B-122517, JUL. 18, 1955

B-122517: Jul 18, 1955

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WARD: REFERENCE IS MADE TO YOUR LETTERS OF MAY 20. UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION. IT IS SHOWN THAT YOU LEFT RED BANK AT 8 A.M. THAT RETURN TRAVEL WAS ACCOMPLISHED DURING THE PERIOD MAY 23 TO 25. WAS PAID AT THE RATE OF $7 PER DAY EXCEPT FOR 17 AND 10/24 DAYS PAID ON THE LATTER VOUCHER AT THE RATE OF $2.50 PER DAY. YOU ARE CORRECT IN YOUR CONTENTION THAT THE CORRECTED ORDERS WERE WITHOUT EFFECT TO RESTRICT YOUR RIGHT TO PER DIEM TO $2.50 PER DAY AFTER THE FIRST 30 DAYS OF TEMPORARY DUTY IN CANADA. SUCH REGULATIONS ALSO REQUIRED THAT A DEDUCTION OF $4 BE MADE FOR EACH DAY THAT GOVERNMENT QUARTERS WERE OCCUPIED. WHILE YOU CERTIFIED ON THE CITED VOUCHERS THAT GOVERNMENT QUARTERS WERE NOT FURNISHED.

B-122517, JUL. 18, 1955

TO MR. ALBERT E. WARD:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 20, 1954, AND JUNE 3, 1955, CONCERNING YOUR CLAIM FOR ADDITIONAL PER DIEM AT THE RATE OF $4.50 PER DAY FOR 20 DAYS IN CONNECTION WITH TEMPORARY DUTY PERFORMED BY YOU IN CANADA AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES, PURSUANT TO ORDERS OF JANUARY 31, 1946, ISSUED BY AIR TECHNICAL SERVICE COMMAND, WATSON LABORATORIES, RED BANK, NEW JERSEY.

THE ORDERS OF JANUARY 31, 1946, DIRECTED YOU TO PROCEED TO NORTH BATTLEFORD, SASKATCHEWAN, CANADA, ON TEMPORARY DUTY FOR APPROXIMATELY 120 DAYS, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION, PER DIEM BEING PRESCRIBED IN ACCORDANCE WITH ARMY REGULATIONS 35-4820. CORRECTED COPY OF SUCH ORDERS BEARING THE SAME DATE STATED THAT PER DIEM WOULD BE PAID AT THE RATE OF $7 FOR THE FIRST 30 DAYS TEMPORARY DUTY IN CANADA AND AT THE RATE OF $2.50 PER DAY FOR THE BALANCE OF SUCH TEMPORARY DUTY. IT IS SHOWN THAT YOU LEFT RED BANK AT 8 A.M. FEBRUARY 4, 1946, AND ARRIVED AT NORTH BATTLEFORD TWO DAYS LATER, AND THAT RETURN TRAVEL WAS ACCOMPLISHED DURING THE PERIOD MAY 23 TO 25, 1946, TIME OF ARRIVAL AT RED BANK BEING 8 A.M. ON THE LATTER DATE. THE PER DIEM TOTALING $693.38 PAID TO YOU FOR SUCH TRAVEL AND TEMPORARY DUTY ON VOUCHER NO. 3659, JULY 1946 ACCOUNT OF COLONEL J. HARRIS AND VOUCHER NO. 53276, APRIL 1946 ACCOUNT OF MAJOR H. C. EICKEN, WAS PAID AT THE RATE OF $7 PER DAY EXCEPT FOR 17 AND 10/24 DAYS PAID ON THE LATTER VOUCHER AT THE RATE OF $2.50 PER DAY.

YOU ARE CORRECT IN YOUR CONTENTION THAT THE CORRECTED ORDERS WERE WITHOUT EFFECT TO RESTRICT YOUR RIGHT TO PER DIEM TO $2.50 PER DAY AFTER THE FIRST 30 DAYS OF TEMPORARY DUTY IN CANADA, SINCE PARAGRAPHS 26A AND C, ARMY REGULATIONS 35-4820, APRIL 19, 1945, IN EFFECT DURING THE PERIOD INVOLVED, PRESCRIBED PER DIEM AT THE RATE OF $7 PER DAY FOR INTERTHEATER TRAVEL OUTSIDE THE UNITED STATES. HOWEVER, SUCH REGULATIONS ALSO REQUIRED THAT A DEDUCTION OF $4 BE MADE FOR EACH DAY THAT GOVERNMENT QUARTERS WERE OCCUPIED.

WHILE YOU CERTIFIED ON THE CITED VOUCHERS THAT GOVERNMENT QUARTERS WERE NOT FURNISHED, SUCH STATEMENT APPARENTLY WAS BASED ON YOUR BELIEF THAT QUARTERS FURNISHED BY THE CANADIAN GOVERNMENT WERE NOT "GOVERNMENT QUARTERS" AS THAT TERM IS USED IN THE REGULATIONS. HOWEVER, IT HAS BEEN HELD THAT QUARTERS FURNISHED BY THE CANADIAN GOVERNMENT TO A UNITED STATES NAVAL OFFICER IN HIS OFFICIAL CAPACITY IS IN FACT A FURNISHING OF QUARTERS ON BEHALF OF THE UNITED STATES GOVERNMENT AS FAR AS ENTITLEMENT TO RENTAL ALLOWANCE IS CONCERNED (21 COMP. GEN. 1065) AND THE SAME RULE IS FOR APPLICATION HERE. COMPARE CARTER V. UNITED STATES, 79 C.CLS. 166; JONES V. UNITED STATES, 60 C.CLS. 552, AND BYRNE V. UNITED STATES, 87 C.CLS. 241.

SINCE A FIRST INDORSEMENT OF JUNE 2, 1948, FROM HEADQUARTERS, WATSON LABORATORIES, AMC, RED BANK, NEW JERSEY, STATED THAT IN FIXING THE RATE OF $2.50 PER DAY WHICH WAS PAID TO YOU ON VOUCHER NO. 53276, CONSIDERATION WAS GIVEN TO THE FACT THAT CERTAIN FACILITIES WOULD BE PROVIDED YOU BY THE CANADIAN GOVERNMENT, AND SINCE IT APPEARED THAT SUCH FACILITIES INCLUDED QUARTERS, YOU WERE REQUESTED, UNDER DATE OF MAY 17, 1955, TO ADVISE US IF QUARTERS WERE SO FURNISHED BY THE CANADIAN GOVERNMENT. WHILE YOU FAILED TO GIVE A DIRECT ANSWER TO THE QUESTION ASKED, YOUR REPLY OF JUNE 3, 1955, CONTAINED A TACIT ADMISSION THAT SUCH QUARTERS WERE FURNISHED AND IT WILL BE ASSUMED THAT SUCH QUARTERS WERE FURNISHED AND OCCUPIED BY YOU.

THE COMPUTATION OF YOUR INDEBTEDNESS TO THE GOVERNMENT OF $262.12 AS SET FORTH IN SETTLEMENT OF APRIL 23, 1954, WAS ERRONEOUS AND IS REVISED AS FOLLOWS:

CHART

FEBRUARY 4, 8:00 A.M. TO MAY 25, 8:00 A.M., 110 1/4

DAYS AT $7 $771.75

GOVERNMENT QUARTERS FURNISHED FEBRUARY 6 TO MAY 22,

105 DAYS AT $4 420.00

AMOUNT DUE $351.75

AMOUNT PAID 693.38

OVERPAYMENT $341.63

CONCERNING YOUR STATEMENT AS TO THE NECESSITY FOR FREQUENT TRIPS TO "OTHER POINTS IN THE THEATER" WHICH YOU STATE WERE AUTHORIZED AND PERFORMED UNDER YOUR TRAVEL ORDERS, IT SHOULD BE NOTED THAT YOUR ORDERS DIRECTED TRAVEL TO AND TEMPORARY DUTY AT NORTH BATTLEFORD ONLY AND IT APPEARS FROM THE ITINERARY OF TRAVEL FURNISHED BY YOU ON VOUCHER NO. 3659 THAT YOU SPENT THE ENTIRE PERIOD OF TEMPORARY DUTY AT THAT PLACE. AS TO THE ALLEGED INADEQUATE TRANSPORTATION FACILITIES, INADEQUATE MEDICAL SUPPLIES, AND NONEXISTENT CLERICAL AND SECRETARIAL HELP TO WHICH YOU REFER, YOU ARE ADVISED THAT PER DIEM IS IN LIEU OF SUBSISTENCE AND THESE OTHER MATTERS DO NOT INVOLVE ITEMS OF SUBSISTENCE.

A COPY OF THIS DECISION IS BEING FORWARDED TO THE UNITED STATES ATTORNEY, DISTRICT OF MASSACHUSETTS, FOR APPROPRIATE ACTION.