B-156525, MAR 22, 1971

B-156525, MAR 22, 1971

PER DIEM ALLOWANCE - GOVERNMENT MESS FACILITIES DECISION DENYING CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY OUTSIDE THE UNITED STATES. BECAUSE THERE IS NO STATEMENT BY ORDER ISSUING AUTHORITY THAT THE UTILIZATION OF EXISTING GOVERNMENT MESS FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION, AND FILE DOES NOT CONTAIN ANY STATEMENT BY THE COMMANDING OFFICER AT PLACES OF TEMPORARY DUTY OR DELAY ENROUTE TO THE EFFECT THAT THE UTILIZATION OF SUCH FACILITIES WAS IMPRACTICAL, CLAIMANT'S STATEMENT THAT HE DID NOT USE GOVERNMENT MESS FACILITIES AFFORDS NO BASIS TO EXEMPT HIM FROM THE DEDUCTION FOR AVAILABLE MEALS.

TO CW2 MILTON M. RIFKIN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14, 1970, AND JANUARY 8, 1971, REQUESTING RECONSIDERATION OF SETTLEMENT OF AUGUST 7, 1970, WHICH DISALLOWED PART OF YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY PURSUANT TO LETTER ORDER DATED AUGUST 29, 1969.

THE LETTER ORDER DATED AUGUST 29, 1969, ISSUED BY DEPARTMENT OF THE ARMY, HEADQUARTERS, 121ST EVACUATION HOSPITAL, ARMY SERVICE COMMAND DISTRICT, APO SAN FRANCISCO, DIRECTED YOU TO TRAVEL IN A TEMPORARY DUTY STATUS TO THE U.S. ARMY HOSPITAL, CAMP ZAMA, JAPAN. YOUR ITINERARY ON YOUR TRAVEL VOUCHER SHOWS THAT YOU DEPARTED FROM CAMP HUMPHREYS, KOREA, AT 11 A.M. ON SEPTEMBER 2, 1969, BY COMMERCIAL AUTOMOBILE AND ARRIVED AT ARMY SERVICE COMMAND, KOREA, AT 1:45 P.M. THE SAME DAY. YOU INDICATE THAT YOU HAD ONE MEAL THERE ON THAT DAY AND ANOTHER MEAL THE NEXT DAY AS YOU REMAINED OVERNIGHT AWAITING TRANSPORTATION. YOU LEFT THERE AT 8 A.M. ON SEPTEMBER 3, 1969, AND ARRIVED AT CAMP ZAMA HOSPITAL, JAPAN, AT 7:15 P.M. THE SAME DAY.

ON SEPTEMBER 8, 1969, YOU LEFT CAMP ZAMA HOSPITAL AT 3:30 P.M. AND ARRIVED AT YOKOTA AIR BASE, JAPAN, AT 5 P.M. YOU LEFT THERE AT 7:25 P.M. AND ARRIVED AT KIMPO AIR BASE, KOREA, AT 9:25 P.M. YOU DEPARTED AT 9:45 P.M. AND ARRIVED AT CAMP HUMPHREYS AT 11:45 P.M. THE SAME DAY.

THE TRAVEL VOUCHER PAID IN SEPTEMBER 1969 EVIDENCES PAYMENT IN THE SUM OF $39.65 FOR PER DIEM AND REIMBURSABLE EXPENSES. THEREAFTER YOU SUBMITTED A CLAIM IN THE SUM OF $6 FOR ADDITIONAL PER DIEM WHICH WAS NOT PAID. OCTOBER 27, 1969, COLLECTION ACTION WAS INITIATED BY THE ARMY AGAINST YOUR PAY ACCOUNT FOR THE SUM OF $3.62, REPRESENTING PER DIEM PAID FOR SEPTEMBER 2, 1969, ONE DAY AT $14 LESS 42 PERCENT FOR MEALS AND LESS 50 PERCENT FOR QUARTERS PLUS $2.50. THIS WAS FOR THE REASON THAT IT WAS CONSIDERED THAT YOU WERE NOT IN AN AUTHORIZED TRAVEL STATUS ON SEPTEMBER 2, 1969.

SINCE YOU BEGAN TRAVEL ON SEPTEMBER 2, 1969, OUR CLAIMS DIVISION, BY SETTLEMENT DATED AUGUST 7, 1970, ALLOWED YOU THE SUM OF $3.62 AND DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR SEPTEMBER 2 AND 8, 1969, FOR THE REASONS STATED THEREIN.

IN YOUR OCTOBER LETTER YOU POINT OUT THAT YOU CERTIFIED ON YOUR TRAVEL VOUCHER THAT YOU DID NOT UTILIZE A GOVERNMENT MESS FOR AT LEAST TWO MEALS ON EITHER SEPTEMBER 2 OR 8, 1969, AND CONTEND THAT UNDER PARAGRAPH M4451- 4, ITEMS 1 AND 2, JOINT TRAVEL REGULATIONS, YOUR STATEMENT THAT YOU DID NOT UTILIZE GOVERNMENT MESS SHOULD SUFFICE TO SUPPORT PAYMENT OF YOUR CLAIM.

PARAGRAPH M4253-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PROVISIONS OF SECTIONS 404 AND 405 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT, UNLESS OTHERWISE PROVIDED FOR OR RESTRICTED IN THE REGULATIONS, TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE UNITED STATES.

PARAGRAPH M4254-1 OF THE REGULATIONS IN EFFECT AT THE TIME PROVIDES THAT A DEDUCTION OF 50 PERCENT OF THE APPLICABLE PER DIEM WILL BE MADE WHEN QUARTERS ARE AVAILABLE. PARAGRAPH M4254-3, ALSO IN EFFECT AT THE TIME, PROVIDES THAT WHEN A GOVERNMENT MESS IS AVAILABLE TO OR UTILIZED BY AN OFFICER FOR AT LEAST TWO MEALS A DAY, INCLUDING TRAVEL DAYS, A DEDUCTION OF 42 PERCENT OF THE APPLICABLE PER DIEM WILL BE MADE FOR THAT DAY. THE NET PER DIEM FOR THE DAY WILL THEN BE INCREASED BY $2.50 TO COVER THE COST OF FOOD IN A GOVERNMENT MESS.

PARAGRAPH M4451-1 OF THE REGULATIONS REQUIRES THAT AVAILABLE GOVERNMENT MESS BE UTILIZED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE, EXCEPT UNDER CERTAIN CONDITIONS INCLUDING THE FOLLOWING:

"1. WHEN THE ORDER-ISSUING AUTHORITY EITHER PRIOR OR SUBSEQUENT TO THE TRAVEL INVOLVED ISSUES A STATEMENT TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION *** ;

"2. WHEN THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AT THE TEMPORARY DUTY OR DELAY POINT FURNISHES A STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE;"

PARAGRAPH M4451-2 PROVIDES THAT IN THE ABSENCE OF A STATEMENT ISSUED UNDER THE PROVISIONS OF SUBPARAGRAPH 1, ITEM 1 OR 2, OR UNLESS THE NON AVAILABILITY OF A GOVERNMENT MESS OR OFFICERS' OPEN MESS CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION ISSUED BY THE UNIFORMED SERVICE CONCERNED, IT SHALL BE ASSUMED THAT A GOVERNMENT MESS WAS AVAILABLE ON ANY DAY FOR WHICH THE MEMBER FAILS TO SUBMIT AN APPROPRIATE STATEMENT AS PROVIDED BY SUBPARAGRAPHS 3 OR 4 THAT MESS WAS NOT AVAILABLE OR NOT UTILIZED FOR AS MANY AS TWO MEALS ON THAT DATE.

PARAGRAPH M4451-4 PROVIDES THAT A MEMBER'S STATEMENT AS TO THE UTILIZATION, AS DISTINGUISHED FROM AVAILABILITY, OF GOVERNMENT FACILITIES WILL SUPPORT PAYMENT OF PER DIEM ALLOWANCES ONLY UNDER THE CIRCUMSTANCES LISTED THEREIN, WHICH IN SUBSTANCE INCLUDE, IN PERTINENT PART, THE FOLLOWING:

1. FOR ALL PERIODS OF TRAVEL EN ROUTE

2. FOR ANY PERIOD OF TEMPORARY DUTY OR DELAY OF LESS THAN 24 HOURS DURATION

4. FOR PERIODS WHERE PAYMENT IS SUPPORTED BY A STATEMENT CONTEMPLATED IN PARAGRAPH M4451-1, ITEMS 1 AND 2

6. FOR ANY PERIOD OF TEMPORARY DUTY WHERE THE NON-AVAILABILITY OF GOVERNMENT FACILITIES CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION ISSUED BY THE SERVICE CONCERNED.

UNDER THE REGULATION IT IS ONLY IN INSTANCES OF THESE EXCEPTIONS THAT A MEMBER'S STATEMENT AS TO THE UTILIZATION AS DISTINGUISHED FROM AVAILABILITY OF GOVERNMENT MESSING FACILITIES SHALL SUPPORT PAYMENT OF PER DIEM. AND A CERTIFICATION BY A MEMBER AS TO THE NON-UTILIZATION OF GOVERNMENT MESSING FACILITIES WILL BE ACCEPTABLE TO SUPPORT PAYMENT ONLY IN INSTANCES COVERED BY THE EXCEPTIONS SPECIFICALLY NOTED IN THE APPLICABLE REGULATIONS. SEE B-168379, DECEMBER 30, 1969, COPY ENCLOSED.

THERE IS NO STATEMENT BY THE ORDER-ISSUING AUTHORITY IN THE ORDERS OF AUGUST 29, 1969, THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION WITHIN THE MEANING OF PARAGRAPH M4451-1, ITEM 1, JOINT TRAVEL REGULATIONS. NEITHER DOES THE FILE CONTAIN ANY STATEMENT BY THE COMMANDING OFFICERS AT THE PLACES OF TEMPORARY DUTY OR DELAY EN ROUTE TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICAL AS REQUIRED BY PARAGRAPH M4451-1, ITEM 2, OF THE REGULATIONS.

ALSO, WITH RESPECT TO THE AVAILABILITY OF MESSING FACILITIES, IT APPEARS FROM THE RECORD THAT SUCH FACILITIES WERE AVAILABLE TO YOU AT CAMP HUMPHREYS, KOREA, AND AT YOKOTA AIR BASE, JAPAN. CONCERNING YOUR CLAIM FOR ADDITIONAL PER DIEM FOR SEPTEMBER 2, 1969, SINCE YOU LEFT CAMP HUMPHREYS, KOREA, AT 11 A.M. IT WOULD SEEM THAT YOU HAD BREAKFAST BEFORE YOU LEFT, PRESUMABLY AT A GOVERNMENT MESS. ALSO, AS INDICATED ABOVE, YOUR ITINERARY ON YOUR VOUCHER INDICATES THAT YOU HAD ONE MEAL ON SEPTEMBER 2 AT THE ARMY SERVICE COMMAND, KOREA, WHERE YOU REMAINED OVERNIGHT AWAITING GOVERNMENT TRANSPORTATION. THUS, IT APPEARS THAT YOU DID UTILIZE OR COULD HAVE UTILIZED A GOVERNMENT MESS FOR AT LEAST TWO MEALS ON SEPTEMBER 2, 1969.

WITH RESPECT TO YOUR CLAIM FOR ADDITIONAL PER DIEM FOR SEPTEMBER 8, 1969, IT APPEARS FROM THE ITINERARY SHOWN ON YOUR VOUCHER THAT YOU DEPARTED FROM CAMP ZAMA HOSPITAL AT 3:30 P.M. THAT DAY AND THAT YOU ARRIVED AT YOKOTA AIR BASE, JAPAN, AT 5 P.M. WHICH HAS AN OPEN MESS FOR OFFICERS, AND THAT YOU REMAINED THERE UNTIL 7:25 P.M. SEE AIR FORCE REGULATION 35-9, MARCH 24, 1969. IN THESE CIRCUMSTANCES IT APPEARS THAT YOU COULD HAVE UTILIZED A GOVERNMENT MESS AT CAMP ZAMA FOR BREAKFAST AND LUNCH BEFORE YOU LEFT AND ALSO HAD DINNER AT YOKOTA AIR BASE.

CONCERNING YOUR CONTENTION THAT UNDER PARAGRAPH M4451-4, ITEM 1 OF THE JOINT TRAVEL REGULATIONS, YOUR STATEMENT THAT YOU DID NOT UTILIZE A GOVERNMENT MESS ON SEPTEMBER 2 AND 8, 1969, SHOULD SUPPORT PAYMENT OF YOUR CLAIM, SINCE ITEM 1 HAS REFERENCE TO ACTUAL TRAVEL EN ROUTE AS DISTINGUISHED FROM PERIODS OF TEMPORARY DUTY OR DELAY INCIDENT TO TRAVEL, IT AFFORDS NO BASIS TO EXEMPT YOU FROM THE DEDUCTION FOR AVAILABLE MEALS SINCE THE PERIODS OF TRAVEL ON THOSE DAYS DID NOT PRECLUDE YOU FROM UTILIZING AVAILABLE MESSING FACILITIES FOR AT LEAST TWO MEALS ON SUCH DAYS. LIKEWISE, ITEM 2 AFFORDS NO BASIS TO ALLOW YOUR CLAIM IN THE ABSENCE OF SUPPORTING STATEMENTS BY THE COMMANDING OFFICERS AT CAMP HUMPHREYS, KOREA, AND CAMP ZAMA HOSPITAL, JAPAN, SINCE YOU HAD BEEN AT THOSE PLACES MORE THAN 24 HOURS PRIOR TO YOUR DEPARTURE FROM SUCH PLACES ON SEPTEMBER 2 AND 8, 1969, RESPECTIVELY. AS INDICATED ABOVE, ITEM 2 HAS APPLICATION ONLY WHERE THE TEMPORARY DUTY OR DELAY IS FOR PERIODS LESS THAN 24 HOURS.

BASED ON THE FOREGOING, AND UNDER THE REGULATIONS, YOUR CERTIFICATION AS TO THE NON-UTILIZATION OF GOVERNMENT MESSING FACILITIES FOR AT LEAST TWO MEALS EACH DAY ON SEPTEMBER 2 AND 8 MAY NOT BE ACCEPTED AS EVIDENCE THAT SUCH FACILITIES WERE NOT AVAILABLE TO YOU ON THOSE DAYS. THEREFORE, IN THE ABSENCE OF CERTIFICATION BY PROPER AUTHORITY AS REQUIRED BY THE REGULATIONS, THERE IS NO BASIS UPON WHICH ANY ADDITIONAL PER DIEM MAY BE AUTHORIZED.

ACCORDINGLY, ON THE PRESENT RECORD THE SETTLEMENT OF AUGUST 7, 1970, WAS CORRECT AND IS SUSTAINED.