B-135245, MARCH 25, 1958, 37 COMP. GEN. 639

B-135245, MARCH 25, 1958, 37 COMP. GEN. 639

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TRAINING OR SCHOOL ASSIGNMENT - ROTC CAMP ELIGIBILITY OF OFFICERS AND ENLISTED PERSONNEL ON TEMPORARY DUTY AT A RESERVE OFFICERS TRAINING CORPS SUMMER ENCAMPMENT FOR PER DIEM ON ACCOUNT OF HAVING BEEN BILLETED IN BACHELOR OFFICERS' QUARTERS INHABITED BY TRANSIENT ARMY AND AIR FORCE OFFICERS PERMANENTLY STATIONED AT THE INSTALLATION IS DEPENDENT UPON A CERTIFICATION BY THE INSTALLATION COMMANDER THAT THERE WERE NOT SUFFICIENT QUARTERS TO ACCOMMODATE THE PERSONNEL PARTICIPATING IN THE ENCAMPMENT AND IN THE ABSENCE OF SUCH A CERTIFICATE PER DIEM IS NOT PAYABLE.

TO CAPTAIN ROBERT M. ROBINSON, MARCH 25, 1958:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 1, 1958, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 16, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 22 TO AUGUST 2, 1957.

BY ORDERS DATED MAY 29, 1957, AS AMENDED, YOU WERE PLACED ON TEMPORARY DUTY AT ROTC SUMMER CAMP, FORT CAMPBELL, KENTUCKY, FOR APPROXIMATELY 49 DAYS. THE ORDERS PROVIDED THAT THE TEMPORARY DUTY CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6, 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 BECAUSE YOU WERE BILLETED IN BOQ INHABITED BY TRANSIENT ARMY AND AIR FORCE OFFICERS AND OFFICERS PERMANENTLY STATIONED AT FORT CAMPBELL YOU ALSO SAY THAT MEMBERS LISTED ON THE SAME ORDERS AND PERFORMING THE SAME DUTIES WERE PAID PER DIEM WHILE ON TEMPORARY DUTY IN A DIFFERENT ARMY AREA.

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 4 OF THE REGULATIONS PROVIDES THAT A MEMBER IS NOT ENTITLED TO PER DIEM ALLOWANCE WHEN GOVERNMENT SUBSISTENCE OF ANY TYPE AND GOVERNMENT QUARTERS OF ANY TYPE ARE FURNISHED OR MADE AVAILABLE, WHETHER OR NOT UTILIZED, FOR PERIODS OF TRAVEL AND TEMPORARY DUTY WHEN PERFORMED IN CONNECTION WITH TRAINING ENCAMPMENT FOR RESERVE OFFICERS TRAINING CORPS STUDENTS. PARAGRAPH 5C (1) OF THE REGULATIONS PROVIDES THAT A MEMBER PERFORMING TEMPORARY DUTY OF THE TYPE CONTEMPLATED IN PARAGRAPH 1 AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO A PER DIEM ALLOWANCE WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS. PARAGRAPH 5C (2) PROVIDES THAT VOUCHERS CLAIMING PER DIEM ALLOWANCES PRESCRIBED IN THIS PARAGRAPH WILL BE SUBSTANTIATED BY A CERTIFICATE EXECUTED BY COMPETENT AUTHORITY (COMMANDING OFFICER OF THE INSTALLATION, MANEUVER, OR EXERCISE DIRECTOR, OR COMMANDING OFFICER OF THE EXERCISE OR ACTIVITY AT THE INSTALLATION INVOLVED).

BY LETTER DATED AUGUST 22, 1957, THE ADJUTANT, UNITED STATES ARMY INSTRUCTOR GROUP, ( ROTC), OHIO, DETACHMENT NO. 8, XAVIER UNIVERSITY, CINCINNATI, OHIO, REQUESTED CERTIFICATES BE FURNISHED FOR OFFICERS AND ENLISTED MEN ASSIGNED TO DUTY AT THE 1957 ROTC SUMMER CAMP AT FORT CAMPBELL, KENTUCKY, ON THE BASIS THAT THEY WERE QUARTERED SEPARATELY FROM THE ROTC CADETS. BY 4TH ENDORSEMENT, COMMANDER, HEADQUARTERS, 101ST AIRBORNE DIVISION AND FORT CAMPBELL, FORT CAMPBELL, KENTUCKY, THE REQUEST FOR SUCH CERTIFICATES WAS DENIED FOR THE REASON THAT THE OFFICERS AND ENLISTED PERSONNEL WITH THE 1957 SUMMER CAMP WERE CONSIDERED QUARTERED WITHIN THE ROTC SUMMER ENCAMPMENT.

SINCE THE REGULATIONS PLACE THE RESPONSIBILITY UPON THE INSTALLATION COMMANDER TO ISSUE A CERTIFICATE TO SUPPORT A CLAIM FOR PER DIEM WHEN THERE WERE NOT SUFFICIENT QUARTERS TO ACCOMMODATE PERSONNEL PARTICIPATING IN THE ROTC ENCAMPMENT, AND IN VIEW OF THE DETERMINATION MADE BY THE COMMANDING OFFICER, FORT CAMPBELL, KENTUCKY, THAT SUCH QUARTERS WERE AVAILABLE TO ROTC SUMMER ENCAMPMENT AND HIS REFUSAL TO ISSUE THE CERTIFICATE, OUR OFFICE IS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. IF, AS YOU SAY, MEMBERS WHO PERFORMED LIKE DUTY IN A DIFFERENT ARMY AREA WERE PAID PER DIEM WHILE ON TEMPORARY DUTY, IT MUST HAVE BEEN UNDER CIRCUMSTANCES DIFFERENT FROM THOSE UNDER WHICH YOU PERFORMED YOUR TRAINING DUTY AND THE PAYMENT OF PER DIEM WOULD NECESSARILY HAVE TO BE SUPPORTED BY THE CERTIFICATE MENTIONED ABOVE OR THE PAYMENTS WOULD HAVE BEEN ERRONEOUS. OF COURSE, IF THOSE MEN ERRONEOUSLY RECEIVED PER DIEM FOR THEIR DUTY SUCH PAYMENTS WOULD NOT FURNISH A LEGAL BASIS TO PAY YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 16, 1958, WAS CORRECT AND IS SUSTAINED.