B-107929, MAY 2, 1952, 31 COMP. GEN. 558

B-107929, MAY 2, 1952, 31 COMP. GEN. 558

TRAVEL ALLOWANCE - MILITARY, NAVAL, ETC., PERSONNEL - PER DIEM RATES - TRAVEL OUTSIDE U.S. THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS AUTHORIZING A PER DIEM ALLOWANCE "NOT IN EXCESS OF $9" FOR TRAVEL AND DELAYS OF LESS THAN 10 HOURS TO MEMBERS OF THE UNIFORMED SERVICES IN FOREIGN COUNTRIES DO NOT FIX A RATE OF PER DIEM FOR SUCH TRAVEL, BUT PLACE A CEILING ON THE RATE OF PER DIEM IN ANY COUNTRY FOR WHICH A RATE IN EXCESS OF $9 IS ESTABLISHED IN APPENDIX B OF THE REGULATIONS, AND MAY NOT OPERATE TO INCREASE THE RATE FOR A COUNTRY IN WHICH A LESSER RATE IS ESTABLISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR F. FRIEDMAN, DEPARTMENT OF THE ARMY, MAY 2, 1952:

BY SECOND ENDORSEMENT OF FEBRUARY 5, 1952, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE FOR ADVANCE DECISION YOUR UNDATED LETTER AND ATTACHED VOUCHER COVERING PER DIEM ALLOWANCE TO LIEUTENANT COLONEL SAMUEL E. BURNS FOR THE PERIOD SEPTEMBER 5 TO 8, 1951.

ORDERS OF AUGUST 23, 1951, ISSUED AT HEADQUARTERS, EUROPEAN COMMAND, DIRECTED THE OFFICER TO PROCEED FROM HEIDELBERG, GERMANY, TO BERLIN, GERMANY, FOR TEMPORARY DUTY OF APPROXIMATELY FOUR DAYS, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. IT APPEARS THAT HE LEFT HEIDELBERG AT 5:15 P.M., SEPTEMBER 5, 1951, AND ARRIVED AT BERLIN THE FOLLOWING MORNING, AND THAT HE RETURNED TO HEIDELBERG BY OVERNIGHT TRAVEL ON SEPTEMBER 7 AND 8, 1951, ALL TRAVEL BEING BY RAIL ON GOVERNMENT TRANSPORTATION REQUEST. THE OFFICER STATES THAT ONE MEAL WAS FURNISHED ON EACH OF THE FOUR DAYS INVOLVED AND THAT GOVERNMENT QUARTERS WERE FURNISHED ON SEPTEMBER 6 AND 8, 1951. PER DIEM IS CLAIMED AT THE RATE OF $5 FOR SEPTEMBER 6 AND AT $9 FOR THE OTHER THREE DAYS, LESS APPROPRIATE DEDUCTIONS FOR MEALS AND QUARTERS FURNISHED, AND LESS THE SUM OF $14 BASED ON THE RATE OF $5 PER DAY, LESS DEDUCTIONS, PAID ON VOUCHER NUMBER 6105 OF YOUR SEPTEMBER 1951 ACCOUNT.

PARAGRAPH 4253-1 OF THE JOINT TRAVEL REGULATIONS AS REVISED BY INSTRUCTION MEMORANDUM 1-1, DATED MARCH 2, 1951, COVERS THE PAYMENT OF PER DIEM FOR TRAVEL AND TEMPORARY DUTY OUTSIDE THE UNITED STATES AND, AS TO LAND TRAVEL, IT IS PROVIDED THAT WHEN TRAVELING BY ANY MODE OF TRANSPORTATION, INCLUDING STOPS FOR TEMPORARY DUTY OF LESS THAN 10 HOURS, A MEMBER OF THE UNIFORMED SERVICES "IS ENTITLED TO A PER DIEM ALLOWANCE NOT IN EXCESS OF $9 REGARDLESS OF THE TRAVEL PER DIEM ALLOWANCE ESTABLISHED FOR THE COUNTRIES OR PLACES IN WHICH THE TRAVEL BEGINS, IS DELAYED, OR ENDS (SEE PAR. 4256-2).' IT IS PROVIDED FURTHER THAT FOR PERIODS OF TEMPORARY DUTY OF 10 HOURS OR MORE, THE LOCAL TRAVEL PER DIEM ALLOWANCE APPLIES FOR THE DAY OF ARRIVAL, THROUGH THE DAY PRIOR TO THE DAY OF DEPARTURE. THE RATES OF TRAVEL PER DIEM IN FOREIGN COUNTRIES ARE FIXED IN APPENDIX B OF SAID REGULATIONS. PARAGRAPH 4256-2, AS AMENDED BY INSTRUCTION MEMORANDUM 1-1, AUTHORIZES THEATER COMMANDERS TO PRESCRIBE LESSER RATES OF TRAVEL PER DIEM FOR MEMBERS OF HIS COMMAND WHEN THE DIRECTED TRAVEL IS PERFORMED WHOLLY WITHIN THAT THEATER AND A SPECIFIED TRAVEL RATE IS NOT ESTABLISHED FOR THE COUNTRY OR PLACE BY NAME IN APPENDIX B.

THE WORDS "NOT IN EXCESS OF $9 REGARDLESS OF THE TRAVEL PER DIEM ALLOWANCES ESTABLISHED FOR THE COUNTRIES OR PLACES IN WHICH THE TRAVEL BEGINS, IS DELAYED, OR ENDS," AS CONTAINED IN THE ABOVE-MENTIONED REGULATIONS, DO NOT FIX A RATE OF PER DIEM FOR TRAVEL OUTSIDE THE UNITED STATES. SUCH REGULATION IS NOT AN AFFIRMATIVE AUTHORIZATION OF PER DIEM AT A PARTICULAR RATE, THE RATE BEING REFERRED TO AS "NOT IN EXCESS OF $9.' ALSO, SINCE SPECIFIC RATES OF PER DIEM ARE FIXED IN APPENDIX B FOR TRAVEL IN FOREIGN COUNTRIES, IT SEEMS CLEAR THAT THE REGULATION WAS PROMULGATED FOR THE PURPOSE OF PLACING A CEILING ON THE RATE OF PER DIEM WHICH WOULD BE PAID FOR SUCH TRAVEL AS COVERED THEREBY (WHILE BEING TRANSPORTED AND DELAYS OF LESS THAN TEN HOURS), NOTWITHSTANDING THE HIGHER RATES PRESCRIBED GENERALLY FOR SOME COUNTRIES IN APPENDIX B. REGULATIONS PRESCRIBING PER DIEM AT "NOT IN EXCESS OF" A CERTAIN RATE ARE NOT SELF- EXECUTING BUT REQUIRE THAT THE RATE OF PER DIEM BE SPECIFIED EITHER IN PERTINENT ORDERS OR IN SOME OTHER DIRECTIVE SUCH AS APPENDIX B. HENCE, THE EFFECT OF THE SAID PARAGRAPH 4253-1 IS TO PLACE A CEILING ON THE RATE OF PER DIEM FOR TRAVEL MENTIONED THEREIN IN ANY COUNTRY FOR WHICH A TRAVEL PER DIEM RATE IN EXCESS OF $9 IS ESTABLISHED IN APPENDIX B. WHERE A LESSER RATE IS ESTABLISHED FOR A PARTICULAR COUNTRY, SUCH CEILING DOES NOT AFFECT SUCH LESSER RATE FOR TRAVEL AND TEMPORARY DUTY PERFORMED IN THAT COUNTRY. A LESSER RATE MAY BE FIXED IN EITHER OF TWO WAYS, VIZ., BY SO PROVIDING FOR THE COUNTRY IN QUESTION BY NAME IN APPENDIX B, OR IN THE EVENT THAT SUCH COUNTRY IS NOT MENTIONED THEREIN BY NAME, THE THEATER COMMANDER MAY PRESCRIBE A RATE OF LESS THAN $9 PER DAY FOR TRAVEL TO BE PERFORMED WHOLLY WITHIN THAT THEATER. PARAGRAPH 4256-2, JOINT TRAVEL REGULATIONS. THE RATE OF $5 PER DAY WAS ESTABLISHED FOR TRAVEL AND TEMPORARY DUTY IN GERMANY BY AMENDMENT TO APPENDIX B, AS CONTAINED IN INSTRUCTION MEMORANDUM 1-2, APRIL 27, 1951, AND SUCH RATE IS THE MAXIMUM PAYABLE FOR TRAVEL IN THAT COUNTRY. SINCE IT APPEARS THAT COLONEL BURNS WAS PAID AT THAT RATE ON SAID VOUCHER NO. 6105, NO FURTHER SUM IS DUE HIM.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.