B-130145, JAN. 17, 1957

B-130145: Jan 17, 1957

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BOWMAN ARE ENTITLED TO PER DIEM FOR TRAVEL AND TEMPORARY DUTY PERFORMED BY THEM INCIDENT TO ORDERS FOR DUTY AT THULE. SWAVELY WERE DIRECTED TO PROCEED FROM FORT BELVOIR. YOUR DOUBT AS TO WHETHER PAYMENT OF PER DIEM IS AUTHORIZED IS BASED ON OUR DECISIONS OF B-123853. TO ESTABLISH THAT THE TEMPORARY DUTY IN QUESTION WAS FIELD DUTY UNDER APPLICABLE REGULATIONS. WAS THE LEGAL EFFECT OF AMENDING ORDERS WHICH RESTRICTED THE PAYMENT OF PER DIEM TO A MEMBER IN CONNECTION WITH TRAVEL OR TEMPORARY DUTY PERFORMED BY HIM AT THULE. IT WAS POINTED OUT IN THAT DECISION THAT THE HEADQUARTERS WHICH ISSUED THE AMENDMENT RESTRICTING PAYMENT OF PER DIEM DID NOT HAVE AUTHORITY TO RESTRICT PAYMENTS IN SUCH CIRCUMSTANCES.

B-130145, JAN. 17, 1957

TO LIEUTENANT COLONEL R. J. CLYNES, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT OF DECEMBER 19, 1956, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 19, 1956, AND ACCOMPANYING PAPERS, REQUESTING DECISION WHETHER CHIEF WARRANT OFFICER STANLEY L. SWAVELY AND MASTER SERGEANT OLENDON M. BOWMAN ARE ENTITLED TO PER DIEM FOR TRAVEL AND TEMPORARY DUTY PERFORMED BY THEM INCIDENT TO ORDERS FOR DUTY AT THULE, GREENLAND.

BY ORDERS DATED JANUARY 30, 1956, AS AMENDED, MASTER SERGEANT BOWMAN AND CHIEF WARRANT OFFICER STANLEY L. SWAVELY WERE DIRECTED TO PROCEED FROM FORT BELVOIR, VIRGINIA TO APOE, MCGUIRE AIR FORCE BASE, AND THENCE TO THULE, GREENLAND. THE ORDERS CONTAINED AN EXPRESS RESTRICTION AGAINST THE PAYMENT OF PER DIEM FOR THE TEMPORARY DUTY DIRECTED IN GREENLAND FOR THE REASON THAT IT CONSTITUTED FIELD DUTY AND THE JOINT TRAVEL REGULATIONS PROHIBIT PAYMENT OF PER DIEM FOR FIELD DUTY.

YOUR DOUBT AS TO WHETHER PAYMENT OF PER DIEM IS AUTHORIZED IS BASED ON OUR DECISIONS OF B-123853, JUNE 10, 1955, AND B-126945, MAY 16, 1956, BOTH OF WHICH CONCERNED CLAIMS FOR PER DIEM FOR DUTY PERFORMED AT THULE, GREENLAND.

THE CONCLUSION REACHED IN THE DECISION OF JUNE 10, 1955, B-123853, HAD AS ITS BASIS THE LACK OF EVIDENCE, EITHER IN THE FORM OF RESTRICTIVE OR DESCRIPTIVE LANGUAGE IN THE TRAVEL ORDERS THEMSELVES, OR IN THE FACTUAL SITUATION INVOLVED, TO ESTABLISH THAT THE TEMPORARY DUTY IN QUESTION WAS FIELD DUTY UNDER APPLICABLE REGULATIONS. THE QUESTION INVOLVED IN DECISION OF MAY 16, 1956, B-126945, WAS THE LEGAL EFFECT OF AMENDING ORDERS WHICH RESTRICTED THE PAYMENT OF PER DIEM TO A MEMBER IN CONNECTION WITH TRAVEL OR TEMPORARY DUTY PERFORMED BY HIM AT THULE, GREENLAND. THE ORDERS THERE INVOLVED DID NOT PROVIDE, AND NEITHER DID THE RECORD ESTABLISH, THAT THE ORDERED DUTY CONSTITUTED FIELD DUTY WITHIN THE CONTEMPLATION OF THE APPLICABLE REGULATIONS. IT WAS POINTED OUT IN THAT DECISION THAT THE HEADQUARTERS WHICH ISSUED THE AMENDMENT RESTRICTING PAYMENT OF PER DIEM DID NOT HAVE AUTHORITY TO RESTRICT PAYMENTS IN SUCH CIRCUMSTANCES, AND SINCE THE DUTY OTHERWISE APPEARED TO BE FOR PERFORMANCE IN THE SAME CIRCUMSTANCES AS THAT INVOLVED IN AN ORDINARY TEMPORARY DUTY ASSIGNMENT AT A MILITARY STATION, IT WAS CONCLUDED THAT PER DIEM WAS PAYABLE IN THAT CASE.

IN THIS CASE THE ORDERS OF JANUARY 30, 1956, WHICH DIRECTED THE 1ST ENGINEER ARCTIC TASK FORCE--- TO WHICH BOTH CHIEF WARRANT OFFICER SWAVELY AND MASTER SERGEANT BOWMAN WERE ATTACHED--- TO TEMPORARY DUTY AT THULE, GREENLAND, SPECIFICALLY STATED:"M. TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT AUTHORIZED.'

PARAGRAPH 4250-3, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER DIEM FOR FIELD DUTY OUTSIDE THE UNITED STATES, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. SUCH REGULATION IS IMPLEMENTED BY ARMY REGULATION 35-3080, MAY 15, 1956, PARAGRAPH 6 OF WHICH PROVIDES THAT ORDERS DIRECTING TEMPORARY DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4250- 3, JOINT TRAVEL REGULATIONS, WILL SO INDICATE.

IN VIEW OF THE FOREGOING REGULATIONS AND THE ADMINISTRATIVE DETERMINATION AS EXPRESSED IN THE TRAVEL ORDERS THAT THE ORDERED DUTY CONSTITUTED FIELD DUTY AS CONTEMPLATED BY THE JOINT TRAVEL REGULATIONS, THE MEMBERS ARE NOT ENTITLED TO PER DIEM FOR SUCH DUTY.

ACCORDINGLY, PAYMENT ON THE VOUCHERS IS NOT AUTHORIZED AND THEY WILL BE RETAINED HERE WITH THE SUPPORTING PAPERS.