B-154330, SEP. 1, 1964

B-154330, SEP. 1, 1964

TO MR. GEORGE JOHNSON, JR.:

THIS REFERS TO YOUR LETTERS OF MAY 18, 1964, AND AUGUST 4, 1964, CONCERNING OUR CLAIMS DIVISION SETTLEMENT OF MAY 15, 1964, WHICH DISALLOWED YOUR CLAIM FOR $100, REPRESENTING ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE BELIEVED BY YOU TO BE DUE FOR THE MONTH OF SEPTEMBER 1963 AS AN EMPLOYEE OF THE ARMY DISTRICT ENGINEER, VICKSBURG, MISSISSIPPI. JULY 27, 1964, WE REQUESTED A REPORT FROM HEADQUARTERS, OFFICE OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY, WHICH REPORT NOW HAS BEEN RECEIVED.

THE RECORD SHOWS THAT YOU OBTAINED LODGINGS AT ONLY 3 PLACES DURING THE PERIOD JULY 30 TO OCTOBER 7, 1963. DURING THE MONTH OF SEPTEMBER 1963 YOUR OFFICE BARGE WAS CENTRALLY LOCATED AT ALLENDALE, LOUISIANA, AND DURING THAT MONTH YOU RETAINED THE LODGINGS AND SUBSISTENCE YOU HAD OBTAINED AT PORT ALLEN, LOUISIANA, AT WHICH LOCALITY YOU ARRIVED AT 3 P.M. ON AUGUST 30, 1963. THEREAFTER, THE RECORD SHOWS, YOUR WORK ASSIGNMENTS, LODGING LOCALITY AND PER DIEM STATUS DURING THE PERIOD IN QUESTION, FROM 6 P.M., AUGUST 30 THROUGH SEPTEMBER 30--- PLUS SEVERAL DAYS THEREAFTER--- CAME WITHIN THE JURISDICTION OF THE NEW ORLEANS ENGINEER DISTRICT.

IN THAT REGARD WE HAVE NOTED THE SEVERAL PROVISIONS CONTAINED IN THE PERTINENT ADMINISTRATIVE REGULATIONS, AS AMENDED FROM TIME TO TIME, NAMELY, CPR T3, CHANGE 10, DATED MARCH 26, 1963, AND CHIEF OF ENGINEERS CIRCULAR NO. 55-1-2, JUNE 28, 1963; ALSO VICKSBURG DISTRICT REGULATION NO. 55-1-10, CHANGE 8, MAY 1, 1963, THE REVISION SEPTEMBER 1, 1963, AND CHANGE 2, SEPTEMBER 30, 1963. HOWEVER, WE DO NOT FIND THAT THOSE REGULATIONS LEND SUPPORT TO YOUR CLAIM FOR A RATE HIGHER THAN $8 PER DAY. THIS IS BORNE OUT IN THE REPORT WE HAVE FROM THE ACTING DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY, DATED AUGUST 20, 1964, WHICH READS IN PART AS FOLLOWS:

"DURING FY 64 CONSTRUCTION PROGRAM BANK GRADING AND MAT SINKING OPERATIONS BEGAN IN THE VICKSBURG DISTRICT ON 30 JULY AND WERE COMPLETED ON 15 AUGUST 1963. WORK WAS COMMENCED IN THE NEW ORLEANS DISTRICT ON 15 AUGUST AND COMPLETED ON 10 NOVEMBER 1963. ALL PERMANENT EMPLOYEES ASSIGNED ON THE BANK GRADING UNIT WERE AUTHORIZED A PER DIEM RATE OF $8.00 WHILE ON EXTENDED TRAVEL BY TRAVEL ORDER NO. LMKKR-31 DATED 18 JULY 1963. AMENDMENT NO. 1 TO THIS TRAVEL ORDER DATED 5 AUGUST 1963 WAS ISSUED TO COVER ADDITIONAL TRAVEL WITHIN THE NEW ORLEANS DISTRICT. NO CHANGE IN RATE OF PER DIEM FOR EXTENDED TRAVEL WAS INVOLVED SINCE CHECK WITH THE NEW ORLEANS DISTRICT REVEALED THAT AN $8 PER DIEM RATE HAD BEEN ESTABLISHED THERE ON THE BASIS OF COST-OF-LIVING SURVEYS CONDUCTED BY THEM.'

HENCE, THE RATE OF PER DIEM APPLICABLE TO YOUR TRAVEL AND EXTENDED TEMPORARY DUTY DURING SEPTEMBER LAWFULLY WAS THAT WHICH WAS PRESCRIBED FOR THE NEW ORLEANS DISTRICT BASED UPON A COST-OF-LIVING SURVEY MADE BY THE NEW ORLEANS DISTRICT, THAT IS, $8.

WE HAVE NOTED YOUR STATEMENT TO THE EFFECT THAT YOU HAVE NOT RECEIVED THE SAME RATE THAT OTHER EMPLOYEES OF THE SAME UNIT WERE PAID BY SHOWING "PAPER" MOVES FROM ONE JOB TO ANOTHER WHILE STAYING AT THE SAME MOTEL AND MOTELS ADJACENT TO THE ONE AT WHICH YOU STAYED DURING THE PERIOD IN QUESTION. IN THE ABSENCE OF SPECIFIC NAMES OR OF THE DETAILED VOUCHERS AND DOCUMENTS TO WHICH YOU ALLUDE, WE CANNOT DETERMINE WHETHER SOME OTHER EMPLOYEES HAVE BEEN OVERPAID PER DIEM--- AS SUGGESTED IN YOUR LETTER OF MAY 18, 1964. HOWEVER, THAT FACT, IF ESTABLISHED, WOULD NOT WARRANT AN ADDITIONAL ALLOWANCE TO YOU AS CLAIMED. FURTHER, AS TO YOUR LETTER OF AUGUST 4, 1964, OUR VIEW IS THAT ANY ADMINISTRATIVE OFFER "TO SETTLE THE MATTER," SUCH AS THAT WHICH YOU DESCRIBE--- EVEN IF BASED UPON A COST SURVEY ANNUALLY OR OTHERWISE--- COULD HAVE NO RETROACTIVE EFFECT ON THE RATE LAWFULLY APPLICABLE TO THE MONTH OF SEPTEMBER 1963 IN YOUR CASE.

THEREFORE, SINCE OUR CLAIMS DIVISION SETTLEMENT LETTER OF MAY 15, 1964, DISALLOWED YOUR CLAIM UPON THE BASIS THAT THE $8 RATE APPLIED TO YOUR DUTY WITHIN THE NEW ORLEANS DISTRICT DURING SEPTEMBER 1963, THE PERIOD OF YOUR CLAIM, THE SAID SETTLEMENT DISALLOWANCE IS SUSTAINED.