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                               July 31, 1997
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                             GSBCA 13714-TRAV


                     In the Matter of JAMES G. CLAXTON


     James G. Claxton, Ogden, UT, Claimant.

     Charles N. Stockwell, Directorate of Support Services, Defense
Finance and Accounting Service, Denver, CO, appearing for
Department of Defense.

NEILL, Board Judge.

     Claimant in this case, Mr. James Claxton, is an electrical
mechanic working as a civilian employee of the United States Air
Force.  He seeks to avoid a demand by the United States Air Force
for a refund of $68.15 of a travel advance.  The advance was
received by Mr. Claxton prior to his departure from Hill Air Force
Base (AFB) in Utah for temporary duty (TDY) at Spangdahlem AFB in
Germany.  The Air Force has asked for a refund of the amount in
question based on an adjustment made to the initial calculation of
Mr. Claxton s authorized per diem.  We agree that the adjustment
was in accordance with applicable regulations and that the agency s
demand is, therefore, a valid one.  We are suggesting, however,
that, given the extenuating circumstances of this case, the agency
may wish to consider waiving its demand.

                                Background

     On July 20, 1995, claimant was issued travel orders
authorizing him to travel from Hill AFB in Utah to Spangdahlem AFB
in Germany for a TDY of 75 days.  The orders show a per diem
allowance of $8 for lodging and $49 for meals and incidental
expenses (M&IE).  This $49 for M&IE was based on $7 for breakfast,
$12 for lunch, $20 for dinner, and $10 for incidental expenses. 
Under the Department of Defense s Joint Travel Regulations (JTR),
however, the incidental expense component of M&IE portion of an
allowable per diem can, on occasion, be subject to adjustment for
travelers outside of the continental United States (OCONUS).
Section C4557 of the JTR provides that when Government quarters are
available on a post, camp, station, base, or depot owned or
operated by the United States, the incidental portion of per diem
for OCONUS areas will be $3.50 instead of the amount prescribed
elsewhere in the regulations.  

     Quarters were available for Mr. Claxton at Spangdahlem AFB. 
As a result, in processing his travel voucher upon his return, the
base travel office reduced the otherwise applicable daily M&IE of
$10 to the lesser amount appropriate for OCONUS travelers using 
Government quarters available on site.  As a result of these
adjustments, the claimant s allowable expenses came to a total of
$4101.85, which is $68.15 less than the travel advance of $4170
previously received.  Hence the agency s demand for the difference.

     The claimant as well as several of his superiors at Hill AFB
strongly object to the Air Force s demand for a refund.  They point
out that the employee was advised prior to departure that his MI&E
would be $49 per day and that he planned and spent in accordance
with this figure.  Those insisting on adjusting the M&IE allowance
base their action on the clear requirement of JTR C4557.  In
accordance with the claimant s request, this matter was referred to
the General Accounting Office (GAO) by the Defense Finance and
Accounting Service (DFAS).  In referring the case, DFAS noted that
the issue presented in the claim is of particular significance
since there are ten other employees who traveled to Spangdalhem AFB
with Mr. Claxton who likewise experienced a downward adjustment of
the MI&E originally authorized and are now facing similar claims.

     Pursuant to subsequent legislative changes, this claim has
since been transferred from GAO to this Board for resolution.  





                                Discussion

     On analyzing the situation presented in this case, DFAS has
concluded the applicable provision of the JTR mandates the downward
adjustment of the M&IE component of the authorized per diem in view
of the availability of quarters at Spangdalhem.  We must agree.  If
orders are issued in accordance with regulations containing a
standard M&IE component but that component is, according to the
same regulations, subject to adjustment under certain
contingencies, then the adjustment not only can but should be made
if the contingency occurs or is found to exist.  Technically
speaking, the applicable regulations must be read as a whole and
there is no justification under the regulations for allowing
expenses for the employee which are in excess of that to which he
or she is entitled.  The amount originally authorized was,
therefore, contrary to and not permitted under the regulation. 

     What is particularly puzzling in this case, however, is why
the incidental expenses component of the M&IE was not immediately
adjusted at the time Mr. Claxton's orders were issued.  The amount
stated on the orders for lodging was $8.  Since off-base housing 
clearly could not be obtained for such a low amount, the assumption
of the individual issuing the orders must have been that Mr.
Claxton would be staying in base housing.  Given this fact and the
obvious fact apparent on the face of the orders that the TDY was
OCONUS, the $10 for incidental expenses should have been
immediately reduced to $3.50.  Had this been done at that time, the
later misunderstanding would have been avoided.  

     The claimant was apparently unaware of the JTR requirement to
adjust the M&IE component for OCONUS travel where quarters are
available on site.  He, therefore, assumed that he would be
entitled throughout his TDY to the full amount of M&IE shown on his
original orders.  The agency s failure to make the adjustment at
the time the orders were originally issued or to advise Mr. Claxton
during the course of his TDY of the requirement to do so has 
produced an unfair result.  

     We recognize that the demand of the agency at this late date
is technically required under the applicable regulations. 
Nevertheless, the after-the-fact adjustment is patently unfair 
when the facts show that the claimant relied in good faith and to
his detriment on the figure stated in his original orders.  For
this reason the agency may wish to consider exercising the
authority it has under law to waive a demand of this type if it
concludes that collection would be "against equity and good
conscience and not in the best interests of the United States" and
if there is no indication of "fraud, misrepresentation, fault, or






lack of good faith" on the part of the person whose debt is
requested to be waived.  5 U.S.C.  5584(a)(2)(A) (1994).


                                   _______________________
                                   EDWIN B. NEILL
                                   Board Judge