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WESLEY CROWELL FOR ADDITIONAL SUBSISTENCE ALLOWANCE REPRESENTING THE DIFFERENCE BETWEEN THE $16 PER DIEM RATE WHICH WAS PAID TO CERTAIN EMPLOYEES OF THE DISTRICT PUBLIC WORKS DEPARTMENT OF THE NAVY. YOU SAY THAT BASED UPON THE INFORMATION AVAILABLE TO YOU IT IS FELT THE DENIAL OF MR. CROWELL'S CLAIM IS DISCRIMINATORY AND YOU REQUEST OUR FURTHER REVIEW AND RECONSIDERATION OF HIS CASE. CROWELL'S CLAIM PREVIOUSLY WAS REVIEWED BY US. CROWELL WAS ASSIGNED TO TEMPORARY DUTY AT LIHUE. FOR AN ESTIMATED PERIOD OF 90 DAYS AND WAS AUTHORIZED $9 PER DIEM FOR THE PERIOD OF ASSIGNMENT. THE PER DIEM WAS AUTHORIZED UNDER THE GENERAL AUTHORITY CONTAINED IN THE TRAVEL EXPENSE ACT OF 1949. EMPHASIZED THAT THE $16 PER DIEM SET BY THE FOREGOING CIRCULAR WAS THE MAXIMUM ALLOWABLE.

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B-147492, OCT. 24, 1962

TO DANIEL K. INOUYE:

YOUR LETTER OF OCTOBER 3, 1962, ACKNOWLEDGED OCTOBER 11, CONCERNS THE CLAIM OF MR. WESLEY CROWELL FOR ADDITIONAL SUBSISTENCE ALLOWANCE REPRESENTING THE DIFFERENCE BETWEEN THE $16 PER DIEM RATE WHICH WAS PAID TO CERTAIN EMPLOYEES OF THE DISTRICT PUBLIC WORKS DEPARTMENT OF THE NAVY, AND THE $9 PER DIEM ACTUALLY PAID MR. CROWELL. YOU SAY THAT BASED UPON THE INFORMATION AVAILABLE TO YOU IT IS FELT THE DENIAL OF MR. CROWELL'S CLAIM IS DISCRIMINATORY AND YOU REQUEST OUR FURTHER REVIEW AND RECONSIDERATION OF HIS CASE.

MR. CROWELL'S CLAIM PREVIOUSLY WAS REVIEWED BY US, AT THE REQUEST OF HIS ATTORNEY, IN OUR DECISIONS, B-147492, OF DECEMBER 11, 1961,AND MARCH 30, 1962. THE RECORD SHOWS THAT MR. CROWELL WAS ASSIGNED TO TEMPORARY DUTY AT LIHUE, KAUAI, FOR AN ESTIMATED PERIOD OF 90 DAYS AND WAS AUTHORIZED $9 PER DIEM FOR THE PERIOD OF ASSIGNMENT, THE PER DIEM WAS AUTHORIZED UNDER THE GENERAL AUTHORITY CONTAINED IN THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, AS AMENDED, 5 U.S.C. 836, AND 5 U.S.C. 840. THOSE SECTIONS PROVIDE, IN PERTINENT PART, THAT "CIVILIAN OFFICERS AND EMPLOYEES * * * WHILE TRAVELING ON OFFICIAL BUSINESS * * * SHALL BE ALLOWED * * * A PER DIEM ALLOWANCE" FIXED AND PAID "IN ACCORDANCE WITH REGULATIONS * * * PROMULGATED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET.' THE DIRECTOR, IN BUREAU OF THE BUDGET CIRCULAR NO. A-7, IN EFFECT AT THE TIME MR. CROWELL PERFORMED HIS TRAVEL, AUTHORIZED A MAXIMUM PER DIEM OF $16 FOR TRAVEL IN HAWAII. IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SECTIONS 6.2A AND 6.2D, THE DIRECTOR, EMPHASIZED THAT THE $16 PER DIEM SET BY THE FOREGOING CIRCULAR WAS THE MAXIMUM ALLOWABLE, NOT THE MINIMUM, AND DIRECTED THAT THE RATES SET IN EACH CASE SHOULD BE JUSTIFIED BY THE FACTS AND CIRCUMSTANCES SURROUNDING THE TRAVEL.

SECTION 6.2D OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROVIDES:

"D. IN ANY CASE WHERE THE EMPLOYEE'S TOUR OF TRAVEL REQUIRES MORE THAN 2 MONTHS' STAY AT A TEMPORARY DUTY STATION, CONSIDERATION SHOULD BE GIVEN TO EITHER CHANGE IN OFFICIAL STATION OR A REDUCTION IN THE PER DIEM ALLOWANCE.'

THESE GENERAL DIRECTIVES ARE IMPLEMENTED BY DEPARTMENT OF THE NAVY REGULATIONS EMBRACED IN THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS AND MORE SPECIFICALLY, AS RELATED TO MR. CROWELL'S TRAVEL, IN DISTRICT PUBLIC WORKS OFFICE INSTRUCTION 12552.2A, DATED MARCH 18, 1960. PARAGRAPH 4 OF THE LATTER, AUTHORIZED A $16 RATE IN THE HAWAIIAN ISLANDS, EXCLUDING OAHU, SUBJECT TO THE PROVISIONS CITED IN SUBPARAGRAPHS 4A AND 4BOF THAT INSTRUCTION.

PARAGRAPH 4B READS AS FOLLOWS:

"WHEN THE LENGTH OF TEMPORARY DUTY AT ONE PLACE WILL EXCEED TWO MONTHS, THE PER DIEM RATE AUTHORIZED AT THE START OF THE TADSHALL BE RE EXAMINED TO DETERMINE WHETHER OR NOT CONTINUANCE OF THE PER DIEM ALLOWANCE PRESCRIBED IS JUSTIFIABLE. IF IT IS NOT JUSTIFIABLE, A LOWER PER DIEM RATE WILL BE ESTABLISHED BASED ON CONDITIONS OF ASSIGNMENT AND LOCALITY OF TAD.'

THAT LANGUAGE, READ ALONE, SUGGESTS THAT WHEN IT IS DISCOVERED THAT A TEMPORARY DUTY ASSIGNMENT WILL EXCEED TWO MONTHS, THE PER DIEM INITIALLY AUTHORIZED SHOULD BE REEXAMINED TO DETERMINE WHETHER PROSPECTIVELY A LOWER RATE IS JUSTIFIED.

IN MR. CROWELL'S CASE, HOWEVER, IT IS KNOW PRIOR TO THE BEGINNING OF HIS ASSIGNMENT THAT THE PERIOD WOULD EXCEED TWO MONTHS; THEREFORE,IN THE LIGHT OF SECTION 6.2D OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, QUOTED ABOVE, IT WAS LAWFUL AND APPROPRIATE TO FIX A LOWER PER DIEM RATE TO COVER THE ENTIRE PERIOD OF THE ASSIGNMENT.

IT IS A WELL ESTABLISHED RULE THAT LEGAL RIGHTS AND RESPONSIBILITIES REGARDING PER DIEM VEST AS AND WHEN THE TRAVEL IS PERFORMED BY THE EMPLOYEE UNDER HIS ORDER. SUCH ORDER MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES AND REGULATIONS UNLESS AN ERROR IS APPARENT ON THE FACT OF THE ORDER OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE. SEE 35 COMP. GEN. 124; ID. 148; 28 ID. 732. THE DEPARTMENT OF THE NAVY REPORTS THAT IT ADMINISTRATIVELY INTENDED TO FIX A $9 PER DIEM RATE AND THERE IS NO EVIDENCE OF RECORD TO SUGGEST THAT THE DEPARTMENT'S REPORT IS NOT CORRECT IN EVERY RESPECT.

THEREFORE, WE ARE UNABLE, UPON THE PRESENT RECORD, TO FIND A BASIS FOR THE ALLOWANCE OF MR. CROWELL'S CLAIM.

CONCERNING MR. CROWELL'S CONTENTION THAT OTHERS WERE AUTHORIZED HIGHER RATES OF PER DIEM WE HAVE TO ADVISE THAT THE INFORMATION WE HAVE IN THAT REGARD SHOWS THAT SUCH EMPLOYEES PERFORMED ONLY SHORT PERIODS OF TEMPORARY DUTY AND CONSEQUENTLY THEIR CASES ARE NOT CONSIDERED COMPARABLE TO HIS CASE.

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