B-49850, OCT 15, 1945

B-49850, OCT 15, 1945

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 7, 1945 (FILE JAG:II:WJG: L10-5/ES5), ENCLOSING A LETTER DATED MAY 3, 1945, FROM THE COMMANDANT OF THE MARINE CORPS, AND REQUESTING THE REMOVAL OF CERTAIN EXCEPTIONS TAKEN IN THE AUDIT OF THE ACCOUNTS OF MAJOR A. A. ZARRACINA, ASSISTANT PAYMASTER, U.S. MARINE CORPS, AND OTHER DISBURSING OFFICERS, FOR PAYMENTS OF MILEAGE AND PER DIEM MADE PURSUANT TO ORDERS ISSUED BY HEADQUARTERS, U.S. MARINE CORPS, PRIOR TO JULY 1, 1943, DIRECTING A PERMANENT CHANGE OF STATION AND REQUIRING THE PERFORMANCE OF TEMPORARY DUTY PRIOR TO REPORTING TO THE NEW STATION, WHICH ORDERS PURPORTEDLY AUTHORIZED REIMBURSEMENT ON A MILEAGE BASIS FOR TRAVEL PERFORMED BETWEEN THE OLD AND NEW STATION AND, ALSO, A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR A PERIOD OF TEMPORARY DUTY TO BE PERFORMED PRIOR TO REPORTING TO THE NEW STATION. YOU REQUEST THAT THE EXCEPTIONS TO BE REMOVED IN ALL SUCH CASES INVOLVING ORDERS ISSUED PRIOR TO JULY 1, 1943, THE DATE THE ISSUANCE OF ORDERS OF THAT TYPE WAS DISCONTINUED IN VIEW OF THE STATEMENT IN DECISION OF JUNE 24, 1943, B-31588, THAT THE STATUTORY PROVISION CONTAINED IN THE ARMY APPROPRIATION ACT OF APRIL 28, 1942, 56 STAT. 226, 227, WHICH IS SIMILAR TO THAT CONTAINED IN THE NAVY APPROPRIATION ACTS, AUTHORIZING THE PRESCRIPTION OF A PER DIEM ALLOWANCE FOR UNREPEATED TRAVEL WITHIN THE UNITED STATES MAY NOT BE REGARDED AS REASONABLY CONTEMPLATING A MIXTURE OF PER DIEM AND MILEAGE DURING THE SAME TRAVEL STATUS PERIOD.

THE ADMINISTRATIVE REASONS FOR REQUESTING A REMOVAL OF THE EXCEPTIONS ARE SET FORTH IN THE LETTER OF THE COMMANDANT OF THE MARINE CORPS, AS FOLLOWS:

"1. DISBURSING OFFICERS OF THE MARINE CORPS ARE RECEIVING NUMEROUS NOTICES OF EXCEPTIONS ISSUED BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE WHEREIN THE PAYMENT OF MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE WAS INVOLVED IN THE SAME SET OF ORDERS. ON OF THESE NOTICES OF EXCEPTION SELECTED AT RANDOM WITHHOLDS CREDIT IN THE AMOUNT OF $101.53 BY REASON OF MILEAGE PAID TO SECOND LIEUTENANT JACK DOHERTY, U.S. MARINE CORPS RESERVE, ON VOUCHER NO. 1680 IN THE ACCOUNT OF MAJOR A. A. ZARRACINA, ASSISTANT PAYMENTER, U.S. MARINE CORPS, FOR THE MONTH OF MARCH 1943. THE PERTINENT PART OF THE NOTICE OF EXCEPTION IN THIS CASE READS AS FOLLOWS:

"'PAID MILEAGE 212.42

ALLOWED P.D. 2/22-27/43 06. - 36. AND NET

MILITARY 1ST CLASS FARE AT 64.63 AND 10.26

CHECKED ON PAY VOU. 1992, MAR. 43 ACCT.

A. A. ZARRACINA 110.89

PAYEE IS NOT IN A MILEAGE STATUS SINCE ORDERS

AUTHORIZE P.D. FOR TEMPORARY DUTY ASSIGNED

AFTER COMPLETION OF TRAINING DUTY AT FT. WORTH,

TEX.'

"2. SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 9 OF THE ACT APPROVED 7 SEPTEMBER 1944, PUBLIC LAW 421, 78TH CONGRESS, PROVIDES, IN PERTINENT PART, THAT 'OFFICERS *** WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, *** SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, ***' THIS SECTION FURTHER PROVIDES THAT, "*** 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. ***'

"3. THE MILEAGE ALLOWANCE THUS ALLOWED BY LAW IS INTENDED AND IS CONSIDERED AMPLE TO DEFRAY ALL NECESSARY EXPENSES INCIDENT TO THE TRAVEL OF AN OFFICER FROM POINT TO POINT WITHIN THE UNITED STATES. THE MILEAGE ALLOWANCE, HOWEVER, HAS NEVER BEEN CONSIDERED SUFFICIENT TO DEFRAY THE EXPENSES OF AN OFFICER ORDERED TO PERFORM TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR EXTENDED PERIODS.

"4. AT THE BEGINNING OF THE WAR IT WAS FORESEEN THAT, IN THE PROPER CONDUCT OF THE BUSINESS OF THE NAVY DEPARTMENT, IT WOULD BE NECESSARY TO ORDER A GREAT NUMBER OF OFFICERS TO PERFORM EXTENDED PERIODS OF TEMPORARY DUTY AWAY FROM THEIR PERMANENT STATIONS. UNDER THE LAW AS IT THEN STOOD THERE WAS NO AUTHORITY WHEREBY A PER DIEM ALLOWANCE COULD BE AUTHORIZED FOR AN OFFICER PER FORMING TEMPORARY DUTY UNDER SINGLE JOURNEY TRAVEL ORDERS WITHIN THE UNITED STATES. IN ORDER THAT AN OFFICER WOULD NOT BE REQUIRED TO BEAR ABNORMAL EXPENSES FROM PERSONAL FUNDS WHILE IN THE PERFORMANCE OF A SPECIFIC MILITARY DUTY AWAY FROM HIS PERMANENT STATION, LEGISLATION WAS OBTAINED TO PERMIT THE AUTHORIZATION OF A PER DIEM ALLOWANCE 'WHETHER OR NOT ORDERS ARE GIVEN TO SUCH OFFICERS FOR TRAVEL TO BE PERFORMED WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS.' THE FIRST LEGISLATIVE AUTHORITY FOR THIS PURPOSE WAS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE NAVY DEPARTMENT AND THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1943, APPROVED 7 FEBRUARY, 1942, 56 STAT. 53, UNDER THE HEADING 'BUREAU OF SUPPLIES AND ACCOUNTS,' SUBHEAD 'PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL,' AT PAGE 63, WHICH PROVIDES:

"'*** THAT FROM THE DATE OF THE APPROVAL OF THIS ACT TO JUNE 30, 1943, THE SECRETARY OF THE NAVY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE FOR OFFICERS OF THE NAVY AND MARINE CORPS AND OF THE RESERVE COMPONENTS THEREOF, 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 SUCH ORDERS.'

"SIMILAR PROVISIONS, WITH CERTAIN MODIFICATIONS NOT HERE MATERIAL, HAVE BEEN INCLUDED IN THE ANNUAL APPROPRIATION ACTS FOR THE NAVY DEPARTMENT AND THE NAVAL SERVICE FOR THE FISCAL YEARS 1944 AND 1945.

"5. UNDER THE INSTRUCTIONS CONTAINED IN ARTICLE 557, NAVY REGULATIONS, 1920, THE COMMANDANT OF THE MARINE CORPS, UNDER THE DIRECTION OF THE SECRETARY OF THE NAVY, IN CHARGED WITH THE ISSUANCE OF ORDERS FOR THE MOVEMENT OF PERSONNEL OF THE MARINE CORPS AND WITH THE ISSUANCE OF SUCH ORDERS AND INSTRUCTIONS FOR THEIR GUIDANCE AS MAY FROM TIME TO TIME BE NECESSARY. PRIOR TO 4 MARCH, 1942, ALL REPEATED TRAVEL ORDERS WERE ISSUED BY THE SECRETARY OF THE NAVY. HOWEVER, DUE TO WAR CONDITIONS, THE SECRETARY OF THE NAVY, UNDER DATE OF 4 MARCH, 1942, AUTHORIZED THE COMMANDANT OF THE MARINE CORPS TO ISSUE ORDERS TO OFFICERS OF THE MARINE CORPS INVOLVING REIMBURSEMENT ON A PER DIEM BASIS.

"6. THE PURPOSE OF OBTAINING THE LEGISLATIVE PROVISION CONTAINED IN THE NAVAL APPROPRIATION ACT OF 7 FEBRUARY, 1942, SUPRA, WAS TO PREVENT HARDSHIP OF OFFICERS ORDERED ON TEMPORARY DUTY. THIS HEADQUARTERS CONSIDERED THAT A REASONABLE CONSTRUCTION OF THE LEGISLATION THUS OBTAINED AUTHORIZED THE PRESCRIPTION OF A PER DIEM ALLOWANCE FOR A PARTICULAR PERIOD OF TEMPORARY DUTY INVOLVED IN A TRAVEL ORDER OTHERWISE PROVIDING FOR MILEAGE FOR TRAVEL BETWEEN POINTS INVOLVED. IT WAS CONSIDERED THAT WHILE THE MILEAGE AUTHORIZED BY LAW COVERED ALL NECESSARY EXPENSES INCIDENT TO THE TRAVEL OF AN OFFICER, THE MILEAGE ALLOWANCE WAS NOT SUFFICIENT NOR WAS IT CONTEMPLATED THAT IT WOULD BE SUFFICIENT TO COVER EXCESS NECESSARY EXPENSES INVOLVED IN THE PERFORMANCE OF DUTY FOR EXTENDED PERIODS UNDER AN ORDER. ACCORDINGLY, IN ISSUING CHANGE OF STATION ORDERS TO OFFICERS OF THE MARINE CORPS, WHICH ORDERS ALSO INVOLVED THE PERFORMANCE OF AN EXTENDED PERIOD OF TEMPORARY DUTY PRIOR TO REPORTING TO THE NEW STATION, THE ORDERS WERE SO WORDED AS TO AUTHORIZE MILEAGE FOR THE TRAVEL INVOLVED AND A PER DIEM FOR THE PERIOD OF TEMPORARY DUTY ONLY IN THOSE CASES WHERE IT WAS DEEMED NECESSARY TO PREVENT IMPOSING UNDUE HARDSHIP ON THE OFFICER CONCERNED; I.E., MILEAGE WAS AUTHORIZED FROM THE OLD STATION TO THE PLACE WHERE THE TEMPORARY DUTY WAS TO BE PERFORMED; PER DIEM WAS AUTHORIZED DURING THE PERIOD OF TEMPORARY DUTY, AND MILEAGE WAS AUTHORIZED FROM THE PLACE WHERE THE TEMPORARY DUTY WAS PERFORMED TO THE ULTIMATE NEW STATION. NO PER DIEM WAS AUTHORIZED FOR ANY PERIOD DURING WHICH THE MILEAGE WAS PAYABLE.

"7. AS BEARING ON THE NOTICE OF EXCEPTION CITED IN PARAGRAPH 1 HEREOF, THE RECORDS OF THIS HEADQUARTERS SHOW THAT BY ORDERS OF THE COMMANDANT OF THE MARINE CORPS, DATED 14 OCTOBER, 1942, SECOND LIEUTENANT DOHERTY WAS DETACHED FROM THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, AND DIRECTED TO PROCEED OVERLAND TO AMERICAN AIRLINES TRAINING SCHOOL, MEACHAN FIELD, FORT WORTH, TEXAS, FOR TEMPORARY AVIATION DUTY, UNDERGOING INSTRUCTION FOR A PERIOD OF APPROXIMATELY THIRTY DAYS. UPON COMPLETION OF THIS TEMPORARY DUTY SECOND LIEUTENANT DOHERTY WAS ASSIGNED 'ADDITIONAL TEMPORARY AVIATION DUTY' WITH THE AMERICAN AIRLINES, FOR A PERIOD OF APPROXIMATELY SIXTY DAYS. UPON COMPLETION OF THE 'ADDITIONAL TEMPORARY AVIATION DUTY' INVOLVED, SECOND LIEUTENANT DOHERTY WAS DIRECTED TO PROCEED OVERLAND TO NAVAL AIR STATION, SAN DIEGO, CALIFORNIA, FOR DUTY WITH MARINE AIRCRAFT WING, PACIFIC. PARAGRAPH 5 OF THESE ORDERS PROVIDED THAT:

"'WHILE ON THE ADDITIONAL TEMPORARY AVIATION DUTY INDICATED IN PARAGRAPH TWO, WITH THE AMERICAN AIRLINES, YOU ARE AUTHORIZED A PER DIEM OF SIX DOLLARS, IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE SECRETARY OF THE NAVY'S LETTER, DATED 4 MARCH, 1942.'

"8. BY ORDERS DATED 3 DECEMBER, 1942, THE ORDERS OF 14 OCTOBER, 1942, WERE SO FAR MODIFIED THAT UPON COMPLETION OF THE TEMPORARY AVIATION DUTY UNDER INSTRUCTIONS WITH AMERICAN AIRLINES TRAINING SCHOOL, FORT WORTH, TEXAS, LIEUTENANT DOHERTY WAS DIRECTED TO PROCEED TO SAN FRANCISCO, CALIFORNIA, AND REPORT TO THE SUPERINTENDENT, WESTERN FLIGHT OPERATIONS, UNITED AIRLINES, INC., SAN FRANCISCO, AIRPORT, FOR THE 'ADDITIONAL TEMPORARY AVIATION DUTY' PREVIOUSLY DIRECTED TO BE PERFORMED WITH THE AMERICAN AIRLINES. THE PER DIEM AUTHORIZED THE 'ADDITIONAL TEMPORARY AVIATION DUTY' WITH UNITED AIRLINES, INC. BY ORDERS DATED 8 JANUARY, 1943, THE ORDERS OF 14 OCTOBER, 1942, WERE FURTHER MODIFIED THAT UPON COMPLETION OF THE 'ADDITIONAL TEMPORARY AVIATION DUTY' WITH THE UNITED AIRLINES, INC., THE OFFICER WOULD PROCEED TO MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA, FOR DUTY.

"9. IT IS NOTED THAT NO AUTHORITY IS CITED IN SUPPORT OF THE ACTION TAKEN BY THE AUDIT DIVISION IN ISSUING THE NOTICE OF EXCEPTION CITED; BUT THE AUDIT DIVISION IN A LETTER ADDRESSED TO THE PAYMASTER GENERAL OF THE MARINE CORPS UNDER DATE OF 28 MARCH, 1945, FILE A-WEB-RAR, MADE REFERENCE TO THE DECISION OF THE COMPTROLLER GENERAL, DATED 22 MARCH, 1944 (23 COMP.GEN. 713). IT IS SUBMITTED, HOWEVER, THAT THE CASE CONSIDERED IN 23 COMP.GEN. 713, IS NOT PARALLEL TO THE TYPE OF ORDERS HERE INVOLVED, IN THAT THE PER DIEM AUTHORIZATION WAS INCLUDED IN THE BASIC ORDERS OF 14 OCTOBER, 1942. THE NATURE OF THE THE DUTY TO BE PERFORMED AND LENGTH OF TIME REQUIRED TO PERFORM THAT DUTY WAS DULY CONSIDERED AND AUTHORIZATION FOR REIMBURSEMENT ON A PER DIEM BASIS FOR THAT PERIOD ONLY WAS INCLUDED IN THE BASIC ORDERS OF 14 OCTOBER, 1942. DECISIONS B-28221, AND B-30168, DATED 8 MARCH, 1943, AND B-31588, DATED 24 JUNE, 1943, HAVE NOT BEEN OVERLOOKED IN THIS CONSIDERATION. THESE LATTER DECISIONS DEALT WITH THE TRAVEL OF ARMY OFFICERS AND APPEAR TO HAVE PREDICATED ON THE FACT THAT AN EXISTING ARMY REGULATION SPECIFICALLY PROHIBITED 'THE PRESCRIBING OF A PER DIEM ALLOWANCE IN A TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE, AND VICE VERSA.' HOWEVER, THERE WAS NO NAVY REGULATION WHICH PROHIBITED THE MIXING OF MILEAGE AND PER DIEM IN THE SAME TRAVEL ORDERS. THE DECISION OF 24 JUNE, 1943, HOWEVER, WENT FURTHER AND CONTAINED THE DEFINITE STATEMENT THAT, 'MOREOVER, THE STATUTORY PROVISIONS AUTHORIZING THE PRESCRIPTION OF A PER DIEM FOR TRAVEL INSTEAD OF MILEAGE MAY NOT BE REGARDED AS REASONABLY CONTEMPLATING A MIXTURE OF THE TWO DURING THE SAME TRAVEL STATUS PERIOD.' THIS IS NOT A PUBLISHED DECISION AND A COPY OF SAID DECISION WAS NOT RECEIVED AT THIS HEADQUARTERS UNTIL SOMETIME DURING THE MONTH OF JULY 1943. THE DEFINITE STATEMENT CONTAINED IN DECISION B 31588 OF JUNE 24, 1943, WAS THE FIRST INDICATION THAT A MIXTURE OF MILEAGE AND PER DIEM ON THE TYPE OF ORDERS REFERRED TO HEREIN MIGHT BE SUBJECT TO QUESTION IN THE AUDIT BY THE GENERAL ACCOUNTING OFFICE. UPON RECEIPT OF THIS DECISION, THIS HEADQUARTERS IMMEDIATELY CHANGED ITS POLICY WITH REGARD TO ISSUING CHANGE OF STATION ORDERS TO OFFICERS OF THE MARINE CORPS SO AS TO AUTHORIZE REIMBURSEMENT IN ACCORDANCE WITH THE VIEWS OF THE COMPTROLLER GENERAL AS EXPRESSED THEREIN.

"10. IT WILL BE NOTED THAT THE ORDERS ADDRESSED TO SECOND LIEUTENANT DOHERTY, UNDER DATE OF 14 OCTOBER, 1942, AUTHORIZED A PER DIEM IN LIEU OF SUBSISTENCE ONLY FOR THE PERIOD HE WAS ON 'ADDITIONAL TEMPORARY AVIATION DUTY,' AND THAT NO PER DIEM WAS AUTHORIZED FOR THE TRAVEL INVOLVED OR FOR THE PERIOD WHILE ON TEMPORARY AVIATION DUTY UNDERGOING INSTRUCTIONS; I.E., THE FIRST 30 DAY PERIOD OF TEMPORARY DUTY. NO PER DIEM WAS AUTHORIZED NOR WAS ANY PER DIEM PAID FOR ANY PERIOD OTHER THAN FOR THE 'ADDITIONAL TEMPORARY AVIATION DUTY' INVOLVED UNDER SAID ORDERS. FOR THE TRAVEL INVOLVED UNDER THE ORDERS REFERRED TO FROM CORPUS CHRISTI, TEXAS, TO FORT WORTH, TEXAS; THENCE TO SAN FRANCISCO, CALIFORNIA; AND FROM PORTLAND, OREGON, TO CHERRY POINT, NORTH CAROLINA, SECOND LIEUTENANT DOHERTY WAS PAID MILEAGE. THE NOTICE OF EXCEPTION CITED RAISED AN EXEMPTION IN THE AMOUNT OF $101.53 AS HAVING BEEN OVERPAID TO SECOND LIEUTENANT DOHERTY BY REASON OF PAYMENT OF MILEAGE FROM PORTLAND, OREGON, TO CHERRY POINT, NORTH CAROLINA, ONLY. "11. THE RECORDS OF THIS HEADQUARTERS SHOW THAT SECOND LIEUTENANT DOHERTY WAS PAID MILEAGE AND PER DIEM IN LIEU OF SUBSISTENCE FOR THE TRAVEL AND FOR THE 'ADDITIONAL TEMPORARY DUTY' PERFORMED UNDER HIS ORDERS OF 14 OCTOBER, 1942, AS MODIFIED BY ORDERS DATED 3 DECEMBER, 1942, AND 8 JANUARY, 1943, IN THE FOLLOWING SUMS:

"MILEAGE FROM CORPUS CHRISTI, TEXAS TO FORT WORTH,

TEXAS, PAID ON VOU. NO. 358, ACCT OF CAPT. C. A.

PHILLIPS, APM, USMC, FOR THE MO OF NOV 42. . . . . $35.52

"MILEAGE FROM FORT WORTH, TEXAS, TO SAN FRANCISCO,

CALIFORNIA, PAID ON VOU. NO. 693, ACCT OF CAPT

C. A. PHILLIPS, APM, USMC, FOR THE MO OF DEC 42. . . . 123.16

"MILEAGE FROM PORTLAND, OREGON, TO CHERRY POINT,

NORTH CAROLINA, PAID ON VOU. NO. 1680, ACCT OF

MAJ. A. A. ZARRACINA, APM, USMC, FOR THE MO OF

MAR 43. . . . . . . . . . . . . . . . . . . .$222.68

LOSS AMOUNT CHECKED ON VOU. NO.

1992, ACCT OF MAJ A. A. ZARRACINA,

APM, USMC, FOR THE MO OF MAR 43. . . 10.26 212.42

"PER DIEM FOR THE PRD 12 NOV 42 TO 20 FEB 43, INCLUSIVE,

71 DAYS AT $6 PER DAY, PAID ON VOU. NO. 1811, ACCT

OF MAJ A. A. ZARRACINA, FOR THE MO OF MAR 43 . . . . . 426.00

"TOTAL AMOUNT ACTUALLY PAID OFFICER FOR TRAVEL

AND TEMPORARY DUTY PERFORMED UNDER ORDERS

OF 14 OCT 42, AS MODIFIED . . . . . . . . . . . . . . $797.10

"12. IT IS TO BE NOTED THAT THE AUTHORIZATION FOR PER DIEM IS LIEU OF SUBSISTENCE WAS CONTAINED IN THE BASIC ORDERS DATED 14 OCTOBER, 1942. CONSEQUENTLY, IF SECOND LIEUTENANT DOHERTY IS TO BE DENIED MILEAGE FOR ANY PORTION OF THE TRAVEL INVOLVED, THEN IT SEEMS REASONABLE THAT HE SHOULD BE CONSIDERED AS IN A PER DIEM STATUS FOR THE ENTIRE PERIOD OF TRAVEL AND TEMPORARY DUTY INVOLVED UNDER HIS ORDERS (23 COMP.GEN. 713). HAVING TRAVELED IN WHAT WAS CONSIDERED A MILEAGE STATUS, RECEIPTS FOR PULLMAN ACCOMMODATIONS WERE NOT RETAINED. SEE COMP.GEN. B-45830, DATED 19 DECEMBER, 1944. THE OFFICER THEREFORE WOULD BE ENTITLED TO REIMBURSEMENT AS FOLLOWS:

*NET FIRST CLASS MILITARY FARE, CORPUS CHRISTI, TEXAS,

TO FORT WORTH, TEXAS . . . . . . . . . . . . . . . . $13.40

PULLMAN . . . . . . . . . . . . . . . . . . . . . . . . 4.35

*NET FIRST CLASS MILITARY FARE, FORT WORTH, TEXAS, TO

SAN FRANCISCO, CALIFORNIA. . . . . . . . . . . . . . 43.87

PULLMAN. . . . . . . . . . . . . . . . . . . . . . . 14.75

*NET FIRST CLASS MILITARY FARE FROM PORTLAND, OREGON,

TO CHERRY POINT, N.C. . . . . . . . . . . . . . . . 70.33

PULLMAN. . . . . . . . . . . . . . . . . . . . . . . 26.35

*PER DIEM FOR THE PERIOD 6 NOV 42 TO 7 DEC 42; 10 DEC 42 TO

21 FEB 43, AND 3-6 MAR 43, ALL DATES INCLUSIVE, 110 DAYS

AT $6 PER DAY . . . . . . . . . . . . . . . . . . . . . . 660.00

"AMOUNT OFFICER WOULD HAVE BEEN ENTITLED TO

CONSIDERING THAT ALL TRAVEL AND TEMPORARY DUTY

UNDER HIS ORDERS OF 14 OCT 42, AS MODIFIED, WERE

ON A PER DIEM BASIS. . . . . . . . . . . . . . . . . . . 833.05

"COMPARING THE FOREGOING WITH PARAGRAPH 11 HEREOF, IT WILL BE NOTED THAT UNDER THE ORDERS AS ISSUED BY THIS HEADQUARTERS A SAVING TO THE GOVERNMENT IN THE SUM OF $35.95 RESULTED. IT IS REALIZED, HOWEVER, THAT IN OTHER CASES TRAVEL UNDER SIMILAR ORDERS WOULD RESULT IN A GREATER COST TO THE GOVERNMENT.

"13. IN VIEW OF THE FOREGOING IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE REQUESTED TO ALLOW CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS OF THE MARINE CORPS FOR OTHERWISE PROPER PAYMENTS OF MILEAGE AND PER DIEM MADE ON ALL CHANGE OF STATION ORDERS ISSUED BY THIS HEADQUARTERS PRIOR TO 1 JULY, 1943, WHEREIN THE BASIC ORDERS PROVIDED FOR REIMBURSEMENT ON A MILEAGE BASIS FOR THE TRAVEL PERFORMED BETWEEN THE OLD AND THE NEW STATION, AND ALSO PRESCRIBED A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR A PERIOD OF TEMPORARY DUTY TO BE PERFORMED PRIOR TO REPORTING TO NEW STATION."

IN THE DECISION OF JUNE 24, 1943, B-31588, REFERRED TO IN THE COMMANDANT'S LETTER, IT WAS SAID:

"*** THE REGULATIONS PROHIBIT 'THE PRESCRIBING OF A PER DIEM ALLOWANCE IN TRAVEL ORDER INVOLVING THE PAYMENT OF MILEAGE, AND VICE VERSA.' THE PURPOSE OF SUCH PROHIBITION WOULD BE CIRCUMVENTED BY AUTHORIZING TRAVEL ON A MILEAGE BASIS DURING A PERIOD OF TEMPORARY DUTY ON A PER DIEM BASIS, THUS DOING INDIRECTLY WHAT THE REGULATION PROHIBITS DOING DIRECTLY. MOREOVER, THE STATUTORY PROVISIONS AUTHORIZING THE PRESCRIPTION OF A PER DIEM FOR TRAVEL INSTEAD OF MILEAGE MAY NOT BE REGARDED AS REASONABLY CONTEMPLATING A MIXTURE OF THE TWO DURING THE SAME TRAVEL STATUS PERIOD."

WHILE THAT DECISION RELATED TO THE PROVISIONS CONTAINED IN ARMY APPROPRIATION ACTS AUTHORIZING THE SECRETARY OF WAR TO PRESCRIBE PER DIEM RATES OF ALLOWANCE IN LIEU OF SUBSISTENCE FOR OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY "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 TO THE PROVISIONS OF ARMY REGULATIONS ISSUED THEREUNDER, SUCH STATUTORY PROVISIONS FOR THE ARMY ARE ESSENTIALLY THE SAME AS THOSE QUOTED IN THE COMMANDANT'S LETTER FROM THE NAVAL APPROPRIATION ACT OF FEBRUARY 7, 1942, 56 STAT. 53, AND WHICH WERE REPEATED IN SUBSEQUENT NAVAL APPROPRIATION ACTS. WITH RESPECT TO SUCH PROVISIONS IN THE NAVAL APPROPRIATION ACTS, IT IS SAID IN THE DECISION OF MARCH 22, 1944, 23 COMP.GEN. 713, MENTIONED IN THE COMMANDANT'S LETTER:

"AS INDICATED IN THE LETTER, THE PROVISION QUOTED THEREIN FROM THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 197, PUBLIC LAW 92, APPROVED JUNE 26, 1943, PERMITS AN ELECTION BETWEEN MILEAGE AND PER DIEM IN PRESCRIBING THE METHOD OF REIMBURSEMENT FOR OFFICERS WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS AS AUTHORIZED UNDER BASIC LAWS. THE STATUTORY PROVISION IS NOT SELF-EXECUTING, HOWEVER, AND GIVES NO RIGHT TO PER DIEM PAYMENTS, EXCEPT WHEN DULY PRESCRIBED AND APPARENTLY SUCH PROVISION CONTEMPLATES THAT, GENERALLY, THE DETERMINATION WILL BE MADE PRIOR TO THE COMMENCEMENT OF THE ORDERED TRAVEL. IT CLEARLY DOES NOT CONTEMPLATE A COMBINATION OF MILEAGE AND PER DIEM UNDER THE SAME ORDERS COSTING THE GOVERNMENT MORE THAN IT WOULD HAVE COST ON EITHER BASIS SEPARATELY. ***"

COMPARE DECISION OF AUGUST 2, 1922, 2 COMP.GEN. 72, WHERE IT WAS POINTED OUT, WITH REFERENCE TO THE AUTHORIZATION CONTAINED IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, FOR THE HEAD OF THE DEPARTMENT CONCERNED TO DIRECT THE PAYMENT OF ACTUAL AND NECESSARY EXPENSES ONLY FOR REPEATED TRAVEL OF OFFICERS, THAT IF ACTUAL AND NECESSARY EXPENSES ARE AUTHORIZED THERE CAN BE NO RIGHT TO MILEAGE FOR ANY PORTION OF THE REPEATED TRAVEL COVERED BY THE ORDER.

ALTHOUGH IT APPEARS IN THE CASE OF LIEUTENANT DOHERTY, DISCUSSED IN THE COMMANDANT'S LETTER, THAT THE TOTAL OF MILEAGE AND PER DIEM PAYMENTS WAS SOMEWHAT LESS THAN THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT FOR ACTUAL TRANSPORTATION EXPENSES PLUS A PER DIEM IN LIEU OF SUBSISTENCE FOR THE ENTIRE TRAVEL PERIOD INVOLVED, APPARENTLY IT IS CONCEDED THAT IN OTHER SIMILAR CASES THE COST OF MILEAGE AND PER DIEM MAY HAVE BEEN IN EXCESS OF THE COST OF THE TRAVEL EITHER ON A STRAIGHT MILEAGE OR A STRAIGHT PER DIEM BASIS. HOWEVER, IN VIEW OF THE CIRCUMSTANCES SET FORTH IN THE COMMANDANT'S LETTER AND INASMUCH AS NEITHER THE SAID STATUTORY PROVISION NOR THE APPLICABLE NAVY REGULATIONS EXPRESSLY PROHIBITED THE PRESCRIPTION OF PER DIEM AND MILEAGE UNDER THE SAME SET OF TRAVEL ORDERS, BUT SUCH PROVISION WAS VIEWED ADMINISTRATIVELY AS PERMITTING THE PRESCRIPTION OF A COMBINATION OF MILEAGE AND PER DIEM, AND AS THE ISSUANCE OF SUCH ORDERS WAS DISCONTINUED UPON RECEIPT OF A COPY OF THE SAID DECISION OF JUNE 24, 1943, YOU ARE ADVISED THAT PAYMENTS OF MILEAGE AND PER DIEM MADE UNDER SUCH ORDERS ISSUED PRIOR TO JULY 1, 1943, WILL NOT BE FURTHER QUESTIONED IN THE AUDIT OF THE ACCOUNTS OF DISBURSING OFFICERS OF THE MARINE CORPS, IF OTHERWISE CORRECT.