B-131892, JUL. 18, 1957

B-131892: Jul 18, 1957

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BYARS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4. YOU AND OTHER DESIGNATED ENLISTED AND OFFICER PERSONNEL WERE DIRECTED TO PROCEED ON OR ABOUT MARCH 24. UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. PERFORMED WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED. PROVIDES THAT IN CASES WHERE PER DIEM IS NOT AUTHORIZED UNDER CONDITIONS CONTEMPLATED IN PARAGRAPHS 4201.6 AND 4250.3 OF THE JOINT TRAVEL REGULATIONS THE ORDERS WILL CONTAIN THE STATEMENT THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 (OR 4250.3). SINCE PROVISION TO THAT EFFECT WAS INCLUDED IN THE ORDERS OF MARCH 24. THAT FIELD DUTY CIRCUMSTANCES WERE INVOLVED IN THE DUTY ASSIGNMENT.

B-131892, JUL. 18, 1957

TO MR. GEORGE H. BYARS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 24, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR A PERIOD OF 81 DAYS, COMMENCING APRIL 2, 1955, INCIDENT TO TEMPORARY DUTY PERFORMED BY YOU AT THULE, GREENLAND, AS AN ENLISTED MEMBER OF THE ARMY UNDER DEPARTMENT OF THE ARMY ORDERS DATED MARCH 24, 1955, AS AMENDED.

UNDER THE ORDERS OF MARCH 24, 1955, YOU AND OTHER DESIGNATED ENLISTED AND OFFICER PERSONNEL WERE DIRECTED TO PROCEED ON OR ABOUT MARCH 24, 1955, FROM FORT EUSTIS, VIRGINIA, TO THULE, GREENLAND, ON TEMPORARY DUTY FOR APPROXIMATELY 45 DAYS FOR THE PURPOSE OF PARTICIPATING IN TRANSPORTATION CORPS ICECAP ACTIVITIES, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. THE ORDERS FURTHER STATED THAT "ALL TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY JTR PARA 4250.3.' YOU STATE THAT YOU LEFT FORT EUSTIS UNDER THOSE ORDERS ON APRIL 1 AND ARRIVED AT THULE ON APRIL 2, 1955. AMENDMENTS TO THE ORDERS EXTENDED THE TEMPORARY DUTY PERIOD TO A TOTAL OF 81 DAYS.

PARAGRAPHS 4201.6 (COVERING DOMESTIC TRAVEL) AND 4250.3 (FOR FOREIGN TRAVEL) OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD IN QUESTION, PROHIBIT THE PAYMENT OF PER DIEM FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES, PERFORMED WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED. PARAGRAPH 4 OF ARMY SPECIAL REGULATIONS 35-3080-5, INTERPRETING THE CITED PROVISIONS INSOFAR AS RELATING TO ARMY PERSONNEL, PROVIDES THAT IN CASES WHERE PER DIEM IS NOT AUTHORIZED UNDER CONDITIONS CONTEMPLATED IN PARAGRAPHS 4201.6 AND 4250.3 OF THE JOINT TRAVEL REGULATIONS THE ORDERS WILL CONTAIN THE STATEMENT THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 (OR 4250.3), JOINT TRAVEL REGULATIONS.' SUCH PROVISIONS RECOGNIZE THE AUTHORITY OF OFFICIALS ISSUING TRAVEL ORDERS TO DETERMINE AND SPECIFY IN THE ORDERS THAT THE TRAVEL AND TEMPORARY DUTY DIRECTED CONSTITUTES FIELD DUTY. SINCE PROVISION TO THAT EFFECT WAS INCLUDED IN THE ORDERS OF MARCH 24, 1955, EVIDENCING AN ADMINISTRATIVE DETERMINATION, NOT CONTROVERTED BY EVIDENCE OTHERWISE AVAILABLE, THAT FIELD DUTY CIRCUMSTANCES WERE INVOLVED IN THE DUTY ASSIGNMENT, IT MUST BE CONCLUDED THAT YOU WERE IN A FIELD DUTY STATUS DURING THE PERIOD IN QUESTION WITHIN THE CONTEMPLATION OF THE CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS AND, THEREFORE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 24, 1957, IS SUSTAINED.

IF, AS YOU SUGGEST, PER DIEM PAYMENTS HAVE BEEN MADE TO OTHERS UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, SUCH PAYMENTS WERE ERRONEOUS AND MAY NOT SERVE AS AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. YOU REFER TO DECISIONS DISCUSSED IN A COMMUNICATION DATED SEPTEMBER 29, 1955, FROM THE DEPARTMENT OF THE AIR FORCE, DIRECTOR OF FINANCE, DENVER, COLORADO, A COPY OF WHICH YOU ENCLOSED, AS SUPPORTING YOUR POSITION IN THE MATTER. THAT COMMUNICATION, HOWEVER, REFERS ONLY TO OUR DECISION DATED JUNE 10, 1955, B-123853, INVOLVING A TEMPORARY DUTY ASSIGNMENT AT THULE WHERE PER DIEM WAS HELD PAYABLE. THE ORDERS DIRECTING THE TRAVEL AND TEMPORARY DUTY IN THAT CASE DID NOT CONTAIN EVIDENCE OF AN ADMINISTRATIVE DETERMINATION THAT FIELD DUTY WAS INVOLVED SUCH AS ..END :