Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
                         ______________________
 
                            August 24, 1998
                        _______________________
 
 
                            GSBCA 14563-TRAV
 
 
                   In the Matter of MICHAEL R. McKEE
 
 
        Michael R. McKee, Port Orchard, WA,  Claimant.
 
        Judy Hughes,  Travel Policy, Defense Finance  and Accounting
   Service,  Columbus Center, Columbus, OH, appearing for Department
   of Defense.
 
   PARKER, Board Judge.
 
        In  October 1997, Michael  R. McKee, a  civilian employee of
   the Department of the Navy, received temporary duty (TDY)  orders
   to travel  from Bremerton, Washington to Norfolk, Virginia, for a
   period  of 160  days.   The travel orders  stated that  Mr. McKee
   would receive a  reduced per diem at  55 % of the  maximum amount
   for both lodging and meals and incidental expenses (M&IE).
 
        Under  the impression that he would  be paid a fixed rate of
   per  diem, Mr. McKee  leased an inexpensive,  partially furnished
   apartment and, according to him,  spent a considerable amount  of
   money purchasing items that made the living conditions similar to
   what he  was  accustomed to  at home.   Mr.  McKee  did not  save
   receipts  for most of  his purchases because he  did not think he
   would ever be required to substantiate what he spent.  
        When  Mr. McKee  returned  home  and  submitted  his  travel
   voucher,  he was  told that  the  official who  had approved  the
   reduced rate per  diem had no  authority to do  so, and that  Mr.
   McKee  would be  reimbursed  at  the regular  rate  of per  diem.
   According to paragraph C4550- 4  of the Joint Travel  Regulations
   (JTR),  for employees  of  the  Navy or  Marine  Corps, the  sole
   authority for authorizing reduced rates of per diem for long-term
   TDY assignments is  the Office of the  Deputy Assistant Secretary
   of  the  Navy   for  Civilian  Personnel  and   Equal  Employment
   Opportunity.     Mr.  McKee's  office  was   not  aware  of  this
   requirement  when it erroneously  authorized the reduced  rate of
   per diem.
 
        Unlike  the  reduced  rate of  per  diem  situation, regular
   reimbursement is done on a lodgings plus MI&E basis, in which the
   employee is  reimbursed  for  the actual amount spent  on lodging
   (up  to a maximum) and a fixed  rate for MI&E.  Here, because Mr.
   McKee  spent relatively little  on lodging, reimbursement  at the
   full  per diem  rate totaled  $2,097.65 less  than he  would have
   received under the reduced rate method.  Mr.  McKee asks that the
   Board require the Navy to reimburse him according to the terms of
   his travel order.
 
 
                               Discussion
 
        The written  travel order  establishes the  conditions under
   which  official  travel  and  transportation  are  authorized  at
   Government  expense.   It provides  a  notice and  record of  the
   employee's  instructions and entitlement.   Andre E.  Long, GSBCA
   14498-TRAV, 98-1 BCA    29,731.   Consequently, legal rights  and
   liabilities in  regard to travel  allowances vest when  travel is
   performed under a competent order;  generally, the order may  not
   be  revoked  or  modified  retroactively  so  as  to  increase or
   decrease the  rights and benefits  which have become  fixed under
   applicable statutes and regulations.  Id.
 
        There is an exception to the above rule, however.   A travel
   order may be retroactively modified when it is clearly erroneous,
   i.e., when the  order is erroneous on  its face, or when  all the
   facts  or  circumstances  clearly indicate  that  some  provision
   previously determined  and definitely intended  had been  omitted
   from the order, or  when the order is clearly in  conflict with a
   law,  regulation,  or  agency instruction.    Long,  98-1  BCA at
   147,387.
 
        Mr.  McKee's travel  order was  not  a competent  one.   The
   official  purporting to approve reimbursement at the reduced rate
   of 55% of the maximum had no authority to do so.  This action was
   clearly in  conflict with  the JTR,  the regulation  that governs
   official  travel by  civilian  employees  of  the  Department  of
   Defense.  As described above,  in such situations, the agency may
   retroactively modify a travel order.
 
        Although Mr. McKee  has no legal  right to reimbursement  at
   the  reduced  rate,  we  encourage  the  Navy  to reconsider  its
   decision not to retroactively approve Mr. McKee's original travel
   orders.   Under the circumstances,  in which Mr. McKee  relied on
   the  orders to  his detriment,  such an  action would  clearly be
   justified.   With  the proper  authorization, there  is no  legal
   impediment   to  reimbursing  Mr.  McKee  at  the  reduced  rate.
   Although not 
   legally  required to  do so,  the Navy  should strongly  consider
   correcting  its  error and  thereby  rectifying what  is,  in our
   opinion, an unfair situation.
 
                                      __________________________
                                      ROBERT W. PARKER
                                      Board Judge