B-135319, MAR. 14, 1958

B-135319: Mar 14, 1958

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LILE: REFERENCE IS MADE TO YOUR RECENT LETTER. YOUR ORIGINAL CLAIM WAS CONSIDERED TO HAVE BEEN INTENDED TO COVER ONLY THE PERIOD APRIL 21 TO 22. THAT IT IS YOUR INTENTION THAT THE CLAIM COVER THE ENTIRE PERIOD OF TRAVEL AND TEMPORARY DUTY PERFORMED PURSUANT TO THOSE ORDERS. YOU AND OTHER DESIGNATED ENLISTED AND OFFICER PERSONNEL WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 21. UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. THE DATE OF YOUR DETACHMENT AT THULE IS NOT SHOWN. IT IS PRESUMED THAT GOVERNMENT MESS AND QUARTERS WERE AVAILABLE TO YOU DURING THE PERIOD INVOLVED. PERFORMED WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED. WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.

B-135319, MAR. 14, 1958

TO MR. ALFRED T. LILE:

REFERENCE IS MADE TO YOUR RECENT LETTER, POSTMARKED FEBRUARY 6, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF DECEMBER 16, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL PERFORMED AS AN ENLISTED MEMBER OF THE U.S. ARMY UNDER DEPARTMENT OF THE ARMY ORDERS DATED APRIL 6, 1955. YOUR ORIGINAL CLAIM WAS CONSIDERED TO HAVE BEEN INTENDED TO COVER ONLY THE PERIOD APRIL 21 TO 22, 1955. IT APPEARS NOW, HOWEVER, THAT IT IS YOUR INTENTION THAT THE CLAIM COVER THE ENTIRE PERIOD OF TRAVEL AND TEMPORARY DUTY PERFORMED PURSUANT TO THOSE ORDERS.

UNDER THE ORDERS OF APRIL 6, 1955, YOU AND OTHER DESIGNATED ENLISTED AND OFFICER PERSONNEL WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 21, 1955, FROM FORT EUSTIS, VIRGINIA, TO THULE, GREENLAND, ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS FOR THE PURPOSE OF PARTICIPATING IN TRANSPORTATION CORPS ICECAP ACTIVITIES, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. THE ORDERS STATED THAT "ALL TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY JTR PARA 4250.3.' THE ITINERARY FURNISHED WITH YOUR CLAIM SHOWS THAT YOU LEFT FORT EUSTIS UNDER THOSE ORDERS ON APRIL 21 AND THAT YOU ARRIVED AT THULE ON APRIL 25, 1955. THE DATE OF YOUR DETACHMENT AT THULE IS NOT SHOWN. IT IS PRESUMED THAT GOVERNMENT MESS AND QUARTERS WERE AVAILABLE TO YOU DURING THE PERIOD INVOLVED.

PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD IN QUESTION, PROHIBITS THE PAYMENT OF PER DIEM FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES, PERFORMED WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201.6 OF THE REGULATIONS. PARAGRAPH 4 OF ARMY SPECIAL REGULATIONS 35-3080-5, INTERPRETING THE CITED PROVISIONS INSOFAR AS RELATING TO ARMY PERSONNEL, PROVIDES THAT IN CASES WHERE PER DIEM IS NOT AUTHORIZED FOR TRAVEL AND DUTY DIRECTED UNDER CONDITIONS CONTEMPLATED IN PARAGRAPHS 4201.6 AND 4250.3 OF THE JOINT TRAVEL REGULATIONS THE ORDERS WILL CONTAIN THE STATEMENT THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 (OR 4250.3), JOINT TRAVEL REGULATIONS.' SUCH PROVISIONS RECOGNIZE THE AUTHORITY OF OFFICIALS ISSUING TRAVEL ORDERS TO DETERMINE AND SPECIFY IN THE ORDERS THAT THE TRAVEL AND TEMPORARY DUTY DIRECTED CONSTITUTES FIELD DUTY. SINCE PROVISION TO THAT EFFECT WAS INCLUDED IN THE ORDERS OF APRIL 6, 1955, EVIDENCING AN ADMINISTRATIVE DETERMINATION, NOT CONTROVERTED BY EVIDENCE OTHERWISE AVAILABLE, THAT FIELD DUTY CIRCUMSTANCES WERE INVOLVED IN THE TRAVEL AND TEMPORARY DUTY DIRECTED, IT MUST BE CONCLUDED THAT YOU WERE IN A FIELD DUTY STATUS DURING THE PERIOD IN QUESTION WITHIN THE CONTEMPLATION OF THE CITED REGULATIONS AND, THEREFORE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PER DIEM FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED UNDER THE ORDERS OF APRIL 6, 1955. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 16, 1957, IS SUSTAINED.

IN SUPPORT OF YOUR CLAIM YOU REFER TO DECISIONS OF JUNE 10, 1955 (B 123853), AND MAY 16, 1956 (B-126945), INVOLVING TEMPORARY DUTY ASSIGNMENTS OF MILITARY PERSONNEL AT THULE IN WHICH PER DIEM WAS HELD PAYABLE. THE BASIC ORDERS IN THOSE CASES, HOWEVER, DID NOT CONTAIN A STATEMENT OF ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY DIRECTED WERE FIELD DUTY AS WAS DONE IN YOUR CASE. CONSEQUENTLY, THOSE DECISIONS MAY NOT BE CONSIDERED AS AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.