B-128055, JUL. 5, 1956

B-128055, JUL. 5, 1956

TO MR. THOMAS J. NOLAN, SUPERVISORY ACCOUNTANT, AIR FORCE PLANT REPRESENTATIVE, WARNER ROBINS AIR MATERIEL AREA, CURTISS-WRIGHT CORPORATION:

REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING A REVIEW OF OUR SETTLEMENT DATED MARCH 22, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD FROM AUGUST 14 TO 20, 1955, WHILE ON TEMPORARY DUTY AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE AWAY FROM YOUR PERMANENT STATION AT CALDWELL, NEW JERSEY.

ALTHOUGH THE ACT OF JULY 28, 1955, 69 STAT. 393, AUTHORIZED AN INCREASE IN THE MAXIMUM PER DIEM RATE FROM $9 TO $12 PER DAY EFFECTIVE AUGUST 1, 1955, THE PROVISIONS THEREOF DID NOT BECOME EFFECTIVE AUTOMATICALLY. PARAGRAPH 2 OF THE REGULATIONS (AFM 40-10, DATED JULY 29, 1955), RELATING TO CHANGES IN PER DIEM RATES FOR TRAVEL PERFORMED WITHIN THE UNITED STATES READS, AS FOLLOWS:

"THE REVISED PARAGRAPHS 19 AND 20 ARE EFFECTIVE 1 AUGUST 1955. TRAVEL ORDERS ISSUED PRIOR TO THAT DATE FOR EMPLOYEES IN A TRAVEL STATUS ON AND AFTER THE EFFECTIVE DATE WILL NOT ENTITLE TRAVELER TO PER DIEM REIMBURSEMENT IN EXCESS OF THE PER DIEM RATE PRESCRIBED BY THE ORDER UNLESS AUTHORIZED BY TRAVEL ORDER AMENDMENT. TRAVEL ORDER AMENDMENTS EFFECT TRAVEL PERFORMED ON AND AFTER DATE AMENDMENT IS ISSUED AND WILL NOT BE RETROACTIVE. NOTWITHSTANDING THE EFFECTIVE DATE OF THE INCREASE IN THE MAXIMUM PER DIEM RATE, TRAVEL ORDERS ISSUED AFTER THAT DATE WILL NOT ENTITLE TRAVELER TO THE INCREASED PER DIEM REIMBURSEMENT IF A LOWER MAXIMUM PER DIEM RATE IS AUTHORIZED IN A TRAVEL ORDER.'

IN YOUR LETTER YOU STATE THAT THE AIR FORCE PLANT REPRESENTATIVE AT CALDWELL, NEW JERSEY, WAS WITHOUT KNOWLEDGE THAT HE COULD AMEND YOUR ORDERS SO AS TO ALLOW YOU THE INCREASED MAXIMUM RATE UNTIL AFTER THE TEMPORARY DUTY HAD BEEN COMPLETED, AND YOU EXPRESS THE VIEW THAT YOUR FAILURE TO RECEIVE THE $12 RATE WAS DUE TO DELAY IN THE DISTRIBUTION AND RECEIPT OF THE REVISED REGULATIONS (CPL 21-55). IN SUPPORT OF YOUR CLAIM YOU HAVE TRANSMITTED FIRST INDORSEMENT DATED APRIL 17, 1956, SIGNED BY THE CHIEF, CIVILIAN PERSONNEL DIVISION, WHICH READS:

"EFFECTIVE DATE FOR CHANGE OF PER DIEM FROM $9 TO $12 WAS 8 AUGUST 1955 PER AUTHORITY CONTAINED IN AIR FORCE CIVILIAN PERSONNEL LETTER 21 55, DATED 29 JULY 1955.'

HOWEVER, THE RECORD FAILS TO SHOW THAT YOUR ORDERS WERE AMENDED PRIOR TO THE TRAVEL SO AS TO ENABLE YOU TO BE PAID THE $12 MAXIMUM RATE AS REQUIRED BY THE ABOVE-CITED REGULATIONS. THE FACT THAT THE ADMINISTRATIVE OFFICE MAY NOT HAVE BEEN AWARE THAT A HIGHER RATE OF PER DIEM COULD HAVE BEEN AUTHORIZED FOR THE TRAVEL IN QUESTION DOES NOT WARRANT ANY EXCEPTION TO THE WELL-ESTABLISHED RULE WHICH PRECLUDES RETROACTIVE CHANGES IN PER DIEM RATES. SEE 28 COMP. GEN. 732; 35 ID. 148.

ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF MARCH 22, 1956, APPEARS CORRECT AND MUST BE SUSTAINED.