B-120448, JAN 7, 1955

B-120448, JAN 7, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL RICHARD L. BORNDAHL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1954, CONCERNING THE ACTION TAKEN IN SETTLEMENT DATED APRIL 30, 1954, WHICH DISALLOWED YOUR CLAIM FOR A TRAVEL PER DIEM ALLOWANCE DURING THE PERIOD APRIL 4, 1951, TO FEBRUARY 14, 1952, INCIDENT TO TRAVEL IN CONNECTION WITH YOUR ASSIGNMENT AS A MEMBER OF THE JOINT UNITED STATES MILITARY ADVISORY GROUP TO THE REPUBLIC OF THE PHILIPPINES.

YOU STATE THAT -

"*** THE INSPECTOR GENERAL RULED THAT MAJOR GENERAL HOBBS DID NOT HAVE THE AUTHORITY TO WITHHOLD PER DIEM ACCORDING TO REGULATIONS AND DIRECTED THAT ORDERS BE PUBLISHED RETROACTIVE SO THAT INDIVIDUALS WOULD BE REIMBURSED FOR PERSONAL EXPENDITURES MADE ON TRIPS THAT HAD BEEN ORDERED VERBALLY BY THE COMMANDING GENERAL."

YOU ASK WHETHER YOU HAVE A VALID CLAIM BASED ON THE INFORMATION CONTAINED IN YOUR LETTER AND THE ACTION TAKEN PURSUANT TO THE INSTRUCTIONS OF THE INSPECTOR GENERAL.

IT APPEARS FROM THE RECORDS THAT WHILE YOU WERE STATIONED IN THE PHILIPPINE ISLANDS AS A MEMBER OF THE JOINT UNITED STATES MILITARY ADVISORY GROUP TO THE REPUBLIC OF THE PHILIPPINES, YOU PERFORMED CERTAIN TRAVEL AND TEMPORARY DUTY DURING THE PERIOD APRIL 4, 1951, TO FEBRUARY 14, 1952, PURSUANT TO VERBAL ORDERS AND THAT SUCH ORDERS WERE NOT CONFIRMED UNTIL THE ISSUANCE OF SPECIAL ORDERS NO. 64, DATED JUNE 21, 1952, JOINT UNITED STATES MILITARY ADVISORY GROUP, AS AMENDED BY SPECIAL ORDERS NO. 73, DATED JULY 22, 1952, SAME HEADQUARTERS. THOSE ORDERS CONTAIN THE NAMES OF 16 OTHER OFFICERS AND ENLISTED MEN IN THE GROUP WHO WERE ORDERED TO PERFORM SUCH DUTY IN SIMILAR CIRCUMSTANCES. THE ORDERS OF JUNE 21, 1952, BEAR THE ABBREVIATIONS "ESPOA" INDICATING THAT THE EXIGENCIES OF THE SERVICE PREVENTED THE ISSUANCE OF ORDERS IN ADVANCE OF TRAVEL. THE ORDERS FURTHER STATE THAT "(FUNDS EXPENDED FOR PER DIEM ARE REIMBURSABLE BY THE PHIL GOVT)."

AN AGREEMENT BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES ON MILITARY ASSISTANCE TO THE PHILIPPINES, ESTABLISHING THE JOINT UNITED STATES MILITARY ADVISORY GROUP TO THE REPUBLIC OF THE PHILIPPINES, PROVIDES IN PART AS FOLLOWS:

"ARTICLE 9. *** OFFICERS AND ENLISTED MEN SO DETAILED ARE AUTHORIZED TO ACCEPT FROM THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES *** SUCH PAY AND EMOLUMENTS THEREUNTO APPERTAINING AS MAY BE OFFERED BY THAT GOVERNMENT AND APPROVED BY THE APPROPRIATE AUTHORITIES OF THE UNITED STATES ***.

"ARTICLE 13. *** MEMBERS OF THE GROUP SHALL BE ENTITLED TO COMPENSATION FOR EXPENSES INCURRED IN TRAVEL IN THE REPUBLIC OF THE PHILIPPINES ON OFFICIAL BUSINESS OF THE GROUP AND SUCH EXPENSES SHALL BE REIMBURSED TO THE GOVERNMENT OF THE UNITED STATES OF AMERICA BY THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES EXCEPT FOR EXPENSES OF TRAVEL BY THE TRANSPORTATION FACILITIES OF THE GROUP."

PARAGRAPH 4252, JOINT TRAVEL REGULATIONS, EFFECTIVE APRIL 1, 1951, PROVIDED AS FOLLOWS:

"MEMBERS OF MILITARY MISSIONS OR OTHERS AUTHORIZED TO RECEIVE ADDITIONAL PAY OR ALLOWANCES FROM FOREIGN GOVERNMENTS OR AGENCIES OF THE UNITED STATES OTHER THAN THEIR RESPECTIVE DEPARTMENTS, OR OTHER SOURCES WILL NOT RECEIVE TRAVEL PER DIEM ALLOWANCES PRESCRIBED HEREIN EXCEPT WHEN SPECIFICALLY AUTHORIZED JOINTLY BY THE SECRETARIES CONCERNED."

THAT PARAGRAPH WAS MODIFIED BY INSTRUCTION MEMORANDUM 1-4, DATED AUGUST 1, 1951, STATED TO BE EFFECTIVE RETROACTIVELY TO APRIL 1, 1951, WHICH PROVIDES IN PART AS FOLLOWS:

"MEMBERS OF MILITARY, NAVAL, OR AIR MISSIONS, OR OTHERS AUTHORIZED TO RECEIVE ADDITIONAL PAY OR ALLOWANCES FROM FOREIGN GOVERNMENTS OR AGENCIES OF THE UNITED STATES OTHER THAN THEIR RESPECTIVE DEPARTMENTS, OR FROM OTHER SOURCES, WILL NOT RECEIVE THE TRAVEL PER DIEM ALLOWANCES PRESCRIBED HEREIN EXCEPT:

"3. WHEN NO TRAVEL PER DIEM ALLOWANCE IS AUTHORIZED BY THE FOREIGN GOVERNMENT; OR

"4. WHEN TRAVELING UNDER COMPETENT ORDERS IN CONNECTION WITH THEIR DUTIES WITH THE FOREIGN GOVERNMENTS, IF SO SPECIFICALLY PROVIDED FOR IN THE EXECUTIVE AGREEMENT BETWEEN THE UNITED STATES AND THE FOREIGN GOVERNMENT CONCERNED."

IN RESPONSE TO AN INQUIRY FROM THIS OFFICE CONCERNING THE CLAIMS OF ALL THE MEMBERS OF THE GROUP TO WHICH YOU WERE ASSIGNED, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, TRANSMITTED CERTAIN COPIES OF CORRESPONDENCE BETWEEN THAT OFFICE AND THE JOINT UNITED STATES MILITARY ADVISORY GROUP TO THE REPUBLIC OF THE PHILIPPINES. IT IS STATED IN SECOND INDORSEMENT OF MARCH 19, 1952, OF THE JOINT UNITED STATES MILITARY ADVISORY GROUP, THAT AN EMOLUMENT WAS PAID TO THE GROUP BY THE REPUBLIC OF THE PHILIPPINES THROUGH JULY 3, 1951. SINCE IT APPEARS THAT TRAVEL PER DIEM ALLOWANCES WERE NOT PRESCRIBED UNDER THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS FOR TRAVEL BY YOU AS A MEMBER OF A MILITARY MISSION IN THE PHILIPPINES, NO RIGHT TO PER DIEM ACCRUED FOR ANY PERIOD BETWEEN APRIL 1 AND JULY 31, 1951. INSTRUCTION MEMORANDUM 1-4 MAY NOT BE GIVEN RETROACTIVE EFFECT. CF. 32 COMP. GEN. 315.

A RIGHT TO PER DIEM FOR PERIODS ON AND AFTER AUGUST 1, 1951, UNDER INSTRUCTION MEMORANDUM 1-4, DATED AUGUST 1, 1951, COULD ACCRUE ONLY IN THE EVENT THAT COMPETENT ORDERS AS DEFINED IN PARAGRAPH 3001, JOINT TRAVEL REGULATIONS, WERE ISSUED. WHILE VERBAL ORDERS HAVE BEEN RECOGNIZED AS COMPETENT ORDERS FOR TRAVEL WHEN THEY ARE PROPERLY CONFIRMED IN WRITING WITHIN A COMPARATIVELY SHORT PERIOD OF TIME, WHERE, AS HERE, THE CONFIRMATORY ORDERS ARE ISSUED LONG AFTER THE PURPORTED VERBAL ORDERS, AND THE ADMINISTRATIVE REPORTS ON THE MATTER DO NOT SHOW THAT EMERGENCY CONDITIONS EXISTED, THE CONFIRMED ORDERS HAVE NOT BEEN CONSIDERED SUFFICIENT TO SUPPORT TRAVEL PAYMENTS. IT APPEARS FROM THE COPIES OF CORRESPONDENCE FURNISHED THAT DURING THE PERIOD OF YOUR CLAIM NO TRAVEL FOR WHICH THE UNITED STATES WOULD BE OBLIGATED WAS CONTEMPLATED AND THAT IT WAS FOR THAT REASON THAT NO WRITTEN ORDERS WERE ISSUED. THE ISSUANCE OF WRITTEN ORDERS MONTHS AFTER THE TRAVEL, APPARENTLY FOR THE SOLE PURPOSE OF ATTEMPTING TO ESTABLISH AN OBLIGATION ON THE PART OF THE UNITED STATES TO PAY TRAVEL ALLOWANCES INCIDENT TO SUCH TRAVEL, MAY NOT BE RECOGNIZED AS MEETING THE REQUIREMENT FOR COMPETENT ORDERS. ALSO, WHILE ARTICLE 13 OF THE AGREEMENT BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES PROVIDES THAT MEMBERS OF THE GROUP SHALL BE ENTITLED TO COMPENSATION FOR "EXPENSES INCURRED" FOR TRAVEL IN THE PHILIPPINES, AND THAT THE UNITED STATES SHALL BE REIMBURSED "SUCH EXPENSES," THERE APPEARS TO BE NO AGREEMENT TO PAY OR REIMBURSE A PER DIEM WITHOUT REGARD TO THE ACTUAL "EXPENSES INCURRED," IF ANY.

FOR THESE REASONS, THE SETTLEMENT OF APRIL 30, 1954, WHICH DISALLOWED YOUR CLAIM MUST BE SUSTAINED.