B-132163, AUG. 22, 1957

B-132163: Aug 22, 1957

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FLEMING: REFERENCE IS MADE TO YOUR LETTERS OF MAY 23 AND 31. YOU WERE ORDERED TO PROCEED ON OR ABOUT NOVEMBER 18. YOUR CLAIM WAS DISALLOWED BECAUSE OF THIS PROVISION IN THE ORDERS. YOU CONTEND THAT THESE ORDERS WERE ERRONEOUS IN THAT THEY DID NOT CITE THE CORRECT PROVISION OF THE JOINT TRAVEL REGULATIONS. A MEMBER'S RIGHT TO PER DIEM FOR TEMPORARY DUTY TRAVEL AWAY FROM HIS DESIGNATED POST OF DUTY IS FIXED BY THE JOINT TRAVEL REGULATIONS. SIMULATED WAS GAMES. OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED. WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. STATES THAT IT IS THE RESPONSIBILITY OF OFFICERS ISSUING ORDERS. IT IS PROVIDED THAT APPROPRIATE LANGUAGE BARRING PAYMENT OF PER DIEM "WILL BE INCLUDED IN ORDERS IN ANY CASE WHERE THE TEMPORARY DUTY ENJOINED IS PERFORMED AS AN ASSIGNED OR ATTACHED MEMBER OF A MILITARY ORGANIZATION.'.

B-132163, AUG. 22, 1957

TO FIRST LIEUTENANT JOHN A. FLEMING:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 23 AND 31, 1957, WITH ENCLOSURES. YOU REQUEST REVIEW OF OUR SETTLEMENT DATED MAY 10, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD NOVEMBER 20 TO DECEMBER 18, 1954.

BY ORDERS DATED NOVEMBER 16, 1954, YOU WERE ORDERED TO PROCEED ON OR ABOUT NOVEMBER 18, 1954, TO CAMP CRAWFORD, HOKKAIDO, JAPAN, ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS FOR THE PURPOSE OF ATTENDING WINTER TRAINING SCHOOL. THE ORDERS STATED: "NO PER AUTH. TVL AND TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PAR 4250.0 JTR.' YOUR CLAIM WAS DISALLOWED BECAUSE OF THIS PROVISION IN THE ORDERS. IN YOUR LETTERS YOU AGREE THAT THE ORDERS OF NOVEMBER 16, 1954, PROHIBIT PER DIEM; HOWEVER, YOU CONTEND THAT THESE ORDERS WERE ERRONEOUS IN THAT THEY DID NOT CITE THE CORRECT PROVISION OF THE JOINT TRAVEL REGULATIONS.

A MEMBER'S RIGHT TO PER DIEM FOR TEMPORARY DUTY TRAVEL AWAY FROM HIS DESIGNATED POST OF DUTY IS FIXED BY THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THE REGULATIONS BARS PAYMENT OF PER DIEM FOR FIELD DUTY OUTSIDE THE UNITED STATES, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAS GAMES, AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.

PARAGRAPH 3C 1, ARMY REGULATIONS 35-4820, STATES THAT IT IS THE RESPONSIBILITY OF OFFICERS ISSUING ORDERS, TO DETERMINE WHEN PER DIEM SHOULD NOT BE PAID FOR PERIODS OF TEMPORARY DUTY, AND IT IS PROVIDED THAT APPROPRIATE LANGUAGE BARRING PAYMENT OF PER DIEM "WILL BE INCLUDED IN ORDERS IN ANY CASE WHERE THE TEMPORARY DUTY ENJOINED IS PERFORMED AS AN ASSIGNED OR ATTACHED MEMBER OF A MILITARY ORGANIZATION.' ALSO PARAGRAPH 4, ARMY SPECIAL REGULATIONS NO. 35-3080 5 DATED JANUARY 26, 1954, IN EFFECT AT THE TIME INVOLVED PROVIDES THAT IN CASES WHERE TEMPORARY DUTY ORDERS PROVIDE FOR FIELD DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH 4201.7 OR (4250.4), JOINT TRAVEL REGULATIONS, THE ORDERS DIRECTING TRAVEL 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.'

IN YOUR CASE THE OFFICER WHO ISSUED YOUR ORDERS OF NOVEMBER 16, 1954, AFFIRMATIVELY DETERMINED AND SPECIFIED IN THE ORDERS THAT THE TRAVEL AND THE TEMPORARY DUTY DIRECTED CONSTITUTED FIELD DUTY OF THE TYPE CONTEMPLATED IN 4250.3 OF THE JOINT TRAVEL REGULATIONS. IT IS CLEAR THAT THE LANGUAGE BARRING PAYMENT OF PER DIEM IN YOUR ORDERS WAS NOT A MISTAKE BUT WAS INCLUDED DELIBERATELY IN ACCORDANCE WITH THE ABOVE REGULATIONS AFTER ADMINISTRATIVE CONSIDERATION OF THE CIRCUMSTANCES UNDER WHICH YOUR TEMPORARY DUTY WAS DIRECTED TO BE PERFORMED.

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, THERE IS NO LEGAL BASIS TO ALLOW YOU PER DIEM FOR SUCH DUTY. CONCERNING YOUR STATEMENT IN YOUR LETTER THAT GROSS DISCRIMINATION HAS TAKEN PLACE SINCE OTHER MEMBERS OF YOUR ORGANIZATION WHOSE NAMES ARE LISTED IN YOUR ORDERS OF NOVEMBER 16, 1954, AND IN THE ORDERS OF OCTOBER 20, 1954, HAVE RECEIVED PER DIEM FOR THIS DUTY, YOU ARE ADVISED THAT IF THE PAYMENTS WERE MADE TO THESE PERSONS UNDER CIRCUMSTANCES IDENTICAL WITH THOSE HERE INVOLVED THEY APPEAR TO BE ERRONEOUS AND FURNISH NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF MAY 10, 1957, WAS CORRECT AND IS SUSTAINED.