B-136879, AUG. 6, 1958

B-136879: Aug 6, 1958

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WEGENER: REFERENCE IS MADE TO YOUR LETTER DATED JULY 11. IVES CONCERNING THE MATTER WHICH WAS REFERRED HERE FOR OUR CONSIDERATION. THE TEMPORARY DUTY IN QUESTION WAS PERFORMED BY YOU AS AN ENLISTED MEMBER OF THE 1ST ENGINEER ARCTIC TASK FORCE UNDER ORDERS OF HEADQUARTERS. UNDER THOSE ORDERS THE TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO THULE. UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH ORDERS CONTAINED THE PROVISION "TRAVEL AND TEMPORARY DUTY PERFORMED IS NOT AUTHORIZED.'. YOU WERE DIRECTED TO RETURN TO FORT BELVOIR BY EARLIEST AVAILABLE TRANSPORTATION FOR THE PURPOSE OF ROTATION AND SEPARATION. PROVIDES FOR THE AMENDMENT OF THAT PART READING "PER DIEM IS NOT AUTHORIZED" TO READ "PER DIEM IS AUTHORIZED.'.

B-136879, AUG. 6, 1958

TO MR. HOWARD E. WEGENER:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 11, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF FEBRUARY 6, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED IN GREENLAND IN 1956 AND 1957, AND TO YOUR LETTER OF JULY 11, 1958, TO SENATOR IRVING M. IVES CONCERNING THE MATTER WHICH WAS REFERRED HERE FOR OUR CONSIDERATION.

THE TEMPORARY DUTY IN QUESTION WAS PERFORMED BY YOU AS AN ENLISTED MEMBER OF THE 1ST ENGINEER ARCTIC TASK FORCE UNDER ORDERS OF HEADQUARTERS, THE ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA, DATED JANUARY 30, 1956, AS AMENDED. UNDER THOSE ORDERS THE TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO THULE, GREENLAND, 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 NOT AUTHORIZED.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON MAY 9, 1956, AND ARRIVED AT THULE ON MAY 27. BY ORDERS OF JUNE 3, 1957, YOU WERE DIRECTED TO RETURN TO FORT BELVOIR BY EARLIEST AVAILABLE TRANSPORTATION FOR THE PURPOSE OF ROTATION AND SEPARATION. YOU LEFT THULE ON JUNE 4 AND RETURNED TO FORT BELVOIR ON JUNE 16, 1957. YOUR CLAIM COVERS PERIODS OF TEMPORARY DUTY AT THULE DURING YOUR ABSENCE FROM FORT BELVOIR UNDER THE ORDERS OF JANUARY 31, 1956. CHANGE 6 TO THOSE ORDERS, DATED JULY 24, 1957, PROVIDES FOR THE AMENDMENT OF THAT PART READING "PER DIEM IS NOT AUTHORIZED" TO READ "PER DIEM IS AUTHORIZED.' NO ATTEMPT WAS MADE TO AMEND THE STATEMENT IN THE BASIC ORDERS THAT TRAVEL AND TEMPORARY DUTY IS FIELD DUTY AS CONTEMPLATED BY THE JOINT TRAVEL REGULATIONS, AND NO REASONS WERE GIVEN TO OTHERWISE JUSTIFY THE AMENDMENT MADE.

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 OF 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 AND CIRCUMSTANCES SURROUNDING THE ASSIGNMENT, AND THAT IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS INVOLVED IN 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 BASIC 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 AMENDMENT OF JULY 24, 1957, DOES NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THOSE RESTRICTIONS. CONSEQUENTLY, SINCE YOUR TEMPORARY DUTY ASSIGNMENT AT THULE APPARENTLY CONTINUED THROUGH THE PERIOD INVOLVED UNDER CONDITIONS ADMINISTRATIVELY DETERMINED TO BE FIELD DUTY 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.

WITH REFERENCE TO YOUR STATEMENT THAT PER DIEM PAYMENTS HAVE BEEN MADE INCIDENT TO OTHER SIMILAR DUTY ASSIGNMENTS, YOU ARE ADVISED THAT MANY CLAIMS ADVANCED UNDER SIMILAR CIRCUMSTANCES--- A NUMBER OF WHICH INVOLVED TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE SAME BASIC ORDERS OF JANUARY 30, 1956, THAT DIRECTED YOUR TRAVEL--- 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 SERVE AS A BASIS FOR ALLOWING PER DIEM IN YOUR CASE.