B-108093, MAY 8, 1952, 31 COMP. GEN. 575

B-108093: May 8, 1952

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THE LATTER CHARTER REQUIRED THE PRIVATE CONCERN TO FURNISH MEALS TO NAVAL PERSONNEL ASSIGNED TO DUTY ON BOARD THE VESSELS AT A COST WHICH IS A FRACTION OF THE COST OF MEALS TO PERSONNEL TRAVELING ABOARD A COMMERCIAL VESSEL. IS REGARDED AS HAVING PERFORMED TEMPORARY DUTY ON BOARD GOVERNMENT VESSELS WITHIN THE MEANING OF JOINT TRAVEL REGULATIONS. 1952: REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 9. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED WITH THE LATTER LETTER. THE PARTICULAR PERIODS WITH WHICH YOU APPEAR TO BE CONCERNED ARE FROM JUNE 1 TO JULY 31 AND AUGUST 3 TO AUGUST 29. WHILE THE OFFICER WAS ABOARD THE TIME- CHARTERED VESSELS REFERRED TO BELOW.

B-108093, MAY 8, 1952, 31 COMP. GEN. 575

SUBSISTENCE - PER DIEMS - MILITARY, NAVAL, ETC., PERSONNEL - TRAVEL ON GOVERNMENT-OWNED VESSELS A NAVY OFFICER WHO PERFORMED TEMPORARY DUTY ON BOARD GOVERNMENT OWNED VESSELS CHARTERED BY A PRIVATE CONCERN UNDER AN AGREEMENT PROVIDING FOR THE OPERATION OF THE VESSELS UNDER TIME CHARTER TO THE MILITARY SEA TRANSPORTATION SERVICE ONLY, AND THE LATTER CHARTER REQUIRED THE PRIVATE CONCERN TO FURNISH MEALS TO NAVAL PERSONNEL ASSIGNED TO DUTY ON BOARD THE VESSELS AT A COST WHICH IS A FRACTION OF THE COST OF MEALS TO PERSONNEL TRAVELING ABOARD A COMMERCIAL VESSEL, IS REGARDED AS HAVING PERFORMED TEMPORARY DUTY ON BOARD GOVERNMENT VESSELS WITHIN THE MEANING OF JOINT TRAVEL REGULATIONS, AND THEREFORE, PER DIEM MAY NOT BE PAID UNDER SAID REGULATIONS FOR SUCH DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. (JG) T. E. MANORE, DEPARTMENT OF THE NAVY, MAY 8, 1952:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 9, 1951, AND MARCH 4, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED WITH THE LATTER LETTER, COVERING REIMBURSEMENT OF EXPENSES OF TRAVEL PERFORMED BY LIEUTENANT (JG) ROBERT E. LLOYD, USNR, DURING THE PERIOD MAY 16 TO AUGUST 30, 1951. THE PARTICULAR PERIODS WITH WHICH YOU APPEAR TO BE CONCERNED ARE FROM JUNE 1 TO JULY 31 AND AUGUST 3 TO AUGUST 29, 1951, WHILE THE OFFICER WAS ABOARD THE TIME- CHARTERED VESSELS REFERRED TO BELOW.

BY ORDER OF MAY 14, 1951, UNITED STATES ATLANTIC FLEET, U.S.S. MISSOURI ( BB 63), C/O FLEET POST OFFICE, NEW YORK, NEW YORK, LIEUTENANT LLOYD WAS DIRECTED TO PROCEED AND REPORT TO NORFOLK, VIRGINIA, FOR TEMPORARY ADDITIONAL DUTY OF APPROXIMATELY 60 DAYS WITH COMMANDER AMPHIBIOUS GROUP TWO, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS REGULAR DUTY STATION. TRAVEL BY SEVERAL DIFFERENT MEANS OF CONVEYANCE WAS AUTHORIZED AND IT IS STATED THAT HE WOULD BE REIMBURSED ON A PER DIEM BASIS IN ACCORDANCE WITH CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS. IT IS SHOWN THAT HE PERFORMED TEMPORARY ADDITIONAL DUTY UNDER INSTRUCTIONS AT THE AMPHIBIOUS TRAINING BASE, LITTLE CREEK, VIRGINIA, DURING THE PERIOD MAY 16 TO 31, 1951, TEMPORARY ADDITIONAL DUTY ON BOARD THE S.S. WILLIAM BEVAN AS COMMANDING OFFICER, MILITARY DEPARTMENT AND OFFICER-IN-CHARGE OF COMMUNICATION TEAM NO. 3, DURING THE PERIOD JUNE 1 TO JULY 30, 1951, AND SIMILAR DUTY ON BOARD THE S.S. ENID VICTORY DURING THE PERIOD AUGUST 3 TO 29, 1951, AS DIRECTED IN ENDORSEMENTS ON THE ORDERS OF MAY 4; AND THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE AT LITTLE CREEK BUT ONLY GOVERNMENT QUARTERS WERE REGARDED AS BEING AVAILABLE ON THE ABOVE-MENTIONED VESSELS. RECEIPTS WERE SUBMITTED SHOWING PAYMENT BY THE OFFICER TO THE OPERATORS OF SAID VESSELS FOR MEALS FURNISHED AT THE RATE OF $1.80 PER DAY.

BY COUNTERPART 1, CONTRACT NO. MCC 62610, FORM NO. 303, SHIP SALES DEMISE ( MILITARY SEA TRANSPORTATION SERVICE), BAREBOAT CHARTER AGREEMENT OF WAR- BUILT DRY-CARGO VESSELS, EXECUTED NOVEMBER 28, 1950, THE UNITED STATES, ACTING BY AND THROUGH THE DEPARTMENT OF COMMERCE ( MARITIME ADMINISTRATION) CHARTERED TO BLIDBERG-1ROTHCHILD COMPANY, INC., ON A BAREBOAT BASIS SUBJECT TO THE CONDITIONS PROVIDED THEREIN, TWO GOVERNMENT- OWNED VESSELS, ONE OF WHICH WAS THE S.S. ENID VICTORY. IT IS PROVIDED IN CLAUSE D, PART I, THEREOF, THAT SUCH VESSELS "SHALL BE OPERATED ONLY IN THE TRANSPACIFIC SERVICE UNDER TIME CHARTER TO THE MILITARY SEA TRANSPORTATION SERVICE, TRANSPORTING MILITARY AND OTHER GOVERNMENT- CONTROLLED CARGOES AND PASSENGERS AS FAR AS ACCOMMODATIONS AND UNITED STATES COAST GUARD CERTIFICATION ALLOW, UNDER MILITARY SEA TRANSPORTATION SERVICE TIME CHARTER.' THE TIME CHARTER COVERING THE S.S. ENID VICTORY HAS NOT BEEN FURNISHED BUT IT IS UNDERSTOOD THAT IT WAS OPERATED UNDER DULY EXECUTED MILITARY SEA TRANSPORTATION SERVICE TIME CHARTER PARTY, MSTS DRY CARGO WAR RISK FORM, A BLANK FORM OF WHICH WAS FORWARDED TO THIS OFFICE BY MESSENGER. ARTICLE 18J THEREOF PROVIDES THAT:

"* * * THE CHARTERER SHALL HAVE THE PRIVILEGE OF ASSIGNING OFFICERS AND/OR ENLISTED MEN ABOARD THE VESSEL FOR DUTY PURPOSES AS FAR AS ACCOMMODATIONS AND U.S. COAST GUARD CERTIFICATION ALLOW, THE CHARTERER PAYING $1.80 PER DAY PER MAN FOR VICTUALLING AND $0.70 PER DAY PER MAN FOR ACCOMMODATIONS. THE $1.80 PER DAY FOR VICTUALLING OF AN OFFICER SHALL BE COLLECTED BY THE VESSEL OPERATOR DIRECTLY FROM THE OFFICER CONCERNED. * *

IT IS UNDERSTOOD THAT SIMILAR BAREBOAT AND TIME CHARTER AGREEMENTS WERE EXECUTED COVERING THE S.S. WILLIAM BEVAN.

AN OFFICER OF THE NAVY IS REQUIRED TO SUBSIST HIMSELF AT PERSONAL EXPENSE AT ALL TIMES AND THE ONLY ALLOWANCE WHICH IS AUTHORIZED TO HELP DEFRAY THE COST THEREOF WHILE HE IS AT HIS DESIGNATED POST OF DUTY IN THE UNITED STATES, IS THE BASIC ALLOWANCE FOR SUBSISTENCE AUTHORIZED UNDER THE PROVISIONS OF SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812. HOWEVER, IF TRAVEL IS PERFORMED OUTSIDE THE UNITED STATES, SECTION 303 (B) OF SAID CAREER COMPENSATION ACT, 63 STAT. 814, AUTHORIZES THE SECRETARY OF THE SERVICE CONCERNED TO PRESCRIBE PER DIEM FOR SUCH TRAVEL ,CONSIDERING ALL ELEMENTS OF COST OF LIVING" TO THE PERSON CONCERNED. PARAGRAPH 4253-4 OF THE JOINT TRAVEL REGULATIONS PRESCRIBES A PER DIEM OF $5 FOR EACH DAY WHILE IN A TRAVEL STATUS ABOARD A COMMERCIAL VESSEL WHEN THE COST OF PASSAGE DOES NOT INCLUDE MEALS, AND PARAGRAPH 4253-5B STATES THAT MEMBERS WHO ARE CHARGED FOR SUBSISTENCE WHILE TRAVELING BY GOVERNMENT VESSEL--- BUT NOT INCLUDING THOSE ABOARD FOR TEMPORARY DUTY OR TRAINING--- WILL BE PAID A PER DIEM ALLOWANCE COMMENSURATE WITH THE COST FOR MEALS FURNISHED. HENCE, THE QUESTION TO BE DECIDED HERE IS WHETHER THE VESSELS INVOLVED SHOULD BE CONSIDERED TO BE "COMMERCIAL" OR " GOVERNMENT" VESSELS WITHIN THE MEANING OF THE REGULATIONS. A PROPER DETERMINATION OF THAT QUESTION REQUIRES CONSIDERATION OF THE OBJECTIVE SOUGHT TO BE ACCOMPLISHED BY THE USE OF THE TERM "COMMERCIAL VESSEL" AND " GOVERNMENT VESSEL" IN SUCH REGULATIONS. THE PURPOSE OF THE LAST CITED PROVISIONS OF LAW IS TO PERMIT THE PRESCRIBING OF A PER DIEM ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES FOR THE ADDITIONAL EXPENSES OF SUBSISTENCE TO WHICH THEY ARE PUT WHILE REQUIRED TO MAINTAIN THEMSELVES OUTSIDE THE UNITED STATES AWAY FROM THEIR DESIGNATED POSTS OF DUTY. SINCE SUCH PER DIEM IS AN ADDITIONAL COST OF LIVING ALLOWANCE, THE RATES OF PER DIEM SHOULD HAVE A REASONABLE RELATIONSHIP TO THE INCREASED COSTS INCURRED. PRESUMABLY IN FIXING THE RATE OF $5 FOR EACH DAY WHILE IN A TRAVEL STATUS ABOARD A COMMERCIAL VESSEL, WHEN THE COST OF PASSAGE DOES NOT INCLUDE MEALS, DUE CONSIDERATION WAS GIVEN TO THE FACT THAT MEALS WOULD HAVE TO BE PURCHASED AT COMMERCIAL RATES CHARGED THE GENERAL PUBLIC. IT MAY NOT BE ASSUMED THAT IT WAS INTENDED THAT SUCH RATES SHOULD BE PAID FOR PERIODS ABOARD A VESSEL WHERE SUCH RATE WAS SEVERAL TIMES THE INCREASED COST, IF ANY, OF MEALS TO THE PERSON CONCERNED. SEE B 103602, FEBRUARY 19, 1952, 31 COMP. GEN. 399.

ALTHOUGH IT MAY BE THAT WHEN A GOVERNMENT-OWNED VESSEL CHARTERED BY A PRIVATE CONCERN ON A BAREBOAT BASIS MAY NOT BE REGARDED AS A GOVERNMENT VESSEL FOR MANY PURPOSES WHILE SO USED (SEE IN THIS CONNECTION BALTIMORE DRY DOCKS, ETC., COMPANY V. NEW YORK ETC., COMPANY, THE ISABELLA, 262 F. 485) WHERE, AS HERE, THE CHARTER AGREEMENT EXECUTED BY ONE GOVERNMENT AGENCY EXPRESSLY PROVIDES THAT THE VESSEL SHALL BE OPERATED ONLY UNDER TIME CHARTER TO ANOTHER GOVERNMENT AGENCY AND THE LATTER CHARTER REQUIRES THE PRIVATE CONCERN TO FURNISH MEALS TO NAVAL PERSONNEL ASSIGNED TO DUTY ON BOARD SUCH VESSEL AT A COST WHICH IS BUT A FRACTION OF THE COST OF MEALS TO PERSONNEL TRAVELING ABOARD A COMMERCIAL VESSEL, THE CHARTERED VESSEL MUST BE REGARDED AS A GOVERNMENT VESSEL WITHIN THE MEANING OF THE CITED REGULATIONS. HENCE, THE OFFICER MUST BE CONSIDERED TO HAVE PERFORMED TEMPORARY DUTY ON BOARD GOVERNMENT VESSELS DURING THE PERIODS HE WAS ON BOARD THE S.S. WILLIAM BEVAN AND THE S. S. ENID VICTORY, AND SINCE NO PER DIEM IS PRESCRIBED IN THE SAID REGULATIONS INCIDENT TO SUCH DUTY, NO RIGHT TO PER DIEM ACCRUED TO HIM INCIDENT THERETO.

ACCORDINGLY, IF THE VOUCHER IS AMENDED TO OMIT THE PERIODS OF TEMPORARY DUTY IN QUESTION, PAYMENT THEREON IS AUTHORIZED, IF CORRECT IN OTHER RESPECTS.