B-134826, MARCH 24, 1958, 37 COMP. GEN. 627

B-134826: Mar 24, 1958

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CRITIQUE DUTY TEMPORARY DUTY ORDERS WHICH DO NOT AUTHORIZE PER DIEM FOR A MEMBER OF THE UNIFORMED SERVICES FOR THE REASON THAT THE DUTY CONSTITUTES FIELD DUTY WITHIN THE MEANING OF PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AND THAT GROUP TRAVEL IS DIRECTED. MAY NOT BE REGARDED AS HAVING BEEN ISSUED IN ERROR AND THAT THE DUTY CONTEMPLATED WAS CRITIQUE PHASE OR ADVANCE PLANNING INCIDENT TO FIELD DUTY FOR WHICH PER DIEM IS AUTHORIZED IN THE ABSENCE OF EVIDENCE TO OVERCOME THE ADMINISTRATIVE DETERMINATION CLEARLY EXPRESSED IN THE ORDERS THAT THE TEMPORARY DUTY DIRECTED CONSTITUTES FIELD DUTY. 1958: REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT DATED FEBRUARY 21. YOU WERE PLACED ON TEMPORARY DUTY AT FORT CAMPBELL.

B-134826, MARCH 24, 1958, 37 COMP. GEN. 627

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - MANEUVERS, ETC. - ADVANCE PLANNING, CRITIQUE DUTY TEMPORARY DUTY ORDERS WHICH DO NOT AUTHORIZE PER DIEM FOR A MEMBER OF THE UNIFORMED SERVICES FOR THE REASON THAT THE DUTY CONSTITUTES FIELD DUTY WITHIN THE MEANING OF PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AND THAT GROUP TRAVEL IS DIRECTED, ALTHOUGH THE MEMBER TRAVELED ALONE, MAY NOT BE REGARDED AS HAVING BEEN ISSUED IN ERROR AND THAT THE DUTY CONTEMPLATED WAS CRITIQUE PHASE OR ADVANCE PLANNING INCIDENT TO FIELD DUTY FOR WHICH PER DIEM IS AUTHORIZED IN THE ABSENCE OF EVIDENCE TO OVERCOME THE ADMINISTRATIVE DETERMINATION CLEARLY EXPRESSED IN THE ORDERS THAT THE TEMPORARY DUTY DIRECTED CONSTITUTES FIELD DUTY.

TO CAPTAIN JOHN C. LYNESS, MARCH 24, 1958:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT DATED FEBRUARY 21, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD OCTOBER 25 TO NOVEMBER 17, 1956.

BY ORDERS DATED OCTOBER 18, 1956, HEADQUARTERS 82D AIRBORNE DIVISION, FORT BRAGG, NORTH CAROLINA, AS AMENDED, YOU WERE PLACED ON TEMPORARY DUTY AT FORT CAMPBELL, KENTUCKY, FOR THE PERIOD OCTOBER 27 TO NOVEMBER 16, 1956, IN CONNECTION WITH TROOP TEST JUMP LIGHT. THE ORDERS PROVIDED THAT PER DIEM WAS NOT AUTHORIZED, FOR THE REASON THAT GROUP TRAVEL WAS DIRECTED, AND THAT THE TEMPORARY DUTY CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. YOUR CLAIM WAS DISALLOWED BECAUSE OF THAT PROVISION IN YOUR ORDERS. IT APPEARS TO BE YOUR CONTENTION THAT YOU ARE ENTITLED TO PAYMENT OF PER DIEM THERE CONSISTED LARGELY OF PLANNING FOR THE EXERCISE AND WRITING REPORTS AND CRITIQUES.

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 4201.6 BARS PAYMENT OF PER DIEM TO MEMBERS FOR FIELD DUTY AND RELATED ACTIVITIES, EXCEPT DURING THE PERIOD THEY ARE ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION. ARMY REGULATION 35- 3080, DATED MAY 15, 1956, IMPLEMENTS PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND CONTAINS CERTAIN PROCEDURES RELATIVE TO PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES AND OTHER SIMILAR ACTIVITIES. PARAGRAPH 5A (2) OF SUCH REGULATIONS PROVIDES FOR PAYMENT OF PER DIEM TO MEMBERS FOR PERIODS OF TEMPORARY DUTY FOR THE ADVANCE PLANNING AND CRITIQUE PHASES OF ACTUAL MANEUVERS, EXERCISES, ETC. PARAGRAPH 6 PROVIDES, IN PART, AS FOLLOWS:

6. TRAVEL ORDERS. * * *

B. MEMBER TRAVELING AS AN INDIVIDUAL. * * * ORDERS DIRECTING AN INDIVIDUAL (PAR. 5A (2) ( WHO WILL BE REQUIRED TO PERFORM DUTY FOR ADVANCE PLANNING OR CRITIQUE PHASES OF THE TYPE DUTY CONTEMPLATED IN PARAGRAPH 1 WILL STATE---

TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PAR. 4201.6 (OR 4250.3), JOINT TRAVEL REGULATIONS, EXCEPT FOR PERIOD OF CRITIQUE PHASE (OR ADVANCE PLANNING).

YOUR ORDERS OF OCTOBER 18, 1956, AS AMENDED, DO NOT MENTION EITHER THE ADVANCE PLANNING OR CRITIQUE PHASES OF TROOP TEST JUMP LIGHT AND YOU HAVE FURNISHED NO INFORMATION FROM AN ADMINISTRATIVE SOURCE WHICH SHOWS YOU WERE NOT ENGAGED IN DUTY OF A FIELD EXERCISE TYPE DURING THE PERIODS OF YOUR CLAIM. YOUR STATEMENT THAT YOU WERE "BILLETED IN GARRISON IN A TRANSIT OFFICERS' QUARTERS" AND THAT YOU PERFORMED THE DUTIES OF CONTROLLER IN CONNECTION WITH THE EXERCISE CANNOT BE USED AS A LEGAL BASIS TO OVERCOME THE ADMINISTRATIVE DETERMINATION AS EXPRESSED IN YOUR ORDERS THAT THE TEMPORARY DUTY DIRECTED CONSTITUTED FIELD DUTY OF THE TYPE CONTEMPLATED IN 4201.6 OF THE JOINT TRAVEL REGULATIONS. THE LANGUAGE BARRING PAYMENT OF PER DIEM IN YOUR ORDERS IS CLEAR AND APPEARS TO HAVE BEEN INCLUDED DELIBERATELY IN ACCORDANCE WITH THE ABOVE REGULATIONS AFTER ADMINISTRATIVE CONSIDERATION OF THE CIRCUMSTANCES UNDER WHICH YOUR TEMPORARY DUTY WAS DIRECTED TO BE PERFORMED. THE RECORD CONTAINS NO EVIDENCE TO SUPPORT YOUR ALLEGATION THAT A MISTAKE WAS MADE BY THE ADMINISTRATIVE OFFICE IN DRAFTING YOUR ORDERS.

ACCORDINGLY, 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, WE HAVE NO AUTHORITY TO ALLOW YOU PER DIEM FOR SUCH DUTY. THE SETTLEMENT OF FEBRUARY 21, 1957, WAS CORRECT AND IS SUSTAINED.