B-164598, JUL. 19, 1968

B-164598, JUL. 19, 1968

TO MR. KENNETH E. SPAGNUOLO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 29, 1968, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED MAY 26, 1967, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY AT CAMP JOHNSON, WINOOSKI, VERMONT, WHILE ON ACTIVE DUTY FOR TRAINING AS AN ENLISTED MEMBER OF THE VERMONT ARMY NATIONAL GUARD.

BY GENERAL ORDER NO. 11, DATED MAY 19, 1958, STATE OF VERMONT, THE ADJUTANT GENERAL'S OFFICE, MONTPELIER, ANNUAL FIELD TRAINING FOR CALENDAR YEAR 1958, THE HEADQUARTERS AND HEADQUARTERS DETACHMENT, VERMONT NATIONAL GUARD WAS AUTHORIZED TO PERFORM FIELD TRAINING AT CAMP DRUM, NEW YORK. SPECIAL ORDERS NO. 81, DATED JUNE 10, 1958, THE ADJUTANT GENERAL'S OFFICE, BUILDING NO. 1, CAMP JOHNSON, WINOOSKI, VERMONT, YOU WERE PLACED ON TEMPORARY DUTY FROM CAMP DRUM, NEW YORK, TO CAMP JOHNSON, WINOOSKI, VERMONT, FOR THE PERIOD JUNE 29 TO JULY 4, 1958. ORDERS DATED AUGUST 15, 1966, PURPORTEDLY AMENDED ORDERS OF JUNE 10, 1958, TO SHOW PERIOD OF TEMPORARY DUTY FROM JUNE 21 TO JULY 5, 1958, THE PURPOSE OF THE TEMPORARY DUTY AND THE ACCOUNTING CLASSIFICATION. THE CLAIM IS SUPPORTED BY AN UNDATED CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS.

BY LETTER DATED AUGUST 29, 1966, YOU SUBMITTED A CLAIM FOR PER DIEM TO THE CLAIMS DIVISION, ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, STATING THAT THE CLAIM WAS NOT SUBMITTED SOONER BECAUSE YOU WERE NOT AWARE THAT PER DIEM WAS AUTHORIZED FOR ANNUAL FIELD TRAINING DUTY. THE CLAIM WAS FORWARDED TO THIS OFFICE FOR SETTLEMENT AS A DOUBTFUL CLAIM.

BY SETTLEMENT DATED MAY 26, 1967, THE CLAIM WAS DISALLOWED FOR THE REASON THAT UNDER YOUR ORDERS OF JUNE 10, 1958, AS AMENDED, IT APPEARED YOUR ENTIRE PERIOD OF ACTIVE DUTY FOR TRAINING WAS PERFORMED AT CAMP JOHNSON WHICH IN FACT WAS YOUR DESIGNATED POST OF DUTY AND UNDER THE LAW AND REGULATIONS IN EFFECT AT THE TIME, PER DIEM WAS NOT PAYABLE TO A MEMBER FOR DUTY AT HIS TRAINING DUTY STATION.

IN YOUR PRESENT LETTER YOU SAY THAT YOUR ORIGINAL ORDERS OF JUNE 10, 1958, SHOWING THAT YOU WERE PLACED ON TEMPORARY DUTY FROM FORT DRUM,NEW YORK, WERE CORRECT WITH THE EXCEPTION OF SHOWING THE PURPOSE OF YOUR TEMPORARY DUTY AND THE ACCOUNTING CLASSIFICATION. THEREFORE, YOU BELIEVE THAT SINCE YOU WERE ON TEMPORARY DUTY AT CAMP JOHNSON AND SINCE QUARTERS AND MESS WERE NOT AVAILABLE, YOUR CLAIM FOR PER DIEM SHOULD BE ALLOWED.

SECTION 404 OF TITLE 37, U.S. CODE, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF STATION, OR OTHERWISE, OR "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY," REGARDLESS OF THE LENGTH OF TIME INVOLVED. SECTION 411 (C) OF TITLE 37, U.S. CODE, AUTHORIZES THE SECRETARIES CONCERNED TO DETERMINE WHAT SHALL CONSTITUTE A "TRAVEL STATUS.' PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF RESERVE COMPONENTS CALLED OR ORDERED TO ACTIVE DUTY FOR TRAINING WITH PAY. HOWEVER, THAT PARAGRAPH SPECIFICALLY PROVIDES THAT "NO TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR ANY PERIOD A MEMBERS IS AT HIS TRAINING DUTY STATION.'

IN DECISION OF MAY 3, 1962, B-148049, 41 COMP. GEN. 726, COPY ENCLOSED, WE ADVISED THE SECRETARY OF THE AIR FORCE THAT WHEN MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ORDERED DUTY IS PERFORMED, THE LOCATION OF THE PLACE WHERE THE MAJORITY OF THE DUTY IS PERFORMED IS IN FACT THE TRAINING DUTY STATION AND SUCH MEMBERS MAY NOT BE CONSIDERED AWAY FROM THEIR DESIGNATED POST OF DUTY FOR ENTITLEMENT TO PER DIEM. SINCE THE MAJORITY OF YOUR TRAINING DUTY WAS PERFORMED AT CAMP JOHNSON, THAT PLACE WAS YOUR POST OF DUTY AND CONSEQUENTLY YOU WERE NOT ENTITLED, UNDER THE LAW AND REGULATIONS, TO PER DIEM WHILE THERE.

THE REGULATIONS NOW IN EFFECT, PARAGRAPH M6001, JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404 (A) (4) PROVIDE GENERALLY FOR THE PAYMENT OF PER DIEM TO RESERVES AND NATIONAL GUARDSMEN, PERFORMING ACTIVE DUTY FOR TRAINING IN CIRCUMSTANCES SUCH AS YOURS WHEN MESS AND QUARTERS ARE NOT AVAILABLE. THE STATUTORY AUTHORITY FOR THE REGULATIONS, HOWEVER, IS EFFECTIVE ON JANUARY 1, 1968, AND THE REGULATIONS ARE EFFECTIVE ONLY FOR DUTY PERFORMED ON OR AFTER JANUARY 1, 1968. SINCE YOUR CLAIM FOR PER DIEM IS FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD JUNE 21 TO JULY 5, 1958, THE CURRENT LAW AND REGULATIONS ARE NOT FOR APPLICATION IN YOUR CASE.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM.