, AS PROVIDED IN ORDERS ASSIGNING HIM TO TEMPORARY DUTY AT A CERTAIN PLACE IN CONNECTION WITH THE CONVERSION OF A VESSEL AND ON BOARD WHEN PLACED IN COMMISSION, TERMINATED WHEN THE VESSEL WAS TEMPORARILY PLACED IN COMMISSION TO BE FERRIED TO ANOTHER SHIPYARD TO COMPLETE THE CONVERSION, AND, IN THE ABSENCE OF A PROVISION PER DIEM IN THE NEW ORDERS ASSIGNING HIM TO TEMPORARY DUTY IN CONNECTION WITH THE SECOND CONVERSION PERIOD, SUBSEQUENT DESPATCH PURPORTING TO CONTINUE IN EFFECT THE PER DIEM AUTHORIZED IN THE FIRST ORDERS MAY BE GIVEN PROSPECTIVE EFFECT ONLY. EVEN THOUGH NO LODGING OR MESSING FACILITIES BE AVAILABLE FOR NAVY OFFICERS WHILE TRAVELING ON GOVERNMENT-OWNED VESSELS, INCLUDING SMALL SURFACE CRAFT, PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO SUCH OFFICERS IS PRECLUDED BY THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 LIMITING OFFICERS TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES WHEN TRAVELING ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 7, 1944:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1944, REQUESTING A DECISION ON THE FOLLOWING QUESTIONS:

(A) WHETHER OR NOT THE GENERAL ACCOUNTING OFFICE WILL BE REQUIRED TO OBJECT TO PAYMENTS OF PER DIEM WHICH MIGHT BE MADE BY NAVY DISBURSING OFFICERS UNDER INSTRUCTION FROM THE NAVY DEPARTMENT THAT THE PER DIEM SPECIFIED IN THE ORDERS FOR THE FIRST FITTING OUT PERIOD APPLIED DURING THE SECOND FITTING OUT PERIOD BUT NOW DURING THE PERIOD THE VESSEL WAS IN COMMISSION AND WAS BEING FERRIED FROM NEW ORLEANS, LOUISIANA, TO TAMPA, FLORIDA, AS IN THE SPECIFIC CASE MENTIONED IN THE ENCLOSURE?

(B) WHETHER OR NOT PER DIEM, IF OTHERWISE AUTHORIZED IN THE ORDERS, MAY BE PAID TO OFFICERS WHILE ABOARD VESSELS OR SMALL SURFACE CRAFT ON WHICH LODGING AND MESSING FACILITIES ARE NOT AVAILABLE?

THE CONDITIONS GIVING RISE TO QUESTION (A) ARE STATED IN A LETTER DATED AUGUST 12, 1944, FROM THE CHIEF OF NAVAL PERSONNEL, IN PART AS FOLLOWS:

1. IN A NUMBER OF INSTANCES IT HAS BEEN FOUND NECESSARY TO PLACE A NEW VESSEL IN COMMISSION BEFORE THE SHIP WAS ACTUALLY COMPLETED, FERRYIT TO ANOTHER SHIP YARD, PLACE IT OUT OF COMMISSION, AND THERE COMPLETE THE VESSEL. ON COMPLETION IT IS AGAINST PLACED IN COMMISSION.

2. THIS BUREAU CONSIDERS THAT THESE TWO PERIODS OF FITTING OUT ARE IN REALITY ONE PERIOD OF FITTING OUT INTERRUPTED BY THE TRANSFER OF THE VESSEL FROM ONE SHIP YARD TO ANOTHER. IT WOULD APPEAR THAT AN OFFICER RECEIVING A PER DIEM DURING THE FIRST FITTING OUT PERIOD SHOULD AUTOMATICALLY BE ENTITLED TO THE PER DIEM DURING THE SECOND PORTION OF THE TIME THE VESSEL IS FITTED OUT. AS AN ILLUSTRATION, DESPATCH ORDERS WERE ISSUED TO LIEUTENANT (JG) THOMAS L. JAMMES, U.S.N. 197095, ON 17 DECEMBER 1943 DETACHING HIM FROM THE U.S.S. CAPELLA ( AK-13) AND DIRECTING HIM TO PROCEED TO NEW ORLEANS, LA., AND REPORT TO THE ASSISTANT INDUSTRIAL MANAGER FOR TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. STAG AT THE DELTA SHIPBUILDING CO., NEW ORLEANS, LA., AND FOR DUTY ON BOARD WHEN PLACED IN COMMISSION. HE WAS DETACHED FROM THE U.S.S. CAPELLA AT BALTIMORE, MD., ON 27 DECEMBER 1943 AND REPORTED AT NEW ORLEANS, LA., ON 3 JANUARY 1944. ON 16 FEBRUARY 1944 THE U.S.S. STAG WAS PLACED IN COMMISSION AT NEW ORLEANS, LA., AND WAS FERRIED TO TAMPA, FLA., WHERE IT WAS PLACED OUT OF COMMISSION ON 1 MARCH, 1944. THE FITTING OUT PROCESS WAS CONTINUED AND THE U.S.S. STAG WAS EVENTUALLY PLACED IN COMMISSION ON 29 JULY 1922.

3. ENCLOSED IS (A) COPY OF DESPATCH ORDERS OF 17 DECEMBER 1943 ASSIGNING LIEUTENANT (JG) JAMMES TO DUTY CONNECTION FITTING OUT AT NEW ORLEANS, LA., WITH REIMBURSEMENT ON A PER DIEM BASIS FOR A PERIOD NOT EXCEEDING NINETY DAYS. (B) DESPATCH ORDERS OF 1 MARCH 1944 DETACHING THIS OFFICER AND OTHERS ON OR ABOUT 1 MARCH 1944 FROM DUTY ON BOARD THE U.S.S. STAG (AW-1) ASSIGNING HIM TO TEMPORARY DUTY IN CONNECTION CONVERSION U.S.S. STAG (AW- 1) AT TAMPA SHIPBUILDING CO., TAMPA, FLA. AND DUTY ON BOARD WHEN PLACED IN COMMISSION. NO MENTION OF A PER DIEM WAS MADE IN THESE ORDERS BUT ON 16 MAY 1944 WHEN IT WAS DISCOVERED WHAT HAD HAPPENED, AN EFFORT WAS MADE TO BRING TO LIFE THE PER DIEM THAT WAS ALLOWABLE DURING THE FIRST FITTING OUT PERIOD.

THE STATEMENT OF THE CHIEF OF NAVAL PERSONNEL TO THE EFFECT THAT ON MAY 16, 1944, AN EFFORT WAS MADE TO "BRING TO LIFE" THE PER DIEM THAT WAS ALLOWABLE DURING THE FIRST PERIOD OF TEMPORARY DUTY IN CONNECTION WITH FITTING OUT THE VESSEL, APPARENTLY HAS REFERENCE TO A BUREAU OF NAVAL PERSONNEL DESPATCH DATED MAY 16, 1944, IN RELEVANT PART, AS FOLLOWS:

FOLLOWING OFFICERS PROVISIONS PER DIEM ALLOWANCE ORDERS INDICATED REMAIN IN EFFECT * * * LT JG THOMAS L JAMMES 197095 ORDERS SEVENTEEN DEC.

AUTHORITY FOR PRESCRIBING A PER DIEM ALLOWANCE FOR PERSONNEL OF THE MILITARY AND NAVAL SERVICES IS CONTAINED IN THE SECOND PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, AS FOLLOWS:

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6 (INCREASED TO $7 BY THE PROVISIONS OF SECTION 119 OF THE NAVAL APPROPRIATIONS ACT, 1944, 57 STAT. 217), IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *.

ARTICLE 2501, PARAGRAPH 4 (A) OF THE U.S. NAVY TRAVEL INSTRUCTIONS, PROVIDES:

ACTUAL AND NECESSARY EXPENSES OR PER DIEM ALLOWANCES, AS AUTHORIZED IN ORDERS, ARE ALLOWED. FOR ALL TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, PER DIEM IS ALLOWED EVEN THOUGH NOT SPECIFIED IN ORDERS * *

THE PRESCRIBING OF A PER DIEM ALLOWANCE IS EXPRESSLY LIMITED BY STATUTE TO PERIODS DURING WHICH OFFICERS ARE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IT HAS BEEN HELD THAT SUCH PERIODS MAY INCLUDE THE INTERVAL OF TEMPORARY DUTY SERVED UNDER ORDERS ASSIGNING AN OFFICER TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL PRIOR TO REPORTING FOR DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL PRIOR TO REPORTING FOR DUTY ON BOARD WHEN THE VESSEL IS PLACED IN COMMISSION. 23 COMP. GEN. 522. HOWEVER, THE REGULATIONS PROMULGATED TO CARRY OUT THE STATUTORY PROVISIONS RELATIVE TO THE PAYMENT OF PER DIEM CONTEMPLATE THAT THE ORDERS DIRECTING TRAVEL AND TEMPORARY DUTY IN THE UNITED STATES WILL SPECIFY PER DIEM, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE CONDITIONS UNDER WHICH THE TRAVEL AND TEMPORARY DUTY ARE TO BE PERFORMED ARE SUCH THAT THE PAYMENT OF SUCH ALLOWANCE IS WARRANTED. THERE IS NO AUTHORITY UNDER THE REGULATIONS FOR PAYMENT OF PER DIEM WHERE TRAVEL AND TEMPORARY DUTY ARE PERFORMED UNDER ORDERS WHICH DO NOT SPECIFY PER DIEM, EXCEPT FOR TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

THE ORDERS OF DECEMBER 17, 1943, ASSIGNED LIEUTENANT JAMMES TO TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. STAG (AW 1) AND TO DUTY ON BOARD WHEN PLACED IN COMMISSION, AND PROVIDED FO PAYMENT OF A $7 PER DIEM IN LIEU OF SUBSISTENCE FOR A PERIOD NOT EXCEEDING 90 DAYS. WHEN THE SHIP WAS PLACED IN COMMISSION ON FEBRUARY 16, 1944, LIEUTENANT JAMMES' TRAVEL STATUS TERMINATED AND HIS RIGHT TO THE PER DIEM UNDER THOSE ORDERS CAME TO AN END. NEW ORDERS WERE THEN REQUIRED TO RETURN HIM TO TEMPORARY DUTY AND THE ORDERS OF MARCH 1, 1944, WHICH HAD THE EFFECT OF AGAIN PLACING HIM IN A TRAVEL AND TEMPORARY DUTY STATUS, MADE NO PROVISION FOR THE PAYMENT OF A PER DIEM. IT FOLLOWS THAT THE DESPATCH OF MAY 16, 1944, PURPORTING TO CONTINUE IN EFFECT THE PER DIEM ALLOWANCE AUTHORIZED IN THE COMPLETED ORDERS OF DECEMBER 17, 1943, MAY BE RECOGNIZED AS OPERATING PROSPECTIVELY, ONLY, IT BEING WELL ESTABLISHED THAT A PER DIEM MAY NOT BE AUTHORIZED RETROACTIVELY. B-21212, DECEMBER 22, 1941; B-30727, JANUARY 4, 1943; B-37383, NOVEMBER 8, 1943; B-42516, JULY 18, 1944; 7 COMP. GEN. 276; AND 14 ID. 571. THE CIRCUMSTANCES THAT THE TWO PERIODS OF FITTING OUT THE VESSEL--- ONE AT NEW ORLEANS, LOUISIANA, AND THE OTHER AT TAMPA, FLORIDA-- - WERE CLOSELY RELATED DOES NOT PROVIDE A LEGAL BASIS FOR THE RETROACTIVE AUTHORIZATION OF A PER DIEM OR FOR THE PAYMENT OF A PER DIEM NOT PREVIOUSLY AUTHORIZED AS REQUIRED BY THE CONTROLLING REGULATIONS. HOWEVER, AS THE SAID DESPATCH OF MAY 16, 1944, SHOWS A CLEAR ADMINISTRATIVE INTENT TO AUTHORIZE PAYMENT OF PER DIEM TO THE OFFICER WHILE ON TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OF THE VESSEL AT TAMPA AT THE SAME RATE AND UNDER THE SAME CONDITIONS AS AUTHORIZED BY THE ORDERS OF DECEMBER 17, 1943, FOR TEMPORARY DUTY AT NEW ORLEANS, IT MAY BE CONSIDERED AS AUTHORITY FOR THE PAYMENT OF PER DIEM TO THE OFFICER, WHILE ON TEMPORARY DUTY AT TAMPA IN CONNECTION WITH THE CONVERSION OF THE VESSEL, FROM THE DATE OF SUCH DESPATCH, BUT NOT IN EXCESS OF A TOTAL OF 90 DAYS AT BOTH PLACES, THE LIMITATION TO 90 DAYS IN THE ORIGINAL ORDER NOT HAVING BEEN EXTENDED OR SUBSEQUENTLY CHANGED. CF. 18 COMP. GEN. 975; 23 ID. 713. YOUR QUESTION (A) IS ANSWERED ACCORDINGLY.

IN CONNECTION WITH YOUR QUESTION (B), THERE WAS SUBMITTED A LETTER DATED AUGUST 31, 1944, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IN PART AS FOLLOWS:

IN CONNECTION WITH THE QUESTION PRESENTED, THE FURTHER QUESTION ARISES AS TO WHETHER OFFICERS ARE ENTITLED TO PER DIEM, THEIR ORDERS OTHERWISE PROVIDING THEREFOR, WHILE ON BOARD VESSELS ON WHICH NO MESSING OR LODGING FACILITIES ARE PROVIDED. IN PARAGRAPH 7 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 566, IT IS PROVIDED THAT:

"PERSONNEL OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED.'

IN MANY CASES, UNDER THE CIRCUMSTANCES DESCRIBED IN THE BASIC LETTER, AND ALSO IN CONNECTION WITH THE FERRYING OF SMALL SURFACE CRAFT, THE LACK OF ANY MESSING OR SHELTERING FACILITIES MAKES IT NECESSARY FOR THE VESSEL TO DOCK, AND THE PERSONNEL ON BOARD TO GO ASHORE EACH NIGHT TO SECURE LODGING AND SUBSISTENCE. IT DOES NOT APPEAR THAT THE ABOVE-QUOTED STATUTORY PROVISIONS WAS INTENDED TO APPLY TO SUCH CASES, THE PRIMARY PURPOSE THEREOF APPEARING TO HAVE BEEN TO PROHIBIT THE PAYMENT OF PER DIEM FOR TRAVEL ON GOVERNMENT VESSELS IN REGULAR SERVICE. ACCORDINGLY IT IS RECOMMENDED THAT DECISION BE REQUESTED OF THE COMPTROLLER GENERAL AS TO WHETHER PER DIEM, IF OTHERWISE AUTHORIZED IN THE ORDERS, MAY BE PAID TO OFFICERS WHILE ON BOARD VESSELS OR SMALL SURFACE CRAFT ON WHICH LODGING AND MESSING FACILITIES ARE NOT AVAILABLE.

IT WAS HELD IN DECISION OF JUNE 22, 1926, 5 COMP. GEN. 1009, THAT AN EARLIER STATUTORY PROVISIONS ESSENTIALLY THE SAME AS THAT QUOTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS FROM THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 366, PRECLUDED THE PAYMENT OF A PER DIEM TO AN ARMY OFFICER WHILE MAKING INSPECTION TRIPS ON A SMALL LAUNCH HAVING NO SLEEPING ACCOMMODATIONS OR COOKING FACILITIES. IT WAS SAID THAT "THE TERM," GOVERNMENT OWNED VESSELS" WOULD COVER ALL GOVERNMENT-OWNED LAUNCHES, BOATS, TOWBOATS, TRANSPORTS, ETC., AND WOULD INCLUDE THE CLASS OF DESCRIBED BOATS USED FOR MAKING INSPECTIONS IN THE HUNTINGTON (W.1VA.) ENGINEER DISTRICT.' IT HAS BEEN HELD, ALSO, THAT AN ARMY OFFICER ORDERED TO PERFORM TRAVEL BETWEEN TWO DESIGNATED PLACES BY GOVERNMENT-OWNED VESSEL WAS IN A CONTINUOUS STATUS OF TRAVELING ON A GOVERNMENT-OWNED VESSEL, PRECLUDING THE PAYMENT OF A PER DIEM, NOTWITHSTANDING HE WAS REQUIRED TO DISEMBARK IN CONNECTION WITH A SCHEDULED STOPOVER OF THE VESSEL DURING WHICH PERIOD MEALS AND QUARTERS WERE NOT FURNISHED ON BOARD. A-36993, JULY 9, 1921. THE PRESENT STATUTE MAKES NO EXCEPTIONS, BUT APPARENTLY WAS INTENDED TO EXTEND TO ALL TRAVEL ON GOVERNMENT-OWNED VESSELS OF EVERY CLASS AND, INASMUCH AS OFFICERS WHILE TRAVELING ON GOVERNMENT-OWNED VESSELS ARE ENTITLED "ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED," IT MUST NECESSARILY BE HELD THAT THE PAYMENT OF PER DIEM WHILE SO TRAVELING IS NOT AUTHORIZED. ACCORDINGLY, YOUR QUESTION (B) IS ANSWERED IN THE NEGATIVE.