B-126858, DEC 4, 1956

B-126858: Dec 4, 1956

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USMC: REFERENCE IS MADE TO YOUR LETTER OF JULY 12. YOU WERE ALLOWED PER DIEM AT THE RATE OF $1 PER DAY. PER DIEM FOR THE PERIOD FROM OCTOBER 1 TO NOVEMBER 30 BEING PAID AT THAT RATE ON THE BASIS THAT YOU WERE THEN UNDERGOING A COURSE OF INSTRUCTION UNDER CIRCUMSTANCES WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE FOR YOUR USE. THAT YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $5 FOR THAT PERIOD SINCE YOUR DUTIES DURING THE PERIOD OCTOBER 1 TO DECEMBER 3. WERE THOSE OF TRAINING ENLISTED MEN WHO HAD COMPLETED THEIR RECRUIT TRAINING. YOU CONTEND THAT NO FORMAL INSTRUCTION WAS GIVEN TO OFFICERS OF YOUR UNIT. IT IS STATED THAT THAT REGIMENT WAS CONDUCTING . THAT THE DUTIES PERFORMED BY YOU DURING SUCH PERIOD WERE AS STATED IN YOUR LETTER OF JULY 12.

B-126858, DEC 4, 1956

TO CAPTAIN HANS W. HENZEL, USMC:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1956, FORWARDED HERE FROM HEADQUARTERS U.S. MARINE CORPS WITH LETTER DATED OCTOBER 10, 1956, CONCERNING YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP PENDLETON, CALIFORNIA, DURING THE PERIODS FROM OCTOBER 1 TO DECEMBER 9, 1952, AND FROM DECEMBER 17 TO 21, 1952.

IN OUR SETTLEMENT OF MAY 9, 1956, YOU WERE ALLOWED PER DIEM AT THE RATE OF $1 PER DAY, PER DIEM FOR THE PERIOD FROM OCTOBER 1 TO NOVEMBER 30 BEING PAID AT THAT RATE ON THE BASIS THAT YOU WERE THEN UNDERGOING A COURSE OF INSTRUCTION UNDER CIRCUMSTANCES WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE FOR YOUR USE, A SITUATION UNDER WHICH PARAGRAPH 4205-6E OF THE JOINT TRAVEL REGULATIONS AUTHORIZED PAYMENT OF A PER DIEM OF BUT $1. YOU CONTEND, HOWEVER, THAT YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $5 FOR THAT PERIOD SINCE YOUR DUTIES DURING THE PERIOD OCTOBER 1 TO DECEMBER 3, 1952, WERE THOSE OF TRAINING ENLISTED MEN WHO HAD COMPLETED THEIR RECRUIT TRAINING. ALSO, YOU CONTEND THAT NO FORMAL INSTRUCTION WAS GIVEN TO OFFICERS OF YOUR UNIT. IN ENDORSEMENT OF COLONEL W. H. BARBA, REGIMENTAL COMMANDER OF THE 1ST INFANTRY TRAINING REGIMENT DURING THE PERIOD INVOLVED, DATED JULY 16, 1956, IT IS STATED THAT THAT REGIMENT WAS CONDUCTING ,INDIVIDUAL COMBAT TRAINING" FOR RECRUITS DURING THE PERIOD OCTOBER 1 TO DECEMBER 3, 1952, AND THAT THE DUTIES PERFORMED BY YOU DURING SUCH PERIOD WERE AS STATED IN YOUR LETTER OF JULY 12, 1956.

UNDER ORDERS OF THE COMMANDANT OF THE MARINE CORPS DATED MAY 19, 1956, AS MODIFIED BY ORDERS OF JULY 8, 1952, YOU WERE TO PROCEED, WHEN DIRECTED, TO CAMP PENDLETON WHERE YOU WERE TO REPORT FOR FURTHER ASSIGNMENT TO THE 28TH REPLACEMENT DRAFT FOR ASSIGNMENT TO DUTY BEYOND THE SEAS. YOU REPORTED THERE ON SEPTEMBER 30, AND WERE DIRECTED BY ENDORSEMENT OF THAT DATE TO REPORT TO THE 1ST INFANTRY TRAINING REGIMENT, TRAINING AND REPLACEMENT COMMAND,"FOR DUTY UNDER INSTRUCTION" PRIOR TO ASSIGNMENT TO A REPLACEMENT BATTALION. BY ENDORSEMENT OF THE COMMANDING OFFICER, 1ST INFANTRY TRAINING REGIMENT (COLONEL BARBA), OF THE SAME DATE, YOU WERE DIRECTED FURTHER TO REPORT TO THE SECOND BATTALION OF THAT REGIMENT "FOR DUTY UNDER INSTRUCTIONS" PRIOR TO ASSIGNMENT TO A REPLACEMENT BATTALION. ENDORSEMENT OF THE COMMANDING OFFICER OF THE SECOND BATTALION, DATED OCTOBER 1, 1952, YOU WERE ASSIGNED TO HEADQUARTERS COMPANY "FOR DUTY AS A TRAINEE OFFICER.' YOU WERE REASSIGNED TO THE STAGING REGIMENT FOR ASSIGNMENT TO A REPLACEMENT BATTALION ON DECEMBER 3, 1952, UNDER ORDERS DATED NOVEMBER 21, 1952.

THE QUOTED PROVISIONS FROM THE VARIOUS ENDORSEMENTS TO YOUR ORDERS INDICATE CLEARLY THAT YOUR TEMPORARY ASSIGNMENT WITH THE 1ST INFANTRY TRAINING REGIMENT WAS MADE FOR THE PURPOSE OF PROVIDING INSTRUCTION AND TRAINING FOR YOU AS AN OFFICER IN THE FUNCTIONS OF YOUR OFFICE AND THE ADMINISTRATIVE REPORT RECEIVED FROM THE COMMANDANT OF THE MARINE CORPS IS CONSISTENT WITH THAT VIEW. WHILE THE DUTIES OF THE ASSIGNMENT APPARENTLY INCLUDED PARTICIPATING IN A SUPERVISORY CAPACITY IN THE TRAINING OF ENLISTED PERSONNEL, THAT CIRCUMSTANCE AND THE FURTHER CIRCUMSTANCE THAT A FORMAL COURSE OF INSTRUCTION ON A CLASSROOM BASIS WAS NOT PROVIDED MAY NOT BE CONSIDERED TO AFFORD A BASIS FOR A CONCLUSION THAT YOU WERE NOT PERFORMING DUTY UNDER INSTRUCTION WITHIN THE CONTEMPLATION OF THE PROVISIONS OF PARAGRAPH 4205-6E OF THE JOINT TRAVEL REGULATIONS.

IN VIEW OF YOUR ORDERS AND OF THE LIMITATIONS CONTAINED IN THE CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS, IT IS CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF THE ADDITIONAL PER DIEM CLAIMED. ACCORDINGLY, THE SETTLEMENT OF MAY 9, 1956, IS SUSTAINED.