B-133593, OCT. 21, 1957

B-133593: Oct 21, 1957

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04 049 944: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8. IT IS INDICATED THAT YOU DEPARTED ELLSWORTH AIR FORCE BASE AT 1400 HOURS ON AUGUST 20. YOUR CLAIM PER DIEM FOR THE PERIOD INVOLVED WAS DISALLOWED ON THE BASIS THAT THE DUTY PERFORMED WAS NOT CONSIDERED TO BE PUBLIC BUSINESS. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS. THE PHRASE "PUBLIC BUSINESS" AS SO USED RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED. THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR FUNCTIONS.

B-133593, OCT. 21, 1957

TO FIRST LIEUTENANT CHARLES A. THOMPSON, ARTY., 04 049 944:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8, 1957, IN WHICH YOU REQUEST REVIEW OF SETTLEMENT DATED JUNE 7, 1957, DISALLOWING YOUR CLAIM FOR PER DIEM IN THE AMOUNT OF $35.25 INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED DURING THE PERIOD AUGUST 20 TO 25, 1956, UNDER VERBAL ORDERS OF AUGUST 20, 1956, CONFIRMED BY ORDERS OF OCTOBER 5, 1956, AS AMENDED NOVEMBER 2, 1956.

THE ORDERS OF OCTOBER 5, 1956, PROVIDED THAT YOU SHOULD PROCEED, ON OR ABOUT AUGUST 20, 1956, FROM ELLSWORTH AIR FORCE BASE TO CARSWELL AIR FORCE BASE, FORT WORTH, TEXAS, ON TEMPORARY DUTY FOR APPROXIMATELY SIX DAYS FOR THE PURPOSE OF PARTICIPATING IN THE 4TH AA REGIONAL COMMAND SOFTBALL CHAMPIONSHIP MATCH AND, UPON COMPLETION, RETURN TO PROPER ORGANIZATION AND STATION. THE ORDERS OF NOVEMBER 2, 1956, AMENDED THE ORDERS OF OCTOBER 5, 1956, TO READ "FOR THE PURPOSE OF DUTY AS OIC 531ST AAA RN SOFTBALL TEAM DURING 4TH AA REGIONAL COMMAND SOFTBALL CHAMPIONSHIP TOURNAMENT" INSTEAD OF "FOR THE PURPOSE OF PARTICIPATING," ETC.

IT IS INDICATED THAT YOU DEPARTED ELLSWORTH AIR FORCE BASE AT 1400 HOURS ON AUGUST 20, 1956; THAT YOU ARRIVED AT CARSWELL AIR FORCE BASE AT 1800 HOURS ON THE SAME DAY; THAT YOU DEPARTED CARSWELL AIR FORCE BASE AT 1200 HOURS ON AUGUST 25, 1956; AND THAT YOU ARRIVED AT ELLSWORTH AIR FORCE BASE AT 1600 HOURS ON THAT DATE. YOUR CLAIM PER DIEM FOR THE PERIOD INVOLVED WAS DISALLOWED ON THE BASIS THAT THE DUTY PERFORMED WAS NOT CONSIDERED TO BE PUBLIC BUSINESS.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE PHRASE "PUBLIC BUSINESS" AS SO USED RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR FUNCTIONS. PARTICIPATION IN SOFTBALL GAMES, WHILE RECOGNIZED AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY GENERALLY, DOES NOT APPEAR TO BE AN ACTIVITY OR FUNCTION OF AN ANTI-AIRCRAFT-ARTILLERY BATTALION SUCH AS THAT TO WHICH YOU ARE ATTACHED AND SUCH PARTICIPATION--- EVEN AS OFFICER IN CHARGE--- MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS UNDER THE CITED REGULATIONS. SEE IN THAT CONNECTION PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT "EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.'

IN YOUR LETTER YOU REFER TO CERTAIN ARMY REGULATIONS--- AR 230-5 AND AR 28-52--- AS AUTHORIZING PAYMENT OF YOUR CLAIM. ARMY REGULATION 230-5, PARAGRAPH 6E/7), PROVIDES THAT NONAPPROPRIATED FUNDS WILL NOT BE USED TO DEFRAY EXPENSES INCIDENT TO OFFICIAL TRAVEL OF MILITARY PERSONNEL WHEN SUCH TRAVEL IS ESSENTIAL TO PROVIDE NECESSARY COMMAND SUPERVISION. THAT REGULATION SUPERSEDED ARMY REGULATION 210-50, PARAGRAPH 6E/7) OF WHICH CONTAINED A SIMILAR PROVISION. ARMY REGULATION 28-52, PARAGRAPH 6, PROVIDES THAT APPLICABLE APPROPRIATED FUNDS, TO THE EXTENT AVAILABLE, WILL BE USED FOR COMMAND SUPERVISION OF THE ARMY SPORTS PROGRAM. THOSE REGULATIONS SPECIFICALLY REFER TO PAYMENT OF EXPENSES INCIDENT TO "OFFICIAL" TRAVEL FROM AVAILABLE APPROPRIATED FUNDS. INASMUCH AS IT APPEARS THAT YOUR TEMPORARY DUTIES WERE NOT ON PUBLIC BUSINESS, THE EXPENSES INCURRED MAY NOT BE CONSIDERED AS HAVING BEEN INCIDENT TO OFFICIAL TRAVEL FOR WHICH PER DIEM IS AUTHORIZED. THEREFORE, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PER DIEM CLAIMED IRRESPECTIVE OF THE FACT THAT YOU WERE A NONPARTICIPATING OFFICER IN CHARGE OF THE TEAM. ACCORDINGLY, THE SETTLEMENT OF JUNE 7, 1957, IS SUSTAINED.