B-136951, NOVEMBER 25, 1958, 38 COMP. GEN. 388

B-136951: Nov 25, 1958

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- WHERE BOTH GOVERNMENT QUARTERS AND MEALS WERE FURNISHED MAY NOT BE REGARDED AS FIELD DUTY PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES TO ENTITLE THE MEMBERS TO PER DIEM UNDER THE EXCEPTION IN PARAGRAPH 3C OF ARMY REGULATIONS 35-3080 WHICH IS APPLICABLE TO ACTIVE INSTALLATIONS. THE CERTIFICATION CHANGING THE DESIGNATION OF THE QUARTERS FROM FIELD TO TEMPORARY DUTY QUARTERS DURING THE CLOSE-OUT PHASE WHEN THE QUARTERS WERE MAINTAINED SOLELY FOR FIELD DUTY PURPOSES IS WITHOUT EFFECT TO CHANGE THE QUARTERS TO TEMPORARY DUTY QUARTERS AND PAYMENT OF PER DIEM MAY NOT BE MADE FOR THIS PERIOD. 1958: REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 7 TO OCTOBER 31. IT APPEARS THAT THE DUTY INVOLVED WAS PERFORMED PURSUANT TO MOVEMENT ORDER NO. 4.

B-136951, NOVEMBER 25, 1958, 38 COMP. GEN. 388

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - FIELD DUTY - INSTALLATIONS - INACTIVE V. ACTIVE TEMPORARY DUTY PERFORMED INCIDENT TO SUMMER TRAINING OF RESERVE COMPONENTS AT CAMP MCCOY, WISCONSIN--- AN INACTIVE CAMP OPERATED ONLY FOR SUMMER TRAINING PURPOSES--- WHERE BOTH GOVERNMENT QUARTERS AND MEALS WERE FURNISHED MAY NOT BE REGARDED AS FIELD DUTY PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES TO ENTITLE THE MEMBERS TO PER DIEM UNDER THE EXCEPTION IN PARAGRAPH 3C OF ARMY REGULATIONS 35-3080 WHICH IS APPLICABLE TO ACTIVE INSTALLATIONS; AND THE CERTIFICATION CHANGING THE DESIGNATION OF THE QUARTERS FROM FIELD TO TEMPORARY DUTY QUARTERS DURING THE CLOSE-OUT PHASE WHEN THE QUARTERS WERE MAINTAINED SOLELY FOR FIELD DUTY PURPOSES IS WITHOUT EFFECT TO CHANGE THE QUARTERS TO TEMPORARY DUTY QUARTERS AND PAYMENT OF PER DIEM MAY NOT BE MADE FOR THIS PERIOD. B-131254, MAY 3, 1957, OVERRULED.

TO CARL D. WHISLER, NOVEMBER 25, 1958:

REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 7 TO OCTOBER 31, 1956, WHILE ON TEMPORARY DUTY AT CAMP MCCOY, WISCONSIN, AS AN ENLISTED MAN, UNITED STATES ARMY.

IT APPEARS THAT THE DUTY INVOLVED WAS PERFORMED PURSUANT TO MOVEMENT ORDER NO. 4, DATED MARCH 27, 1956, WHICH DIRECTED A TEMPORARY CHANGE OF STATION FOR CERTAIN ORGANIZATIONS FROM FORT RILEY, KANSAS, TO CAMP MCCOY, WISCONSIN, FROM APRIL 4 TO NOVEMBER 2, 1956, FOR THE PURPOSE OF SUPPORTING SUMMER TRAINING OF RESERVE COMPONENT UNITS. THE ORDERS PROVIDED THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED THEREUNDER WOULD CONSTITUTE DUTY OF THE TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND THAT PER DIEM WOULD BE PAYABLE ONLY WHEN SUBSISTENCE AND QUARTERS AS DEFINED IN ARMY REGULATIONS 35-3080 WERE NOT FURNISHED OR AVAILABLE. YOUR CLAIM IS SUPPORTED BY A CERTIFICATE ISSUED BY THE COMMANDER, HEADQUARTERS, CAMP MCCOY, UNDER DATE OF NOVEMBER 1, 1956, PURSUANT TO THE PROVISIONS OF PARAGRAPH 5C (2) (B), ARMY REGULATIONS 35-3080, MAY 15, 1956, IN WHICH IT IS CERTIFIED THAT THE CLOSE-OUT PHASE IN CONNECTION WITH THE SUMMER TRAINING OF RESERVE COMPONENTS AT CAMP MCCOY BEGINNING SEPTEMBER 3, 1956, WAS CONDUCTED TO PERMIT THE USE OF QUARTERS NORMALLY AVAILABLE ON THE INSTALLATION TO PERSONNEL ON TEMPORARY DUTY. IN A LETTER DATED SEPTEMBER 7, 1957, YOU STATED THAT UPON YOUR RELEASE FROM ACTIVE DUTY ON NOVEMBER 9, 1956, THE QUESTION OF PER DIEM HAD NOT BEEN DECIDED BUT THAT IN JULY 1957 IT WAS GRANTED TO ALL MEMBERS OF THE 578TH ORDNANCE COMPANY FOR THE PERIOD OF THEIR TEMPORARY DUTY AT CAMP MCCOY. THE DEPARTMENT OF THE ARMY IN TRANSMITTING YOUR CLAIM TO THIS OFFICE INDICATED YOU WERE PAID PER DIEM FOR THE PERIOD APRIL 6 TO MAY 31, 1956.

IN DECISION B-131254, DATED MAY 3, 1957, INVOLVING A CERTIFICATE SUCH AS WAS ISSUED IN YOUR CASE, AN ARMY DISBURSING OFFICER WAS ADVISED THAT SINCE UNDER GENERAL ORDER NO. 28, DATED AUGUST 31, 1956, THE QUARTERS AT CAMP MCCOY WERE DESIGNATED AS TEMPORARY DUTY QUARTERS EFFECTIVE SEPTEMBER 3, 1956, PER DIEM WAS AUTHORIZED FOR TEMPORARY DUTY PERFORMED ON AND AFTER THAT DATE. THE DECISION SPECIFICALLY STATED THAT NO PER DIEM WAS PAYABLE FOR ANY PERIOD PRIOR TO SEPTEMBER 3, 1956. WHEN THAT DECISION WAS RENDERED IT WAS ASSUMED, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT CAMP MCCOY WAS AN ACTIVE MILITARY INSTALLATION AND IT APPEARED THAT AUTHORITY FOR THE DESIGNATION OF QUARTERS AS TEMPORARY DUTY QUARTERS WAS VESTED IN THE COMMANDER BY PARAGRAPH 5C (1) (B), ARMY REGULATIONS 35- 3080. IT NOW APPEARS, HOWEVER, THAT ALL THE FACTS INVOLVED IN THE OPERATION OF CAMP MCCOY WERE NOT KNOWN TO US WHEN THE DECISION INVOLVING THE PAYMENT PER DIEM FOR TEMPORARY DUTY AT THAT PLACE WAS REQUESTED. CAMP MCCOY IS LISTED IN ARMY PAMPHLET 210-1 AS AN INACTIVE CAMP. ITS EXACT FUNCTION IS INDICATED IN THE FOLLOWING STATEMENT APPEARING IN JOINT ARMY AND AIR FORCE COMMERCIAL TRAFFIC BULLETIN NO. 2:

* * * THE MISSION OF THE STATION COMPLEMENT IS TO SERVE AS THE TRAINING, OPERATING, ADMINISTRATIVE, AND SERVICING UNIT FOR APPROXIMATELY 61,000 CIVILIAN COMPONENT SUMMER TRAINING TROOPS AND TO SERVICE REGULAR ARMY SUPPORT UNITS ADMINISTERING SUPPORT TO THE SUMMER TRAINING PROGRAM, DURING 1 APRIL TO 30 SEPTEMBER AND TO INSURE MAINTENANCE, SECURITY, AND PRESERVATION OF BUILDINGS, HOUSEKEEPING EQUIPMENT, AND TRAINING FACILITIES DURING WINTER MONTHS IN ORDER THAT FACILITIES WILL BE IN PROPER CONDITION AND READINESS FOR SUMMER TRAINING AND/OR EMERGENCY REACTIVATION.

THUS, IT APPEARS THAT ALL ACTIVITIES AT CAMP MCCOY, EVEN DURING THE WINTER MONTHS, RELATE SOLELY TO THE SUMMER TRAINING PROGRAM AND THE MAINTENANCE OF FACILITIES IN READINESS FOR SUMMER TRAINING OR EMERGENCY REACTIVATION IF NECESSARY. MOST OF THE QUARTERS MAINTAINED AT THAT PLACE WERE FOR THE USE OF PERSONNEL ENGAGED IN, OR SUPPORTING, THE SUMMER TRAINING PROGRAM.

PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES WHILE PARTICIPATING IN FIELD DUTY TYPE ACTIVITIES (OTHER THAN ADVANCED PLANNING AND CRITIQUE PHASES) WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, EXCEPT FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES, AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. SUCH EXCEPTION WAS PROVIDED IN RECOGNITION OF A DIFFERENCE BETWEEN THE SUBSISTENCE REQUIREMENTS OF MEMBERS PERFORMING DUTY IN THE FIELD AWAY FROM THE FACILITIES OF AN ESTABLISHED INSTALLATION AND THOSE OF MEMBERS ASSIGNED TO DUTY AT AN INSTALLATION UNDER CIRCUMSTANCES SIMILAR TO THOSE ENCOUNTERED UNDER NORMAL TEMPORARY DUTY SITUATIONS. IT HAS NO APPLICATION TO ANY DUTY SITUATION NOT PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES.

PARAGRAPH 4B OF THE ABOVE CITED ARMY REGULATIONS 35-3080, PROVIDES THAT, EXCEPT AS PROVIDED IN PARAGRAPH 5, PAYMENT OF PER DIEM IS NOT AUTHORIZED FOR TEMPORARY DUTY PERFORMED AT PLACES IN CONNECTION WITH THE ESTABLISHMENT OR OPERATION OF MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR ROTC STUDENTS AND OTHER SIMILAR ACTIVITIES "INCLUDING CLOSING OUT PHASES OF SUCH DUTY" WHEN GOVERNMENT QUARTERS AND GOVERNMENT SUBSISTENCE OF ANY TYPE ARE FURNISHED OR MADE AVAILABLE. THE EXCEPTION PROVIDED IN PARAGRAPH 5C (1) (B) OF SUCH REGULATIONS RELATES ONLY TO TEMPORARY DUTY PERFORMED AT AN "INSTALLATION OF THE UNIFORMED SERVICES.' PER DIEM IS PAYABLE FOR SUCH DUTY, INCLUDING TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS, IF THE EXERCISE IS CONDUCTED "TO ALL PARTICIPANTS TO USE QUARTERS NORMALLY AVAILABLE ON THE INSTALLATION TO PERSONNEL ON TEMPORARY DUTY, AS DISTINGUISHED FROM QUARTERS SPECIFICALLY ESTABLISHED OR DESIGNATED FOR USE IN CONNECTION WITH THE EXERCISE OR ACTIVITY.' THE TEMPORARY DUTY QUARTERS AT CAMP MCCOY APPEAR TO HAVE BEEN SPECIFICALLY ESTABLISHED, DESIGNATED AND MAINTAINED FOR USE IN CONNECTION WITH THE SUMMER TRAINING PROGRAM. PARAGRAPH 5B (1) OF THE REGULATIONS PROVIDES THAT IF TEMPORARY DUTY IS PERFORMED AT A POINT OTHER THAN AN INSTALLATION OF THE UNIFORMED SERVICES, A MEMBER MAY BE REIMBURSED ONLY FOR MEALS AND QUARTERS NECESSARILY PROCURED AT PERSONAL EXPENSE. IT APPEARS THAT GOVERNMENT QUARTERS AND MEALS WERE FURNISHED TO YOU DURING THE PERIOD INVOLVED.

PARAGRAPH 3C OF ARMY REGULATIONS 35-3080, DEFINES AN "INSTALLATION OF THE UNIFORMED SERVICES" FOR PURPOSES OF ESTABLISHING PER DIEM RIGHTS IN FIELD DUTY SITUATIONS 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.' IN VIEW OF THE INDICATED PURPOSE FOR WHICH AUTHORITY TO PAY PER DIEM INCIDENT TO FIELD DUTY AT AN INSTALLATION WAS EXTENDED IN THE JOINT TRAVEL REGULATIONS, THE REGULATIONS QUOTED ABOVE ARE CONSIDERED TO CONTEMPLATE AND TO REFER ONLY TO ACTIVE INSTALLATIONS IN OPERATION UNDER THE NORMAL CIRCUMSTANCES OF HAVING QUARTERS AND MESSING FACILITIES PROVIDED AND AVAILABLE NOT ONLY TO PERSONNEL PERMANENTLY STATIONED THERE BUT ALSO TO THE COMPARATIVELY FEW PERSONS WHO MIGHT BE ASSIGNED THERE FROM TIME TO TIME ON A TEMPORARY BASIS. SINCE IT NOW APPEARS THAT CAMP MCCOY HAS BEEN CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE CAMP FOR A NUMBER OF YEARS, AND HAS BEEN OPERATIVE ONLY FOR THE PURPOSE STATED IN THE TRAFFIC BULLETIN MENTIONED ABOVE, IT APPEARS DOUBTFUL THAT THE CAMP PROPERLY MAY BE REGARDED AS AN "INSTALLATION OF THE UNIFORMED SERVICES" WITHIN THE MEANING OF THE PER DIEM EXCEPTION PROVISIONS OF PARAGRAPH 5C (1) (B), ARMY REGULATIONS 35-3080.

EVEN IF CAMP MCCOY COULD BE VIEWED AS AN INSTALLATION OF THE UNIFORMED SERVICES NO AUTHORITY WOULD EXIST FOR THE PAYMENT OF YOUR CLAIM, SINCE THERE IS NO EVIDENCE THAT THE SUMMER TRAINING PROGRAM YOU AND THE OTHER MEMBERS OF THE ORGANIZATIONS INVOLVED WERE DIRECTED TO SUPPORT WAS CONDUCTED AT CAMP MCCOY IN ORDER TO PERMIT ALL PARTICIPANTS TO UTILIZE QUARTERS NORMALLY AVAILABLE AT THAT PLACE TO PERSONNEL ON TEMPORARY DUTY. SINCE CAMP MCCOY IS SERVICED AND MAINTAINED FOR USE IN CONNECTION WITH THE SUMMER TRAINING PROGRAM, IT APPEARS REASONABLY CLEAR THAT THE QUARTERS OCCUPIED BY THE PERSONNEL ENGAGED IN, OR SUPPORTING, THAT PROGRAM ACTUALLY ARE "ESTABLISHED AND DESIGNATED FOR USE IN CONNECTION" WITH THAT PROGRAM. NOTHING HAS BEEN FOUND IN APPLICABLE PROVISIONS OF LAW, THE JOINT TRAVEL REGULATIONS OR THE CITED ARMY REGULATIONS WHICH AUTHORIZE THE COMMANDING OFFICER AT CAMP MCCOY TO CONFER A RIGHT TO PER DIEM FOR THE CLOSE-OUT PHASE OF THE SUMMER TRAINING PROGRAM ON PERSONNEL WHO WERE SUPPORTING THAT ACTIVITY DURING THE SUMMER MONTHS WHEN NO PER DIEM WAS PAYABLE TO THEM, BY MEANS OF A GENERAL ORDER CHANGING THE DESIGNATION OF QUARTERS FROM FIELD DUTY QUARTERS TO TEMPORARY DUTY QUARTERS OR BY A CERTIFICATE STATING THAT THE CLOSE-OUT PHASE WAS CONDUCTED TO PERMIT USE OF QUARTERS NORMALLY AVAILABLE TO PERSONNEL ON TEMPORARY DUTY. THE TYPE OF QUARTERS AVAILABLE AT CAMP MCCOY APPEARS TO HAVE HAD NOTHING TO DO WITH THE REASONS WHY THE CLOSE-OUT PHASE WAS CONDUCTED AT THAT PLACE AND IT IS CLEAR THAT THE QUARTERS OCCUPIED BY THE PERSONNEL INVOLVED DID NOT CHANGE INTO QUARTERS OF A DIFFERENT TYPE ON SEPTEMBER 3, 1956, DESPITE GENERAL ORDER NO. 28 OR THE COMMANDING OFFICER'S CERTIFICATE OF NOVEMBER 1, 1956. IN THE CIRCUMSTANCES, THE DECISION OF MAY 3, 1957, B 131254, NO LONGER WILL BE FOLLOWED.

THE ORDERS OF MARCH 27, 1956, PROVIDED THAT PER DIEM WOULD BE PAID ONLY WHEN SUBSISTENCE AND QUARTERS WERE NOT AVAILABLE AND SINCE IT IS SHOWN THAT BOTH SUBSISTENCE AND QUARTERS WERE FURNISHED, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

THE RECORD DOES NOT SHOW THE BASIS ON WHICH YOU WERE PAID PER DIEM FOR THE PERIOD APRIL 6 TO MAY 31, 1956. IN THE EVENT THAT YOU OR OTHERS WERE PAID PER DIEM WHICH WAS NOT AUTHORIZED FOR TEMPORARY DUTY IN CONNECTION WITH THE SUMMER TRAINING PROGRAM AT CAMP MCCOY, SUCH ERRONEOUS PAYMENTS WILL BE CONSIDERED IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICER CONCERNED.