B-110604, SEP 9, 1952

B-110604, SEP 9, 1952

PRECIS-UNAVAILABLE

CAPTAIN NEIL FOUTS, USAF:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1952, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 21, 1951, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TRAVEL AND TEMPORARY DUTY DURING THE PERIOD NOVEMBER 21 TO 27, 1950.

THE RECORD SHOWS THAT BY PARAGRAPH 9, SPECIAL ORDERS NO. 118, DATED NOVEMBER 21, 1950, OFFUTT AIR FORCE BASE, OMAHA, NEBRASKA, YOU WERE DIRECTED TO PROCEED ON TEMPORARY DUTY FOR APPROXIMATELY 10 DAYS TO WILMINGTON, DELAWARE, FOR THE PURPOSE OF AIRLIFT CARGO, IT BEING SPECIFICALLY PROVIDED THEREIN THAT NO PER DIEM WAS AUTHORIZED. YOU COMPLETED SUCH DUTY AND RETURNED TO YOUR STATION ON NOVEMBER 27, 1950. THEREAFTER, BY PARAGRAPH 4, SPECIAL ORDERS NO. 129, DATED DECEMBER 13, 1950, THE ORDERS OF NOVEMBER 21, WERE AMENDED TO PROVIDE FOR PER DIEM WHILE IN AN AIR TRAVEL STATUS. YOUR CLAIM FOR PER DIEM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE, IT BEING STATED THEREIN THAT EXCEPT TO CORRECT OR COMPLETE ORDERS TO SHOW ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCURED AND BECOME FIXED UNDER APPLICABLE STATUTES AND REGULATIONS FOR TRAVEL AND DUTY PERFORMED. IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE PROVISIONS IN THE ORIGINAL ORDERS PROHIBITING PAYMENT OF PER DIEM WAS IN ERROR AND THAT THE ORDERS AS CORRECTED OR AMENDED CONSTITUTE AUTHORITY FOR PAYMENT OF PER DIEM.

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 ORDERS ONLY IN THE EVENT THE ORDERS PRESCRIBED PER DIEM. THE ORDERS OF NOVEMBER 21, 1950, SPECIFICALLY PROVIDED THAT PER DIEM WAS NOT AUTHORIZED. WHILE THE ORDERS OF DECEMBER 13, 1950, 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 ADMINISTRATIVE 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 FURNISHED IN THE PRESENT CASE AND A MERE ALLEGATION BY YOU OF AN ADMINISTRATIVE ERROR MAY NOT BE ACCEPTED IN LIEU THEREOF. THE ISSUANCE OF THE AMENDATORY ORDER IN AND OF ITSELF APPEARS TO BE NOTHING MORE THAN AN ATTEMPT TO PRESCRIBE PER DIEM FOR A PERIOD OF DUTY ALREADY PERFORMED UNDER ORDERS WHICH WERE CLEAR AND UNAMBIGUOUS ON THEIR FACE AND WHICH PROVIDED UNEQUIVOCABLY THAT NO PER DIEM WAS AUTHORIZED.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 21, 1951, WAS CORRECT AND MUST BE SUSTAINED.