B-129334, OCT. 12, 1956

B-129334, OCT. 12, 1956

TO LIEUTENANT COLONEL J. L. RYAN, FC, DEPARTMENT OF THE ARMY:

BY INDORSEMENT OF SEPTEMBER 24, 1956, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JULY 9, 1956, SUBMITTING FOR ADVANCE DECISION A VOUCHER IN FAVOR OF CAPTAIN HERBERT W. HAYES, JR., FOR PER DIEM AT THE RATE OF $6 PER DAY FOR THE PERIOD OF DUTY PERFORMED BY HIM AT FORT GEORGE G. MEADE, MARYLAND, DURING THE PERIOD JUNE 23 TO JULY 9, 1956.

TRAVEL ORDERS OF MAY 29, 1956, DIRECTED CAPTAIN HAYES TO PROCEED AND REPORT TO THE CAMP COMMANDER, ROTC SUMMER CAMP, FORT GEORGE G. MEADE, MARYLAND, IN CONNECTION WITH ROTC AFFAIRS, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS PROPER STATION. IT WAS STATED IN SUCH ORDERS THAT THE DIRECTED DUTY WAS OF A TYPE CONTEMPLATED BY PARAGRAPH 4201-6, JOINT TRAVEL REGULATIONS, AND THAT UNDER THE PROVISIONS OF ARMY REGULATIONS 35-3080 PER DIEM WAS AUTHORIZED ONLY FOR THE ADVANCE AND CRITIQUE PHASE OF THE OPERATION. THE PERIOD FOR WHICH PER DIEM IS CLAIMED FOLLOWED THE ADVANCE PLANNING PHASE. APPARENTLY BOTH GOVERNMENT QUARTERS AND MESS WERE AVAILABLE FOR ALL PERSONNEL, BUT THE OFFICER CERTIFIES THAT HE DID NOT UTILIZE THE MESS. THE COMMANDING OFFICER AT FORT MEADE, PURSUANT TO PARAGRAPH 5C (2) (A), ARMY REGULATIONS 35-3080, MAY 15, 1956, HAS CERTIFIED THAT ALL OFFICERS AND ENLISTED MEN ON TEMPORARY DUTY AT THAT STATION IN SUPPORT OF ROTC WERE AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER PERSONS PARTICIPATING IN THE ROTC SUMMER CAMP AND ACTUALLY WERE SO QUARTERED.

PARAGRAPH 4201-6, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER DIEM TO MEMBERS WHILE PARTICIPATING IN CERTAIN ACTIVITIES, INCLUDING TRAINING ENCAMPMENTS FOR ROTC STUDENTS, WHEN BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE, EXCEPT WHEN PARTICIPATION IN SUCH DUTY INVOLVES TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY CONCERNED. PARAGRAPH 1, ARMY REGULATIONS 35-3080, MAY 15, 1956, STATES THAT SUCH ACTIVITIES ARE DESIGNED FOR THE PRIMARY PURPOSE OF TRAINING PERSONNEL UNDER COMBAT CONDITIONS AND PERSONS SO ENGAGED SHOULD BE PROVIDED WITH SUCH QUARTERS AND MESS AS WOULD BE AVAILABLE UNDER COMBAT CONDITIONS, AND THAT, SINCE QUARTERS AND SUBSISTENCE ARE FURNISHED, PER DIEM ALLOWANCES ARE NOT PAYABLE, EXCEPT UNDER CERTAIN CONDITIONS SET FORTH IN SUCH REGULATIONS. PARAGRAPH 5C (1) (A) PROVIDES THAT THE PER DIEM PRESCRIBED FOR ORDINARY TEMPORARY DUTY IS PAYABLE TO A MEMBER PERFORMING TEMPORARY DUTY OF THE TYPE CONTEMPLATED IN PARAGRAPH 1 WHEN SUCH TEMPORARY DUTY IS PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES AND THE MEMBER IS AUTHORIZED TO BE QUARTERED SEPARATELY FROM THE MEMBERS PARTICIPATING IN THE EXERCISE OR TRAINING ENCAMPMENT FOR ROTC STUDENTS.

WHILE PARAGRAPH 4201, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER DIEM FOR FIELD DUTY, ENCAMPMENTS FOR ROTC STUDENTS, OR OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED, IT APPARENTLY WAS CONTEMPLATED THAT IF SUCH ACTIVITIES ARE CONDUCTED AT AN INSTALLATION OF THE UNIFORMED SERVICES UNDER CIRCUMSTANCES WHERE THE PERSONS CONCERNED WOULD HAVE TO MEET THE SAME LIVING EXPENSES AS CONFRONT OTHER PERSONNEL ON ORDINARY TEMPORARY DUTY AT THAT PLACE, PER DIEM IS PAYABLE IF AUTHORIZED UNDER THE REGULATIONS ISSUED BY THE SECRETARY CONCERNED. THE ORDERS OF MAY 29, 1956, APPEAR TO HAVE BEEN ISSUED WITHOUT KNOWLEDGE OF THE CONTENTS OF ARMY REGULATIONS 35-3080, DATED MAY 15, 1956. WHILE FIRST INDORSEMENT OF AUGUST 30, 1956, FROM HEADQUARTERS SECOND ARMY, FORT MEADE, STATES THAT THE REGULATIONS WERE PUBLISHED SUBSEQUENT TO THE ISSUANCE OF THE TRAVEL ORDERS, IT IS ASSUMED THAT THE INDORSEMENT REFERS TO THE TIME OF RECEIPT OF THE REGULATIONS, RATHER THAN THE DATE OF PUBLICATION, SINCE THEY ACTUALLY WERE PUBLISHED ON MAY 15, 1956, PRIOR TO THE ISSUANCE OF THE TRAVEL ORDERS. SINCE THE REGULATIONS WERE IN EFFECT DURING THE PERIOD INVOLVED, THEY ARE APPLICABLE IN DETERMINING THE OFFICER'S RIGHTS IN THE PREMISES.

IT APPEARS THAT CAPTAIN HAYES COULD HAVE SECURED HIS MEALS AT THE FIELD RATION RATE BY UTILIZING THE MESS PROVIDED THE ROTC STUDENTS AND STILL WOULD HAVE BEEN ENTITLED TO PER DIEM UNDER ARMY REGULATIONS 35 3080. WHILE IT MAY BE DOUBTFUL THAT PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS CONTEMPLATES THE PAYMENT OF A PER DIEM OF $6 IF MEALS ARE PROCURED AT THE FIELD RATION RATE, MERELY BECAUSE A MEMBER IS ALLOWED TO OCCUPY DIFFERENT QUARTERS THAN ARE PROVIDED FOR THE ROTC STUDENTS, SINCE THIS OFFICER HAS CERTIFIED THAT HE DID NOT UTILIZE GOVERNMENT MESS, IT APPEARS THAT HIS EXPENSES WERE THE SAME AS OTHER OFFICERS ON ORDINARY TEMPORARY DUTY AT FORT MEADE WHO HAD NO CONNECTION WITH THE ROTC CAMP, AND HE IS ENTITLED TO THE PER DIEM PRESCRIBED IN PARAGRAPH 4205-5C (2) OF THE JOINT TRAVEL REGULATIONS.

ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.