B-137485, JUNE 25, 1959, 38 COMP. GEN. 871

B-137485, JUNE 25, 1959, 38 COMP. GEN. 871

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - ON BOARD GOVERNMENT TRAINS DUTY PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES ON TRAINS WHICH, ALTHOUGH OPERATED BY THE GERMAN RAILWAY SYSTEM, CONSIST OF PASSENGER CARS OWNED OR LEASED ON A RENTAL BASIS BY THE UNITED STATES, AND ARE USED EXCLUSIVELY FOR BERLIN OCCUPATION STATUS OF FORCES PERSONNEL MAY NOT BE REGARDED AS DUTY ON "COMMERCIAL CARRIERS" FOR PER DIEM PURPOSES UNDER PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS AND, THEREFORE, PAYMENT OF PER DIEM FOR SUCH DUTY MAY NOT BE MADE. B-137485, NOVEMBER 6, 1958, OVERRULED.

TO CAPTAIN W. H. CURREY, DEPARTMENT OF THE ARMY, JUNE 25, 1959:

IN YOUR COMMUNICATION OF DECEMBER 15, 1958, FORWARDED HERE BY FIFTH ENDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED APRIL 29, 1959, YOU REQUEST FURTHER CONSIDERATION OF THE QUESTION INVOLVED IN OUR DECISION OF NOVEMBER 6, 1958, B-137485, TO YOU CONCERNING THE RIGHT OF SECOND LIEUTENANT MICHAEL I. CAMPUS, TC, TO PER DIEM FOR TEMPORARY DUTY PERFORMED AS A TRAIN COMMANDER OPERATING BETWEEN BERLIN AND HELMSTEDT, GERMANY.

IN THE DECISION OF NOVEMBER 6, 1958, YOU WERE ADVISED THAT THE TRAINS ON WHICH LIEUTENANT CAMPUS PERFORMED THE TEMPORARY DUTY IN QUESTION WERE OPERATED BY THE GERMAN RAILWAY SYSTEM AND SO SHOULD BE CONSIDERED COMMERCIAL CARRIERS FOR PER DIEM PURPOSES UNDER THE PROVISIONS OF PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS EVEN THOUGH OPERATED PRINCIPALLY AS MILITARY TRAINS FOR MEMBERS OF THE UNIFORMED SERVICES OF THE UNITED STATES, SINCE IT IS CONSIDERED THAT THE TERM "COMMERCIAL RRIERS," AS USED IN THOSE PROVISIONS, HAS REFERENCE TO OTHER THAN GOVERNMENT-OWNED CARRIERS. YOU INDICATE A BELIEF THAT SUCH CONCLUSION MAY HAVE RESULTED FROM OUR MISUNDERSTANDING OF THE STATUS OF THE TRAINS INVOLVED AND ALSO OF THE RELATIONSHIP BETWEEN THE BERLIN COMMAND AND THE INSTALLATION AT HELMSTEDT. YOU SUGGEST THAT THE TRAINS SHOULD NOT BE CONSIDERED AS COMMERCIAL CARRIERS UNDER THE REGULATIONS FOR THE REASONS THAT THEY ARE OPERATED EXCLUSIVELY FOR BERLIN OCCUPATION STATUS OF FORCES PERSONNEL AND PROVIDE SERVICE ONLY FOR SUCH PERSONNEL; THAT A PORTION OF THE PASSENGER CARS ON EACH TRAIN ARE OWNED BY THE UNITED STATES GOVERNMENT WITH THE REMAINDER LEASED FROM THE GERMAN RAILWAY SYSTEM; THAT THE GERMAN RAILWAY SYSTEM IS REIMBURSED FROM OCCUPATION FUNDS FOR THE RENTAL OF RAILWAY-OWNED EQUIPMENT AND USE OF RAILS; AND THAT PASSENGER WARRANTS ARE ISSUED ONLY TO CONTROL AND ACCOUNT FOR PERSONNEL. ALSO, YOU STATE THAT THE INSTALLATION AT HELMSTEDT IS A SATELLITE STATION OF THE BERLIN COMMAND, BEING SEPARATED FROM IT BY THE SOVIET ZONE OF GERMANY, AND THAT IT IS CONSIDERED TO BE AN INTEGRAL PART OF THE BERLIN COMMAND.

YOU SUGGEST THAT TRAVEL ORDERS ARE ISSUED PERMITTING TRAVEL TO HELMSTEDT PRIMARILY AS AN ADMINISTRATIVE MEASURE TO EFFECT ISSUANCE OF TRANSPORTATION WARRANTS AND ALSO AS A PROTECTIVE MEASURE FOR THE PERSONNEL, AND THAT IF IT WERE NOT FOR THOSE REQUIREMENTS, ORDERS WOULD NOT BE ISSUED AS TRAVEL WOULD BE CONSIDERED TO FALL UNDER PARAGRAPH 6450 OF THE JOINT TRAVEL REGULATIONS WHICH PROHIBITS THE PAYMENT OF TRAVEL EXPENSES INCURRED INCIDENT TO TRAVEL ON SHORT TRIPS WITHIN THE IMMEDIATE VICINITY OF THE DUTY STATION. YOU STATE THAT LIEUTENANT CAMPUS AND OTHER OFFICERS ASSIGNED TO THE DUTY INVOLVED, MAKE APPROXIMATELY 15 TO 20 TRIPS TO HELMSTEDT EACH MONTH UNDER CIRCUMSTANCES WHERE NO UNUSUAL EXPENSES ARE INCURRED, EXCEPT FOR POSSIBLY A MEAL AT HELMSTEDT, AND YOU EXPRESS A BELIEF THAT PAYMENT OF PER DIEM UNDER SUCH CIRCUMSTANCES DOES NOT ACT TO DEFRAY ADDITIONAL COSTS RELATIVE TO TEMPORARY DUTY, BUT RESULTS IN DUAL COMPENSATION BEING PAID TO THE OFFICERS CONCERNED FOR PERFORMING THEIR ASSIGNED DUTIES.

PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM FOR DUTY SUCH AS THAT PERFORMED BY LIEUTENANT CAMPUS, IF PERFORMED WHILE TRAVELING ABOARD COMMERCIAL CARRIERS. IN THE ABSENCE OF A FURTHER CLARIFYING DEFINITION OF THE TERM "COMMERCIAL CARRIERS," IT WAS CONSIDERED THAT IT WAS INTENDED TO INCLUDE THOSE CARRIERS NOT OWNED BY THE GOVERNMENT AND THAT THE TRAINS INVOLVED WERE COMMERCIAL CARRIERS EVEN THOUGH THEY WERE OPERATED BY THE GERMAN RAILWAY SYSTEM PRINCIPALLY AS MILITARY TRAINS FOR MEMBERS OF THE UNIFORMED SERVICES. HOWEVER, SINCE IT IS NOW SHOWN THAT A PORTION OF THE PASSENGER CARS ON EACH TRAIN ACTUALLY ARE OWNED BY THE UNITED STATES GOVERNMENT AND THE REMAINDER ARE LEASED FROM THE GERMANY RAILWAY SYSTEM, THAT THE LATTER IS REIMBURSED ON A RENTAL BASIS FOR THE USE OF ITS EQUIPMENT AND RAILS RATHER THAN BY THE SALE OF FARES, AND THAT THE TRAINS ARE OPERATED EXCLUSIVELY FOR BERLIN OCCUPATION STATUS OF FORCES PERSONNEL AND PROVIDE SERVICES ONLY FOR SUCH PERSONNEL, IT APPEARS THAT SUCH TRAINS SHOULD NOT PROPERLY BE REGARDED AS "COMMERCIAL CARRIERS" WITHIN THE MEANING OF THE CITED REGULATIONS.

ACCORDINGLY, UPON RECONSIDERATION, THE DECISION OF NOVEMBER 6, 1958, B- 137485, IS OVERRULED AND PAYMENT OF PER DIEM TO LIEUTENANT CAMPUS IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED HERE.