B-118569, APRIL 19, 1954, 33 COMP. GEN. 494

B-118569, APRIL 19, 1954, 33 COMP. GEN. 494

SUBSISTENCE - PER DIEMS - MILITARY, NAVAL, ETC., PERSONNEL - HEADQUARTERS - PLACE OF REGULAR DUTY CONSTITUTING HEADQUARTERS OFFICER WHO WAS ORDERED TO REPORT FOR TEMPORARY DUTY AT WASHINGTON, D.C., UNDER ORDERS WHICH INSTRUCTED HIM TO PROCEED TO LONDON, ENGLAND, FOR "TEMPORARY ADDITIONAL DUTY" AND TO RETURN TO WASHINGTON FOR RESUMPTION OF TEMPORARY DUTY AND DETACHMENT, AND WHICH PROVIDED THAT TEMPORARY DUTY WAS TO BE WITHOUT PAY AND ALLOWANCES EXCEPT FOR TRAVEL AND PER DIEM WHILE OUTSIDE THE UNITED STATES, IS NOT ENTITLED TO PER DIEM WHILE IN LONDON WHICH ACTUALLY WAS THE PRIMARY POST OF DUTY RATHER THAN WASHINGTON; HOWEVER, OFFICER IS ENTITLED TO PER DIEM WHILE IN TRAVEL STATUS OUTSIDE UNITED STATES, NOT AT LONDON, AT THE RATE AUTHORIZED IN PARAGRAPH 6001 (CHANGE 2), JOINT TRAVEL REGULATIONS.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COMMANDER T. P. MAGGARD, DEPARTMENT OF THE NAVY, APRIL 19, 1954:

BY LETTER DATED FEBRUARY 2, 1954, THE JUDGE ADVOCATE GENERAL OF THE NAVY, BY DIRECTION OF THE SECRETARY OF THE NAVY, FORWARDED YOUR LETTER OF OCTOBER 26, 1953, FOR ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, COVERING PER DIEM IN THE AMOUNT OF $107.40 CLAIMED BY COMMANDER TREVANION H. E. NESBITT, USNR, DURING THE PERIOD FROM AUGUST 31 TO SEPTEMBER 15, 1953.

BY ORDERS OF AUGUST 25, 1953, COMMANDER NESBITT WAS ORDERED TO TEMPORARY ACTIVE DUTY WITHOUT PAY FOR PHYSICAL EXAMINATION AND, IF FOUND PHYSICALLY QUALIFIED, HE WAS TO CONSIDER HIMSELF RELEASED FROM TEMPORARY ACTIVE DUTY UNTIL SUCH TIME AS IT WAS NECESSARY TO REPORT TO THE CHIEF OF NAVAL OPERATIONS, NAVY DEPARTMENT, WASHINGTON, D.C., ON OR ABOUT AUGUST 28, 1953. BY THESE ORDERS HE ALSO WAS DIRECTED TO PROCEED TO LONDON, ENGLAND, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH NAVAL MATTERS, WHEN SO DIRECTED BY THE CHIEF OF NAVAL OPERATIONS ON OR ABOUT AUGUST 31, 1953. UPON COMPLETION OF THIS "TEMPORARY ADDITIONAL DUTY" HE WAS DIRECTED TO RETURN TO WASHINGTON, D.C., AND RESUME "TEMPORARY DUTY" AND WHEN DIRECTED BY THE CHIEF OF NAVAL OPERATIONS ON OR ABOUT SEPTEMBER 15, 1953, HE WAS TO REGARD HIMSELF DETACHED, AFTER WHICH HE WAS TO REPORT TO HIS COMMANDING OFFICER FOR PHYSICAL EXAMINATION AND UPON COMPLETION THEREOF HE WAS TO BE RELEASED FROM ALL ACTIVE DUTY. THE ORDERS PROVIDED THAT THIS TEMPORARY DUTY WAS TO BE WITHOUT PAY AND ALLOWANCES; THAT ANY TRAVEL INSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WOULD BE WITHOUT EXPENSE TO THE GOVERNMENT; AND THAT TRAVEL AND PER DIEM OUTSIDE THE UNITED STATES WOULD "BE CHARGEABLE TO APPROPRIATION * * *," ETC. ADDITIONAL ORDERS OF SEPTEMBER 2, 1953, DIRECTED COMMANDER NESBITT TO PROCEED TO ORLY FIELD, FRANCE, FOR BRIEFING AND PROCESSING.

THE RECORD SHOWS THAT THE OFFICER REPORTED TO THE CHIEF OF NAVAL OPERATIONS ON AUGUST 31; THAT HE LEFT PATUXENT RIVER, MARYLAND, VIA GOVERNMENT AIR TRANSPORT FOR LONDON, ARRIVING THERE AT 1430 SEPTEMBER 3 AND REMAINING AT LONDON UNTIL 1250 SEPTEMBER 9, AT WHICH TIME HE DEPARTED FOR PARIS VIA GOVERNMENT AIR. HE ARRIVED IN WASHINGTON FROM PARIS AT 1515 SEPTEMBER 11 AND WAS CONSIDERED AS RELEASED FROM TEMPORARY ACTIVE DUTY AT 1630 SEPTEMBER 15, 1953. THE OFFICER CLAIMS THE AMOUNT OF $107.40 AS PER DIEM AT THE RESPECTIVE RATES OF $9, $12 AND $14 FOR THE PERIODS INVOLVED IN TRAVEL OUTSIDE THE CONTINENTAL UNITED STATES.

IT HAS BEEN HELD THAT NAVAL RESERVE OFFICERS ORDERED TO TEMPORARY ACTIVE DUTY, UPON COMPLETION OF WHICH THEY ARE TO RETURN TO THEIR HOMES AND CONSIDER THEMSELVES RELEASED FROM ACTIVE DUTY ARE NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE. SEE 26 COMP. GEN. 557. IT HAS BEEN HELD FURTHER THAT WHERE SUCH OFFICERS ARE ORDERED TO A SPECIFIC LOCATION FOR TEMPORARY ACTIVE DUTY AND SUBSEQUENTLY ARE ORDERED TO ONE OR MORE LOCATIONS FOR TEMPORARY ADDITIONAL DUTY UPON COMPLETION OF WHICH THEY ARE TO RETURN TO THEIR ORIGINAL TEMPORARY DUTY STATION THEY MAY BE CONSIDERED FOR THE PERIOD OF SUCH TEMPORARY ADDITIONAL DUTY AS BEING AWAY FROM THEIR DESIGNATED POSTS OF DUTY. SEE 28 COMP. GEN. 166. HOWEVER, IT WAS STATED IN THE LATTER DECISION THAT NOTHING THEREIN WAS TO BE CONSIDERED AS APPROVING A PRACTICE OF ORDERING SUCH PERSONNEL TO TEMPORARY ACTIVE DUTY AT PLACES OTHER THAN THE PLACES IT IS INTENDED THEIR PRIMARY DUTIES WILL BE PERFORMED AND THEN SUBSEQUENTLY ORDERING THEM TO ANOTHER PLACE--- WHERE THEIR PRIMARY DUTIES ACTUALLY WILL BE PERFORMED--- FOR TEMPORARY ADDITIONAL DUTY, SOLELY FOR THE PURPOSE OF PAYING THEM A PER DIEM IN LIEU OF SUBSISTENCE AT THE LATTER PLACE. WHILE THE OFFICER IN THIS CASE WAS ORDERED TO TEMPORARY ACTIVE DUTY AT WASHINGTON, WHICH MIGHT INDICATE THAT HIS PRIMARY DUTIES WERE TO BE PERFORMED THERE, NEVERTHELESS IT APPEARS FROM THE THIRD ENDORSEMENT OF DECEMBER 10, 1953, FROM THE DIRECTOR OF NAVAL INTELLIGENCE, NAVY DEPARTMENT, TO THE CHIEF OF NAVAL PERSONNEL, THAT COMMANDER NESBITT "WAS RECALLED TO TEMPORARY ACTIVE NAVAL SERVICE WITHOUT PAY TO ENABLE HIM TO ATTEND A CONFERENCE IN LONDON INVOLVING THE DUTIES AND FUNCTIONS OF HIS EARLY MOBILIZATION BILLET TO WHICH HE HAS BEEN ASSIGNED BY REASON OF HIS SPECIAL PROFESSIONAL QUALIFICATIONS.' IN VIEW OF THAT STATEMENT AND IN THE ABSENCE OF ANYTHING TO THE CONTRARY, IT MUST BE HELD THAT THE PRIMARY DUTY POINT WAS LONDON RATHER THAN WASHINGTON, D.C., AND THEREFORE THE OFFICER MAY NOT BE REGARDED AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WHILE AT THAT PLACE FOR THE PURPOSE OF DETERMINING HIS ENTITLEMENT TO PER DIEM OR OTHER ALLOWANCE.

WITH RESPECT TO WHETHER PER DIEM MAY BE ALLOWED WHILE THE OFFICER WAS IN A TRAVEL STATUS OUTSIDE THE UNITED STATES AND NOT AT LONDON, SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, PROVIDES:

(B) MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES, ORGANIZED RESERVE CORPS, NAVAL RESERVE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE EN ROUTE, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY CONCERNED.

IN CONFORMITY WITH THIS LEGISLATION, PARAGRAPH 6001 (CHANGE 2), JOINT TRAVEL REGULATIONS PROVIDES:

TRAINING DUTY OR OTHER DUTY WITHOUT PAY

GENERAL. WHEN AUTHORIZED BY THE SECRETARY CONCERNED, RESERVE MEMBERS CALLED TO TRAINING DUTY OR OTHER DUTY WITH THEIR CONSENT, WHEN SUCH TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED, SHALL BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE IN ACCORDANCE WITH SUBPART. 2 AND 3.

TRANSPORTATION IN KIND. TRANSPORTATION IN KIND (TRANSPORTATION FURNISHED BY GOVERNMENT TRANSPORTATION REQUEST OR BY GOVERNMENT CONVEYANCE) OR TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF 5 CENTS PER MILE FOR THE OFFICIAL DISTANCE TO AND FROM POINTS OF TRAINING OR OTHER DUTY WITHOUT PAY IS AUTHORIZED.

SUBSISTENCE WHILE EN ROUTE TO AND FROM POINTS OF TRAINING OR OTHER DUTY WITHOUT PAY. MEAL TICKETS MAY BE ISSUED TO RESERVE MEMBERS FOR TRAVEL TO AND FROM POINTS OF TRAINING OR OTHER DUTY WITHOUT PAY OR IN LIEU OF MEAL TICKETS REIMBURSEMENT FOR MEALS PURCHASED FOR THE REQUIRED TRAVEL TIME IS AUTHORIZED NOT TO EXCEED $1.50 PER MEAL.

SINCE SECTION 501 (B) OF THE ABOVE ACT MAKES SPECIFIC PROVISION FOR THE AUTHORIZATION OF ALLOWANCES FOR RESERVE MEMBERS PERFORMING DUTY WITHOUT PAY, AND SINCE THE ABOVE PROVISIONS OF THE JOINT TRAVEL REGULATIONS PLACE A DEFINITE LIMITATION UPON REIMBURSABLE SUBSISTENCE EXPENSE ITEMS, IN THAT REIMBURSEMENT IS AUTHORIZED ONLY IN AN AMOUNT NOT TO EXCEED $1.50 PER MEAL FOR "TRAVEL E," THE PER DIEM ALLOWANCE CLAIMED BY THE OFFICER IS NOT PAYABLE.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND SUCH VOUCHER WILL BE RETAINED IN THIS OFFICE.