B-136993, SEPTEMBER 18, 1958, 38 COMP. GEN. 225

B-136993: Sep 18, 1958

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ACTIVE INSTALLATIONS FIELD DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICE FOR PER DIEM PURPOSES WITHIN THE EXCEPTION IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 3 (C) OF ARMY REGULATIONS 35-3080 HAS REFERENCE TO DUTY AT ACTIVE INSTALLATIONS UNDER NORMAL CIRCUMSTANCES WHERE QUARTERS AND MESSING FACILITIES ARE PROVIDED AND AVAILABLE NOT ONLY TO PERSONNEL PERMANENTLY STATIONED THERE BUT ALSO TO PERSONNEL ASSIGNED ON A TEMPORARY BASIS. FIELD DUTY AT AN INACTIVE CAMP WHERE QUARTERS AND MESS ARE AVAILABLE DOES NOT ENTITLE THE MEMBER TO PER DIEM REGARDLESS OF WHETHER THE MEMBER IS AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN FIELD DUTY. 1958: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 22.

B-136993, SEPTEMBER 18, 1958, 38 COMP. GEN. 225

MILITARY PERSONNEL - PER DIEM - FIELD DUTY - INACTIVE V. ACTIVE INSTALLATIONS FIELD DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICE FOR PER DIEM PURPOSES WITHIN THE EXCEPTION IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 3 (C) OF ARMY REGULATIONS 35-3080 HAS REFERENCE TO DUTY AT ACTIVE INSTALLATIONS UNDER NORMAL CIRCUMSTANCES WHERE QUARTERS AND MESSING FACILITIES ARE PROVIDED AND AVAILABLE NOT ONLY TO PERSONNEL PERMANENTLY STATIONED THERE BUT ALSO TO PERSONNEL ASSIGNED ON A TEMPORARY BASIS, AND, THEREFORE, FIELD DUTY AT AN INACTIVE CAMP WHERE QUARTERS AND MESS ARE AVAILABLE DOES NOT ENTITLE THE MEMBER TO PER DIEM REGARDLESS OF WHETHER THE MEMBER IS AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN FIELD DUTY.

TO CAPTAIN JAMES H. WHISENANT, SEPTEMBER 18, 1958:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 11, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP ROBERTS, CALIFORNIA, DURING THE PERIOD MAY 1 TO SEPTEMBER 5, 1957.

ORDERS OF HEADQUARTERS 5TH INFANTRY DIVISION AND FORT ORD, CALIFORNIA, DATED APRIL 23, 1957, CONFIRMED VERBAL ORDERS OF MARCH 26, 1957, BY WHICH YOU WERE TO PROCEED ON TEMPORARY DUTY TO CAMP ROBERTS WHERE YOU WERE TO REPORT TO THE COMMANDING OFFICER, 21ST FIELD ARTILLERY BATTALION, FOR A PERIOD OF ABOUT 35 DAYS AS ASSISTANT RIFLE AND PISTOL MATCHES. SUCH ORDERS DIRECT YOUR RETURN TO FORT ORD UPON COMPLETION OF TEMPORARY DUTY. YOU STATE THAT YOU PERFORMED THAT DUTY UNTIL APRIL 30, 1957, AND THAT YOU WERE ASSIGNED DUTY THEREAFTER, AND THROUGH THE PERIOD OF YOUR CLAIM, AS POST ADJUTANT, RESERVE COMPONENTS TRAINING CAMP AT CAMP ROBERTS, IN SUPPORT OF THE RESERVE COMPONENTS SUMMER TRAINING, DURING WHICH PERIOD GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AND USED BY YOU. ORDERS OF JUNE 3, 1957, TERMINATED YOUR DUTY ASSIGNMENT AT FORT ORD AND REASSIGNED YOU TO DUTY WITH HEADQUARTERS AND HEADQUARTERS COMPANY, 5TH BRIGADE, AT CAMP ROBERTS. YOUR CLAIM WAS DISALLOWED ON THE BASIS OF PROVISIONS APPEARING IN MOVEMENT ORDER NUMBER 9 OF HEADQUARTERS FORT ORD, CALIFORNIA, DATED APRIL 12, 1957, AS AMENDED BY ORDERS OF THE SAME COMMAND DATED MAY 1, 1957, WHICH DIRECTED THE TEMPORARY DUTY AT CAMP ROBERTS OF THE TRAINEE GROUP IN CONNECTION WITH WHICH YOUR ASSIGNMENT WAS MADE, STATING THAT TRAVEL AND TEMPORARY DUTY DURING THE PERIOD IN QUESTION CONSTITUTED DUTY OF THE TYPE CONTEMPLATED IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS, AND THAT PAYMENT OF PER DIEM WAS NOT AUTHORIZED.

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 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.' PARAGRAPH 5C OF THE REGULATIONS PROVIDES THAT A MEMBER PERFORMING TEMPORARY DUTY OF THE FIELD DUTY TYPE AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO PER DIEM WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN THE FIELD DUTY ACTIVITIES IF HIS CLAIM IS SUBSTANTIATED BY A PROPER CERTIFICATE STATING THAT FACT. FURNISHED WITH YOUR CLAIM WAS A CERTIFICATE TO THAT EFFECT COVERING THE PERIOD MAY 1 TO SEPTEMBER 5, 1957.

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 QUOTED REGULATIONS 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 THOSE WHO MIGHT BE ASSIGNED THERE FROM TIME TO TIME ON A TEMPORARY BASIS. CAMP ROBERTS WAS CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE INSTALLATION DURING THE ENTIRE YEAR OF 1957, AND SO PRESUMABLY WAS INOPERATIVE EXCEPT FOR ITS USED BY THOSE ENGAGED IN FIELD DUTY ACTIVITIES AND OTHERWISE WITHOUT MILITARY PERSONNEL OTHER THAN THE POST ENGINEER AND HIS ASSISTANTS ASSIGNED THERE UNDER THE PROVISIONS OF ARMY REGULATIONS 210 -17. IN SUCH INACTIVE STATUS THE CAMP CLEARLY WAS NOT AN INSTALLATION OF THE UNIFORMED SERVICES AS CONTEMPLATED BY THE QUOTED PROVISIONS OF PARAGRAPH 3C OF ARMY REGULATIONS 35-3080. CONSEQUENTLY, INASMUCH AS GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO YOU AT CAMP ROBERTS, IT IS CONSIDERED THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM REGARDLESS OF WHETHER YOU WERE AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN THE FIELD DUTY. IT APPEARS DOUBTFUL THAT A RIGHT TO PER DIEM COULD HAVE ACCRUED TO YOU IN ANY EVENT ON AND AFTER JUNE 3, 1957, SINCE THE ORDERS OF THAT DATE APPEAR TO HAVE DESIGNATED CAMP ROBERTS AS YOUR NEW PERMANENT DUTY STATION, THUS TERMINATING YOUR TEMPORARY DUTY STATUS. COMPARE IN THIS CONNECTION PARAGRAPH 3E, MEMORANDUM NO. 35-5, ISSUED AT FORT ORD UNDER DATE OF OCTOBER 11, 1957, RELATING TO DUTY AT CAMP ROBERTS. IN THE CIRCUMSTANCES DISCLOSED, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JULY 11, 1958, IS SUSTAINED.

WITH REFERENCE TO YOUR STATEMENT THAT OTHERS PERFORMING TEMPORARY DUTY AT CAMP ROBERTS UNDER SIMILAR CONDITIONS HAVE BEEN PAID PER DIEM, YOU ARE ADVISED THAT WE ARE AWARE THAT SUCH ERRONEOUS PAYMENTS HAVE BEEN MADE IN A NUMBER OF CASES. APPROPRIATE INSTRUCTIONS HAVE BEEN ISSUED FOR THE RECOVERY OF THE AMOUNTS SO PAID.