B-150212, DEC. 18, 1962

B-150212, DEC. 18, 1962

TO CLAUDE C. BERRYHILL, JR., BM1, 273 26 36, USN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1962, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PER DIEM WHILE IN A TEMPORARY DUTY STATUS FROM AUGUST 13 TO SEPTEMBER 3, 1961, WHICH CLAIM WAS DISALLOWED BY OUR OFFICE ON MAY 17, 1962.

BY ORDERS DATED AUGUST 1 AND 11, 1961, FROM COMMANDING OFFICER AND DIRECTOR, U.S. NAVY MINE DEFENSE LABORATORY, PANAMA CITY, FLORIDA, YOU WERE DIRECTED TO TAKE CHARGE OF DESIGNATED PERSONNEL AND PROCEED TO CHARLESTON, SOUTH CAROLINA, AND REPORT TO THE INDUSTRIAL MANAGER, SIXTH NAVAL DISTRICT, FOR THE PURPOSE OF ACCEPTING CUSTODY OF BOX "L" BOAT HULL NO. C-6970 AND RETURNING IT TO PANAMA CITY, FLORIDA. THE ORDERS PROVIDED THAT WHEN DECLARED READY FOR SEA BY THE INDUSTRIAL MANAGER, SIXTH DISTRICT, AND WHEN DIRECTED BY COMPETENT AUTHORITY, AS PETTY OFFICER-IN- CHARGE OF THE C-6970 YOU WOULD GET UNDERWAY AND PROCEED VIA INTRA-COASTAL WATERWAY TO PANAMA CITY, FLORIDA, AND MOOR AT THE U.S. NAVY MINE DEFENSE LABORATORY. THE ORDERS ALSO PROVIDED THAT WHILE MOORED AT NIGHT YOU WOULD PROVIDE A SECURITY WATCH AND THAT PERSONNEL WOULD NORMALLY BE BERTHED ABOARD BUT THAT PERMISSION WAS GRANTED FOR BERTHING ASHORE SHOULD THE CRAFT REQUIRE DRYDOCKING.

THE ITINERARY FURNISHED IN CONNECTION WITH YOUR CLAIM SHOWS THAT YOU REPORTED AT CHARLESTON, SOUTH CAROLINA, ON AUGUST 14, 1961, AND AS COMMANDING OFFICER OF THE VESSEL YOU GOT UNDERWAY ON AUGUST 18, 1961, AND ARRIVED AT PANAMA CITY, FLORIDA, ON SEPTEMBER 3, 1961, WITH STOPOVERS ON ROUTE AT THUNDERBOLT AND BRUNSWICK IN GEORGIA, MAYPORT, DAYTONA BEACH, EAU GALLIE, INDIANTOWN, FORT MYERS AND TAMPA IN FLORIDA. WITH YOUR CLAIM YOU HAVE SUBMITTED RECEIPTS WHICH SHOW THAT YOU AND THE OTHER MEMBERS OF THE CREW OCCUPIED COMMERCIAL QUARTERS DURING VARIOUS PERIODS THAT YOU MOORED THE BOAT DURING THE TRIP. YOUR CLAIM FOR PER DIEM FOR THE PERIOD AUGUST 13 TO SEPTEMBER 3, 1961, WAS DISALLOWED BY SETTLEMENT DATED MAY 17, 1962, FOR THE REASON THAT PARAGRAPH 4201-8 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME, PROHIBITS PAYMENT OF PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL.

IN YOUR LETTER OF OCTOBER 14, 1962, YOU STATE THAT BERTHING SPACES WERE EXTREMELY DIRTY AND THE MATRESSES WERE SOAKED DUE TO LEAKS IN THE WEATHER DECKS AND AS A RESULT THE SPACES WERE UNLIVABLE. MESSING FACILITIES ARE SAID TO HAVE BEEN INADEQUATE. ALSO, YOU POINT OUT THAT WHILE THE BOAT WAS OUT OF COMMISSION AT VARIOUS TIMES YOU AND THE CREW WERE ABLE TO MAKE REPAIRS WHICH AVOIDED THE NEED FOR DRYDOCK FACILITIES AT CONSIDERABLE SAVINGS TO THE GOVERNMENT. THEREFORE, YOU CONTEND THAT GOVERNMENT MESS AND QUARTERS WERE NOT AVAILABLE ON BOARD THE VESSEL AND THAT YOU ARE ENTITLED TO PAYMENT OF PER DIEM AS CLAIMED.

THE PERTINENT STATUTE, 37 U.S.C. 404 (A), 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 PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4200 PROVIDES, GENERALLY, THAT MEMBERS ARE ENTITLED TO PER DIEM ALLOWANCES FOR ALL PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION THEREWITH, WITHIN THE UNITED STATES. AS AN EXCEPTION TO THE GENERAL ENTITLEMENT OF MEMBERS TO PER DIEM FOR PERIODS OF TRAVEL AND TEMPORARY DUTY, PARAGRAPH 3201-8, WHICH WAS IN EFFECT DURING THE PERIOD INVOLVED, PROHIBITS PAYMENT OF THE ALLOWANCES "FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL.' THE PURPOSE OF THAT EXCEPTION IS TO DENY PER DIEM WHERE TEMPORARY DUTY OR TRAINING DUTY IS PERFORMED ON GOVERNMENT-OWNED VESSELS BECAUSE OF A CONSIDERATION THAT QUARTERS AND SUBSISTENCE FACILITIES ARE AVAILABLE THERE, THE USE OF WHICH WOULD NOT INVOLVE THE ABOVE-NORMAL SUBSISTENCE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED. 38 COMP. GEN. 626. THE REGULATIONS IN EFFECT AT THE TIME INVOLVED CONTAIN NO PROVISION FOR THE PAYMENT OF THE PER DIEM ALLOWANCE ON THE BASIS THAT CONDITIONS OR CIRCUMSTANCES ABOARD SHIP MADE SUCH FACILITIES UNAVAILABLE. SEE B 148115 DATED MARCH 26, 1962, 41 COMP. GEN. - .

FURTHERMORE, SINCE THE RECORD INDICATES THAT YOU SPENT LONG DAYS ABOARD THE VESSEL WHILE ACTUALLY EN ROUTE, IT WOULD APPEAR THAT THERE WAS SOME PROVISION FOR MESSING ON THE VESSEL DURING THESE PERIODS AND PRESUMABLY THAT SITUATION EXISTED FOR THE ENTIRE VOYAGE. ACCORDINGLY, THE RECORD PRESENTS NO LEGAL BASIS FOR THE PAYMENT TO YOU OF ANY PER DIEM DURING THE PERIOD FROM AUGUST 13 TO SEPTEMBER 3, 1961, WHILE YOU WERE IN THE PERFORMANCE OF TEMPORARY DUTY ON BOARD A GOVERNMENT VESSEL. THE SETTLEMENT OF MAY 17, 1962, IS CORRECT AND IS SUSTAINED.