B-135262, JAN. 31, 1963

B-135262, JAN. 31, 1963

TO MR. JAKE LAPIN:

ON JANUARY 8, 1963, YOU REQUESTED REVIEW OF YOUR CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE INCIDENT TO YOUR SERVICE WITH THE DEPARTMENT OF THE NAVY, NAVY AUDIT OFFICE, YOKOSUKA, JAPAN, DURING JULY, AUGUST, AND SEPTEMBER 1961. THE CLAIM WAS ORIGINALLY PRESENTED TO OUR CLAIMS DIVISION AND ON SEPTEMBER 21, 1962, THERE WAS CERTIFIED TO BE DUE YOU THE SUM OF $62.66. THE BALANCE OF $217.93 WAS, IN EFFECT, DISALLOWED FOR THE REASONS STATED ON THE SETTLEMENT VOUCHER.

WHILE STATIONED AT YOKOSUKA, JAPAN, YOU WERE AUTHORIZED BY TRAVEL ORDER DATED JULY 3, 1961, TO PERFORM TEMPORARY DUTY AT MAAG, TOKYO AND OTHER PLACES FOR APPROXIMATELY 50 DAYS. USE OF GOVERNMENT QUARTERS WAS INDICATED AND A PER DIEM RATE OF $3.50 WAS SPECIFIED EXCEPT FOR SATURDAYS AND SUNDAYS WHEN NO PER DIEM WAS AUTHORIZED.

THE ORDER WAS MODIFIED ON JULY 28 TO INCREASE PROSPECTIVELY THE PER DIEM RATE TO $6.50. IT AGAIN WAS MODIFIED ON SEPTEMBER 5 TO INCREASE, RETROACTIVELY TO JULY 3, THE PER DIEM RATE OF $14 (THE BUREAU OF THE BUDGET LOCALITY MAXIMUM) WHEN GOVERNMENT QUARTERS WERE OCCUPIED AND TO PRESCRIBE PROSPECTIVELY THE RATE OF $8.40 WHEN COMMERCIAL QUARTERS WERE USED. OTHER MODIFICATIONS WHICH HAVE NO BEARING ON YOUR PRESENT CLAIM WERE ALSO MADE.

NCPI 4650.8-3/2/B, JULY 1960, PROVIDES:

"/B) WHEN GOVERNMENT QUARTERS ARE USED OUTSIDE THE CONTINENTAL UNITED STATES AND A CHARGE NOT IN EXCESS OF $1.50 FOR SUCH QUARTERS MUST BE PAID BY THE TRAVELER, THE PER DIEM RATE WILL BE $6.00 OR THREE FIFTHS OF THE BUREAU OF THE BUDGET ESTABLISHED LOCALITY RATE, WHICHEVER IS THE GREATER.'

IN VIEW OF THE PLAIN LANGUAGE OF SUCH INSTRUCTION THE ISSUING OFFICER HAD NO OPTION BUT TO SPECIFY THE LOCALITY RATE OF $14 (LESS TWO-FIFTHS THEREOF) FOR THE PERIOD DURING WHICH GOVERNMENT QUARTERS WERE USED. YOUR RIGHT THERETO WAS ESTABLISHED BY THE REGULATION OR INSTRUCTION AND THE ORDERS PRESCRIBING A LESSER RATE WERE IMPROPER AND INEFFECTIVE. THEREFORE, THE MODIFICATION OF SEPTEMBER 5, PROPERLY WAS MADE RETROACTIVELY EFFECTIVE TO THE DATE OF THE ORIGINAL ORDER AND OUR CLAIMS SETTLEMENT VOUCHER WAS CERTIFIED ON THAT BASIS.

FOR THE PERIOD DURING WHICH YOU USED COMMERCIAL QUARTERS THE OFFICER AUTHORIZED A PER DIEM OF $8.40. YOU CONTEND THAT THE RATE FOR THIS PERIOD ALSO SHOULD HAVE BEEN ESTABLISHED AT $14. IN SUPPORT THEREOF YOU SAY YOU PERFORMED THE TRAVEL (AND TEMPORARY DUTY) UNDER PROTEST AND THAT A GRIEVANCE HEARING WAS HELD WHICH ULTIMATELY RESULTED IN A FINDING BY THE SECRETARY OF THE NAVY THAT THE AUTHORIZING OFFICER SHOULD HAVE USED ONLY ONE PER DIEM RATE WHICH SHOULD NOT HAVE BEEN BASED ON THE AVAILABILITY OF GOVERNMENT QUARTERS. YOU ALSO SAY THAT IN THE INSTANCE OF ANOTHER EMPLOYEE PERFORMING IDENTICAL TRAVEL THE OFFICER DID NOT ESTABLISH A RATE OF $14 "IN THE LAWFUL EXERCISE OF HIS DISCRETION" BUT STATED HE DID SO BECAUSE THE EMPLOYEE PROMISED TO OCCUPY GOVERNMENT QUARTERS.

WHEN THE GOVERNMENT QUARTERS WERE NOT OCCUPIED, THERE WAS FOR APPLICATION NCPI 4650.8-3B, JULY 1960, WHICH PROVIDES:

"B. OUTSIDE THE CONTINENTAL UNITED STATES. EXCEPT UNDER THE CIRCUMSTANCES OF TRAVEL IN D, BELOW, * * * A PER DIEM ALLOWANCE NOT TO EXCEED THE APPROPRIATE BUREAU OF THE BUDGET ESTABLISHED LOCALITY RATE MAY BE AUTHORIZED OR APPROVED. * * *"

UNLIKE THE PROVISION QUOTED EARLIER HEREIN, THIS PROVISION DID NOT ESTABLISH A SINGLE PER DIEM RATE BUT MERELY SPECIFIED THE MAXIMUM RATE WHICH COULD BE AUTHORIZED UNDER THE STATED CONDITIONS. IT DID NOT REQUIRE THE ISSUING OFFICER TO AUTHORIZE SUCH MAXIMUM RATE AND THEREFORE IT WAS WITHIN HIS DISCRETION TO DETERMINE A LOWER RATE.

IT IS WELL ESTABLISHED THAT A TRAVEL ORDER MAY NOT BE RETROACTIVELY AMENDED OR MODIFIED TO INCREASE OR DECREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT EXCEPT WHEN IT IS AMBIGUOUS, INCOMPLETE OR IRREGULAR ON ITS FACE, OR WHEN A PROVISION ORIGINALLY INTENDED TO BE INCLUDED WAS OMITTED THROUGH ERROR OR INADVERTENCE. SEE 24 COMP. GEN. 439; 28 ID. 732; 35 ID. 148. IT IS EQUALLY WELL ESTABLISHED THAT WHEN REGULATIONS ARE PROPERLY ISSUED, RIGHTS THEREUNDER BECOME FIXED AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERRORS. SEE 27 COMP. GEN. 339; 32 ID. 315; 33 ID. 505, AND 40 ID. 212.

CONCERNING THE GRIEVANCE APPEAL AND THE FINDINGS OF THE SECRETARY OF THE NAVY, WE NOTE THAT WHILE THE COMMUNICATION DATED JANUARY 2, 1962, FROM THAT OFFICIAL TO THE OFFICER IN CHARGE, U.S. NAVY AUDIT OFFICE, YOKOSUKA, DIRECTED THE ESTABLISHMENT OF A SINGLE PER DIEM RATE (AMOUNT NOT STATED), IT ALSO INDICATED THAT YOUR ORDER AND THE ORDERS OF THE AUDITORS SIMILARLY AFFECTED "MAY NOT BE MODIFIED RETROACTIVELY TO PRESCRIBE A HIGHER RATE.' THUS WHILE THE SECRETARY MAY HAVE DETERMINED THAT THE USE OF TWO RATES, WHICH WAS PERMITTED BY THE REGULATIONS, WAS NOT DESIRABLE WE FIND NO STATEMENT IN THE COMMUNICATION TO THE EFFECT THAT THE PRACTICE HAD BEEN FOUND TO BE ILLEGAL AS YOU CONTEND.

THE PER DIEM RATE OF WHICH YOU COMPLAIN WAS DETERMINED PURSUANT TO THE EXISTING REGULATION BY AN OFFICER EMPOWERED TO MAKE THE DETERMINATION. YOU HAVE BEEN PAID AT THAT RATE. THEREFORE WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF SEPTEMBER 21, 1962.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO THE "NEXT ECHELON OF APPEAL," YOU MAY BE ADVISED THAT OUR DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, YOU WOULD BE PRIVILEGED TO FILE CLAIM FOR THE AMOUNT IN QUESTION IN THE UNITED STATES COURT OF CLAIMS. SEE 28 U.S.C. 1346, ID. 1491.