B-109098, MAY 22, 1952

B-109098, MAY 22, 1952

PRECIS-UNAVAILABLE

MAJOR ALMA R. FLAKE, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1952, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 4, 1952, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD JULY 15 TO AUGUST 16, 1950.

BY PARAGRAPH 4, SPECIAL ORDERS NO. 141, DATED JULY 10, 1950, ISSUED AT HEADQUARTERS 3500TH PILOT TRAINING WING, REESE AIR FORCE BASE, TEXAS, YOU WERE RELEASED FROM DUTY THEREAT AND ASSIGNED TO 2349TH AF ORG, CAMP STONEMAN, CALIFORNIA, WITH DIRECTION TO PROCEED TO NELLIS AIR FORCE BASE, LAS VEGAS, NEVADA, FOR TEMPORARY DUTY OF APPROXIMATELY SIX WEEKS UPON COMPLETION OF WHICH YOU WERE TO PROCEED TO CAMP STONEMAN FOR FURTHER ASSIGNMENT. SAID ORDERS CONTAINED THE ABBREVIATION "PCS" DENOTING A PERMANENT CHANGE OF STATION. PARAGRAPH 12, SPECIAL ORDERS NO. 151, SAME HEADQUARTERS, DATED JULY 12, 1951, APPROXIMATELY ONE YEAR AFTER THE ORIGINAL ORDERS, AMENDED SUCH ORDERS SO AS TO PRESCRIBE PER DIEM. THIS WAS ACCOMPLISHED BY MEANS OF CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER PURPORTEDLY ISSUED ON JULY 10, 1950, AND IT WAS STATED THAT SUCH ACTION WAS TAKEN BY "(REASON OF ADM ERROR)." YOU STATE THAT YOU PERFORMED TEMPORARY DUTY AT NELLIS AIR FORCE BASE DURING THE PERIOD OF YOUR CLAIM AND THAT GOVERNMENT QUARTERS WERE FURNISHED.

UNDER THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, A RIGHT TO PER DIEM CANNOT ACCRUE TO AN OFFICER WHILE TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY, UNLESS PAYMENT THEREOF HAS BEEN ADMINISTRATIVELY PRESCRIBED. PARAGRAPH 13C, AIR FORCE MANUAL 173-4, AUTHORIZES THE PAYMENT OF PER DIEM FOR TRAVEL AND TEMPORARY DUTY DIRECTED IN PERMANENT CHANGE OF STATION ORDERS ONLY IN THE EVENT THAT SUCH ORDERS PRESCRIBE PER DIEM. THE ORDERS OF JULY 10, 1950, DID NOT INCLUDE A PROVISION RELATING TO PER DIEM. WHILE THE ORDERS OF JULY 12, 1951, PURPORT TO AMEND THE PRIOR ORDERS SO AS TO PRESCRIBE PER DIEM AND WHILE IT HAS BEEN HELD THAT TRAVEL ORDERS MAY BE AMENDED TO EXPRESS THE ORIGINAL INTENT, THIS OFFICE HAS RECOGNIZED SUCH AMENDATORY ORDERS ONLY WHERE THERE HAS BEEN A FULL DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE ORDERS AND SUCH RECORD CLEARLY ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE, WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDER. 24 COMP. GEN. 439. SUCH INFORMATION HAS NOT BEEN SUBMITTED IN THE PRESENT CASE AND A MERE ALLEGATION OF ADMINISTRATIVE ERROR MAY NOT BE ACCEPTED IN LIEU THEREOF. WITH RESPECT TO THE VERBAL ORDERS STATED TO HAVE BEEN ISSUED ON JULY 10, 1950, IT MAY BE STATED THAT IN AN OTHERWISE PROPER CASE, CONFIRMATORY ORDERS FURNISH A SUFFICIENT BASIS FOR PAYMENT OF TRAVEL ALLOWANCES ONLY IF THEY ARE ISSUED AT A TIME SUFFICIENTLY NEAR THE DATE OF THE VERBAL ORDERS AS TO JUSTIFY A CONCLUSION THAT THE ISSUING OFFICER HAD A CLEAR MEMORY OF THE PRIOR ORDERS. DECISION OF SEPTEMBER 19, 1951, B-105167. UNDER MOST CIRCUMSTANCES, A COMMANDING OFFICER WOULD HAVE LITTLE OR NO RECOLLECTION OF VERBAL STATEMENTS OR ORDERS MADE BY HIM A YEAR EARLIER. IT IS NOTED THAT THE ORDERS OF JULY 10, 1950, AND JULY 12, 1951, ARE SIGNED BY DIFFERENT PERSONS AND WHILE THE ONE WAS ISSUED BY ORDER OF THE WING COMMANDER AND THE OTHER BY ORDERS OF A COLONEL MCFARLAND, THERE IS NOTHING TO SHOW THAT BOTH OFFICERS ARE THE SAME PERSON. ALSO, IT WOULD SEEM THAT IF IT HAD BEEN DECIDED ON JULY 10, 1950, THAT PER DIEM SHOULD BE AUTHORIZED, THERE WOULD HAVE BEEN NO NEED TO ISSUE VERBAL ORDERS TO THAT EFFECT SINCE THE WRITTEN ORDERS COULD HAVE SO PROVIDED. THE ORDERS OF JULY 12, 1951, APPEAR TO BE NOTHING MORE THAN AN ATTEMPT TO PRESCRIBE PER DIEM FOR A PERIOD OF DUTY ALREADY PERFORMED AND SINCE IT IS WELL ESTABLISHED THAT A PER DIEM ALLOWANCE MAY NOT BE PRESCRIBED RETROACTIVELY, SUCH ORDERS DO NOT FURNISH A PROPER BASIS FOR THE PAYMENT OF YOUR CLAIM. IF, AS STATED BY YOU, OTHER OFFICERS WERE PAID PER DIEM FOR TEMPORARY DUTY AT THE SAME PLACE, IT IS ASSUMED THAT PER DIEM WAS PROPERLY PRESCRIBED FOR SUCH DUTY.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 4, 1952, MUST BE SUSTAINED.