B-135946, JUN. 5, 1958

B-135946: Jun 5, 1958

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RUTFORD: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. YOU WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 14 TO THULE ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS TO PARTICIPATE IN TRANSPORTATION CORPS ICECAP ACTIVITIES. UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR DUTY STATION. IT WAS STATED THAT "ALL TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY JTR PARA 4250.3.'. THE ORDERS SUBSEQUENTLY WERE AMENDED BY DISPATCH FROM THE ADJUTANT GENERAL. NO CHANGE WAS MADE WITH RESPECT TO THE SPECIAL INSTRUCTIONS IN THE ORDERS. THULE WAS MADE YOUR PERMANENT DUTY STATION. GOVERNMENT QUARTERS AND RATIONS ARE PRESUMED TO HAVE BEEN FURNISHED DURING THAT PERIOD. REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION EXPENSES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

B-135946, JUN. 5, 1958

TO MR. ROBERT H. RUTFORD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 24, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT THULE, GREENLAND, AS AN OFFICER OF THE U.S. ARMY TRANSPORTATION CORPS.

UNDER DEPARTMENT OF THE ARMY ORDERS DATED APRIL 11, 1955, YOU WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 14 TO THULE ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS TO PARTICIPATE IN TRANSPORTATION CORPS ICECAP ACTIVITIES, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR DUTY STATION. UNDER THE HEADING SPECIAL INSTRUCTIONS, IT WAS STATED THAT "ALL TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY JTR PARA 4250.3.' THE ORDERS SUBSEQUENTLY WERE AMENDED BY DISPATCH FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, TO EXTEND THE TEMPORARY DUTY PERIOD TO A TOTAL OF APPROXIMATELY 60 DAYS. NO CHANGE WAS MADE WITH RESPECT TO THE SPECIAL INSTRUCTIONS IN THE ORDERS. BY ORDERS OF JUNE 8, 1955, THULE WAS MADE YOUR PERMANENT DUTY STATION. YOUR CLAIM COVERS THE PERIOD FROM APRIL 14, 1955, DATE OF DEPARTURE FROM YOUR STATION AT FORT EUSTIS, VIRGINIA, UNDER THE ORDERS OR APRIL 11, 1955, UNTIL JUNE 8, 1955. GOVERNMENT QUARTERS AND RATIONS ARE PRESUMED TO HAVE BEEN FURNISHED DURING THAT PERIOD.

REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION EXPENSES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250.3 OF THOSE REGULATIONS, AS THEN IN EFFECT, PROVIDED THAT MEMBERS TRAVELING OR IN THE PERFORMANCE OF TEMPORARY DUTY OUTSIDE THE UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS, AND DUTY AS OBSERVER, UMPIRE, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' PARAGRAPH 4201.6 PROVIDED SIMILAR RESTRICTIONS FOR TRAVEL IN THE UNITED STATES. IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF THOSE PROVISIONS IS ONE OF FACT, DETERMINED USUALLY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT BECAUSE OF THE PROXIMITY OF THE ADMINISTRATIVE PERSONNEL TO THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST. PARAGRAPH 4 OF ARMY SPECIAL REGULATIONS 35-3080-5, AS THEN IN EFFECT, PROVIDED THAT WHERE IT IS DETERMINED THAT SUCH CONDITIONS ARE INVOLVED NOTATION OF THE APPLICATION OF PARAGRAPHS 4201.6 OR 4250.3 OF THE JOINT TRAVEL REGULATIONS SHOULD BE INCLUDED IN THE ORDERS. THAT SUCH AN ADMINISTRATIVE DETERMINATION WAS MADE AS TO THE TEMPORARY DUTY THAT YOU WERE DIRECTED TO PERFORM AT THULE IS INDICATED BY THE FACT THAT THE ORDERS OF APRIL 11, 1955, STATED THE APPLICATION OF PARAGRAPH 4250.3 OF THE REGULATIONS IN THE MATTER. IN VIEW OF THAT DETERMINATION, NOT CONTROVERTED BY EVIDENCE OTHERWISE AVAILABLE, THAT FIELD DUTY CIRCUMSTANCES EXISTED, IT MUST BE CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM.

IN YOUR REQUEST FOR REVIEW YOU REFER TO DECISIONS B-123853, JUNE 10, 1955, AND B-126945, MAY 14, 1956, COPIES OF WHICH WERE ATTACHED TO YOUR CLAIM, INVOLVING TEMPORARY DUTY ASSIGNMENTS OF ARMY PERSONNEL AT THULE WHERE PER DIEM WAS HELD PAYABLE. THE ORDERS DIRECTING THE TRAVEL AND TEMPORARY DUTY IN THOSE CASES, HOWEVER, DID NOT CONTAIN THE REQUIRED EVIDENCE OF AN ADMINISTRATIVE DETERMINATION THAT FIELD DUTY WAS INVOLVED SUCH AS WAS INCLUDED IN YOUR ORDERS OF APRIL 11, 1955. CONSEQUENTLY, THOSE DECISIONS PROVIDE NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. WITH REFERENCE TO YOUR STATEMENT THAT OTHER MEMBERS OF YOUR UNIT, AND OF OTHER UNITS, HAVE RECEIVED PER DIEM ALLOWANCES UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, YOU ARE ADVISED THAT MANY CLAIMS ADVANCED UNDER SIMILAR CIRCUMSTANCES HAVE BEEN DISALLOWED. IF, AS YOU SUGGEST, THERE HAVE BEEN INSTANCES WHERE PER DIEM HAS BEEN PAID UNDER LIKE CIRCUMSTANCES, SUCH PAYMENTS WERE ERRONEOUS AND MAY NOT SERVICES AS A BASIS FOR ALLOWING PER DIEM IN YOUR CASE.