B-142664, MAY 5, 1960

B-142664, MAY 5, 1960

TO MR. BERNARD H. REUSCH:

YOUR LETTER OF APRIL 10, 1960, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF MARCH 11, 1960, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO YOUR TEMPORARY DUTY ASSIGNMENT AS A CIVILIAN EMPLOYEE OF THE ARMY AT FORT DEVENS, MASSACHUSETTS, DURING THE PERIOD MARCH 3 TO MAY 8, 1959. SINCE THE FACTS IN YOUR CASE AS WELL AS THE REASONS FOR ITS DISALLOWANCE ARE FULLY SET FORTH IN OUR OFFICE SETTLEMENT OF MARCH 1, 1960, THERE IS NO NEED TO REPEAT THEM HERE, OTHER THAN TO NOTE THAT YOU RECEIVED PAYMENT OF PER DIEM AT THE RATES SPECIFIED IN YOUR ORDERS.

IN YOUR LETTER YOU URGE AS "OBVIOUS ERRORS" (1) THE AGENCY'S FAILURE TO COMPLY WITH REGULATIONS CONCERNING THE FIXING OF PER DIEM RATES SO THAT AN EMPLOYEE WOULD NOT BE REWARDED OR PENALIZED AND (2) THAT YOUR ORDERS "DIRECTED" OCCUPANCY OF GOVERNMENT QUARTERS CONTRARY TO REGULATIONS PROVIDING THAT CIVILIAN EMPLOYEES ARE NOT "FORCED" TO USE GOVERNMENT QUARTERS BUT ONLY REQUESTED TO DO SO. ALSO, YOU REFER TO THE CONCLUSION OF THE HEADQUARTERS, FIRST UNITED STATES ARMY THAT THE $12 RATE OF PER DIEM WAS JUSTIFIED. THE RECORD INCLUDES A LETTER DATED OCTOBER 13, 1959, FROM THAT ORGANIZATION TO YOU WHEREBY AN EFFORT WAS MADE TO AUTHORIZE AN INCREASE IN YOUR PER DIEM, RETROACTIVELY. THAT LETTER WAS IN RESPONSE TO A SO-CALLED "GRIEVANCE" LETTER DATED JUNE 15, 1959, CONTAINING THE FOLLOWING EXCERPT:

"THE REASON GIVEN TO US FOR THE $9.00 PER DAY PER DIEM INSTEAD OF $12.00 PER DAY WAS THE SHORTAGE OF TRAVEL FUNDS AVAILABLE WITHIN FIRST U.S. ARMY.'

THE ADMINISTRATIVE FINDING AS SET FORTH IN THE LETTER OF OCTOBER 13 MAKES NO REFERENCE TO THE $9 RATE HAVING BEEN PREDICATED UPON A SHORTAGE OF FUNDS. ON THE CONTRARY, THE CONCLUSION THEREIN SUGGESTS A REVERSAL OF THE ORIGINAL AUTHORIZATION SOLELY ON THE BASIS OF THE $9 RATE BEING INADEQUATE TO COVER NECESSARY SUBSISTENCE EXPENSES. IN THAT REGARD, WE MUST ASSUME UPON THE PRESENT RECORD THAT THE AUTHORIZING OFFICIAL DETERMINED THAT THE $9 WOULD BE ADEQUATE. THEREFORE, UNLESS AND UNTIL SUPPORTING EVIDENCE IS FURNISHED SHOWING THAT THE AUTHORIZING OFFICIAL DID NOT COMPLY WITH THE CIVILIAN PERSONNEL REGULATIONS, DEPARTMENT OF THE ARMY, T3 SECTION 4- 4A./3) CONCERNING KNOWLEDGE OF PREVAILING COMMERCIAL RATES, OR OTHERWISE; OR THAT HE SET THE LOWER RATE SOLELY ON THE BASIS OF SHORTAGE OF FUNDS AND THAT HE WAS WITHOUT AUTHORITY TO TAKE SUCH ACTION, FAVORABLE CONSIDERATION CANNOT BE GIVEN TO YOUR CLAIM. THAT VIEW IS REQUIRED BY THE RULE THAT PER DIEM RATES MAY NOT BE INCREASED OR DECREASED RETROACTIVELY, WHEN, AS HERE, THE RIGHTS OF THE PARTIES HAVE ACCRUED AND BECOME FIXED OR VESTED. NOTE THAT THE LETTER OF OCTOBER 13, ABOVE, AND YOUR TRAVEL ORDERS ALL WERE SIGNED BY WILLARD C. SIMMONS, LT.COL., AGC.

CONCERNING YOUR QUESTION ABOUT AN APPEAL FROM OUR DECISION, THE DECISIONS OF THE COMPTROLLER GENERAL ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THE LAW MAKES NO PROVISION FOR AN APPEAL. HOWEVER, A CLAIMANT HAS FURTHER RECOURSE TO THE UNITED STATES COURT OF CLAIMS UNDER THE PROVISIONS OF SECTION 1491, TITLE 28, UNITED STATES CODE.