B-138197, FEB 6, 1959

B-138197, FEB 6, 1959

PRECIS-UNAVAILABLE

CAPTAIN LESLIE D. MANCHESTER:

YOUR LETTER OF RECENT DATE REQUESTS THAT CONSIDERATION BE GIVEN YOUR APPEAL RELATIVE TO YOUR CLAIM FOR PER DIEM AND TRAVEL EXPENSES DURING THE PERIOD JANUARY 6 TO AUGUST 31, 1955, WHICH WAS DISALLOWED NOVEMBER 7, 1958, BY OUR CLAIMS DIVISION.

YOU STATE THAT DURING THIS PERIOD YOU WERE ASSIGNED AS OFFICER IN CHARGE OF THE CAMP PENDLETON BASEBALL TEAM; THAT IT WAS YOUR OFFICIAL DUTY TO SUPERVISE THE TEAM; AND THAT THE PROVISION IN THE ORDER DIRECTING YOUR ASSIGNMENT THAT NO EXPENSE TO THE GOVERNMENT WAS INVOLVED IN ITS EXECUTION WAS CONTRARY TO HEADQUARTERS, MARINE CORPS AUTHORIZATION AND INSTRUCTION LETTER OF MARCH 20, 1952, DFC-1302-JAS 1. YOU BASE YOUR APPEAL ON THAT LETTER. THE LETTER REFERRED TO PROVIDES IN PARAGRAPH 11A(4) FA) THAT TEMPORARY ADDITIONAL DUTY ORDERS SHALL CONTAIN NO MENTION AS TO ENTITLEMENT TO REIMBURSEMENT FOR SUBSISTENCE AND TRANSPORTATION EXPENSES FOR TRAVEL AND TEMPORARY DUTY.

YOU WERE SERVING WITH AN ANTIAIRCRAFT ARTILLERY BATTALION AT TWENTY NINE PALMS, CALIFORNIA, WHEN SPECIAL ORDERS 702-54, ISSUED DECEMBER 31, 1954, BY HEADQUARTERS MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, DIRECTED YOUR TEMPORARY ADDITIONAL DUTY ASSIGNMENT AS ASSISTANT COACH AND PLAYER WITH THE FIRST BASEBALL TEAM, CAMP PENDLETON. PURSUANT THERETO, YOU WERE DIRECTED BY HEADQUARTERS MARINE CORPS TRAINING CENTER, TWENTY-NINE PALMS, CALIFORNIA, BY ORDERS DATED JANUARY 4, 1955, TO PROCEED TO MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, ON TEMPORARY ADDITIONAL DUTY FOR AN INDEFINITE PERIOD AS ASSISTANT COACH AND PLAYER WITH THAT CAMP'S FIRST BASEBALL TEAM. UPON COMPLETION OF SUCH TEMPORARY DUTY AND WHEN DIRECTED, YOU WERE TO RETURN TO THE TRAINING CENTER. THE ORDERS SPECIFICALLY PROVIDED THAT NO EXPENSE TO THE GOVERNMENT WAS INVOLVED IN THE EXECUTION THEREOF. YOUR CLAIM SHOWS YOU WERE ON TEMPORARY ADDITIONAL DUTY FROM JANUARY 6 TO AUGUST 31, 1955.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY." THE PHRASE "PUBLIC BUSINESS" AS SO USED, RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR FUNCTIONS. PARTICIPATION IN BASEBALL GAMES, WHILE RECOGNIZED AS A PART OF THE ATHLETIC OR RECREATIONAL PROGRAM OF THE MARINE CORPS GENERALLY, DOES NOT APPEAR TO BE AN ACTIVITY OR FUNCTION OF AN ANTIAIRCRAFT ARTILLERY BATTALION SUCH AS THAT TO WHICH YOU WERE ATTACHED AND PARTICIPATION IN SUCH GAMES AS AN ASSISTANT COACH AND PLAYER MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS UNDER THE CITED REGULATIONS. SEE IN THAT CONNECTION, PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT "EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT."

THAT PORTION OF THE LETTER OF MARCH 20, 1952, TO WHICH YOU REFER, PROVIDES GENERAL INSTRUCTIONS AS TO THE CONTENTS OF TEMPORARY ADDITIONAL ORDERS. HOWEVER, PARAGRAPH 3 OF THAT LETTER PERMITS INCLUSION IN ORDERS OF THE FOLLOWING PARAGRAPH UNDER CERTAIN CIRCUMSTANCES:

"THE ABOVE IS AUTHORIZED WITH THE UNDERSTANDING THAT YOU WILL BE ENTITLED TO NO REIMBURSEMENT OF EXPENSES FOR TRAVEL NOR TO PER DIEM IN CONNECTION THEREWITH. IN CASE YOU DO NOT DESIRE TO BEAR THIS EXPENSE, YOU WILL CONSIDER THIS AUTHORIZATION REVOKED."

THE ABSENCE OF THAT PARAGRAPH IN YOUR ORDERS, HOWEVER, DOES NOT PROVIDE A BASIS FOR AUTHORIZATION OF PER DIEM WHERE THE REGULATIONS, HAVING THE EFFECT OF LAW, PROHIBIT SUCH PAYMENTS. WE FIND NO AUTHORITY FOR PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF MAY 7, 1958, IS SUSTAINED.