B-161396, AUGUST 23, 1967, 47 COMP. GEN. 127

B-161396, AUGUST 23, 1967, 47 COMP. GEN. 127

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - SPECIAL PER DIEM ALLOWANCES - APPROVAL THE APPROVAL OF THE SPECIAL PER DIEM ALLOWANCES PRESCRIBED IN 37 U.S.C. 405 TO COVER THE COST-OF-LIVING WHEN MEMBERS OF THE UNIFORMED SERVICES TRAVEL ON TEMPORARY DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, SUBSEQUENT TO THE PERFORMANCE OF THE TRAVEL WOULD BE A RETROACTIVE DETERMINATION OF BOTH THE SPECIAL PER DIEM RATE AND ENTITLEMENT TO THE RATE CONTRARY TO THE RULE THAT THE RIGHTS OF THE GOVERNMENT AND A MEMBER ENTITLED TO PER DIEM FOR TRAVEL AND TEMPORARY DUTY BECOME FIXED UNDER APPLICABLE ORDERS AND REGULATIONS IN EFFECT AT THE TIME THE DUTY IS PERFORMED AND SUCH RIGHTS MAY NOT BE CHANGED BY ADMINISTRATIVE ACTION WHICH WOULD RETROACTIVELY AMEND THE MEMBER'S ORDERS OR CHANGE THE APPLICABLE REGULATIONS. THEREFORE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PROVIDE FOR APPROVAL OF SPECIAL PER DIEM ALLOWANCES FOR FOREIGN TRAVEL AFTER THE TRAVEL HAS BEEN PERFORMED.

TO THE SECRETARY OF THE NAVY, AUGUST 23, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 13, 1967, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE FOR APPROVAL BY THAT COMMITTEE OF SPECIAL PER DIEM ALLOWANCES FOR FOREIGN TRAVEL AFTER THE TRAVEL HAS BEEN PERFORMED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 67-15 BY THE PER DIEM,TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BRIEFLY STATED, THE UNDER SECRETARY SAYS THAT SINCE PARAGRAPH M4352 1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE SPECIAL PER DIEM ALLOWANCE IN EACH CASE MUST BE AUTHORIZED PRIOR TO THE TRAVEL UPON WHICH ENTITLEMENT IS BASED, MANY DESERVING CASES ARE DENIED SUCH ALLOWANCES BECAUSE THE MEMBER DID NOT OR COULD NOT SEEK AUTHORITY FOR ADEQUATE ALLOWANCES IN ADVANCE. ALSO, IT IS STATED THAT THE CHANGE WOULD ALLOW SPECIAL PER DIEM ALLOWANCES FOR FOREIGN TRAVEL TO BE APPROVED IN THE SAME MANNER AS ACTUAL EXPENSE ALLOWANCES FOR TRAVEL PERFORMED WITHIN THE CONTINENTAL UNITED STATES UNDER THE JOINT TRAVEL REGULATIONS, VOLUME I, CHAPTER 4, PART A.

THE UNDER SECRETARY STATES THAT THE STATUTORY AUTHORITY FOR FOREIGN PER DIEM ALLOWANCES, INCLUDING SPECIAL PER DIEM ALLOWANCES, IS 37 U.S.C. 405 WHICH PROVIDES THAT "THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, ...' TO COVER THE COST OF LIVING OF MEMBERS ON DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA. HE SAYS THAT WHILE IT HAS BEEN HELD THAT REGULATIONS PRESCRIBED UNDER 37 U.S.C. 405 MAY NOT BE CHANGED RETROACTIVELY TO INCREASE OR DECREASE PER DIEM RATES (32 COMP. GEN. 315 AND 33 COMP. GEN. 318; ID. 505), IT IS NOT CONSIDERED THAT THE PROPOSED REGULATIONS WOULD INVOLVE A RETROACTIVE PRESCRIPTION OF RATES WITHIN THE MEANING OF THESE DECISIONS.

IT IS EXPLAINED THAT UNDER THE PROPOSED CHANGE, ENTITLEMENT TO THE FOREIGN PER DIEM ALLOWANCE WOULD BE FIXED IN ADVANCE UNDER THE REGULATIONS AND SUBSEQUENT APPROVAL WOULD MERELY INVOLVE APPLYING A PRE-EXISTING REGULATION TO THE SPECIFIC FACTS OF THAT CASE, NOT THE RETROACTIVE PRESCRIPTION OF PER DIEM RATES. THE UNDER SECRETARY SAYS THAT THE DETERMINATION OF A MEMBER'S ACTUAL EXPENSES ALREADY INCURRED AND REIMBURSEMENT AT A PER DIEM RATE THEREFOR DOES NOT IN PRINCIPLE SEEM MATERIALLY DIFFERENT FROM AUTHORIZING A SPECIAL PER DIEM IN ADVANCE BASED UPON ESTIMATES OF THOSE EXPENSES, AS IS PRESENTLY REQUIRED.

BASED ON THE FOREGOING, THE UNDER SECRETARY REQUESTS OUR DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO ALLOW THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TO APPROVE SPECIAL PER DIEM ALLOWANCES FOR FOREIGN TRAVEL SUBSEQUENT TO THE PERFORMANCE OF THE TRAVEL UPON WHICH ENTITLEMENT IS BASED.

AS INDICATED ABOVE, A MEMBER'S ENTITLEMENT TO SPECIAL PER DIEM ALLOWANCES FOR FOREIGN TRAVEL IS AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 405. UNLIKE SECTION 404 OF TITLE 37, SECTION 405 DOES NOT AUTHORIZE REIMBURSEMENT OF ACTUAL TRAVEL EXPENSES BUT AUTHORIZES THE PAYMENT OF A PER DIEM. SEE PAGES 1709 AND 1710 OF HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES ON H.R. 2553, 81ST CONGRESS, A BILL WHICH PRECEDED H.R. 5007, ENACTED AS THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802.

PARAGRAPH M4352 OF THE REGULATIONS PROVIDES THAT THE SPECIAL PER DIEM ALLOWANCE RATES WILL BE SPECIFIED IN AUTHORIZATIONS ISSUED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. FURTHER, IT PROVIDES THAT THE COMMITTEE DETERMINATIONS MAY SPECIFY THE EXACT RATE PAYABLE OR MAY AUTHORIZE THE USE OF RATES PUBLISHED IN APPENDIX F FOR THE PLACE OUTSIDE CONTINENTAL UNITED STATES INVOLVED IN THE TRAVEL.

CHAPTER 4, PART H, JOINT TRAVEL REGULATIONS, AUTHORIZES PAYMENT OF SPECIAL PER DIEM ALLOWANCES FOR THE PERIOD OF TEMPORARY DUTY AWAY FROM A PERMANENT DUTY STATION WHEN THERE IS A CLEAR SHOWING THAT BECAUSE OF THE UNUSUAL OR EXTRAORDINARY REQUIREMENTS OF THE DUTY INVOLVED NORMAL FIRST CLASS ACCOMMODATIONS WILL NOT SUFFICE.

THE CURRENT REGULATIONS (APPENDIX E) PLACE RESPONSIBILITY UPON THE MEMBER TO SUBMIT A REQUEST FOR APPROVAL OF SPECIAL PER DIEM ALLOWANCES TOGETHER WITH DATA WHICH DEMONSTRATES THAT THE EXPECTED EXPENSES OF TRAVEL WOULD BE IN EXCESS OF THE AUTHORIZED PER DIEM. THE SPECIAL PER DIEM ALLOWANCE MUST BE APPROVED PRIOR TO THE TRAVEL.

AS WE UNDERSTAND IT, UNDER THE PROPOSED REGULATION, THE MEMBER WOULD SUBMIT A REQUEST FOR APPROVAL OF SPECIAL PER DIEM ALLOWANCE AFTER THE TRAVEL HAS BEEN PERFORMED AND IF THE COMMITTEE ASCERTAINS THAT A SPECIAL PER DIEM ALLOWANCE IS WARRANTED IT WOULD ISSUE A DETERMINATION SPECIFYING AN EXACT RATE PAYABLE OR AUTHORIZE THE USE OF RATES PUBLISHED IN APPENDIX F FOR THE PLACE OUTSIDE THE CONTINENTAL UNITED STATES INVOLVED IN THE TRAVEL.

WHILE THE UNDER SECRETARY SAYS THAT ENTITLEMENT WOULD BE FIXED IN ADVANCE AND WOULD NOT INVOLVE RETROACTIVE PRESCRIPTION OF PER DIEM RATES, IT SEEMS TO US THAT THE RETROACTIVE PRESCRIPTION OF PER DIEM RATES IS WHAT THE PROPOSAL CONTEMPLATES. WHILE THE REGULATIONS AUTHORIZE THE PAYMENT OF SPECIAL PER DIEM UNDER PRESCRIBED CIRCUMSTANCES AND THE SPECIAL PER DIEM RATES SET FORTH IN APPENDIX F ARE PRESCRIBED IN ADVANCE, THOSE RATES ARE APPLICABLE ONLY IN CASE NO OTHER RATE IS PRESCRIBED IN THE SPECIAL DETERMINATION AUTHORIZING THE ALLOWANCE TO THE MEMBER INVOLVED.

PARAGRAPH M4352-2 OF THE REGULATIONS PROVIDES THAT SPECIAL PER DIEM AUTHORIZATIONS PRESCRIBING RATES GREATER THAN THOSE AUTHORIZED IN APPENDIX A (NORMAL OVERSEAS TRAVEL PER DIEM RATES) BUT NOT IN EXCESS OF THOSE AUTHORIZED IN APPENDIX F MAY BE ISSUED BY THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OVER THE SIGNATURE OF ITS CHAIRMAN OR BY THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. IT FURTHER PROVIDES FOR AUTHORIZING RATES IN EXCESS OF THOSE PROVIDED IN APPENDIX F, SUBJECT TO A SPECIAL DETERMINATION BY THE SECRETARY OF THE SERVICE CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THUS, THE REGULATIONS DO NOT NOW PRESCRIBE FIXED RATES FOR APPLICATION ON THE BASIS OF THE MEMBER'S SHOWING OF EXPECTED EXPENSES OF AN UNUSUAL OR EXTRAORDINARY AMOUNT. RATHER, THE REGULATIONS PROVIDE FOR A DETERMINATION IN EACH CASE AS TO WHETHER A SPECIAL PER DIEM SHOULD BE AUTHORIZED AND THE RATE (WITHIN CERTAIN LIMITATIONS) TO BE PAID FOR THE TEMPORARY DUTY TO BE PERFORMED. UNDER THE PROPOSAL AS WE UNDERSTAND IT, ENTITLEMENT WOULD BE DETERMINED AND THE RATE OF SPECIAL PER DIEM FIXED RETROACTIVELY AFTER THE DUTY HAS BEEN PERFORMED.

IT HAS LONG BEEN THE VIEW OF THIS OFFICE THAT IN THE CASE OF MEMBERS ENTITLED TO A PER DIEM FOR TRAVEL AND TEMPORARY DUTY PERFORMED, THE RIGHTS OF THE MEMBER AND THE GOVERNMENT BECOME FIXED UNDER THE APPLICABLE ORDERS AND REGULATIONS IN EFFECT AT THE TIME SUCH DUTY IS PERFORMED AND THAT SUCH RIGHTS MAY NOT BE CHANGED BY ADMINISTRATIVE ACTION WHICH WOULD RETROACTIVELY AMEND THE MEMBER'S ORDERS OR CHANGE THE APPLICABLE REGULATIONS. 23 COMP. GEN. 713; 24 ID. 362; ID. 439; 32 ID. 315; 33 ID. 505.

WITH RESPECT TO THE VIEW THAT THE PAYMENT OF TEMPORARY LODGING ALLOWANCE IS AUTHORIZED UNDER CERTAIN CIRCUMSTANCES SIMILAR TO THE PROPOSAL, IT MAY BE POINTED OUT THAT UNDER PARAGRAPH M4303 OF THE REGULATIONS, THE BASIS FOR DETERMINING ENTITLEMENT AND COMPUTING THE AMOUNT OF TEMPORARY LODGING ALLOWANCE TO BE PAID IS FIXED IN ADVANCE IN THE REGULATIONS, SO THAT A MEMBER'S RIGHT TO THAT ALLOWANCE FOR PRESCRIBED PERIODS IS NOT DEPENDENT ON A RETROACTIVE DETERMINATION AS TO WHETHER HE SHOULD RECEIVE THE ALLOWANCE AND A PRESCRIPTION OF THE RATE TO BE PAID. WHILE THAT PARAGRAPH PROVIDES IN SPECIAL CIRCUMSTANCES FOR APPROVAL OF ADDITIONAL PERIODS AFTER THE NORMAL MAXIMUM PERIOD FOR WHICH THE ALLOWANCE IS AUTHORIZED HAS EXPIRED, THERE IS NOT INVOLVED ANY RETROACTIVE AUTHORIZATION OF THE RATE TO BE PAID.

FOR THE FOREGOING REASONS, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.