B-129532, DEC. 4, 1956

B-129532, DEC. 4, 1956

TO MAJOR MAX F. BRUMFIELD, USMC:

YOUR LETTER OF JULY 20, 1956, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD NOVEMBER 10 TO DECEMBER 9, 1951, WHICH WAS REFERRED HERE BY HEADQUARTERS U.S. MARINE CORPS WITH LETTER DATED SEPTEMBER 21, 1956, WILL BE CONSIDERED AS A REQUEST FOR THE REVIEW OF OUR SETTLEMENT OF JUNE 28, 1956, WHICH ALLOWED YOU PER DIEM FOR THAT PERIOD AT THE RATE OF $1 PER DAY ON THE BASIS THAT YOU THEN WERE ON TRAINING DUTY UNDERGOING INSTRUCTION. YOU CONTEND THAT YOU WERE NOT ON TRAINING DUTY DURING THE PERIOD IN QUESTION, BUT RATHER WERE IN THE PERFORMANCE OF DUTY IN THE TRAINING AND REPLACEMENT COMMAND MESSAGE CENTER AND WERE ENTITLED TO PER DIEM AT THE RATE OF $5 PER DAY FOR THAT PERIOD.

BY ORDERS OF HEADQUARTERS U.S. MARINE CORPS DATED SEPTEMBER 11, 1951, YOU WERE, WHEN DIRECTED, TO PROCEED FROM FORT SILL, OKLAHOMA, TO CAMP JOSEPH H. PENDLETON, OCEANSIDE, CALIFORNIA, AND REPORT FOR FURTHER ASSIGNMENT TO THE 17TH REPLACEMENT DRAFT AND FOR ASSIGNMENT TO DUTY BEYOND THE SEAS. YOU REPORTED AT CAMP PENDLETON ON NOVEMBER 9, 1951, AND WERE DIRECTED BY THE COMMANDING GENERAL THERE TO REPORT TO THE TRAINING AND REPLACEMENT COMMAND, MARINE BARRACKS, FOR DUTY IN ACCORDANCE WITH THE BASIC ORDERS. BY ENDORSEMENT OF THE COMMANDING GENERAL OF THAT ACTIVITY DATED NOVEMBER 9, 1951, YOU WERE DIRECTED TO REPORT TO THE COMMANDING OFFICER, HEADQUARTERS BATTALION, FOR ASSIGNMENT TO THE RECEIVING COMPANY AWAITING FURTHER ASSIGNMENT TO THE 17TH REPLACEMENT DRAFT, AND THAT OFFICER WAS REQUESTED TO CAUSE YOU TO PARTICIPATE IN PRESCRIBED QUALIFICATION FIRING. BY ENDORSEMENT OF THE COMMANDING OFFICER, HEADQUARTERS BATTALION, ALSO DATED NOVEMBER 9, YOU WERE DIRECTED TO REPORT TO THE COMMANDING OFFICER, RECEIVING COMPANY, FOR DUTY AWAITING ASSIGNMENT TO THE 17TH REPLACEMENT DRAFT, AND THAT OFFICER WAS DIRECTED TO CAUSE YOU TO PARTICIPATE IN PRESCRIBED QUALIFICATION FIRING. YOU REPORTED AS DIRECTED ON NOVEMBER 9, AND APPARENTLY REMAINED ATTACHED TO THE RECEIVING COMPANY UNTIL JANUARY 4, 1952. YOU WERE ON LEAVE OF ABSENCE FROM DECEMBER 10, 1951, TO JANUARY 4, 1952, ON WHICH DATE YOU STATE THAT YOU WERE "JOINED ON THE ROLLS" OF THE 17TH REPLACEMENT DRAFT. GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO YOU DURING THE PERIOD IN QUESTION.

OFFICERS PARTICIPATING IN THE QUALIFICATION FIRING REFERRED TO IN THE ENDORSEMENTS TO YOUR ORDERS ARE CONSIDERED TO HAVE BEEN IN A TEMPORARY DUTY UNDER INSTRUCTION STATUS AND THEREFORE, IN VIEW OF THE AVAILABILITY OF GOVERNMENT QUARTERS AND MESS, WERE ENTITLED TO PER DIEM AT THE $1 RATE PRESCRIBED IN PARAGRAPH 4205-5E OF THE JOINT TRAVEL REGULATIONS FOR OFFICERS OF THE UNIFORMED SERVICES IN THOSE CIRCUMSTANCES. YOUR ASSIGNMENT TO THAT DUTY CLEARLY WAS CONTEMPLATED BY SUCH ENDORSEMENTS. NOTHING APPEARING IN THE AVAILABLE RECORD LENDS SUPPORT TO YOUR CONTENTION THAT THE DUTY ACTUALLY PERFORMED BY YOU DURING THE PERIOD IN QUESTION WAS UNRELATED TO AND SO NOT A PART OF THE QUALIFICATION FIRING ACTIVITY TO WHICH YOU APPARENTLY WERE ASSIGNED. IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING THAT SUCH WAS IN FACT THE SITUATION INVOLVED AND THAT THE DUTY ACTUALLY PERFORMED OTHERWISE WAS NOT OF A NATURE THAT COULD BE CONSIDERED AS DUTY UNDER INSTRUCTION FOR PER DIEM PURPOSES, NO PROPER BASIS EXISTS FOR THE PAYMENT TO YOU OF THE ADDITIONAL PER DIEM CLAIMED. ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JUNE 28, 1956, IS