B-170058, AUG. 5, 1970

B-170058, AUG. 5, 1970

MILITARY -- PER DIEM -- TEMPORARY DUTY -- RETROACTIVE ORDERS AUTHORIZING PAYMENT TO STAFF SERGEANT BRUCE MCADAM FOR PERIOD OF TEMPORARY DUTY PERFORMED IN UDORN, THAILAND, NOT COVERED BY ORIGINAL TRAVEL ORDERS. MEMBER WHO, AFTER COMPLETION OF EXTENDED TEMPORARY DUTY BEYOND THE 30 DAYS ORIGINALLY SPECIFIED, WAS ISSUED AMENDATORY ORDERS TO CORRECT ERRORS OR INADVERTENCE IN PREVIOUS EXTENDING ORDERS MAY BE PAID PER DIEM FOR PERIODS NOT COVERED BY ORDERS SINCE RECORD AS WHOLE SUPPORTS CONCLUSION THAT ORDERED TEMPORARY DUTY WAS CONTINUED WITHOUT INTERRUPTION.

TO MAJOR R. S. LIKON:

FURTHER REFERENCE IS MADE TO YOUR LETTER, BCPTF, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF STAFF SERGEANT BRUCE MCADAM TO PER DIEM FOR TEMPORARY DUTY UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. 70-29 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER T-652, DATED JULY 8, 1969, THE MEMBER WAS DIRECTED TO PROCEED ON OR ABOUT JULY 9, 1969, FROM KORAT ROYAL THAILAND AIR FORCE BASE, THAILAND, TO UDORN ROYAL THAILAND AIR FORCE BASE, THAILAND, FOR TEMPORARY DUTY OF APPROXIMATELY 30 DAYS, UPON COMPLETION OF WHICH HE WAS TO RETURN TO KORAT ROYAL THAILAND AIR FORCE BASE. THE MEMBER DEPARTED KORAT ON JULY 10, 1969. HE DID NOT RETURN TO KORAT AT THE END OF THE 30- DAY PERIOD AS DIRECTED BY HIS ORDERS AND SPECIAL ORDER T-794, DATED AUGUST 26, 1969, AMENDED THOSE ORDERS TO EXTEND THE TEMPORARY DUTY TO 80 DAYS. SUBSEQUENT TO THE EXPIRATION OF THE 80-DAY PERIOD, THE TEMPORARY DUTY PERIOD WAS FURTHER EXTENDED TO 95 DAYS BY SPECIAL ORDER T-892, DATED OCTOBER 2, 1969.

THE MEMBER COMPLETED THE TEMPORARY DUTY AT UDORN AND RETURNED TO KORAT ON OCTOBER 11, 1969. HE SUBMITTED A TRAVEL VOUCHER ON OCTOBER 18, 1969, CLAIMING PER DIEM FOR JULY 10 AND 11, 1969, AND FOR THE PERIOD SEPTEMBER 27 TO OCTOBER 11, 1969. YOU SAY HE HAS BEEN PAID PER DIEM FOR THE PERIOD JULY 12 TO SEPTEMBER 26, 1969, AND IT IS ASSUMED THAT YOUR QUESTION RELATES TO THAT PORTION OF THE TEMPORARY DUTY NOT COVERED BY THE ORIGINAL ORDERS.

ON OCTOBER 22, 1969, ELEVEN DAYS AFTER THE TRAVEL WAS COMPLETED, SPECIAL ORDER T-940 WAS ISSUED TO REVOKE THE ORDERS OF AUGUST 26 AND OCTOBER 2, 1969, EXTENDING THE TEMPORARY DUTY. ALSO, ON OCTOBER 22, 1969, SPECIAL ORDER T-941 WAS ISSUED TO CONFIRM VERBAL ORDERS OF THE COMMANDER OF AUGUST 9, 1969, AMENDING THE ORDERS OF JULY 8, 1969, TO EXTEND THE TEMPORARY DUTY FROM 30 DAYS TO 64 DAYS. THE PURPOSE OF THOSE ORDERS WAS TO COVER THE PERIOD AFTER THE ORDERS OF JULY 8, 1969, HAD EXPIRED. SINCE THOSE ORDERS OVERLOOKED THE ORDERS OF OCTOBER 2, 1969, WHICH EXTENDED THE TEMPORARY DUTY TO 95 DAYS, SPECIAL ORDER T-945 WAS ISSUED ON OCTOBER 23, 1969, AMENDING THE ORDERS OF OCTOBER 22, 1969, TO EXTEND THE TEMPORARY DUTY TO 95 DAYS.

ALL OF THE ABOVE ORDERS WERE ISSUED BY THE COMMANDER, 483D GROUND ELECTRONICS ENGINEERING INSTALLATION AGENCY SQUADRON (AFLC), APO SAN FRANCISCO 96288, THE MEMBER'S PERMANENT STATION. ON OCTOBER 30, 1969, THE ORDER-ISSUING OFFICIAL EXPLAINED THE VARIOUS ORDERS AS FOLLOWS:

"1. IN REFERENCE TO SO T-652, 8 JULY 1969, THIS UNIT, IT WAS DISCOVERED APPROXIMATELY 17 DAYS AFTER THE EXPIRATION DATE OF THE ORDER THAT IT WOULD BE NECESSARY TO EXTEND THE TDY TIME. IT WAS EXTENDED FROM 30 DAYS TO 80 DAYS ON SO T-795, 26 AUG 69 WITHOUT THE BENEFIT OF A VOCO STATEMENT. THE REQUEST FOR THE EXTENSION FOR THIS ORDER WAS NOT INITIATED BY THE OPR UNTIL 26 AUG 69.

"2. TO FURTHER COMPOUND THE PROBLEM, SO T-652 WAS FURTHER AMENDED BY SO T -892, 2 OCT 69, TO EXTEND THE ORDER FROM 80 DAYS TO 95 DAYS. WHEN THE INDIVIDUAL SUBMITTED HIS TRAVEL VOUCHER, THE ERROR WAS DISCOVERED.

"3. THE ADMINISTRATION SECTION THEN TOOK STEPS TO TRY AND RECTIFY THE PROBLEM BY REVOKING BOTH SO T-794, 26 AUG 69 AND SO T-892, 2 OCT 69. THEN WE ISSUED SO T-941, 22 OCT 69 WITH A VOCO OF 9 AUG 69 TO COVER THE PERIOD PRIOR TO THE EXPIRATION OF THE ORDER FORWARD. WHEN THIS AMENDMENT WAS CUT, SO T-892, 2 OCT 69, WHICH EXTENDED THE ORIGINAL ORDER FROM 80 TO 95 DAYS WAS OVERLOOKED, CONSEQUENTLY, SO T-945, 23 OCT 69 HAD TO BE ISSUED RESTORING THE 95 DAYS TO THE ORIGINAL ORDER PLUS CORRECTING AN ERROR IN SGT MCADAM'S NAME."

THE STATUTORY AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES GENERALLY IS CONTAINED IN 37 U.S.C. 404, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED "UNDER ORDERS." PARAGRAPH M3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR, WHILE PARAGRAPH M3001 OF THE SAME REGULATIONS DEFINES COMPETENT TRAVEL ORDERS AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING A MEMBER OR GROUP OF MEMBERS TO TRAVEL BETWEEN DESIGNATED POINTS. THE REGULATIONS FURTHER PROVIDE (PARAGRAPH M3002-2) THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR WHEN, AS IN THIS CASE, THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944).

IN THE PRESENT CASE, THE 30-DAY PERIOD COVERED BY ORDERS OF JULY 8, 1969, EXPIRED AUGUST 9, 1969. NO FURTHER ORDERS WERE ISSUED UNTIL AUGUST 26, 1969, AND NEITHER THOSE ORDERS NOR THE ORDERS OF OCTOBER 2, 1969, EXTENDING THE TEMPORARY DUTY WERE TIMELY ISSUED. AS A CONSEQUENCE THOSE ORDERS WERE REVOKED AND THE ORDERS OF OCTOBER 22, 1969, CONFIRMING VERBAL ORDERS OF AUGUST 9, 1969, WERE ISSUED TO EXTEND THE TEMPORARY DUTY. THE COMMANDER AT THE PERMANENT STATION SAYS THAT WHEN THE TEMPORARY DUTY WAS EXTENDED BY THE ORDERS OF AUGUST 26, 1969, A CONFIRMING VERBAL ORDERS STATEMENT WAS NOT INCLUDED IN THE ORDERS AND IT SEEMS APPARENT THAT NO VERBAL ORDERS WERE ISSUED BY HIM SINCE THE REQUEST FOR EXTENSION WAS NOT INITIATED BY THE "OPR" UNTIL AUGUST 26.

THE ABBREVIATION "OPR" IS NOT EXPLAINED. PRESUMABLY, IT HAS REFERENCE TO THE TEMPORARY DUTY STATION, SINCE THAT STATION AND NOT THE PERMANENT STATION APPARENTLY WOULD HAVE FIRST HAND KNOWLEDGE OF THE NEED TO EXTEND THE TEMPORARY DUTY PERIOD AND WOULD INITIATE THE REQUEST. IN THAT VIEW THE INDICATED VERBAL ORDERS EXTENDING THE TEMPORARY DUTY PERIOD COULD HAVE BEEN ISSUED AT THE TEMPORARY DUTY STATION. THE FACT THAT THE MEMBER DID NOT COMPLY WITH THE DIRECTION IN THE ORIGINAL ORDERS TO RETURN TO HIS DUTY STATION AT THE EXPIRATION OF THE 30-DAY PERIOD SUGGESTS THAT SUCH WAS THE CASE.

IN SUCH CIRCUMSTANCES AND SINCE THE RECORD AS A WHOLE SUPPORTS THE CONCLUSION THAT, NOTWITHSTANDING THE ADMINISTRATIVE ERRORS AND DELAYS IN ISSUING WRITTEN CONTINUATION ORDERS, THE ORDERED TEMPORARY DUTY WAS OFFICIALLY CONTINUED WITHOUT INTERRUPTION UNTIL OCTOBER 11, 1969, BY COMPETENT AUTHORITY, THE PER DIEM PAYMENTS FOR THE PERIOD AUGUST 10 TO SEPTEMBER 26, 1969, WILL NOT BE QUESTIONED.

THE VOUCHER ENCLOSED WITH YOUR LETTER IS RETURNED AND PAYMENT THEREON IS AUTHORIZED.