B-134860, FEB. 28, 1958

B-134860: Feb 28, 1958

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WHILE YOU WERE AT FORT POLK. YOU WERE DIRECTED TO PROCEED ON OR ABOUT FEBRUARY 3. UPON COMPLETION OF THIS TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER STATION. SUCH ORDERS WERE AMENDED BY ORDERS OF MARCH 4. TO ADD "TDY PERFORMED SUBSEQUENT TO 26 FEB 57 WILL BE CONSIDERED FIELD DUTY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR.'. THAT ACTION WAS TAKEN PURSUANT TO INSTRUCTIONS TO THAT EFFECT CONTAINED IN A MESSAGE DATED FEBRUARY 21. YOUR CLAIM WAS DISALLOWED BECAUSE OF THAT PROVISION IN YOUR ORDERS. YOU CONTEND THAT YOUR ORDERS ARE INEFFECTIVE TO BAR PER DIEM SINCE PARAGRAPH 4201.6 (2). DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION" AND YOUR DUTY IN EXERCISE KING COLE WAS ENTIRELY CONCERNED WITH PLANNING FOR THE EXERCISE AND WRITING A CRITIQUE AFTERWARD.

B-134860, FEB. 28, 1958

TO COLONEL ERNEST W. POSSE:

YOUR LETTER DATED DECEMBER 19, 1957, REQUESTS REVIEW OF OUR SETTLEMENT DATED DECEMBER 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FEBRUARY 28 TO MARCH 26, 1957, AND FROM APRIL 16 TO 18, 1957, WHILE YOU WERE AT FORT POLK, LOUISIANA.

BY ORDERS ISSUED AT ABERDEEN PROVING GROUND, MARYLAND, ON FEBRUARY 1, 1957, YOU WERE DIRECTED TO PROCEED ON OR ABOUT FEBRUARY 3, 1957, TO FORT HOOD, TEXAS, FORT POLK, LOUISIANA, AND RETURN TO FORT HOOD, ON TEMPORARY DUTY FOR APPROXIMATELY 117 DAYS IN CONNECTION WITH OPERATION KING COLE. UPON COMPLETION OF THIS TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER STATION. SUCH ORDERS WERE AMENDED BY ORDERS OF MARCH 4, 1957, TO ADD "TDY PERFORMED SUBSEQUENT TO 26 FEB 57 WILL BE CONSIDERED FIELD DUTY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR.' APPARENTLY, THAT ACTION WAS TAKEN PURSUANT TO INSTRUCTIONS TO THAT EFFECT CONTAINED IN A MESSAGE DATED FEBRUARY 21, 1957, ANNOUNCING A POLICY APPLICABLE TO CERTAIN PERSONNEL INCLUDING THOSE ASSIGNED OR ATTACHED TO HEKC AT FORT POLK, THAT AFTER FEBRUARY 26, 1957, DUTY IN EXERCISE KING COLE WOULD BE CONSIDERED TO BE FIELD DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS FOR DUTY PERFORMED IN CONNECTION WITH THE ESTABLISHMENT AND OPERATION OF THAT EXERCISE. YOUR CLAIM WAS DISALLOWED BECAUSE OF THAT PROVISION IN YOUR ORDERS. YOU CONTEND THAT YOUR ORDERS ARE INEFFECTIVE TO BAR PER DIEM SINCE PARAGRAPH 4201.6 (2), JOINT TRAVEL REGULATIONS, PROVIDES THAT THE PROHIBITION AGAINST THE PAYMENT OF PER DIEM WHILE PARTICIPATING IN MANEUVERS DOES NOT APPLY ,DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION" AND YOUR DUTY IN EXERCISE KING COLE WAS ENTIRELY CONCERNED WITH PLANNING FOR THE EXERCISE AND WRITING A CRITIQUE AFTERWARD.

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 (2) DURING THE PERIOD THEY ARE ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION.

ARMY REGULATIONS 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 FEBRUARY 1, 1957, AS AMENDED BY THE ORDERS OF MARCH 4, 1957, DO NOT MENTION EITHER THE ADVANCE PLANNING OR CRITIQUE PHASES OF EXERCISE KING COLE AND YOU HAVE FURNISHED NO INFORMATION FROM AN ADMINISTRATIVE SOURCE WHICH SHOWS THAT YOU WERE NOT ENGAGED IN DUTY OF A FIELD EXERCISE TYPE DURING THE PERIODS OF YOUR CLAIM. WHILE THE EXERCISE PHASE OF THE OPERATION WAS ANNOUNCED IN MEMORANDUM NO. 5, HEADQUARTERS EXERCISE KING COLE, FORT HOOD, TEXAS, DECEMBER 19, 1956, AS COMMENCING MARCH 27 AND ENDING APRIL 15, 1957, THE POLICY ANNOUNCED IN THE MESSAGE OF FEBRUARY 21, 1957 (PUBLISHED IN WEEKLY MEMORANDUM NO. 9, HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, MARCH 1, 1957), HAD THE EFFECT OF ADVANCING THE COMMENCEMENT DATE OF THE EXERCISE TO FEBRUARY 27, 1957, AS FAR AS YOU WERE CONCERNED, AND THE RECORD INDICATES THAT THE EXERCISE ACTUALLY TERMINATED AT MIDNIGHT APRIL 18, 1957.

IN VIEW OF THE FOREGOING REGULATIONS AND THE ADMINISTRATIVE ACTION TAKEN SHOWING 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.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 12, 1957, WAS CORRECT AND IS SUSTAINED.