B-137532, NOV 24, 1958

B-137532, NOV 24, 1958

PRECIS-UNAVAILABLE

MR. MICHAEL MINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 21, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AS AN ENLISTED MEMBER OF THE ARMY AT ABERDEEN PROVING GROUNDS, MARYLAND, DURING THE PERIOD JULY 1, 1955, TO AUGUST 13, 1956.

LETTER ORDERS 12-58, HEADQUARTERS, FORT HOLABIRD, BALTIMORE, MARYLAND, DATED DECEMBER 27, 1956, ARE STATED TO CONFIRM VERBAL ORDERS OF JULY 1, 1955, WHICH DIRECTED THAT YOU PROCEED TO ABERDEEN PROVING GROUNDS, ON OR ABOUT JULY 1, 1955, ON TEMPORARY DUTY FOR AN INDEFINITE PERIOD AS "CHARGE OF QUARTERS" IN CONNECTION WITH AIC FIELD TRAINING ACTIVITIES AND, UPON THE COMPLETION OF THE DUTY, RETURN TO YOUR PROPER STATION. THE ORDERS PROVIDED FURTHER THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED DURING 41 DESIGNATED PERIODS, FALLING WITHIN THE PERIOD FROM JUNE 28, 1955, TO AUGUST 31, 1956, CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OR 4250.3 OF THE JOINT TRAVEL REGULATIONS, AND THAT RATIONS IN KIND AND TENTAGE WOULD BE PROVIDED FOR THE PERIODS INDICATED. IN YOUR CLAIM IT IS STATED THAT YOU LEFT FORT HOLABIRD ON THAT ASSIGNMENT AND REPORTED AT ABERDEEN PROVING GROUNDS ON JULY 1, 1955, AND THAT YOU RETURNED TO FORT HOLABIRD ON AUGUST 13, 1956. APPARENTLY TENTAGE AND RATIONS WERE AVAILABLE TO YOU FOR THE ENTIRE PERIOD INVOLVED. YOU STATE THAT ONLY THREE DAYS OF EACH WEEK WERE SPENT ON MANEUVERS OR FIELD EXERCISES AND THAT THE REMAINDER OF THE TIME WAS SPENT AS "CHARGE OF QUARTERS." YOUR CLAIM COVERS ONLY THE DAYS WHILE NOT ON MANEUVERS OR FIELD EXERCISES.

REGULATIONS GOVERNING THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4201.6 OF THOSE REGULATIONS, IN EFFECT AT THE TIME YOU WERE ORDERED TO PERFORM THE DUTY INVOLVED, PROVIDED THAT PER DIEM ALLOWANCES ARE NOT PAYABLE TO MEMBERS FOR PERIODS OF TEMPORARY DUTY WHILE PERFORMING FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND SIMILAR ACTIVITIES (OTHER THAN ADVANCE PLANNING AND CRITIQUE PHASES), WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. PARAGRAPH 3000 OF THE REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES FOR TRAVEL OR TEMPORARY DUTY UNLESS PERFORMED PURSUANT TO COMPETENT WRITTEN TRAVEL ORDERS ISSUED IN ADVANCE OF THE TRAVEL. PARAGRAPH 3002-2 PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. THAT AUTHORITY IS CONSIDERED TO CONTEMPLATE ONLY THOSE SITUATIONS WHERE EXIGUNCIES OF THE SERVICE MAKE UNFEASIBLE THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE OF TRAVEL IF THE DEFICIENCY IS REMEDIED AT THE EARLIEST PRACTICABLE TIME BY THE ISSUANCE OF WRITTEN CONFIRMING ORDERS. ORDERS ISSUED NEARLY A YEAR AND A HALF AFTER THE VERBAL ORDERS THEY PURPORT TO CONFIRM, PARTICULARLY WHEN THEY CONTAIN NO EXPLANATION OR JUSTIFICATION FOR THE DELAY IN THEIR ISSUANCE, WOULD APPEAR TO BE OF QUESTIONABLE VALUE TO MEET THE REQUIREMENTS OF THE REGULATIONS FOR A WRITTEN ORDER TO SUPPORT A TRAVEL ALLOWANCE CLAIM.

IT APPEARS TO BE YOUR CONTENTION THAT YOU SHOULD NOT BE CONSIDERED TO HAVE BEEN PARTICIPATING IN THE FIELD DUTY TYPE ACTIVITIES CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS EXCEPT ON DAYS WHEN ACTUALLY TAKING PART IN THE MANEUVERS, AND THEREFORE, THAT YOU SHOULD BE CONSIDERED AS ENTITLED TO PER DIEM FOR THOSE DAYS SPENT AS CHARGE OF QUARTERS WHILE NOT ENGAGED IN THE MANEUVERS. YOUR DUTY ASSIGNMENT AT ABERDEEN PROVING GROUNDS, AS SET FORTH IN THE ORDERS OF DECEMBER 27, 1956, WAS THAT OF "CHARGE OF QUARTERS" IN CONNECTION WITH FIELD TRAINING ACTIVITIES. THE DUTIES OF PROVIDING SERVICE SUPPORT FOR THOSE ENGAGED IN FIELD DUTY TYPE ACTIVITIES CLEARLY ARE A NECESSARY PART OF SUCH ACTIVITIES AND THOSE ASSIGNED TO AND ENGAGED IN PROVIDING SUCH SUPPORT HAVE BEEN CONSIDERED AS IN FACT PARTICIPATING IN FIELD DUTY ACTIVITIES WHILE SO ENGAGED. B-137166, OCTOBER 7, 1958. THE PROVISIONS OF PARAGRAPH 4201.6 BARRING PAYMENT OF PER DIEM DURING PERIODS OF MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED OR AVAILABLE, ARE BASED ON THE FACT THAT MEMBERS WHO PERFORM TEMPORARY DUTY OF THAT TYPE UNDER SUCH CIRCUMSTANCES ARE PUT TO LITTLE, IF ANY, ADDITIONAL EXPENSE WHILE PERFORMING SUCH DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY. THE FACT THAT YOU ACTUALLY TOOK PART IN THE MANEUVERS OR FIELD EXERCISES ON ONLY CERTAIN DAYS OF THE WEEK IS NOT REGARDED AS A FACTOR OF ANY PARTICULAR SIGNIFICANCE, SINCE THE CHARACTER OF YOUR ASSIGNMENT UNDER YOUR ORDERS REMAINED UNCHANGED. CONSEQUENTLY, EVEN IF THE ADEQUACY OF THE ORDERS OF DECEMBER 27, 1956, OTHERWISE COULD BE CONSIDERED AS ESTABLISHED, THE CONCLUSION WOULD BE REQUIRED THAT YOU WERE ENGAGED IN FIELD DUTY TYPE ACTIVITIES DURING PERIODS FOR WHICH PER DIEM IS CLAIMED AND, THEREFORE, SINCE GOVERNMENT QUARTERS AND RATIONS WERE AVAILABLE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF THAT ALLOWANCE.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 21, 1958, IS SUSTAINED.