B-640, FEBRUARY 28, 1939, 18 COMP. GEN. 680

B-640, FEBRUARY 28, 1939, 18 COMP. GEN. 680

SUBSISTENCE - PER DIEMS - AIR TRAVEL - ORDERS FAILING TO RECITE MANNER AND AMOUNT OF EXPENSE REIMBURSEMENT THERE IS NO AUTHORITY FOR COMMUTING OF TRAVELING EXPENSES OF NAVAL PERSONNEL FOR TRAVEL BY AIR UNDER THE ACT OF MARCH 2, 1931, 46 STAT. 1461, BY PAYMENT OF A PER DIEM, IN LIEU OF ACTUAL EXPENSES, WHERE THE ORDERS INVOLVED ARE SILENT AS TO THE MANNER AND AMOUNT OF REIMBURSEMENT INTENDED TO BE MADE, THE APPLICABLE REGULATIONS RECOGNIZING THE NECESSITY FOR A RECITATION IN THE ORDERS AS TO THE KIND AND AMOUNT OF SUCH REIMBURSEMENT, AND THE LAW NOT CONTEMPLATING THE PAYMENT OF A PER DIEM RATE SUBSEQUENTLY FIXED.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, FEBRUARY 28, 1939:

THERE IS FOR CONSIDERATION THE CLAIM OF ROBERT L. ELDRIDGE, AVIATION CADET, UNITED STATES NAVAL RESERVE, FOR PER DIEM ALLOWANCE OF $6 FOR 9 DAYS FROM JUNE 14 TO JUNE 22, 1937, WHILE TRAVELING BY AIR UNDER ORDERS ISSUED BY THE COMMANDING OFFICER OF THE U.S.S. ARIZONA, JUNE 7, 1937, TO LT. G. H. HASSELMAN, UNITED STATES NAVY, AS FOLLOWS:

1. REFERENCE (B) IS HEREBY CANCELLED.

2. AS AUTHORIZED BY THE THIRD ENDORSEMENT TO REFERENCE (A) YOU ARE HEREBY DIRECTED TO TAKE CHARGE OF THE AVIATION UNIT OF THIS VESSEL AND MAKE A PROTRACTED FLIGHT TO SAN DIEGO AND RETURN, FOR THE PURPOSE OF TURNING IN ONE AIRPLANE FOR OVERHAUL AND CROSS-COUNTRY FLIGHT TRAINING, AS FOLLOWS:

3. ON JUNE 7, 1937, YOU WILL PROCEED WITH PERSONNEL, AIRPLANES, AND EQUIPMENT TO THE NAVAL AIR STATION, SEATTLE, WASHINGTON, AND REPORT TO THE COMMANDING OFFICER FOR TEMPORARY DUTY IN PREPARING THE AIRCRAFT FOR THIS FLIGHT.

4. ON OR ABOUT JUNE 14, 1937, AND WHEN IN ALL RESPECTS READY YOU WILL TAKE CHARGE OF THE FOLLOWING PERSONNEL AND MAKE THE FLIGHT TO SAN DIEGO, CALIFORNIA.

LT. (JR.GR.) R. R. BALLINGER, U.S. NAVY.

AVIATION CADET B. I. HARWOOD, U.S. NAVY RESERVE.

AVIATION CADET R. L. ELDRIDGE, U.S. NAVY RESERVE

AVIATION CADET J. M. RUSCH, U.S. NAVY RESERVE.

LARSON, C. S. AMM3C NO. 368-25-32, U.S. NAVY

5. WHILE AT THE NAVAL AIR STATION, SAN DIEGO, CALIFORNIA, YOU WILL TURN IN O3U-3 AIRPLANE NUMBER 9310 FOR OVERHAUL AND RECEIVE A REPLACEMENT THEREFOR.

6. ON OR ABOUT JUNE 19, 1937, AND WHEN IN ALL RESPECTS READY YOU WILL COMMENCE THE RETURN FLIGHT TO SEATTLE, WASHINGTON.

7. ON OR ABOUT JUNE 23, 1937, WHEN AIRCRAFT HAVE BEEN PREPARED FOR SHIP BASED STATUS, AND WHEN SO DIRECTED BY THE COMMANDING OFFICER, NAVAL AIR STATION, SEATTLE, WASHINGTON, YOU WILL CONSIDER THIS TEMPORARY DUTY COMPLETED AND RETURN WITH PERSONNEL, AIRPLANES, AND EQUIPMENT TO THIS SHIP.

IT APPEARS FROM THE TRAVEL ITINERARY CONTAINED IN VOUCHER NO. 155, AUGUST 1937 ACCOUNTS OF ENSIGN L. J. MCNULTY (SC) UNITED STATES NAVY, THAT THE CLAIMANT---

* * * DEPARTED SAND POINT (SEATTLE), WASHINGTON, AT 0910 ON JUNE 14, 1937; ARRIVED VANCOUVER, WASHINGTON, AT 1030 SAME DATE; DEPARTED AT 1055 SAME DATE; ARRIVED MEDFORD, OREGON, AT 1330 AND DEPART AT 1415 SAME DATE; ARRIVED OAKLAND, CALIFORNIA, AT 1800 SAME DATE. DEPARTED OAKLAND AT 0920 ON JUNE 15, 1937; ARRIVED BAKERSFIELD, CALIFORNIA, AT 1140, AND DEPARTED AT SAME DATE 1250; ARRIVED SAN DIEGO, CALIFORNIA, THE SAME DATE AT 1500.

THE SCHEDULED DEPARTURE FROM SAN DIEGO, CALIFORNIA, ON JUNE 18, 1937, WAS DELAYED FOR A PERIOD OF SIX HOURS DUE TO THE NECESSARY REPLACEMENT OF A DAMAGED WING.

DEPARTED SAN DIEGO, CALIFORNIA, AT 1600 ON JUNE 18, 1937; ARRIVED BAKERSFIELD, CALIFORNIA, AT 1820 SAME DATE. DEPARTED BAKERSFIELD, CALIFORNIA, AT 0620 ON JUNE 19, 1937; ARRIVED SACRAMENTO, CALIFORNIA, AT 0920, DEPARTED AT 1000 SAME DATE; ARRIVED REDDING, CALIFORNIA, AT 1205, AND DEPARTED AT 1400 SAME DATE; ARRIVED MONTAGUE, CALIFORNIA, AT 1515 SAME DATE. DEPARTED MONTAGUE, CALIFORNIA, AT 1300 ON JUNE 20, 1937; ARRIVED MEDFORD, OREGON, AT 1330 SAME DATE. DEPARTED MEDFORD, OREGON, AT 1000 ON JUNE 22, 1937; ARRIVED VANCOUVER WASHINGTON, AT 1145 AND DEPARTED AT 1215 SAME DATE; ARRIVED SAND POINT (SEATTLE), WASHINGTON, AT 1345 SAME DATE.

PAYMENT WAS MADE TO THE CLAIMANT ON VOUCHER NO. 155 IN THE SUM OF $54 REPRESENTING PER DIEM OF $6 TO WHICH EXCEPTIONS WERE TAKEN IN THE AUDIT ON THE GROUND THAT THE PER DIEM ALLOWANCE WAS NOT AUTHORIZED WHILE IN THE PERFORMANCE OF A CROSS-COUNTRY FLIGHT UNDER ORDERS FOR TRAINING PURPOSES, CITING 6 COMP. GEN. 443. (THE PURPOSE OF THE FLIGHT HAS BEEN EXPLAINED BY THE COMMANDING OFFICER AND BY THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, SHOWING THAT THE PRIMARY PURPOSE OF THE ORDERS WAS TO TURN IN ONE AIRPLANE FOR OVERHAUL AND TO OBTAIN A REPLACEMENT, AND THE EXPLANATION NEED NOT BE QUESTIONED BECAUSE THERE WAS INCIDENTAL TRAINING IN CROSS- COUNTRY FLYING.) SUBSEQUENTLY, THE AMOUNT OF $54 WAS DEDUCTED FROM THE CLAIMANT'S PAY WITH A CREDIT OF $9 REPRESENTING A MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY (SEC. 2 OF THE ACT OF APRIL 15, 1935, 49 STAT. 156, 157) FOR THE PERIOD JUNE 14 TO JUNE 22, 1937, AND THE PRESENT CLAIM IS FOR REFUND OF THE NET AMOUNT DEDUCTED, NAMELY, $45 ON THE BASIS THAT A PER DIEM OF $6 WAS PROPERLY PAYABLE UNDER THE ORDERS OF JUNE 7, 1937, FOR THE 9-DAY PERIOD INVOLVED BETWEEN THE DATE OF DEPARTURE FROM AND RETURN TO SEATTLE, WASH.

THE ACT OF APRIL 15, 1935, 49 STAT. 156, 157, CREATED THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND SECTION 2 THEREOF PROVIDED:

* * * THAT WHEN TRAVELING BY AIR UNDER COMPETENT ORDERS, THEY SHALL RECEIVE THE SAME ALLOWANCES FOR TRAVELING EXPENSES AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED BY LAW FOR OFFICERS OF THE NAVY.

SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1461, AMENDED SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS AMENDED BY SECTION 20 OF THE ACT OF JUNE 1, 1926, 44 STAT. 680, BY ADDING A PROVISO IN PART AS FOLLOWS:

* * * 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 * * * OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY * * * 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.

ARTICLE 2501, PARAGRAPH 5 (A) (1), UNITED STATES NAVY TRAVEL INSTRUCTIONS, 1936, PROVIDES:

ACTUAL AND NECESSARY EXPENSES NOT TO EXCEED $8 PER DAY, OR PER DIEM ALLOWANCE OF $6 PER DAY FOR TRAVELING EXPENSES (WHICH INCLUDES SUBSISTENCE AND ALL PERSONAL EXPENSES IN CONNECTION WITH TRAVEL) ARE ALLOWED FOR TRAVEL IN GOVERNMENT OWNED AIRPLANES UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS. * * *

ARTICLE 2508 (5) DEFINES A COMPETENT AIR TRAVEL ORDER AS FOLLOWS:

A COMPETENT ORDER IS ONE ISSUED OR APPROVED BY THE BUREAU OF NAVIGATION. THE ORDER SHALL SHOW THE DUTY INVOLVED, THAT THE TRAVEL IS TO BE BY AIR, STATE STOPS TO BE MADE EN ROUTE, AND EITHER THAT REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES AT NOT TO EXCEED $8 A DAY OR THAT A PER DIEM OF NOT TO EXCEED $6 IS AUTHORIZED.

UNDER THE APPLICABLE LAW TWO METHODS OF REIMBURSEMENT FOR TRAVELING EXPENSES ARE AUTHORIZED; ONE ON AN ACTUAL EXPENSE BASIS, AND THE OTHER COMMUTED ON A PER DIEM BASIS AT DAILY RATES NOT TO EXCEED $8 AND $6, RESPECTIVELY, AND THE REGULATIONS PROMULGATED TO CARRY OUT THE STATUTORY PROVISIONS RECOGNIZE THE NECESSITY FOR ISSUANCE OF COMPETENT ORDERS FOR TRAVEL BY AIR WITH A RECITATION IN THE ORDERS AS TO THE KIND AND AMOUNT OF TRAVELING EXPENSES WITHIN THE LIMITATIONS AUTHORIZED BY LAW. EXCEPT AS ORDERS SO AUTHORIZE THERE IS NO AUTHORITY FOR COMMUTING TRAVELING EXPENSES FOR TRAVEL BY AIR AS PROVIDED BY THE ACT OF MARCH 2, 1931, BY PAYMENT OF A PER DIEM.

THE ORDERS UNDER WHICH THIS CLAIMANT AND THE OTHER PERSONNEL COVERED BY THE ORDER OF JUNE 7, 1937, PERFORMED TRAVEL BY AIR ARE SILENT AS TO THE MANNER OR AMOUNT OF REIMBURSEMENT INTENDED TO BE MADE AND IN THE ABSENCE OF SUCH A CONTEMPORANEOUS PROVISION THEREIN THE LAW DOES NOT CONTEMPLATE THE PAYMENT OF THE MAXIMUM PER DIEM RATE SUBSEQUENTLY FIXED. NOTWITHSTANDING THE OMISSION IN THE ORDERS, HOWEVER, THE CHIEF OF THE BUREAU OF NAVIGATION HAS APPROVED PAYMENT OF A PER DIEM OF $6 IN LIEU OF ACTUAL TRAVELING EXPENSES AND WHILE STRICTLY SUCH APPROVAL IS NOT THE METHOD CONTEMPLATED BY THE LAW AND REGULATIONS TO FIX THE TRAVELING EXPENSES TO BE PAID, THE EFFECT OF SUCH APPROVAL APPEARS TO BE PRIMARILY FOR THE PURPOSE OF CORRECTING THE OMISSION FROM THE ORDERS OF JUNE 7, 1937, AND WILL BE ACCEPTED IN THE CIRCUMSTANCES OF THIS CASE AS AUTHORIZING PAYMENT IN ORDER THAT THE CLAIMANT MAY NOT BE DEPRIVED OF A RIGHT TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED UPON PROPER DESIGNATION IN THE ORDERS OF A SIMILAR PER DIEM. THIS ACTION, HOWEVER, IS NOT A PRECEDENT FOR FUTURE CASES.