B-163290, MAR. 13, 1968

B-163290, MAR. 13, 1968

PER DIEM - MILITARY PERSONNEL - ORDERS PROPRIETY DECISION TO FORMER AIRMAN ALLOWING PORTION OF CLAIM FOR PER DIEM FOR TEMPORARY DUTY IN VIETNAM UNDER VARIOUS ORDERS EXTENDING TEMPORARY DUTY INCLUDING VERBAL ORDERS. SINCE ORDERS DATED DEC. 16, 1965, MAKING BAN ME THUOT AIRFIELD PERMANENT STATION WERE ISSUED IN U.S. AND MEMBER WAS THEN AT BAN ME THUOT IT IS ASSUMED THAT ORDERS WERE RECEIVED BY DEC. 27, 1965 THEREFORE MEMBER IS ENTITLED TO PER DIEM THROUGH DEC. 26, 1965. SINCE VARIOUS VERBAL ORDERS WERE NOT CONFIRMED WITHIN REASONABLE TIME AND THOSE ORDERS WHICH WERE CONFIRMED WOULD HAVE PLACED MEMBER ON TEMPORARY DUTY AT PERMANENT STATION, THERE IS NO BASIS FOR PAYMENT OF PER DIEM.

TO MR. PHILIP S. GRIFFEY:

REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY FOR THE PERIOD AUGUST 25, 1965, THROUGH AUGUST 17, 1966, INCIDENT TO YOUR SERVICE AS AIRMAN, SECOND CLASS, UNITED STATES AIR FORCE. ALSO, WE HAVE RECEIVED YOUR LETTER OF FEBRUARY 7, 1968, RELATIVE TO YOUR CLAIM.

BY SPECIAL ORDER T-2431 DATED AUGUST 18, 1965, YOU WERE DIRECTED TO PROCEED FROM BEALE AIR FORCE BASE, CALIFORNIA, TO APO SAN FRANCISCO 96307 FOR TEMPORARY DUTY WITH TEMPORARY DUTY EN ROUTE AT HAMILTON AIR FORCE BASE, CALIFORNIA. UPON COMPLETION OF THE TEMPORARY DUTY OVERSEAS YOU WERE TO RETURN TO BEALE AIR FORCE BASE, CALIFORNIA. THE DURATION OF THE TEMPORARY DUTY WAS STATED TO BE APPROXIMATELY 124 DAYS INCLUDING TRAVEL TIME. YOU DEPARTED BEALE AIR FORCE BASE ON AUGUST 25, 1965, AND ARRIVED AT YOUR TEMPORARY OVERSEAS STATION, BAN ME THUOT AIRFIELD, VIETNAM, ON SEPTEMBER 10, 1965. SPECIAL ORDER A-1655 DATED DECEMBER 17, 1965, DESIGNATED BAN ME THUOT AS YOUR PERMANENT STATION EFFECTIVE JANUARY 10, 1966.

IN YOUR LETTER OF AUGUST 11, 1967, YOU SAY THAT UPON RECEIPT OF THE PERMANENT CHANGE OF STATION ORDERS TO VIETNAM, A TRAVEL VOUCHER COVERING THE PERIOD AUGUST 25, 1965, TO JANUARY 27, 1966, WAS SUBMITTED AT TAN SON NHUT FINANCE CENTER (APPARENTLY ON THE LATTER DATE WHEN YOU TRAVELED TO THAT STATION), BUT YOU WERE INFORMED THAT YOU WOULD NEED A SET OF ORDERS EXTENDING YOUR ORIGINAL TEMPORARY DUTY FROM BEALE AIR FORCE BASE. YOU FURTHER SAY THAT YOU WROTE TO THE SPECIAL ORDERS SECTION REQUESTING THAT SUCH ORDERS BE SENT TO YOUR STATION IN VIETNAM; THAT THE ORDERS YOU REQUESTED WERE NOT RECEIVED BEFORE YOUR DEPARTURE FOR THE UNITED STATES; AND, THAT YOU WERE ADVISED TO ATTEMPT TO CLEAR UP THE EXTENSION OF TEMPORARY DUTY AND SUBMIT TRAVEL VOUCHERS AFTER RETURNING TO THE UNITED STATES.

SPECIAL ORDER T-1171, DATED AUGUST 19, 1966, PURPORTS TO CONFIRM VERBAL ORDERS OF JANUARY 16, 1966, PLACING YOU ON TEMPORARY DUTY AT BAN ME THUOT AIRFIELD FOR APPROXIMATELY 164 DAYS EFFECTIVE ON OR ABOUT JANUARY 18, 1966. SPECIAL ORDER T-1172, DATED AUGUST 19, 1966, PURPORTS TO CONFIRM VERBAL ORDERS OF JUNE 16, 1966, PLACING YOU ON TEMPORARY DUTY AT THE SAME PLACE FOR APPROXIMATELY 60 DAYS EFFECTIVE ON OR ABOUT JULY 1, 1966. SPECIAL ORDER T-79, DATED JANUARY 11, 1967, PURPORTS TO BE BASED ON VERBAL ORDERS OF DECEMBER 23, 1965, AMENDING THE ORDERS OF AUGUST 18, 1965, TO READ 149 DAYS' TEMPORARY DUTY.

PARAGRAPH M4209 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS AT A TEMPORARY DUTY STATION WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS.

THE RECORD DOES NOT SHOW WHEN YOU RECEIVED THE ORDERS OF DECEMBER 16, 1967, ESTABLISHING BAN ME THUOT AIRFIELD AS YOUR PERMANENT STATION. HAVE BEEN ADVISED, HOWEVER, THAT UNDER NORMAL PROCEDURE SUCH ORDERS ISSUED IN THE UNITED STATES ARE FORWARDED TO VIETNAM BY AIR NOT LATER THAN THE DAY AFTER ISSUANCE AND SHOULD REACH THE STATION THERE IN NOT MORE THAN 4 OR 5 DAYS. SINCE THE ORDERS WERE ISSUED AT BEALE AIR FORCE BASE, CALIFORNIA, AND YOU WERE THEN AT BAN ME THUOT AIRFIELD, IT IS ASSUMED THEY WERE RECEIVED BY YOU NOT LATER THAN DECEMBER 27, 1965. THEREFORE, ON THAT BASIS YOUR ENTITLEMENT TO PER DIEM TERMINATED ON THAT DATE. YOU ARE, HOWEVER, ENTITLED TO PER DIEM UNDER THE ORDERS OF AUGUST 18, 1965, FOR THE PERIOD AUGUST 25 THROUGH DECEMBER 26, 1965, THE APPROXIMATE PERIOD INTENDED BY THOSE ORDERS.

WHILE THE VARIOUS VERBAL ORDERS THAT ARE SAID TO HAVE BEEN GIVEN DIRECTING AN EXTENSION OF TEMPORARY DUTY THROUGH AUGUST 17, 1966, WERE SUBSEQUENTLY CONFIRMED IN WRITING, THE CONFIRMING ORDERS WERE ISSUED AFTER A TIME LAPSE RANGING FROM OVER 7 MONTHS TO MORE THAN ONE YEAR. PARAGRAPH M3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT NO REIMBURSEMENT FOR TRAVEL, INCLUDING TEMPORARY DUTY, IS AUTHORIZED UNLESS PURSUANT TO COMPETENT ORDERS. PARAGRAPH M3002 OF THOSE REGULATIONS PROVIDES THAT SUCH ORDERS MUST BE IN WRITING, AND THAT VERBAL ORDERS GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT OF WRITTEN ORDERS.

PARAGRAPH 16, AIR FORCE MANUAL 10-3A, PROVIDES THAT VERBAL ORDERS ARE AUTHORIZED ONLY WHEN TIME, ADMINISTRATIVE PROCESSING PROCEDURES, OR ADMINISTRATIVE OVERSIGHT PREVENTED WRITTEN ORDERS BEING ISSUED IN ADVANCE OF EFFECTIVE DATE, AND IN ALL CASES VERBAL ORDERS SHOULD BE CONFIRMED IN WRITING AS SOON AS POSSIBLE. IT LONG HAS BEEN THE RULE THAT WRITTEN ORDERS, CONFIRMING EARLIER VERBAL ORDERS, TOGETHER WITH EVIDENCE SHOWING THAT AN EMERGENCY PREVENTED THE ISSUANCE OF WRITTEN ORDERS WITHIN A SHORT TIME AFTER THE VERBAL ORDERS MAY BE ACCEPTED EVEN THOUGH ISSUANCE OF THE WRITTEN ORDERS MAY HAVE BEEN DELAYED FOR SEVERAL WEEKS. SUCH ORDERS, HOWEVER, MAY NOT BE ACCEPTED WHERE, AS HERE, THERE APPEARS TO HAVE BEEN AN UNREASONABLE DELAY AND THE ISSUANCE OF THE VERBAL ORDERS IS NOT OTHERWISE SUBSTANTIATED. B 125517, MARCH 30, 1956; 43 COMP. GEN. 281, 284.

IN ADDITION, THE VARIOUS CONFIRMING ORDERS WERE ISSUED WITHOUT ANY SHOWING THAT THE ORDERS OF DECEMBER 17, 1965, WHICH ESTABLISHED BAN ME THUOT AIRFIELD AS YOUR PERMANENT STATION WERE ERRONEOUS. ORDERS MAY NOT BE MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH BECAME FIXED THEREUNDER UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 24 COMP. GEN. 439.

THE VARIOUS CONFIRMING ORDERS DO NOT PROVIDE FOR ANY AMENDMENT TO THE ORDERS OF DECEMBER 17, 1965, AND IT IS INDICATED FROM YOUR STATEMENTS THAT YOU RECEIVED THOSE ORDERS BEFORE RECEIVING FURTHER TEMPORARY DUTY ORDERS. THEREFORE, IF THE CONFIRMING ORDERS WERE OTHERWISE ACCEPTABLE THEIR EFFECT WOULD BE TO PLACE YOU ON TEMPORARY DUTY AT YOUR PERMANENT STATION. UNDER THE PROVISIONS OF THE PERTINENT STATUTE, 37 U.S.C. 404, AND PARAGRAPH M3050 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO, A MEMBER'S ENTITLEMENT TO TRAVEL ALLOWANCES IS DEPENDENT UPON HIS BEING IN A TRAVEL STATUS AWAY FROM HIS PERMANENT STATION. 43 COMP. GEN. 185. THUS, PER DIEM IS NOT PAYABLE FOR TEMPORARY DUTY AT THE PERMANENT STATION.

SINCE THE VARIOUS VERBAL ORDERS WERE NOT CONFIRMED WITHIN A REASONABLE TIME AND SUCH ORDERS AS CONFIRMED WOULD HAVE PLACED YOU ON TEMPORARY DUTY AT YOUR PERMANENT STATION, THERE IS NO BASIS FOR PAYMENT OF PER DIEM AFTER DECEMBER 26, 1965.

SETTLEMENT FOR THE AMOUNT DUE AS PER DIEM FOR THE PERIOD AUGUST 25, 1965, THROUGH DECEMBER 26, 1965, WILL ISSUE IN DUE COURSE.