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SUCH WAS NOT THE LAW IN 1961 AND THERE WAS NO PROHIBITION AGAINST ESTABLISHING A SINGLE PER DIEM RATE. REGARDLESS OF WHETHER AVAILABLE GOVERNMENT QUARTERS WERE USED FOR THE PURPOSE OF FORCING THE USE OF SUCH QUARTERS. YOU WERE DIRECTED TO PERFORM TEMPORARY DUTY AT MAAG. THAT FOR THAT PERIOD THE PAYMENT OF PER DIEM AT THE RATE OF $8.40 WAS AUTHORIZED IN YOUR ORDERS. ALTHOUGH THE MAXIMUM AMOUNT AUTHORIZED BY REGULATION FOR THAT LOCALITY (JAPAN) WAS $14 A DAY. WAS CONTAINED IN APPROPRIATION ACTS FROM 1955 THROUGH FISCAL YEAR 1959. THE PROVISION WAS NOT REPEATED IN 1960 OR 1961. WHILE BILLS WERE INTRODUCED IN CONGRESS IN 1960 AND 1961 TO REINSTATE THE PROHIBITION AGAINST ENFORCED OCCUPANCY OF GOVERNMENT QUARTERS.

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B-135262, MAR 11, 1971

PER DIEM ALLOWANCE DECISION AFFIRMING PRIOR ACTION WHICH DISALLOWED CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO CLAIMANT'S SERVICE WITH THE DEPARTMENT OF THE NAVY IN TOKYO, JAPAN, DURING JULY, AUGUST, AND SEPTEMBER 1961. ALTHOUGH B-170618, OCTOBER 15, 1970, HELD THAT THE PROVISIONS OF 5 U.S.C. 5911(E) FORBID THE FORCING OF GOVERNMENT EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS, SUCH WAS NOT THE LAW IN 1961 AND THERE WAS NO PROHIBITION AGAINST ESTABLISHING A SINGLE PER DIEM RATE, REGARDLESS OF WHETHER AVAILABLE GOVERNMENT QUARTERS WERE USED FOR THE PURPOSE OF FORCING THE USE OF SUCH QUARTERS.

TO MR. JAKE LAPIN:

IN YOUR LETTER OF JANUARY 12, 1971, YOU IN EFFECT REQUEST RECONSIDERATION OF DECISIONS OF JANUARY 31 AND FEBRUARY 28, 1963, B 135262, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE INCIDENT TO YOUR SERVICE WITH THE DEPARTMENT OF THE NAVY IN TOKYO, JAPAN, DURING JULY, AUGUST, AND SEPTEMBER 1961.

THE RECORD INDICATES THAT BY ORDERS DATED JULY 3, 1961, AT NAVY AUDIT OFFICE, YOKOSUKA, JAPAN, YOU WERE DIRECTED TO PERFORM TEMPORARY DUTY AT MAAG, TOKYO, FOR A PERIOD OF APPROXIMATELY 50 DAYS, AND THAT FOR THAT PERIOD THE PAYMENT OF PER DIEM AT THE RATE OF $8.40 WAS AUTHORIZED IN YOUR ORDERS, ALTHOUGH THE MAXIMUM AMOUNT AUTHORIZED BY REGULATION FOR THAT LOCALITY (JAPAN) WAS $14 A DAY. IT APPEARS ALSO THAT YOU OCCUPIED GOVERNMENT QUARTERS DURING THE MONTH OF JULY AND THAT YOU DID NOT OCCUPY SUCH QUARTERS THEREAFTER WHILE ON SUCH TEMPORARY DUTY.

YOU REQUEST RECONSIDERATION OF YOUR CLAIM ON THE BASIS OF OUR DECISION OF OCTOBER 15, 1970, B-170618, HOLDING THAT PROVISIONS OF 5 U.S.C. 5911(E) FORBID THE FORCING OF GOVERNMENT EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS. SUCH A PROVISION OF LAW FIRST APPEARED IN THE SUPPLEMENTAL APPROPRIATION ACT OF 1953, 66 STAT. 661, AND WAS CONTAINED IN APPROPRIATION ACTS FROM 1955 THROUGH FISCAL YEAR 1959. THE PROVISION WAS NOT REPEATED IN 1960 OR 1961. WHILE BILLS WERE INTRODUCED IN CONGRESS IN 1960 AND 1961 TO REINSTATE THE PROHIBITION AGAINST ENFORCED OCCUPANCY OF GOVERNMENT QUARTERS, THE LAW CONTAINING THAT PROHIBITION WAS NOT ENACTED UNTIL 1964 AS PUBLIC LAW 88-459, WHICH IS NOW CODIFIED IN 5 U.S.C. 5911(E).

THUS DURING THE PERIOD OF YOUR TEMPORARY DUTY AT MAAG, TOKYO, JAPAN, IN JULY, AUGUST, AND SEPTEMBER 1961 THERE WAS NO PROHIBITION AGAINST ESTABLISHING THE SAME PER DIEM RATE REGARDLESS OF WHETHER AVAILABLE GOVERNMENT QUARTERS WERE USED BY AN EMPLOYEE FOR THE PURPOSE OF FORCING THE USE OF SUCH QUARTERS. CF. 44 COMP. GEN. 626 (1965).

BY REASON OF THE ABOVE, THE DECISION OF OCTOBER 15, 1970, IS NOT APPLICABLE TO YOUR CLAIM AND THE ACTIONS PREVIOUSLY TAKEN IN REGARD THERETO ARE SUSTAINED.

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