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B-135262, FEB. 28, 1963

B-135262 Feb 28, 1963
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THE FACTS AND PERTINENT REGULATIONS WERE SET FORTH IN OUR DECISION OF JANUARY 31 AND WILL NOT BE REPEATED HERE. IN YOUR PRESENT LETTER YOU REPEAT YOUR EARLIER CONTENTIONS THAT THE OFFICER WHO ISSUED THE TRAVEL ORDER MERELY ESTABLISHED TWO RATES BECAUSE GOVERNMENT QUARTERS WERE AVAILABLE AND THAT THE SECRETARY OF THE NAVY FOUND SUCH PRACTICE TO BE "ILLEGAL.'. PRIOR TO THE SETTLEMENT OF YOUR CLAIM A REPORT WAS OBTAINED FROM THE OFFICER IN CHARGE. IT WAS NOT THE POLICY TO AUTHORIZE PER DIEM IN TOKYO. EXCEPTIONS WERE MADE IN THE CASE OF ACTIVITIES OR CONTRACTORS LOCATED AT REMOTE LOCATIONS IN TOKYO WHERE COMMUTING TIME WOULD BE EXTRAORDINARILY LONG FROM THE INDIVIDUAL'S HOME TO WORK AND RETURN (I.E.

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B-135262, FEB. 28, 1963

TO MR. JAKE LAPIN:

ON FEBRUARY 7, 1963, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF JANUARY 31, 1963, B-135262, BY WHICH WE SUSTAINED THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO YOUR SERVICE WITH THE DEPARTMENT OF THE NAVY.

THE FACTS AND PERTINENT REGULATIONS WERE SET FORTH IN OUR DECISION OF JANUARY 31 AND WILL NOT BE REPEATED HERE. IN THAT DECISION WE POINTED OUT THAT NEITHER THE REGULATION NOR THE TRAVEL ORDER ISSUED THEREUNDER MAY BE AMENDED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT.

IN YOUR PRESENT LETTER YOU REPEAT YOUR EARLIER CONTENTIONS THAT THE OFFICER WHO ISSUED THE TRAVEL ORDER MERELY ESTABLISHED TWO RATES BECAUSE GOVERNMENT QUARTERS WERE AVAILABLE AND THAT THE SECRETARY OF THE NAVY FOUND SUCH PRACTICE TO BE "ILLEGAL.'

PRIOR TO THE SETTLEMENT OF YOUR CLAIM A REPORT WAS OBTAINED FROM THE OFFICER IN CHARGE, U.S. NAVAL AUDIT, YOKOSUKA, WHICH REPORT CONTAINS THE FOLLOWING STATEMENT:

"E. PER DIEM RATE GENERALLY DESIGNATED FOR LIKE TRAVEL. AT THE TIME OF MR. LAPIN'S TEMPORARY DUTY, IT WAS NOT THE POLICY TO AUTHORIZE PER DIEM IN TOKYO. EXCEPTIONS WERE MADE IN THE CASE OF ACTIVITIES OR CONTRACTORS LOCATED AT REMOTE LOCATIONS IN TOKYO WHERE COMMUTING TIME WOULD BE EXTRAORDINARILY LONG FROM THE INDIVIDUAL'S HOME TO WORK AND RETURN (I.E. PRINCE MOTORS LTD. AND MAAG JAPAN). AUDITORS WORKING AT PRINCE MOTORS WERE AUTHORIZED $8.00 PER DIEM DUE TO THE NON AVAILABILITY OF GOVERNMENT QUARTERS.'

FROM THE QUOTED STATEMENT IT APPEARS THAT THE PER DIEM RATE OF $8.40 AT WHICH YOU WERE PAID FOR TRAVEL DUTY WHERE GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT USED WAS SUBSTANTIALLY THE SAME AS THAT AUTHORIZED FOR AUDITORS SERVING AT INSTALLATIONS WHERE NO GOVERNMENT QUARTERS WERE AVAILABLE.

THE COPY OF THE LETTER TO YOU OF MARCH 6, 1962, FROM THE OFFICE OF INDUSTRIAL RELATIONS, TO WHICH YOU REFERRED AS A LETTER FROM THE SECRETARY OF NAVY, CONTAINS NO STATEMENT TO THE EFFECT THAT THE ESTABLISHMENT OF TWO RATES OF PER DIEM HAD BEEN FOUND BY THE SECRETARY TO HAVE BEEN ILLEGAL, NOR DO WE FIND SUCH STATEMENT IN THE SECRETARY'S COMMUNICATION OF JANUARY 2, 1962, TO THE OFFICER IN CHARGE AT YOKOSUKA. IT MAY BE THAT YOU HAD REFERENCE TO THE SECRETARY'S LETTER TO YOU OF JANUARY 2, 1962, IN WHICH HE STATED THAT SUCH PRACTICE WAS "ILLOGICAL" AND THAT THE OFFICER IN CHARGE HAD BEEN DIRECTED TO ESTABLISH A SINGLE PER DIEM RATE. HOWEVER THAT MAY BE, THE PER DIEM RATE AT WHICH YOU WERE PAID WAS DETERMINED IN ACCORDANCE WITH THE EXISTING REGULATION BY AN OFFICER WHO WAS AT THE TIME EMPOWERED TO MAKE SUCH A DETERMINATION. THAT RATE BECAME THE LEGAL RATE TO WHICH YOU WERE ENTITLED. THEREFORE, WE MUST ADHERE TO OUR DECISION OF JANUARY 31, 1963.

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