B-118880, JUL. 25, 1955

B-118880: Jul 25, 1955

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USNR: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. DURING THE PERIOD INVOLVED YOU WERE PERFORMING TEMPORARY DUTY UNDER INSTRUCTION PURSUANT TO BUREAU OF NAVAL PERSONNEL ORDERS DATED OCTOBER 9. IT SHOULD BE ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE IN THE ABSENCE OF CERTIFICATE FROM THE APPROPRIATE INSTALLATION COMMANDER OR HIS DESIGNATED REPRESENTATIVE THAT SUCH FACILITIES WERE NOT AVAILABLE. THE PER DIEM RATE PAYABLE IN CONNECTION WITH THE PERFORMANCE OF TEMPORARY DUTY WHILE UNDERGOING A COURSE OF INSTRUCTION WAS FIXED ON THE BASIS OF AVAILABILITY OF GOVERNMENT QUARTERS AND MESS. SUCH REGULATION WAS DESIGNED TO PROVIDE. A CONTEMPORANEOUSLY ISSUED CERTIFICATION OF A RESPONSIBLE OFFICIAL WHO BECAUSE OF HIS PHYSICAL PRESENCE AT THE TEMPORARY STATION WAS AWARE OF THE FACTS INVOLVED AS TO THE AVAILABILITY OF THOSE FACILITIES.

B-118880, JUL. 25, 1955

TO LIEUTENANT (JG) HERBERT H. SMITH, USNR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1955, WITH ENCLOSURES, FORWARDED HERE BY THE U.S. NAVY REGIONAL ACCOUNTS OFFICE, WASHINGTON, D.C., IN WHICH YOU REQUEST FURTHER CONSIDERATION IN THE MATTER OF YOUR CLAIM FOR ADDITIONAL PER DIEM BELIEVED TO BE DUE INCIDENT TO TEMPORARY DUTY PERFORMED AT THE U.S. NAVAL AIR STATION, DALLAS, TEXAS, DURING THE PERIOD FEBRUARY 15 TO APRIL 18, 1953.

DURING THE PERIOD INVOLVED YOU WERE PERFORMING TEMPORARY DUTY UNDER INSTRUCTION PURSUANT TO BUREAU OF NAVAL PERSONNEL ORDERS DATED OCTOBER 9, 1952. PARAGRAPH 4205 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD INVOLVED IN YOUR CLAIM, PROVIDED THAT FOR PERIODS OF TEMPORARY DUTY OR DELAYS INVOLVING MORE THAN ONE CALENDAR DAY AT INSTALLATIONS OF THE UNIFORMED SERVICES, IT SHOULD BE ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE IN THE ABSENCE OF CERTIFICATE FROM THE APPROPRIATE INSTALLATION COMMANDER OR HIS DESIGNATED REPRESENTATIVE THAT SUCH FACILITIES WERE NOT AVAILABLE. THE PER DIEM RATE PAYABLE IN CONNECTION WITH THE PERFORMANCE OF TEMPORARY DUTY WHILE UNDERGOING A COURSE OF INSTRUCTION WAS FIXED ON THE BASIS OF AVAILABILITY OF GOVERNMENT QUARTERS AND MESS, AND SUCH REGULATION WAS DESIGNED TO PROVIDE, AS SUPPORTING EVIDENCE FOR PER DIEM PAYMENTS, A CONTEMPORANEOUSLY ISSUED CERTIFICATION OF A RESPONSIBLE OFFICIAL WHO BECAUSE OF HIS PHYSICAL PRESENCE AT THE TEMPORARY STATION WAS AWARE OF THE FACTS INVOLVED AS TO THE AVAILABILITY OF THOSE FACILITIES.

THE SETTLEMENT OF YOUR CLAIM WAS BASED ON STATEMENTS CONTAINED IN SECOND ENDORSEMENT OF THE COMMANDING OFFICER OF THE NAVAL AIR STATION AT DALLAS, DATED FEBRUARY 14, 1953, TO THE ORDERS OF OCTOBER 9, 1952, THAT "GOVERNMENT QUARTERS AND MESSING FACILITIES ARE AVAILABLE FOR YOU WHILE ATTACHED TO THIS ACTIVITY" AND IN FOURTH ENDORSEMENT OF THE SAME OFFICER, DATED APRIL 19, 1953, THAT "MESSING FACILITIES WERE AVAILABLE FOR YOU WHILE ATTACHED TO THIS ACTIVITY BEGINNING 21 MAR. 1953 AS INDICATED BELOW:" FOLLOWED BY A SCHEDULE OF AVAILABILITY OF MEALS ON A DAY-BY-DAY BASIS. YOU WERE ALLOWED $89 AS PER DIEM FOR THE INDICATED PERIOD COMPUTED ON THE BASIS THAT MESSING FACILITIES WERE AVAILABLE UNTIL MARCH 20, 1953, AND THAT THEY WERE AVAILABLE AFTER THAT DATE ON THE LIMITED BASIS INDICATED IN THE FOURTH ENDORSEMENT. IN OUR DECISION DATED MAY 21, 1954, B-118880, TO YOU, THAT CONCLUSION WAS SUSTAINED, IT BEING HELD THAT THE STATEMENT OF THE COMMANDING OFFICER AT DALLAS, IN THE SECOND ENDORSEMENT, WHEN CONSIDERED IN CONJUNCTION WITH HIS FOURTH ENDORSEMENT, MUST BE CONSTRUED AS MEANING THAT MESSING FACILITIES WERE AVAILABLE BETWEEN FEBRUARY 15 AND MARCH 20, 1953.

INCLUDED WITH THE ENCLOSURES FORWARDED WITH YOUR LETTER IS A COMMUNICATION FROM THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, DALLAS, TEXAS, DATED JANUARY 15, 1955, DESIGNATED AS NINTH ENDORSEMENT TO YOUR ORDERS OF OCTOBER 9, 1952, STATING AS FOLLOWS:

"1. THE SECOND ENDORSEMENT OF THESE ORDERS IS HEREBY MODIFIED TO READ:

" "MESSING FACILITIES WERE NOT AVAILABLE FROM 14 FEBRUARY THRU 20 MARCH 1953.'

"2. MESSING FACILITIES WERE AVAILABLE AS STATED IN THE FOURTH ENDORSEMENT AFTER 20 MARCH 1953 TO THE EXTENT OUTLINED EXCEPT THAT EVENING MEALS WERE NOT AVAILABLE ON ANY DAY.'

THOSE STATEMENTS, ISSUED NEARLY TWO YEARS AFTER THE PERIOD IN QUESTION, ARE IN DIRECT CONFLICT WITH THOSE IN THE SECOND ENDORSEMENT OF FEBRUARY 14, 1953, THAT MESSING FACILITIES "ARE AVAILABLE FOR YOU" AND THE FOURTH ENDORSEMENT OF APRIL 19, 1953 (WHICH DID NOT MODIFY THE PRIOR ENDORSEMENT AS TO THE PERIOD FROM FEBRUARY 15 TO MARCH 20) RELATING TO AVAILABILITY OF EVENING MEALS. SUCH LATER STATEMENTS ARE UNSUPPORTED BY ANY EXPLANATION OR EVIDENCE OF ANY KIND THAT THE CONTEMPORANEOUS ENDORSEMENTS WERE NOT CORRECT AND HENCE, THEY MAY NOT PROPERLY BE CONSIDERED AS OVERCOMING THOSE CONTEMPORANEOUSLY ISSUED ENDORSEMENTS. ACCORDINGLY, YOU ARE ADVISED THAT THERE IS FOUND NO PROPER BASIS TO CHANGE THE CONCLUSION REACHED IN THE SETTLEMENT OF NOVEMBER 18, 1953, AND THE DECISION OF MAY 21, 1954.

THE ORIGINAL ORDERS FORWARDED WITH YOUR LETTER OF FEBRUARY 2, 1955, ARE RETURNED HEREWITH.