B-135651, APR. 25, 1958

B-135651, APR. 25, 1958

TO MR. JOHN T. NELSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 4, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL AND TEMPORARY DUTY AT THULE, GREENLAND, PERFORMED AS AN ENLISTED MEMBER OF THE U.S. ARMY UNDER ORDERS DATED JANUARY 30, 1956, AS AMENDED, DURING THE PERIOD MAY 21, 1956, TO AUGUST 25, 1957.

UNDER THE ORDERS OF JANUARY 30, 1956, THE 1ST ENGINEER ARCTIC TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR, VIRGINIA, TO THULE ON TEMPORARY CHANGE OF STATION FOR A PERIOD OF APPROXIMATELY NINE MONTHS, UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH ORDERS CONTAINED THE PROVISION "TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT AUTHORIZED.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON MAY 21 AND ARRIVED AT THULE ON MAY 26, 1956. BY ORDERS OF AUGUST 16 1957, YOU WERE RELIEVED OF TEMPORARY DUTY IN GREENLAND AND DIRECTED TO RETURN TO FORT BELVOIR IN CONNECTION WITH YOUR SEPARATION FROM THE SERVICE. YOU RETURNED TO FORT BELVOIR ON AUGUST 25, 1957. CHANGE 6 OF JULY 24, 1957, TO THE BASIC ORDERS OF JANUARY 30, 1956, PURPORTS TO AMEND THAT PART OF SUCH BASIC ORDERS PROVIDING "PER DIEM IS NOT AUTHORIZED" TO READ "PER DIEM IS AUTHORIZED.' NO REASON IS GIVEN TO JUSTIFY THE AMENDMENT.

IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT IS ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO YOU DURING ALL DUTY PERIODS INVOLVED. YOU INDICATE THAT PER DIEM WAS RECEIVED BY YOU INCIDENT TO THE DUTY PERFORMED DURING THE PERIOD FROM MARCH 15 TO JULY 31, 1957, AND CONSEQUENTLY YOU QUESTION THE BASIS FOR DENIAL OF YOUR CLAIM FOR THE ENSUING PERIOD INVOLVING A CONTINUANCE OF THE SAME DUTY PERFORMED AT THE SAME PLACE UNDER THE SAME CONDITIONS.

REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES ARE NOT ENTITLED TO TRAVEL 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.' SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE SET FORTH IN PARAGRAPH 4201-6 OF THE REGULATIONS. IN DECISION ON AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE QUESTION OF WHETHER AN ASSIGNMENT FALLS WITHIN THE SCOPE OF THOSE PROVISIONS IS ONE OF FACT, DETERMINED PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT, AND THAT IF THAT DETERMINATION LATER IS TO BE CHARGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE DUTY ASSIGNMENT WHICH MUST HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.

THE PER DIEM RESTRICTIONS STATED IN THE ORDERS OF JANUARY 30, 1956, ON THE BASIS THAT FIELD DUTY WAS INVOLVED CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY ASSIGNED WERE OF THE TYPE CONTEMPLATED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS. THE PURPORTED AMENDMENT OF JULY 24, 1957, TO THOSE ORDERS DOES NOT PROVIDES GROUNDS SUFFICIENT TO OVERCOME THOSE RESTRICTIONS. CONSEQUENTLY, SINCE YOUR TEMPORARY ASSIGNMENT APPARENTLY CONTINUED THROUGH THE PERIOD IN QUESTION UNDER CONDITIONS ADMINISTRATIVELY DETERMINED TO BE FIELD DUTY CONDITIONS FOR WHICH THE PAYMENT OF PER DIEM IS NOT AUTHORIZED, IT IS CONCLUDED THAT NO BASIS EXISTS FOR THE PAYMENT OF ANY PART OF YOUR CLAIM. IF, AS YOU STATE, PER DIEM WAS PAID TO YOU FOR A PART OF THE PERIOD INVOLVED, SUCH PAYMENT WAS ERRONEOUS AND MAY NOT SERVE AS A BASIS FOR THE ALLOWANCE OF THE REMAINDER OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MARCH 4, 1958, IS SUSTAINED.