B-141260, DEC. 30, 1959

B-141260, DEC. 30, 1959

TO MR. IRVING GOZONSKY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1959, WHICH REQUESTS FURTHER CONSIDERATION OF THE CONCLUSION THAT YOU ARE INDEBTED TO THE UNITED STATES AND AN EXPLANATION OF OUR DECISION B-122508, JUNE 8, 1957.

THE INDEBTEDNESS OF $47.85 TO WHICH YOU REFER AROSE INCIDENT TO YOUR MILITARY SERVICE. THE RECORD INDICATES THAT DURING THE PERIOD JANUARY 28, 1955, TO FEBRUARY 25, 1955, YOU WERE PAID A PER DIEM ALLOWANCE AT THE RATE OF $1.65 PER DAY. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 18, DATED JANUARY 26, 1955, CHANGED YOUR THEN TEMPORARY DUTY ASSIGNMENT TO PERMANENT DUTY APPARENTLY EFFECTIVE FEBRUARY 26, 1955. PER DIEM WAS PAID TO YOU UNDER THE PROVISIONS OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS, EFFECTIVE AT THAT TIME, WHICH PROVIDED AS FOLLOWS:

"A MEMBER WHO IS AT A TEMPORARY DUTY STATION (OR ON LEAVE FROM SUCH TEMPORARY DUTY STATION) WHEN PERMANENT CHANGE OF STATION ORDERS ARE ISSUED DESIGNATING THE TEMPORARY DUTY STATION AS HIS PERMANENT STATION WILL NOT RECEIVE PER DIEM FOR ANY PERIOD ON OR AFTER THE DATE THE PERMANENT CHANGE OF STATION ORDERS ARE RECEIVED AT HIS TEMPORARY DUTY STATION, UNLESS THE PERMANENT CHANGE OF STATION ORDERS BECOME EFFECTIVE AT SOME FUTURE DATE.'

BY DECISION OF JUNE 8, 1955, B-122508, THE SECRETARY OF DEFENSE WAS ADVISED THAT THE UNDERLINED PORTION OF PARAGRAPH 4209 "APPEARS TO BE INCONSISTENT WITH THE STATUTE" (SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813), SINCE SUCH LANGUAGE PURPORTED TO AUTHORIZE PAYMENT OF PER DIEM FOR DUTY AT A STATION AFTER THAT PLACE WAS DESIGNATED AS THE MEMBER'S NEW POST OF DUTY. SINCE PAYMENT OF PER DIEM IS NOT AUTHORIZED BY LAW UNDER SUCH CIRCUMSTANCES, CORRECTION OF THE UNLAWFUL REGULATION WAS SUGGESTED. A REGULATION WHICH IS INCONSISTENT WITH THE PROVISIONS OF LAW ON WHICH IT IS BASED HAS NO FORCE OR EFFECT AND HENCE, THERE WAS NOT AUTHORITY FOR THE PAYMENT OF PER DIEM TO YOU AFTER JANUARY 28, 1955, THE APPARENT DATE OF YOUR RECEIPT OF SPECIAL ORDERS NO. 18. ACCORDINGLY, EXCEPTION WAS TAKEN TO THE PAYMENT OF PER DIEM TO YOU IN THE AMOUNT OF $47.85 ON D.O. VOUCHER NO. 808660 OF THE FEBRUARY 1955 ACCOUNTS OF R. A. BUTLER.

YOU STATE THAT THE USE OF THE WORD "APPEARS" IN OUR DECISION OF JUNE 8, 1955, REFERRING TO THE INCONSISTENCY OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS WITH THE BASIC STATUTE, INDICATES THAT OUR DECISION WAS NOT OF A POSITIVE AND FINAL NATURE. ONE OF THE ACCEPTED DEFINITIONS OF THE WORD "APPEAR" GIVEN IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, 2ND EDITION, 1951, IS AS FOLLOWS:

"TO BECOME CLEAR TO THE APPREHENSION OF THE MIND; TO BE KNOWN AS A SUBJECT OF OBSERVATION OR COMPREHENSION, OR AS A THING PROVED; TO BE OBVIOUS OR MANIFEST.'

THE COURTS HAVE ALSO HAD OCCASION TO DEFINE THE WORD "APPEAR.' IN THE CASE OF GORHAM V. LUKETT, 45 KY. 146, 165, IT WAS STATED THAT:

"* * * THE WORD "APPEAR" OR "APPEARING," IS ONE OF FREQUENT USE IN JUDICIAL PROCEEDINGS * * * AS MEANING "CLEAR TO THE COMPREHENSION," WHEN APPLIED TO MATTERS OF OPINION OR REASONING, AND ,SATISFACTORILY OR LEGALLY KNOWN, OR MADE KNOWN" WHEN USED IN REFERENCE TO FACTS OR EVIDENCE.'

SEE ALSO LECKLEIDER V. CHICAGO CITY RAILROAD CO., 172 ILL.APP. 557.

IT WAS IN THE SENSE EXPRESSED BY THESE DEFINITIONS THAT THE WORD "APPEARS" WAS USED IN OUR DECISION OF JUNE 8, 1955. THE LEGAL EFFECT OF THE QUOTED REGULATION WAS AGAIN CONSIDERED IN DECISION OF OCTOBER 22,1959, B-140879, COPY ENCLOSED, AND IT WAS HELD THAT SUCH REGULATION FURNISHED NO AUTHORITY FOR THE PAYMENT OF PER DIEM UNDER CIRCUMSTANCES SIMILAR TO THOSE HERE INVOLVED.

PAYMENT OF YOUR DEBT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND SHOULD BE FORWARDED TO THE U.S. GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, INDIANAPOLIS 49, INDIANA.