B-123474, JUL. 20, 1955

B-123474, JUL. 20, 1955

TO MR. HENRY E. CERAR:

YOUR LETTERS OF MARCH 3 AND MAY 12, 1955, REQUEST REVIEW OF A SETTLEMENT DATED FEBRUARY 3, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED UNDER ORDERS OF HEADQUARTERS, 172D INFANTRY REGIMENT, APO 112, DATED JANUARY 26, 1954, AND FEBRUARY 4, 1954.

THE ORDERS OF JANUARY 26 PROVIDED THAT YOU AND 16 DESIGNATED ENLISTED MEN SHOULD PROCEED FROM MUNICH, GERMANY, ON TEMPORARY DUTY TO GARMISCH, GERMANY FOR APPROXIMATELY TWO DAYS TO PARTICIPATE IN A BASKETBALL GAME. YOU WERE DESIGNATED AS PACKET COMMANDER AND NONPARTICIPATING COACH. YOU WERE AWAY FROM MUNICH UNDER THOSE ORDERS FROM 1:35 P.M., JANUARY 27, TO 1:15 P.M., JANUARY 28. THE ORDERS OF FEBRUARY 4 PROVIDED FOR THE TRAVEL OF A SIMILAR GROUP FROM MUNICH TO STRAUBING, GERMANY, ON TEMPORARY DUTY FOR APPROXIMATELY THREE DAYS TO PARTICIPATE IN A BASKETBALL GAME. TRAVEL UNDER THOSE ORDERS WAS PERFORMED FROM 11:18 A.M., FEBRUARY 5, TO 10:30 A.M., FEBRUARY 7. YOUR CLAIM FOR PER DIEM FOR THE INDICATED PERIODS WAS DISALLOWED ON THE BASIS THAT THE PERFORMANCE OF PUBLIC BUSINESS WAS NOT INVOLVED IN THE DIRECTED TRAVEL.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS ON ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE PHRASE ,PUBLIC BUSINESS" AS SO USED RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR FUNCTIONS. PARTICIPATION IN BASKETBALL GAMES, WHILE RECOGNIZED AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY GENERALLY, DOES NOT APPEAR TO BE AN ACTIVITY OR FUNCTION OF AN INFANTRY REGIMENT SUCH AS THAT TO WHICH YOU AND THE OTHERS INVOLVED WERE ATTACHED AND SUCH PARTICIPATION MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS UNDER THE CITED REGULATIONS. SEE IN THAT CONNECTION PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT "EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.'

SINCE THE TEMPORARY DUTIES PERFORMED UNDER THE ORDERS OF JANUARY 26 AND FEBRUARY 4, 1954, MAY NOT BE CONSIDERED TO BE PUBLIC BUSINESS UNDER THE REGULATIONS, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PER DIEM CLAIMED IRRESPECTIVE OF THE FACT THAT YOU WERE A NONPARTICIPATING COACH. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 3, 1955, IS SUSTAINED.