B-28221, AUG 31, 1942

B-28221, AUG 31, 1942

PRECIS-UNAVAILABLE

COLONEL BENJ. L. JACOBSON, F.D., U.S. ARMY:

FINANCE OFFICE, WEST POINT, NEW YORK,

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 11, 1942, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF CAPTAIN PIERRE M. HONNELL, 0271216, SC, IN THE AMOUNT OF $182.35, FOR MILEAGE AT 3 CENTS PER MILE FROM WEST POINT, NEW YORK, TO CAMBRIDGE, MASSACHUSETTS, AND RETURN, AND PER DIEM OF $3.50 FOR 48 1/2 DAYS, FROM JUNE 5, 1942, TO JULY 23, 1942. YOU STATE YOU ARE IN DOUBT AS TO THE PROPRIETY OF PAYING PER DIEM SINCE THE ORDER AUTHORIZING SAME WAS ISSUED AFTER THE ONE AUTHORIZING MILEAGE, AND IS THEREFORE, IN EFFECT, RETROACTIVE.

THE TRAVEL WAS DIRECTED BY PARAGRAPH 9, SPECIAL ORDERS NO. 113, HEADQUARTERS UNITED STATES MILITARY ACADEMY, DATED JUNE 1, 1942, AS FOLLOWS:

"9. PER SEC. 127A NATL DEFENSE ACT AS AMENDED AND 1ST IND WD AGO APR. 1936 (AG 210.482, 3-24-36A) THE FOLLOWING-NAMED OFFICERS ASGD TO THE DEPT OF CHEMISTRY AND ELECTRICITY USMA WILL PROCEED ON OR ABT 6 JUNE 1942 FR WEST POINT NY TO CAMBRIDGE MASS ON TEMP DUTY FOR PURPOSE OF PURSUING COURSE OF INSTRUCTION AT MASS INST OF TECHNOLOGY. UPON COMPLETION OF THE COURSE THEY WILL RETURN TO THIS STA:

CAPT PIERRE M. HONNELL 0271216

"COST OF TUITION NOT TO EXCEED $25.00 FOR EACH OFFICER NAMED IS CHARGEABLE TO QM 3511 P 9-22 A 0520-2.

"TRAVEL DIRECTED IS NEC IN MIL SERV. MILEAGE FOR ONE ROUND TRIP ONLY IS AUTH CHARGEABLE TO FD 34 P-02 A 0425-23. (210.66 X 201.)"

PARAGRAPH 4, SPECIAL ORDERS NO. 147, SAME HEADQUARTERS, DATED JULY 21, 1942, DIRECTED THAT:

"SO MUCH OF PAR. 9 SO 113 THIS HQ AS DIRECTING THE DETAIL ON TEMP DUTY OF CAPT PIERRE M. HONNELL 0271216 SC, CAPT RMXI KEINLEIN JR 016991 CE, CAPT LOUIS A EUNZIC JR 021741 INF AND 1ST LT CLYDE B SIMS 0388303 SC AT MASS INST OF TECHNOLOGY, CAMBRIDGE MASS FOR PURPOSE OF PURSUING COURSE OF INSTRUCTION THEREAT, AS READS 'MILEAGE FOR ONE ROUND TRIP ONLY IS AUTH CHARGEABLE TO FD 34 P-02 A 0425-23' IS AMENDED TO READ 'UNDER THE PROVISIONS OF PAR. 7C(1 AND 2) AR 35-3420 AS AMENDED BY WD CIR 150 1942 A FLAT PER DIEM OF $3.50 PER DAY DURING THE TEMP DUTY INVOLVED IS AUTH EA OFFICER NAMED ABOVE; FD 34 P-02 A 0425-23'. (210.66 X 201 EA.)"

PARAGRAPH 7C (1), ARMY REGULATIONS 35-3420, AS AMENDED BY WAR DEPARTMENT CIRCULAR NO. 150, MAY 19, 1942, QUOTES THE ACT OF APRIL 28, 1942, 56 STAT. 226, 227, AND (2) PROMULGATES REGULATIONS THEREUNDER AS FOLLOWS:

"TEMPORARY ALLOWANCE OF PER DIEM.-- (1) *** THAT FROM THE DATE OF THE APPROVAL OF THIS ACT TO JUNE 30, 1943, THE SECRETARY OF WAR, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE, FOR OFFICERS AND WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, PURSUANT TO THE FIRST PARAGRAPH OF SECTION 12 OF THE ACT APPROVED JUNE 10, 1922 (42 STAT. 631), AS AMENDED, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM RATES OF ALLOWANCE, WHETHER OR NOT ORDERS ARE GIVEN TO SUCH OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS *** ACT APRIL 28, 1942 (BULL. NO. 22, W.D., 1942).

"(2) UNDER THE PROVISIONS OF THE ACT OF APRIL 28, 1942 (BULL. NO. 22, W.D., 1942), PER DIEM WILL BE AUTHORIZED ONLY IN CONNECTION WITH TRAVEL WHERE BY REASON OF THE LENGTH OF TEMPORARY DUTY IT IS CONSIDERED THAT EXPENSES INCURRED MAY OR WILL EXCEED THE REIMBURSEMENT ON A MILEAGE BASIS AND THUS CAUSE THE TRAVELER TO SUFFER A LOSS.

IN ALL OTHER CASES MILEAGE IS TO BE CONSIDERED AS THE NORMAL FORM OF REIMBURSEMENT FOR THE ORDINARY TRAVEL IN A MILEAGE STATUS. THE ADMINISTRATIVE AUTHORITY ISSUING A TRAVEL ORDER IN ANY CASE IS CHARGEABLE WITH THE DUTY AND RESPONSIBILITY OF DETERMINING WHETHER PER DIEM IS NECESSARY TO AVOID A LOSS TO THE TRAVELER. WHERE IT IS SO DETERMINED BY SUCH ADMINISTRATIVE AUTHORITY, THE ORDERS TO BE ISSUED WILL PRESCRIBE PER DIEM NOT IN EXCESS OF THE MAXIMUM RATE OF $6 TO BE ALLOWED AND, WHEN MAKING SUCH DETERMINATION AS TO THE RATE OF PER DIEM, CARE WILL BE EXERCISED TO PREVENT THE FIXING OF SUCH RATE AS WILL RESULT IN A REIMBURSEMENT TO THE TRAVELER OF AN AMOUNT IN EXCESS OF THAT REQUIRED TO MEET THE ADDITIONAL SUBSISTENCE EXPENSES INVOLVED. THE PRESCRIBING OF A PER DIEM ALLOWANCE IN A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE, AND VICE VERSA, IS PROHIBITED."

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS AMENDED BY THE ACTS OF JUNE 1, 1926, 44 STAT. 680, MARCH 2, 1931, 46 STAT. 1461, AND MAY 29, 1928, 45 STAT. 975, IS AS FOLLOWS:

"THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. ACTUAL EXPENSES ONLY SHALL BE PAID FOR TRAVEL UNDER ORDERS IN ALASKA AND OUTSIDE THE LIMITS OF THE UNITED STATES IN NORTH AMERICA. UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PROVIDED, THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, FLYING CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTION 92, 97, 94, OR 99 OF THE NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.

"INDIVIDUALS BELONGING TO ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE NATIONAL GUARD AND THE RESERVES OF SUCH SERVICES, TRAVELING UNDER COMPETENT ORDERS WHICH ENTITLED THEM TO TRANSPORTATION OR TRANSPORTATION AND SUBSISTENCE AS DISTINGUISHED FROM MILEAGE, WHO, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, TRAVEL BY PRIVATELY OWNED CONVEYANCE SHALL BE ENTITLED, IN LIEU OF TRANSPORTATION BY THE SHORTEST USUALLY TRAVELED ROUTE NOW AUTHORIZED BY LAW TO BE FURNISHED IN KIND, TO A MONEY ALLOWANCE AT THE RATE OF 3 CENTS PER MILE FOR THE SAME DISTANCE: PROVIDED, THAT THIS PROVISION SHALL NOT APPLY TO ANY PERSON ENTITLED TO TRAVELING EXPENSES UNDER THE 'SUBSISTENCE EXPENSE ACT OF 1926.'"

SPECIAL ORDERS NO. 147 WERE ISSUED JULY 21, 1942, WHILE THE RETURN JOURNEY WAS PERFORMED JUNE 23, 1942. THE ORDERS OF JUNE 1, 1942, WERE COMPETENT ORDERS BOTH UNDER PRIOR LAWS AND UNDER THE ACT OF APRIL 28, 1942, AND RIGHTS THEREUNDER HAD VESTED WHEN THE ORDER OF JULY 21, 1942, WAS ISSUED. THE ONLY EFFECT OF THE LATER ORDER WAS, THEREFORE, TO CHANGE VESTED RIGHTS IN FAVOR OF THE OFFICER. ACCORDINGLY, YOU ARE ADVISED THAT AS TRAVEL WAS COMMENCED UNDER COMPETENT ORDERS IN A MILEAGE STATUS THE ORDERS OF JULY 21, 1942, WERE WITHOUT EFFECT TO CHANGE THE RIGHTS OF THE OFFICER. YOU ARE ADVISED THAT THE PAYMENT OF MILEAGE AT 8 CENTS PER MILE ONLY IS AUTHORIZED ON THE VOUCHER RETURNED HEREWITH.