B-113961, JUN 17, 1953

B-113961, JUN 17, 1953

PRECIS-UNAVAILABLE

MR. GEORGE W. WEST, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1953, TO HONORABLE RICHARD B. RUSSELL, AND SUBSEQUENT CORRESPONDENCE, RELATING TO YOUR CLAIM FOR PER DIEM DURING THE PERIODS MAY 1 TO JUNE 7 AND JUNE 10 TO 16, 1952, INCIDENT TO TEMPORARY DUTY PERFORMED BY YOU AS A FIRST LIEUTENANT, A.U.S. AT KELLY AIR FORCE BASE, TEXAS.

BY LETTER ORDERS NO. 12, HEADQUARTERS, 950TH ENGINEER AVIATION GROUP, WOLTERS AIR FORCE BASE, TEXAS, DATED FEBRUARY 1, 1952, YOU AND OTHER NAMED MEMBERS OF THE 1901ST ENGINEER AVIATION BATTALION WERE DIRECTED TO PROCEED ON OR ABOUT FEBRUARY 4, 1952, TO KELLY AIR FORCE BASE, TEXAS, FOR TEMPORARY DUTY FOR APPROXIMATELY 120 DAYS IN CONNECTION WITH PROJECT NO. 205-52-D, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO PROPER STATION AT WOLTERS AIR FORCE BASE, TEXAS. PARAGRAPH 1, SPECIAL ORDERS NO. 95, JUNE 9, 1952, SAME HEADQUARTERS, DIRECTED YOU TO PROCEED AGAIN TO KELLY AIR FORCE BASE ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS TO COORDINATE MOVE OF THE 1901ST ENGINEER AVIATION BATTALION, THEN ON TEMPORARY DUTY AT KELLY AIR FORCE BASE, AND UPON COMPLETION RETURN TO PROPER STATION. THE TIME OF YOUR ARRIVAL AT KELLY AIR FORCE BASE HAS NOT BEEN FURNISHED BUT THE RECORD SHOWS THAT YOU HAVE BEEN PAID PER DIEM AT THE RATE OF $5 PER DAY FOR THE PERIOD FEBRUARY 5 TO APRIL 30, 1952, ON VOUCHERS NUMBERED 63237, 72604 AND 80059, OF THE MARCH, APRIL AND MAY 1952, ACCOUNTS RESPECTIVELY, OF CAPTAIN MILO O. SPONHOLTZ, USAF. ALSO, YOU HAVE BEEN PAID PER DIEM AT THE RATE OF $9 PER DAY FOR ALL OF JUNE 7 AND 10, HALF OF JUNE 8 AND 1/4 OF JUNE 9, 1952, FOR TRAVEL FROM KELLY AIR FORCE BASE TO WOLTERS AIR FORCE BASE AND RETURN, ON VOUCHER NO. 92725, JUNE 1952 ACCOUNT OF CAPTAIN SPONHOLTZ. PAYMENT OF $55.06 ON THE LATTER VOUCHER INCLUDED MILEAGE ALLOWANCE AT THE RATE OF 5 CENTS PER MILE FOR THE FOREGOING TRAVEL OF 686 MILES, AND A DEDUCTION OF IT WAS MADE FOR THE QUARTERS AVAILABLE ON JUNE 10. YOU STATED THAT YOU AGAIN RETURNED TO WOLTERS AIR FORCE BASE BY PRIVATELY OWNED CONVEYANCE DURING THE PERIOD 5:30 P.M., JUNE 16 TO 7:30 A.M., JUNE 17, 1962, AND THAT YOU HAVE BEEN REIMBURSED ON A PER DIEM AND MILEAGE ALLOWANCE BASIS FOR SUCH TRAVEL. IF SUCH PAYMENT WAS MADE ON THE SAME BASIS AS VOUCHER NO. 92725, IT INCLUDED PAYMENT FOR JUNE 16, 1952. YOU STATE THAT GOVERNMENT QUARTERS WERE AVAILABLE AT KELLY AIR FORCE BASE.

AN OFFICER'S RIGHT TO PER DIEM IS FIXED BY THE PROVISIONS OF LAW RELATING TO THE PAYMENT OF SUCH ALLOWANCE TO OFFICERS WHILE IN A TRAVEL STATUS "AWAY FROM THEIR DESIGNATED POSTS OF DUTY." SEE SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813. REGULATIONS ISSUED PURSUANT TO AUTHORITY CONTAINED IN THE SAID SECTION 303, ARE PUBLISHED IN PART E, CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS. WHILE UNDER THE LAW AND THE REGULATIONS AN OFFICER'S RIGHT TO PER DIEM MAY NOT BE DETERMINED SOLELY ON A SHOWING OF A NEED FOR SUCH AN ALLOWANCE OR A SHOWING OF NO NEED FOR SUCH AN ALLOWANCE, IT SEEMS APPROPRIATE TO MENTION THAT THE GENERAL PURPOSE OF BOTH THE LAW AND THE REGULATIONS IS TO REIMBURSE THE OFFICER CONCERNED FOR THE ADDITIONAL EXPENSES OF SUBSISTENCE WHICH NORMALLY HAVE TO BE MET WHILE THE TRAVELER IS REQUIRED TO MAINTAIN HIMSELF TEMPORARILY IN A TRANSIENT STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. SEE IN THIS CONNECTION, PARAGRAPHS 4000, 4201-5 AND 4201-7, JOINT TRAVEL REGULATIONS, WHICH BAR PAYMENT OF PER DIEM FOR PERIODS OF TRAVEL WITH TROOPS, FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE. PARAGRAPH 4205-5A(4), CHANGE 1, AUGUST 1, 1951, JOINT TRAVEL REGULATIONS, MENTIONS SPECIFICALLY THE PER DIEM AUTHORIZED "FOR COURSES OF INSTRUCTION" AND PROVIDES THAT IF BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE, PER DIEM IS PAYABLE AT THE RATE OF $1 PER DAY. IT IS PROVIDED FURTHER THAT THE RATES FOR TEMPORARY DUTY UNDER INSTRUCTION WILL COMMENCE THE DAY AFTER ARRIVAL AT A TEMPORARY DUTY STATION AND WILL TERMINATE AT 12 MIDNIGHT ON THE DAY PRIOR TO THE DAY OF DEPARTURE. YOU STATED IN YOUR LETTER OF MARCH 26, 1953, THAT YOU WERE "IN A CONTINUOUS COURSE OF INSTRUCTION" DURING THE PERIODS INVOLVED. SECOND INDORSEMENT OF MAY 14, 1953, FROM HEADQUARTERS, 950TH ENGINEER AVIATION GROUP - THE SAME HEADQUARTERS WHICH ISSUED THE ORDERS OF FEBRUARY 1, 1952 - STATES THAT PROJECT NO. 205-52-D WAS A TRAINING PROJECT AND THAT IT CAN BE ASSUMED THAT "IT WAS A CONTINUOUS COURSE OF INSTRUCTION." EACH OF THE VOUCHERS ON WHICH YOU WERE PAID PER DIEM AT THE RATE OF $5 PER DAY FOR THE TEMPORARY DUTY AT KELLY AIR FORCE BASE, CONTAINED THE STATEMENT "THAT MESS FACILITIES WERE NOT AVAILABLE NOR SUBSISTENCE FURNISHED." SUCH STATEMENT IS IN DIRECT CONFLICT WITH INFORMATION NOW FURNISHED THIS OFFICE. PARAGRAPH 2D OF THE ABOVE MENTIONED SECOND INDORSEMENT ON MAY 14, 1953, STATES THAT "THE MOVEMENT ORDER MENTIONED IN PARAGRAPH 1 ABOVE STATES THAT ALL TO&E ITEMS OF EQUIPMENT WILL ACCOMPANY THE UNIT FOR THIS MOVEMENT, SINCE THE TO&E ITEMS INCLUDED MESSING EQUIPMENT AND SINCE THE UNIT ESTABLISHED A CONSOLIDATED MESS, IT CAN BE ASSUMED THAT MESSING FACILITIES WERE AVAILABLE." A REPORT FROM COLONEL GUY H. GODDARD, USAF, DEPUTY FOR OPERATIONS, HEADQUARTERS, AVIATION ENGINEER FORCE, DATED FEBRUARY 26, 1952, STATES THAT "THE UNIT IS ESTABLISHED IN EXCEPTIONALLY FINE PERMANENT TYPE BUILDING AND ALL FACILITIES OF A NORMAL PERMANENT BASE ARE AVAILABLE." FIRST INDORSEMENT OF MAY 5, 1953, FROM HEADQUARTERS, 1901ST ENGINEER AVIATION BATTALION, WOLTERS AIR FORCE BASE, STATES THAT "GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO THE OFFICERS OF THIS ORGANIZATION DURING THE ENTIRE PERIOD."

IN VIEW OF THE FOREGOING IT MUST BE CONCLUDED THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE AT KELLY AIR FORCE BASE DURING YOUR PERIODS OF DUTY AT THAT PLACE AND SINCE YOU STATE THAT GOVERNMENT QUARTERS ALSO WERE AVAILABLE, YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $1 PER DAY RATHER THAN $5 PER DAY FOR THE PERIODS FEBRUARY 5 TO JUNE 6 AND JUNE 11 TO 15, 1952, A TOTAL OF $128, LESS THE NUMBER OF DAYS YOU WERE AT YOUR PERMANENT STATION DURING THAT PERIOD. YOU ADMIT IN YOUR LETTER OF MARCH 26, 1953, THAT YOU RETURNED TO YOUR PERMANENT STATION ON FOURTEEN WEEKENDS AND IN THE ABSENCE OF EVIDENCE TO THE CONTRARY IT WILL BE ASSUMED THAT YOU WERE AT YOUR PERMANENT STATION TWO DAYS EACH TRIP. HENCE YOU WERE ENTITLED TO ONLY $100 PER DIEM DURING THE PERIOD INDICATED ABOVE. IN VIEW OF THE FACT THAT YOU HAVE BEEN PAID $430 FOR THE PERIOD FEBRUARY 5 TO APRIL 30, 1952, IT APPEARS THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $330 AND THAT AMOUNT SHOULD BE REFUNDED TO THIS OFFICE BY CHECK OR MONEY ORDER MADE PAYABLE TO THE TREASURER OF THE UNITED STATES.