B-135140, APR. 16, 1958

B-135140, APR. 16, 1958

TO MAJOR JEAN P. WILLIS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 8, 1958, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM ALLEGED TO BE DUE FOR THE PERIOD FROM MARCH 8 THROUGH 5:00 P.M., APRIL 17, 1957, IN CONNECTION WITH TRAVEL AND TEMPORARY DUTY YOU PERFORMED WHILE ON ACTIVE DUTY AT FORT POLK, LOUISIANA.

BY LETTER ORDERS ISSUED BY HEADQUARTERS, U.S. ARMY ARTILLERY AND GUIDED MISSILE CENTER, FORT SILL, OKLAHOMA, DATED FEBRUARY 20, 1957, YOU WERE DIRECTED TO PROCEED ON OR ABOUT MARCH 9, 1957, TO FORT POLK, LOUISIANA, FOR TEMPORARY DUTY OF APPROXIMATELY 48 DAYS' DURATION IN CONNECTION WITH EXERCISE KING COLE, AND UPON COMPLETION OF SUCH TEMPORARY DUTY TO RETURN TO YOUR PERMANENT STATION AT FORT SILL, OKLAHOMA. PARAGRAPH 2 OF YOUR ORDERS PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"* * * TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 (OR 4250.3), JTR, EXCEPT FOR PERIODS OF ADVANCED PLANNING PHASE (2 JUL 1956 THRU 26 MAR 57) AND CRITIQUE PHASE (16 APR 57) AND NECESSARY TRAVEL TIME.'

PARAGRAPH 4201-6 (CHANGE 56) OF THE JOINT TRAVEL REGULATIONS IN EFFECT DURING MARCH AND APRIL 1957, PROVIDES THAT MEMBERS SHALL NOT BE ENTITLED TO PER DIEM ALLOWANCES "WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' HOWEVER, SUCH LIMITATION DOES NOT APPLY "DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION.'

LETTER ORDERS DATED FEBRUARY 28, 1957, AMENDED PARAGRAPH 2 OF YOUR ORIGINAL ORDERS SO AS TO PROHIBIT THE PAYMENT OF PER DIEM FOR THE PERIOD MARCH 11 - 22, 1957. ALSO, SECTION IV OF WEEKLY MEMORANDUM NO. 9, HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, DATED MARCH 1, 1957, STATES THAT ALL PERSONNEL ARRIVING IN THE EXERCISE (AREA) SUBSEQUENT TO FEBRUARY 26 FOR DUTY IN EXERCISE KING COLE INCLUDING COMPTROLLER PERSONNEL (UMPIRES) AND THOSE ASSIGNED OR ATTACHED TO HEKC AT FORT POLK, LOUISIANA,"WILL BE CONSIDERED ON FIELD DUTY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR FOR THE PERFORMANCE OF DUTIES IN CONNECTION WITH THE ESTABLISHMENT AND OPERATION OF EXERCISE KING COLE.'

ARMY REGULATIONS 35-3080, DATED MAY 15, 1956, IMPLEMENTS PARAGRAPH 4201-6 OF THE 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) THEREOF PROVIDES THAT A MEMBER SHALL BE ENTITLED TO A PER DIEM ALLOWANCE WHILE PERFORMING NECESSARY TRAVEL AS AN INDIVIDUAL TO AND FROM PLACES OF ACTUAL MANEUVER, EXERCISE, ETC., AND FOR PERIODS OF TEMPORARY DUTY FOR THE ADVANCE PLANNING PHASES TO THE ACTUAL MANEUVER, EXERCISE, ETC., AND THE CRITIQUE PHASES THERETO. HOWEVER, PARAGRAPH 6B THEREOF READS, IN PERTINENT PART, AS FOLLOWS:

"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).'

THE RECORD SHOWS THAT YOU HAVE BEEN ALLOWED PER DIEM FOR TRAVEL TIME EN ROUTE TO AND FROM THE EXERCISE AREA. WITH RESPECT TO YOU CONTENTION THAT THE PER DIEM POLICY ANNOUNCED IN WEEKLY MEMORANDUM NO. 9 IS DISCRIMINATORY IN THAT PERSONNEL WHO REPORTED TO FORT POLK PRIOR TO FEBRUARY 27, CONTINUED TO RECEIVE A PER DIEM ALLOWANCE, THE LANGUAGE QUOTED IN THAT MEMORANDUM CLEARLY INDICATES THAT APPROPRIATE AMENDMENTS TO ALL RELATED ORDERS WERE CONTEMPLATED. IF, HOWEVER, CERTAIN ERRONEOUS PAYMENTS HAVE RESULTED, SUCH FACT AFFORDS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM. VIEW OF THE APPLICABLE REGULATIONS AND THE ADMINISTRATIVE DETERMINATION THAT THE ORDERED DUTY CONSTITUTED FIELD DUTY AS CONTEMPLATED BY THE JOINT TRAVEL REGULATIONS, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF ANY ADDITIONAL PER DIEM.