B-129187, OCT. 31, 1956

B-129187, OCT. 31, 1956

TO CAPTAIN ROBERT T. LEO:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS FROM OCTOBER 20 TO NOVEMBER 8, 1955, AND FROM DECEMBER 5 TO 9, 1955, INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP POLK, LOUISIANA, IN CONNECTION WITH EXERCISE SAGE BRUSH.

IT APPEARS THAT TEMPORARY DUTY WAS PERFORMED BY YOU AT CAMP POLK IN CONNECTION WITH EXERCISE SAGE BRUSH DURING THE PERIOD OCTOBER 20 TO DECEMBER 9, 1955, UNDER AUTHORITY OF LETTER ORDERS 10-140 OF HEADQUARTERS, ARTILLERY AND GUIDED MISSILE CENTER, AT FORT SILL, DATED OCTOBER 17, 1955, MADE APPLICABLE TO YOU BY LETTER ORDERS 10-149 OF THE SAME DATE, AND FURTHER AMENDED BY LETTER ORDERS 10-200 DATED OCTOBER 24, 1955, CONCERNING SECURITY CLEARANCES FOR PERSONNEL INVOLVED, AND LETTER ORDERS 12-104 DATED DECEMBER 22, 1955, WHICH PROVIDED THAT PER DIEM WAS AUTHORIZED FOR ALL OFFICERS AND ENLISTED MEN ON THE BASIC ORDERS FOR THE PERIOD OF THE RETURN TRIP ONLY.

PAYMENT OF YOUR CLAIM, STATED TO COVER THE ABOVE INDICATED PERIODS BUT APPARENTLY NOT SUPPORTED BY A STATEMENT AS TO AVAILABILITY OF QUARTERS AND MESSING FACILITIES (OTHER THAN THAT YOU WERE ISSUED A MEAL TICKET FOR ONE EVENING MEAL) OR ANY EXPLANATION OF THE NATURE OF THE TEMPORARY DUTY INVOLVED, WAS DENIED BY THE FINANCE OFFICER AT YOUR STATION AT FORT SILL. IN LETTER OF MARCH 6, 1956, TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOU REQUESTED FURTHER CONSIDERATION OF YOUR CLAIM, EXPLAINING THAT THE PERIODS CLAIMED REPRESENTED DUTY AS AN ARMY UMPIRE FOR EXERCISE SAGE BRUSH AT UMPIRE SCHOOL AND OTHER PRE-PLANNING FUNCTIONS EXTENDING FROM OCTOBER 19 TO NOVEMBER 9, 1955, AND DURING THE CRITIQUE PHASE OF THE EXERCISE FROM DECEMBER 4 TO 10, 1955. NO FURTHER INFORMATION WAS SUBMITTED, HOWEVER, CONCERNING AVAILABILITY OF QUARTERS AND MESSING FACILITIES AT THAT TIME. ON THE BASIS OF THAT RECORD YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF AUGUST 9, 1956, BECAUSE OF REGULATIONS WHICH DENY PER DIEM PAYMENTS FOR FIELD DUTY, INCLUDING DUTY AS UMPIRE, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE. YOU REQUEST REVIEW ON THE BASIS OF INADEQUACY OF QUARTERS FOR THE PREPLANNING AND CRITIQUE PHASES AND OF NONAVAILABILITY OF RATIONS AND QUARTERS FOR THE ACTUAL EXERCISE PORTION OF EXERCISE SAGE BRUSH.

AS AN EXCEPTION TO THE PROVISION IN PARAGRAPH 4200 OF THE JOINT TRAVEL REGULATIONS THAT PER DIEM ALLOWANCES PRESCRIBED IN THE REGULATIONS, UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR OR RESTRICTED, ARE APPLICABLE FOR ALL PERIODS OF TEMPORARY DUTY AND ATTENDING TRAVEL, PARAGRAPH 4201-6 OF THE REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND DUTY AS OBSERVER, UMPIRE, AND SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. IT IS STATED IN THAT PARAGRAPH, HOWEVER, THAT "THIS EXCEPTION DOES NOT APPLY TO MEMBERS DURING THE PERIOD THEY ARE ACTUALLY ENGAGED IN THE ADVANCE PLANNING AND CRITIQUE PHASES OF THE OPERATION.'

PARAGRAPH 4451 OF THE JOINT TRAVEL REGULATIONS REQUIRES A CERTIFICATE OF THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS IN SUPPORT OF CLAIMS FOR PER DIEM FOR TEMPORARY DUTY OF 24 HOURS OR MORE PERFORMED AT RECOGNIZED MILITARY INSTALLATIONS, OR A CERTIFICATE OR STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE. IT ALSO PROVIDES THAT IN THE ABSENCE OF APPROPRIATE CERTIFICATES IT WILL BE ASSUMED THAT BOTH GOVERNMENT QUARTERS AND MESS WERE AVAILABLE OR UTILIZED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY INVOLVED. THE FIELD DUTIES CONTEMPLATED IN THE CITED REGULATIONS ARE THOSE DUTIES FOR PERFORMANCE UNDER FIELD OR ACTUAL BATTLE CONDITIONS. CONSEQUENTLY THE FURNISHING OF ANY TYPE OF QUARTERS, NO MATTER HOW PLAIN OR INADEQUATE THEY MAY SEEM, CONSTITUTES A FURNISHING OF GOVERNMENT QUARTERS FOR PER DIEM PURPOSES.

THE CERTIFICATES CONCERNING AVAILABILITY OF GOVERNMENT QUARTERS AND MESSES REQUIRED BY THE CITED REGULATIONS WERE NEVER FURNISHED IN SUPPORT OF YOUR CLAIM. FOR THAT REASON, AND IN THE ABSENCE OF SUPPORTING EVIDENCE TO SHOW THE PHASES OF EXERCISE SAGE BRUSH WITH DATES OF YOUR PARTICIPATION, A REQUEST WAS MADE OF THE COMMANDING OFFICER, ARTILLERY AND GUIDED MISSILE CENTER, AT FORT SILL, THE COMMAND ISSUING THE ORDERS DIRECTING YOUR PARTICIPATION, FOR INFORMATION AVAILABLE TO HIS OFFICE BEARING ON THE CONTENTIONS MADE IN YOUR LETTER OF AUGUST 23, 1956, AND ALSO FOR A STATEMENT INDICATING THE ACTUAL DATES OF PARTICIPATION BY YOU IN THE VARIOUS PHASES OF EXERCISE SAGE BRUSH. IN REPLY, BY LETTER DATED SEPTEMBER 26, 1956, NO EVIDENCE WAS FURNISHED TO SUPPORT YOUR CONTENTIONS CONCERNING THE AVAILABILITY TO YOU OF QUARTERS AND MESSING FACILITIES. ALSO, THE REPLY CONTAINS THE STATEMENT THAT NO RECORDS WERE AVAILABLE AT THAT HEADQUARTERS FROM WHICH TO VERIFY THE ACTUAL DATES OF YOUR PARTICIPATION IN THE VARIOUS PHASES OF THE EXERCISE. UNDER SUCH CIRCUMSTANCES NO PROPER BASIS EXISTS, ON THE AVAILABLE RECORD, TO DETERMINE IF AND TO WHAT EXTENT YOU ARE ENTITLED TO PER DIEM FOR ANY OF THE PERIOD IN QUESTION. ACCORDINGLY, THE SETTLEMENT OF AUGUST 9, 1956, IS SUSTAINED.