B-137680, DEC 30, 1958

B-137680: Dec 30, 1958

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USA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3. YOU AND 50 OTHER DESIGNATED MEMBERS OF THE ARMY WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 28. UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. YOUR CLAIM IS FOR THE PERIOD OF TEMPORARY DUTY PERFORMED AT THULE. YOU CERTIFIED THAT GOVERNMENT QUARTERS WERE AVAILABLE AND UTILIZED DURING THE PERIOD IN QUESTION. IT IS ASSUMED THAT A GOVERNMENT MESS WAS AVAILABLE TO YOU. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE DUTY INVOLVED WAS FIELD DUTY AND SO WAS OF A NATURE FOR WHICH PER DIEM IS NOT AUTHORIZED UNDER GOVERNING REGULATIONS. YOU NOW HAVE SUBMITTED COPIES OF DEPARTMENT OF THE ARMY ORDERS DATED SEPTEMBER 29.

B-137680, DEC 30, 1958

PRECIS-UNAVAILABLE

COLONEL PAGE H. SLAUGHTER, TC, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 1, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT THULE AIR FORCE BASE, GREENLAND, IN 1955.

UNDER DEPARTMENT OF THE ARMY ORDERS DATED APRIL 27, 1955, YOU AND 50 OTHER DESIGNATED MEMBERS OF THE ARMY WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 28, 1955, TO THULE, GREENLAND, ON TEMPORARY DUTY FOR APPROXIMATELY 30 DAYS (EXTENDED BY AMENDMENT TO TOTAL APPROXIMATELY 60 DAYS) TO PARTICIPATE IN TC ICECAP ACTIVITIES, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. UNDER THE HEADING SPECIAL INSTRUCTIONS, THE ORDERS PROVIDED THAT "ALL TDY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY JTR PARA 4250.3." YOUR CLAIM IS FOR THE PERIOD OF TEMPORARY DUTY PERFORMED AT THULE, FROM MAY 8, 1955, UNTIL JUNE 16, 1955, WHEN THULE APPARENTLY BECAME YOUR PERMANENT STATION UNDER THE PROVISIONS OF MOVEMENT ORDER NO. 9 OF HEADQUARTERS, TRANSPORTATION TRAINING COMMAND, FORT EUSTIS, VIRGINIA, DATED JUNE 8, 1955. YOU CERTIFIED THAT GOVERNMENT QUARTERS WERE AVAILABLE AND UTILIZED DURING THE PERIOD IN QUESTION. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT IS ASSUMED THAT A GOVERNMENT MESS WAS AVAILABLE TO YOU. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE DUTY INVOLVED WAS FIELD DUTY AND SO WAS OF A NATURE FOR WHICH PER DIEM IS NOT AUTHORIZED UNDER GOVERNING REGULATIONS.

YOU NOW HAVE SUBMITTED COPIES OF DEPARTMENT OF THE ARMY ORDERS DATED SEPTEMBER 29, 1958, WHICH PURPORT TO CONFIRM VERBAL ORDERS OF THE SECRETARY OF THE ARMY OF APRIL 28, 1955, AMENDING THE ORDERS OF APRIL 27, 1955, TO DELETE THE QUOTED PROVISIONS DESIGNATING THE TEMPORARY DUTY AS OF THE TYPE CONTEMPLATED BY PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS. NOTHING APPEARS IN SUCH ORDERS TO EXPLAIN THE NEED FOR THE AMENDMENT TO THE BASIC ORDERS OR SUGGEST THAT THE STATEMENT DELETED FROM THOSE ORDERS WAS NOT FACTUALLY CORRECT. ALSO, NO EXPLANATION WAS MADE AS TO WHY THE PURPORTED VERBAL ORDERS OF APRIL 28, 1955, WERE NOT REDUCED TO WRITTEN FORM UNTIL SEPTEMBER 29, 1958. YOU INDICATE THAT THE ORDERS OF SEPTEMBER 29, 1958, WERE ISSUED AS A RESULT OF EXTENDED CORRESPONDENCE BETWEEN YOU AND THE OFFICE OF THE ADJUTANT GENERAL AS A CONCESSION TO YOUR CONTENTION THAT THE ORIGINAL ORDERS WERE IN ERROR IN INCLUDING THE INDICATED RESTRICTIVE LANGUAGE.

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, IN EFFECT DURING THE PERIOD INVOLVED, PROHIBITED THE PAYMENT OF PER DIEM FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES, PERFORMED WHERE BOTH RATIONS IN KIND AND QUARTERS WERE FURNISHED, WHETHER OR NOT SUCH FACILITIES WERE UTILIZED. 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. PARAGRAPH 4 OF ARMY SPECIAL REGULATIONS 35 3080-5, JANUARY 26, 1954, INTERPRETING THE CITED PROVISIONS INSOFAR AS RELATING TO ARMY PERSONNEL, PROVIDED THAT IN CASES WHERE PER DIEM WAS NOT AUTHORIZED UNDER CONDITIONS CONTEMPLATED IN PARAGRAPH 4250.3, THE ORDERS SHOULD CONTAIN A STATEMENT THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED IN PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS. SUCH PROVISIONS RECOGNIZED THE AUTHORITY OF OFFICIALS ISSUING TRAVEL ORDERS TO DETERMINE AND SPECIFY IN THE ORDERS THAT THE TRAVEL AND TEMPORARY DUTY DIRECTED CONSTITUTED FIELD DUTY. IF A DETERMINATION MADE UNDER THAT DIRECTION AND AUTHORITY AS TO THE FACTUAL SITUATION INVOLVED IN A PARTICULAR DUTY ASSIGNMENT IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED UPON AN EVALUATION OF THE FACTS INVOLVED IN THE ASSIGNMENT WHICH MUST HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS. 37 COMP. GEN. 126.

THE PER DIEM RESTRICTION STATED IN THE ORDERS OF APRIL 27, 1955, ON THE BASIS THAT FIELD DUTY WAS INVOLVED CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT THE TEMPORARY DUTY ASSIGNED WAS FIELD DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS. THE ORDERS OF SEPTEMBER 29, 1958, CONTAIN NO INFORMATION SUGGESTING ERROR IN THAT DETERMINATION AND CONSEQUENTLY DO NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THAT RESTRICTION.

THE RULE IS WELL ESTABLISHED THAT TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY ONLY IN EXCEPTIONAL CASES WHERE A FULL DISCLOSURE OF ALL THE FACTS CLEARLY ESTABLISHES THAT THE ORIGINAL ORDERS, THROUGH ERROR OR INADVERTENCE IN THEIR PREPARATION, FAILED TO EXPRESS THE INTENT OF THE ISSUING AUTHORITY. 24 COMP. GEN. 439. IT APPEARS THAT SOME ORDER ISSUING AUTHORITIES MAY REGARD THE DEVICE OF CONFIRMING PURPORTED VERBAL ORDERS AS A PROPER AND SATISFACTORY METHOD OF AUTHORIZING PAYMENT OF PER DIEM, A RIGHT TO WHICH DID NOT ACCRUE UNDER THE ORIGINAL ORDERS. HOWEVER, VERBAL ORDERS ACTUALLY MUST BE ISSUED BEFORE THEY CAN BE CONFIRMED. WHILE PARAGRAPH 3002.2, JOINT TRAVEL REGULATIONS, PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENTS FOR WRITTEN ORDERS, THAT AUTHORITY IS CONSIDERED TO CONTEMPLATE ONLY THOSE SITUATIONS WHERE THE EXIGENCIES OF THE SERVICE MAKE UNFEASIBLE THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE OF TRAVEL AND THE DEFICIENCY IS REMEDIED AT THE EARLIST PRACTICABLE TIME BY THE ISSUANCE OF CONFIRMING ORDERS.

IF THE ORDERS OF APRIL 27, 1955, WERE INCORRECT AND THAT FACT WAS KNOWN ON APRIL 28, 1955, THEY APPARENTLY COULD AND SHOULD HAVE BEEN CORRECTED AT THAT TIME BY WRITTEN ORDERS. ALSO, IF THE INDICATED VERBAL ORDERS ACTUALLY WERE GIVEN ON APRIL 28, 1955, THERE WOULD HAVE BEEN NO NEED FOR YOU TO CARRY ON AN EXTENDED CORRESPONDENCE IN ORDER TO CONVINCE THE OFFICE OF THE ADJUTANT GENERAL THAT THE ORDERS OF APRIL 27, 1955, WERE ERRONEOUS. IN THE CIRCUMSTANCES, THE CONFIRMATORY ORDERS WHICH WERE NOT ISSUED UNTIL OVER THREE YEARS AFTER THE DATE OF THE VERBAL ORDERS THEY PURPORT TO CONFIRM, MAY NOT BE ACCEPTED AS MEETING THE REQUIREMENTS OF THE REGULATIONS.

IN THE CIRCUMSTANCES DISCLOSED, IT IS CONCLUDED THAT NO BASIS EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MARCH 1, 1957, IS SUSTAINED.