B-136233, DEC 16, 1958

B-136233, DEC 16, 1958

PRECIS-UNAVAILABLE

ROBERT E. THOMAS, SP-3:

IN YOUR LETTER OF NOVEMBER 17, 1958, YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 3 TO SEPTEMBER 2, 1957, WHICH WAS ALLOWED IN OUR SETTLEMENT OF JANUARY 21, 1958, IN VIEW OF THE ADVICE TO YOU IN LETTER OF JULY 14, 1958, THAT SUCH ALLOWANCE WAS IN ERROR AND THAT $141.75 RECEIVED IN PAYMENT OF YOUR CLAIM SHOULD BE REFUNDED TO THE GOVERNMENT.

THE TEMPORARY DUTY FOR WHICH YOU CLAIMED PER DIEM WAS DIRECTED BY LETTER ORDERS E-5-173 OF HEADQUARTERS 5TH INFANTRY DIVISION AND FORT ORD, CALIFORNIA, DATED MAY 31, 1957. UNDER THOSE ORDERS YOU AND OTHER DESIGNATED MEMBERS WERE PLACED ON TEMPORARY DUTY FOR AN INDEFINITE PERIOD AND DIRECTED TO PROCEED TO CAMP ROBERTS, CALIFORNIA, FOR THE PURPOSE OF PREPARATION OF PAY VOUCHERS AND PAYMENT OF RESERVISTS ATTENDING SUMMER TRAINING. IT WAS PROVIDED IN THE ORDERS THAT YOU WERE TO BE ATTACHED TO THE 21ST FIELD ARTILLERY BATTALION FOR RATIONS, QUARTERS, AND ADMINISTRATION, AND THAT UPON THE COMPLETION OF THE TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER STATION. IT APPEARS THAT YOU PROCEEDED FROM FORT ORD TO CAMP ROBERTS ON JUNE 3, 1957, AND THAT YOU RETURNED TO FORT ORD ON SEPTEMBER 2, 1957. YOU STATED IN YOUR CLAIM THAT GOVERNMENT QUARTERS AND MESS WERE UTILIZED BY YOU DURING THE ENTIRE PERIOD WHILE AT CAMP ROBERTS.

UNDER MOVEMENT ORDERS NO. 9 OF HEADQUARTERS FORT ORD, DATED APRIL 12, 1957, CONFIRMING VERBAL ORDERS OF MARCH 25, 1957, THE 21ST FIELD ARTILLERY BATTALION WAS MOVED FROM FORT ORD TO CAMP ROBERTS ON TEMPORARY CHANGE OF STATION FOR A PERIOD NOT TO EXCEED 19 WEEKS, UPON THE COMPLETION OF WHICH THE UNITS INVOLVED WERE TO RETURN TO FORT ORD. ORDERS OF THE SAME COMMAND, DATED MAY 1, 1957, AMENDED THE MOVEMENT ORDERS TO DESIGNATE THE TRAVEL AND TEMPORARY DUTY DIRECTED FOR PERFORMANCE DURING THE PERIOD MAY 1 TO SEPTEMBER 10, 1957, AS CONSTITUTING A TYPE OF DUTY CONTEMPLATED IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS, AND TO PROVIDE THAT "PER DIEM IS NOT AUTHORIZED," SINCE YOU WERE ATTACHED TO THE 21ST FIELD ARTILLERY BATTALION FOR RATIONS, QUARTERS, AND ADMINISTRATION DURING THE PERIOD IN QUESTION, YOUR STATUS WAS SIMILAR, FOR PER DIEM PURPOSES, TO PERSONNEL OF THAT ORGANIZATION.

PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS WHILE PARTICIPATING IN CERTAIN DESIGNATED FIELD DUTY TYPE ACTIVITIES, INCLUDING TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS AND "OTHER SIMILAR ACTIVITIES," WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE, EXCEPT WHEN PARTICIPATION IN SUCH DUTY INVOLVES TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES IF PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. PARAGRAPH 3E OF ARMY REGULATIONS 35-3080 DATED MAY 15, 1956, DEFINES AN "INSTALLATION OF THE UNIFORMED SERVICES" FOR PER DIEM PURPOSES UNDER THOSE PROVISIONS AS "THE REAL ESTATE AND IMPROVEMENTS THEREON DESIGNATED AS A MILITARY CAMP, POST, STATION, DEPOT, OR RESERVATION AT WHICH FUNCTIONS OF THE UNIFORMED SERVICES ARE CARRIED ON AND WHICH HAS BEEN ESTABLISHED BY ORDER OF ONE OF THE UNIFORMED SERVICES." PARAGRAPH 5C PROVIDES THAT A MEMBER PERFORMING FIELD DUTY ACTIVITIES AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO PER DIEM WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM THE OTHER MEMBERS PARTICIPATING IN THE ACTIVITIES. YOU FURNISHED CERTIFICATION INDICATING THAT SUCH WAS YOUR SITUATION AT CAMP ROBERTS.

CAMP ROBERTS WAS CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE INSTALLATION DURING THE ENTIRE YEAR OF 1957, AND APPARENTLY WAS INOPERATIVE EXCEPT FOR ITS USE BY THOSE ENGAGED IN FIELD DUTY ACTIVITIES AND BY PERSONNEL ASSIGNED TO PROVIDE SUPPORT FOR THOSE ACTIVITIES. IT HAS BEEN HELD THAT IN SUCH INACTIVE STATUS CAMP ROBERTS WAS NOT AN INSTALLATION OF THE UNIFORMED SERVICES WITHIN THE MEANING AND INTENT OF THE QUOTED PROVISIONS OF PARAGRAPH 3C OF ARMY REGULATIONS 35-3080, SUCH PROVISIONS BEING CONSIDERED TO CONTEMPLATE ONLY INSTALLATIONS OPERATING UNDER THE NORMAL FUNCTIONAL CIRCUMSTANCES OF AN ACTIVE INSTALLATION. 136993, SEPTEMBER 18, 1958. MEMBERS PERFORMING FIELD TYPE DUTY AT THAT PLACE CONSEQUENTLY COULD NOT QUALIFY FOR PER DIEM ON THE BASIS OF AUTHORITY TO BE QUARTERED SEPARATELY FROM THOSE UNDERGOING TRAINING.

IT IS DOUBTFUL THAT A RIGHT TO PER DIEM WOULD HAVE ACCRUED TO YOU EVEN IF CAMP ROBERTS WERE REGARDED AS AN INSTALLATION, SINCE, DESPITE THE CERTIFICATION THAT YOU WERE AUTHORIZED TO BE QUARTERED SEPARATELY FROM PERSONNEL OF U.S.A.R. AND NATIONAL GUARD UNITS, IT IS QUESTIONABLE WHETHER YOU WERE SO QUARTERED WITHIN THE MEANING OF THE CITED ARMY REGULATIONS. IN LETTER OF MARCH 21, 1958, FROM HEADQUARTERS, U.S. ARMY TRAINING CENTER AT FORT ORD, TO COMMANDING GENERAL OF THE SIXTH U. S. ARMY, IT WAS REPORTED THAT INDIVIDUAL MEMBERS OF THE FIFTH BRIGADE (TRAINING) IN SUPPORT OF RESERVE COMPONENT TRAINING ACTIVITIES WERE FURNISHED QUARTERS AND MESSING FACILITIES AT CAMP ROBERTS WHICH WERE IDENTICAL TO THOSE FURNISHED INDIVIDUAL MEMBERS OF THE RESERVE UNITS OF COMPARABLE GRADE. THE VIEW WAS EXPRESSED THAT ANY CERTIFICATION THAT ANY INDIVIDUAL MEMBER OF THE FIFTH BRIGADE WAS AUTHORIZED TO BE QUARTERED SEPARATELY AND APART FROM OTHER MEMBERS, WAS MADE THROUGH ERRONEOUS INTERPRETATION OF WHAT CONSTITUTE QUARTERS "SEPARATE AND APART." IT IS SHOWN THAT YOU WERE A MEMBER OF HEADQUARTERS COMPANY, FIFTH BRIGADE, AT CAMP ROBERTS.

THE DUTY OF PREPARING PAY VOUCHERS AND PAYMENT OF THOSE ENGAGED IN TRAINING ACTIVITIES IS A NECESSARY PART OF SUCH ACTIVITIES, AND THOSE ASSIGNED TO SUCH A DUTY ARE CONSIDERED AS PARTICIPANTS IN THE TRAINING ACTIVITIES. SEE, IN THIS CONNECTION, PARAGRAPH 5 OF ARMY REGULATIONS 35- 3080, CURRENTLY IN EFFECT, WHICH DEFINES THE TERM "OTHER SIMILAR ACTIVITIES" AS ALL ACTIVITIES IN SUPPORT OF A MANEUVER, FIELD EXERCISE, TRAINING ENCAMPMENT, ETC. YOU WERE A PARTICIPANT, THEREFORE, IN THE TRAINING ACTIVITY AT CAMP ROBERTS DURING THE PERIOD IN QUESTION, A FIELD DUTY TYPE ACTIVITY, AND SINCE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE, NO AUTHORITY EXISTED FOR THE PAYMENT OF YOUR CLAIM.

YOU WERE PROPERLY ADVISED IN THE LETTER OF JULY 14, 1958, THAT THE PAYMENT OF $141.75 MADE TO YOU INCIDENT TO THE TEMPORARY DUTY AT CAMP ROBERTS WAS ERRONEOUS. IT IS AGAIN REQUESTED THAT THE SUM BE REFUNDED TO THE GOVERNMENT AS INSTRUCTED IN THAT LETTER.