Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________ March 31, 1998 _____________ GSBCA 14309-TRAV In the Matter of ANTHONY L. PRESSLEY Anthony L. Pressley, Elkton, MD, Claimant. Mary Sue E. O'Reilly, Defense Accounting Officer, Defense Finance and Accounting Service, Aberdeen Proving Ground, MD, appearing for Department of Defense. VERGILIO, Board Judge. A claimant on a long-term temporary duty (TDY) assignment, one in excess of 180 days, received per diem at the full rate. For such an assignment, compensation is to be limited to 55% of the full rate, absent an authorized deviation. The claimant could receive compensation at the full per diem rate for the period encompassed by a ratification by a designated official. However, payment at a reduced rate was required under the regulations and the dictates of the designated official's directive which stated that per diem at 55% of the full rate was to be paid after a given date. Travel orders stating that full per diem would be reimbursed were contrary to both regulation and authority, and thus without effect absent the ratification. The claimant, Anthony L. Pressley, a civilian employee of the Department of the Army, was authorized to perform a TDY assignment away from his permanent duty station. The TDY lasted in excess of one year. The Government paid him the full per diem rate for the TDY. Thereafter, the Government concluded that per diem should have been limited to 55% of the full rate, for the TDY in excess of 180 days. The Defense Finance and Accounting Service (DFAS) has deemed the claimant in debt to the Government for the overpayment, said to be $11,432.46. The claimant here disputes the assessment. The claimant was on TDY at one location from approximately April 12, 1994, through June 24, 1995. That period encompasses a total of 439 days. The claimant states that he was provided an original travel order and three extensions on the following dates for the specified number of days: original orders April 12, 1994 172 days first extension October 14, 1994 90 days second extension February 23, 1995 90 days third extension May 5, 1995 30 days The claimant has not entered into the record any of the travel orders or his requests for payment. Nor has the claimant supported his assertion that he was authorized to be reimbursed for the full period of TDY. The referenced orders total 382 days, fewer days than the period for which the claimant received compensation. The applicable Joint Travel Regulations (JTR) direct that a TDY assignment at any one location will be limited to six months, with exceptions authorized only under specified circumstances. JTR C4455-B. A necessary element of the specified circumstances requires that a TDY assignment beyond six months be authorized by an official designated under JTR C3000 to authorize and approve temporary duty travel. Moreover, the complete case file including a written justification must be forwarded to the designated official with a request for authorization. JTR C4455- C. The per diem rate for long-term TDY assignments of more than 180 calendar days at one location is to be 55% of the full rate, unless specific determinations are made by designated officials. JTR C4560, C4561. The claimant maintains that his supervisor authorized full per diem, in the initial order and in each of the extensions. However, the record does not demonstrate that the claimant's supervisor was authorized under JTR C3000 to make the determinations required by JTR C4455 to extend a TDY assignment beyond six months or was authorized to increase the per diem rate above 55% of the full rate. While the claimant asserts that the Army Research Laboratory (ARL) Travel Office prepared and issued the various orders which permitted full per diem and that DFAS processed and paid the vouchers at the full per diem rate, such actions are not relevant if a designated, authorized official did not determine the appropriateness of the long-term TDY and payment at the full rate. A memorandum dated April 28, 1995, written under the authority of the commander of the Army Materiel Command (AMC), contains the following two relevant paragraphs: 1. Your request for exception to PCS requirement has been reviewed. Joint Travel Regulation (JTR), Vol. II., para C4455 establishes a six month limitation for TDY assignments at any one location. Your personnel, because of the indefinite period of time for the assignment, should have been detailed to their assignments on a PCS basis. 2. Because of the significant roles that Mr. Pressley and Ms. Thomas are filling, it would be unfair to request an immediate end to their assignments. Therefore, we will continue to permit them to remain in TDY status until 30 June 95. After this date, you are required to either cancel their details or convert them to PCS status. They are to receive reduced per diem of 55% (VOL II, JTR, para C4561-4) for the remainder of time in TDY status. The commander was an official designated under the JTR who had authority to make a determination regarding long-term TDY assignments and the appropriate per diem rate. Therefore, as of April 28, a designated official, acting on behalf of the commander, approved the long-term TDY assignment under specified conditions. Reimbursement of full per diem was no longer authorized; TDY was to cease no later than June 30, 1995. As evidenced by the memorandum, payment of full per diem through and including April 28, 1995, was ratified.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 Given the ratification, the Board need not address the validity of the extension of February 23, which was issued after the supervisor was informed that amended orders (continued...) ----------- FOOTNOTE ENDS ----------- Reimbursement could not exceed 55% of the full rate for TDY thereafter. With the ratification, the regulatory limitations on full per diem no longer were impediments to reimbursement for the period through April 28. Therefore, payments made in accordance with travel orders and regulation for the period through and including April 28 were appropriate, if authorization actually existed for the full period of time. The claimant is entitled to this amount. Payment in excess of 55% of the full per diem rate for the period after April 28 was contrary to the dictates of the commander and not authorized under regulation. Accordingly, the agency overpaid the claimant for portions of April and June and all of May. The agency is entitled to a refund of such overpayments. ___________________________ JOSEPH A. VERGILIO Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) would not be released until a response from a per diem board was received. Further, no later than January 24, 1995, the supervisor had requested an extension for the long-term TDY assignment of claimant through July 31, 1995. The request reveals the supervisor's intent to keep the claimant at the assignment for well beyond 180 days at the full per diem rate. The Board need not probe the matter further, given the ratification by the commander.