B-155655, JAN. 13, 1965

B-155655, JAN. 13, 1965

TO MR. WALTER W. FRICKE, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER POSTMARKED NOVEMBER 12, 1964, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 29, 1964, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD NOVEMBER 23, 1963, TO JANUARY 25, 1964, INCIDENT TO ORDERS DATED NOVEMBER 7 AND DECEMBER 4, 1963.

BY ORDERS DATED NOVEMBER 7 AND DECEMBER 4, 1963, ISSUED BY HEADQUARTERS, SOUTHERN AREA COMMAND, APO 407, U.S. FORCES, PURSUANT TO USAREUR CIRCULAR NO. 28-138-2 DATED SEPTEMBER 9, 1963, YOU WERE AUTHORIZED TO PROCEED ON OR ABOUT NOVEMBER 30, 1963, AND REPORT TO THE COMMANDING OFFICER, BERCHTESGADEN STATION, APO 108, U.S. FORCES, FOR TEMPORARY DUTY FOR THE PURPOSE OF ATTENDING A SKI TRAINING COURSE AT THE ARMED FORCES RECREATION AREA. THE ORDERS PROVIDED THAT NO PER DIEM WAS AUTHORIZED AT THE TEMPORARY DUTY STATION.

IT IS INDICATED THAT YOU DEPARTED FROM BAD KREUZNACH, GERMANY, AT 5:30 A.M. ON NOVEMBER 23, 1963, AND ARRIVED AT GARMISCH, GERMANY, AT 6:30 P.M. ON THE SAME DAY; THAT YOU LEFT THE LATTER PLACE AT 8 A.M. ON NOVEMBER 30, 1963 AND ARRIVED AT BERCHTESGADEN, GERMANY, AT 3 P.M. ON THE SAME DAY AND THAT YOU LEFT THERE AT 10 A.M. ON JANUARY 23, 1964 AND RETURNED TO YOUR DUTY STATION, BAD KREUZNACH, GERMANY, AT 10 P.M. ON JANUARY 25, 1964. YOUR CLAIM FOR PER DIEM FOR THE PERIOD INVOLVED WAS DISALLOWED FOR THE REASON THAT THE CONTROLLING REGULATIONS (USAREUR CIRCULAR NO. 28-138-2 DATED SEPTEMBER 9, 1963) PROVIDED THAT NO PER DIEM WAS AUTHORIZED FOR ATTENDING SKI TRAINING COURSES.

IN YOUR REQUEST FOR REVIEW YOU SAY THAT THE JOINT TRAVEL REGULATIONS PROVIDE THAT MEMBERS WHO ARE IN TRAVEL STATUS AND PERFORM TEMPORARY DUTY ARE ENTITLED TO PER DIEM UNLESS THE TYPE OF DUTY COMES WITHIN ONE OF THE EXCEPTIONS SET FORTH IN THE REGULATIONS; THAT THE TEMPORARY DUTY FOR SKI TRAINING IS NOT ONE OF THE EXCEPTIONS AND THAT THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE, HAS NO AUTHORITY TO ISSUE REGULATIONS WHICH WOULD DENY PER DIEM TO MEMBERS FOR TEMPORARY DUTY WHEN THE JOINT TRAVEL REGULATIONS AUTHORIZE PER DIEM FOR SUCH DUTY. THEREFORE, YOU CONTEND THAT USAREUR CIRCULAR NO. 28-138-2 OF SEPTEMBER 9, 1963, IS WITHOUT LEGAL EFFECT AND THAT YOU ARE ENTITLED TO PER DIEM AS CLAIMED.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE TERM "PUBLIC BUSINESS" RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.

USAREUR CIRCULAR 28-138-2 OF SEPTEMBER 9, 1963, WHICH WAS ISSUED TO IMPLEMENT THE WELFARE, RECREATION AND MORALE PROGRAM SPONSORED BY THE DEPARTMENT OF THE ARMY, ANNOUNCED THAT SKI TRAINING COURSES WOULD BE CONDUCTED BY THE ARMY AT GARMISCH, GERMANY, AND INVITED MEMBERS TO SUBMIT APPLICATIONS TO ENROLL IN THE COURSES ON A NO PER DIEM BASIS. THE PROVISIONS THAT NO PER DIEM WAS PAYABLE FOR MEMBERS TAKING THE COURSES WAS REQUIRED FOR THE REASON THAT PARTICIPATION IN THE SKI TRAINING PROGRAM OF THE ARMY AS A PART OF THE RECREATION PROGRAM MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF THE PUBLIC BUSINESS UNDER THE REGULATIONS CITED ABOVE. WE HAVE CONSISTENTLY HELD THAT, IN GENERAL, PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM TO MEMBERS TRAVELING IN CONNECTION WITH THEIR PARTICIPATION, OTHER THAN AS COMMAND SUPERVISORS, IN SPORTS EVENTS AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAMS OF THE ARMED FORCES IS NOT AUTHORIZED SINCE SUCH TRAVEL MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY THE APPLICABLE PROVISIONS OF THE STATUTE OR REGULATIONS. SEE OUR DECISION TO THE SECRETARY OF THE ARMY, B-150559, DATED APRIL 12, 1963, AND AUTHORITIES CITED THEREIN, COPY HEREWITH.

WITH RESPECT TO THE STATEMENT IN YOUR LETTER THE ORDER ISSUING AUTHORITY MAY NOT ISSUE ORDERS FOR THE PERFORMANCE OF TEMPORARY DUTY AND DENY THE PAYMENT OF PER DIEM TO THE MEMBER EXCEPT UNDER CERTAIN SPECIFIC PROVISIONS OF THE JOINT TRAVEL REGULATIONS, THE MENTIONED CIRCULAR DOES NOT PURPORT TO BE A REGULATION DENYING PER DIEM. ITS PURPOSE WAS TO MAKE IT CLEAR TO THE INDIVIDUALS CONCERNED THAT UNDER LAW AND THE JOINT TRAVEL REGULATIONS PER DIEM COULD NOT BE PAID FOR PARTICIPATION IN THE SKI TRAINING COURSES.

SINCE YOUR ASSIGNMENT TO TEMPORARY DUTY FOR THE PURPOSE OF ATTENDING A SKI TRAINING COURSE WAS NOT AS ASSIGNMENT ON PUBLIC BUSINESS BUT RATHER WAS A TYPE OF DUTY CONTEMPLATED IN PARAGRAPH 6454, JOINT TRAVEL REGULATIONS, AS NOT INVOLVING PUBLIC BUSINESS, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PER DIEM CLAIMED.