B-138332, MARCH 25, 1959, 38 COMP. GEN. 626

B-138332: Mar 25, 1959

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NAVY VESSELS WHICH ARE BEING TRANSFERRED TO FOREIGN GOVERNMENT BUT THE TITLE TO THE VESSELS IS RETAINED IN THE UNITED STATES IS DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF SUBPARAGRAPH 4250.8 OF THE JOINT TRAVEL REGULATIONS. WHICH PROHIBITS PAYMENT OF PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL BECAUSE SUBSISTENCE FACILITIES ARE AVAILABLE AND NO ABOVE-NORMAL SUBSISTENCE EXPENSES ARE INCURRED. NOTWITHSTANDING THAT IN ALL SUBSTANTIAL RESPECTS THE STATUS TRANSFERRED IS SIMILAR TO THAT OF ANY OTHER NAVAL VESSEL OF A FOREIGN POWER. EXCEPT THAT TITLE IS RETAINED IN THE UNITED STATES. ALLOWANCE OF PER DIEM TO PERSONNEL ASSIGNED TO SUCH DUTY IS PROHIBITED. NAVY ENLISTED PERSONNEL WHO ARE ASSIGNED TO TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL INCIDENT TO ITS TRANSFER TO A FOREIGN GOVERNMENT AND WHO ARE CHARGED FOR SUBSISTENCE BY THE FOREIGN GOVERNMENT WITHOUT RECEIPT OF BASIC ALLOWANCE FOR SUBSISTENCE BECAUSE OF ERRONEOUS RECEIPT OF PER DIEM ARE ENTITLED TO BE CREDITED BASIC ALLOWANCE FOR SUBSISTENCE FOR SUCH TEMPORARY DUTY PERIODS.

B-138332, MARCH 25, 1959, 38 COMP. GEN. 626

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - ON BOARD VESSELS - UNITED STATES VESSELS TRANSFERRED TO FOREIGN COUNTRY TEMPORARY ADDITIONAL DUTY PERFORMED BY NAVAL PERSONNEL ABOARD U.S. NAVY VESSELS WHICH ARE BEING TRANSFERRED TO FOREIGN GOVERNMENT BUT THE TITLE TO THE VESSELS IS RETAINED IN THE UNITED STATES IS DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF SUBPARAGRAPH 4250.8 OF THE JOINT TRAVEL REGULATIONS, WHICH PROHIBITS PAYMENT OF PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL BECAUSE SUBSISTENCE FACILITIES ARE AVAILABLE AND NO ABOVE-NORMAL SUBSISTENCE EXPENSES ARE INCURRED, NOTWITHSTANDING THAT IN ALL SUBSTANTIAL RESPECTS THE STATUS TRANSFERRED IS SIMILAR TO THAT OF ANY OTHER NAVAL VESSEL OF A FOREIGN POWER, EXCEPT THAT TITLE IS RETAINED IN THE UNITED STATES; THEREFORE, ALLOWANCE OF PER DIEM TO PERSONNEL ASSIGNED TO SUCH DUTY IS PROHIBITED. NAVY ENLISTED PERSONNEL WHO ARE ASSIGNED TO TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL INCIDENT TO ITS TRANSFER TO A FOREIGN GOVERNMENT AND WHO ARE CHARGED FOR SUBSISTENCE BY THE FOREIGN GOVERNMENT WITHOUT RECEIPT OF BASIC ALLOWANCE FOR SUBSISTENCE BECAUSE OF ERRONEOUS RECEIPT OF PER DIEM ARE ENTITLED TO BE CREDITED BASIC ALLOWANCE FOR SUBSISTENCE FOR SUCH TEMPORARY DUTY PERIODS.

TO THE SECRETARY OF THE NAVY, MARCH 25, 1959:

IN LETTER OF DECEMBER 31, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REVIEW WAS REQUESTED OF EXCEPTIONS TAKEN BY THE NAVY AUDIT BRANCH OF THE GENERAL ACCOUNTING OFFICE AGAINST CERTAIN PER DIEM PAYMENTS MADE TO NAVAL PERSONNEL INCIDENT TO TEMPORARY ADDITIONAL DUTY PERFORMED IN CONNECTION WITH THE TRANSFER OF UNITED STATES NAVY VESSELS TO FOREIGN GOVERNMENTS UNDER THE MILITARY ASSISTANCE PROGRAM. THE SUBMISSION WAS ASSIGNED PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, CONTROL NO. 58-20.

AS REPRESENTATIVE OF THE EXCEPTIONS IN QUESTION, REFERENCE IS MADE TO THOSE TAKEN TO PER DIEM PAYMENTS MADE TO COMMANDER MAURICE D. CALLAHAN, USN, AND ROGER W. CREECH, BM-1, USN, FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD FEBRUARY 1 TO MARCH 30, 1958, ABOARD THE EX U.S.S. ANTHONY WHILE ASSIGNED IN CONNECTION WITH THE TRANSFER OF THAT VESSEL TO THE NAVY OF THE FEDERAL REPUBLIC OF GERMANY. THOSE EXCEPTIONS WERE TAKEN ON THE BASIS OF A CONSIDERATION THAT THE VESSEL REMAINED A " GOVERNMENT VESSEL" WITHIN THE MEANING OF PARAGRAPH 4250.8 OF THE JOINT TRAVEL REGULATIONS, WHICH PROHIBITS THE PAYMENT OF PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED ON A GOVERNMENT VESSEL, SINCE UPON TRANSFER TO THE GERMAN NAVY TITLE TO THE VESSEL REMAINED IN THE UNITED STATES GOVERNMENT. RECONSIDERATION OF THE EXCEPTIONS IS REQUESTED ON THE BASIS THAT SUCH TITLE RETENTION IS PROVIDED ONLY FOR THE PURPOSE OF RECALLING THE VESSEL FOR USE BY THE UNITED STATES IN TIME OF NEED FOR DEFENSE, AND THAT IN ALL OTHER SUBSTANTIAL RESPECTS THE VESSEL'S STATUS IS CONSIDERED AS SIMILAR TO THAT OF ANY OTHER NAVAL VESSEL OF A FOREIGN POWER.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (B), AUTHORIZES THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE PER DIEM FOR TRAVEL OUTSIDE THE UNITED STATES ,CONSIDERING ALL ELEMENTS OF COST OF LIVING" TO THE MEMBERS INVOLVED. SECTION 303 (F), 37 U.S.C. 253 (F), PROVIDES THAT THE SECRETARIES SHALL CONSIDER "CURRENT ECONOMIC DATA ON COST OF UBSISTENCE" IN PRESCRIBING TRAVEL PER DIEM RATES. THE PURPOSE OF SUCH PROVISIONS IS TO PROVIDE A BASIS FOR THE PAYMENT FROM PUBLIC FUNDS OF ONLY THOSE ADDITIONAL EXPENSES OF SUBSISTENCE WHICH ARE INCURRED BY MEMBERS AS A RESULT OF BEING REQUIRED TO MAINTAIN THEMSELVES AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IT MUST BE ASSUMED, THEREFORE, THAT PER DIEM RATES FIXED UNDER THAT AUTHORITY ARE DESIGNED TO RELATE ONLY TO THE INCREASE OF SUBSISTENCE COSTS OVER THOSE NORMALLY ENCOUNTERED WHILE ON PERMANENT DUTY ASSIGNMENT.

AS AN EXCEPTION TO THE GENERAL ENTITLEMENT OF MEMBERS UNDER PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATIONS TO PER DIEM FOR PERIODS OF TRAVEL AND TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES, SUBPARAGRAPH 4250.8 PROHIBITS PAYMENT OF THE ALLOWANCES "FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL.' SIMILAR PROVISION FOR TEMPORARY DUTY IN THE UNITED STATES IS CONTAINED IN PARAGRAPH 4200.8 OF THE REGULATIONS. THE PURPOSE OF THAT EXCEPTION IS TO DENY PER DIEM WHEN TEMPORARY DUTY OR TRAINING DUTY IS PERFORMED ON GOVERNMENT-OWNED VESSELS BECAUSE OF A CONSIDERATION THAT SUBSISTENCE FACILITIES ARE AVAILABLE THERE, THE USE OF WHICH WOULD NOT INVOLVE THE ABOVE-NORMAL SUBSISTENCE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED.

IT APPEARS THAT COMMANDER CALLAHAN WAS PAID PER DIEM AT THE RATE OF $9 FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD FEBRUARY 1 TO MARCH 30, 1958, ABOARD THE EX-U.S.S. ANTHONY, LESS DEDUCTION FOR QUARTERS, OR NET PAYMENT OF $5.40 PER DAY, AND THAT MR. CREECH WAS SIMILARLY PAID EXCEPT FOR THE PERIOD MARCH 20 TO 23, WHILE ON LEAVE. IT IS STATED THAT THE OFFICERS AND ENLISTED MEN ON ASSIGNMENTS OF THIS TYPE ARE FURNISHED QUARTERS WITHOUT CHARGE BY THE FOREIGN GOVERNMENT BUT THAT THEY ARE CHARGED FOR SUBSISTENCE. THERE IS NO INDICATION AS TO THE SUBSISTENCE RATES ACTUALLY CHARGED AND NO INFORMATION AS TO THAT MATTER APPEARS ON THE VOUCHERS ON WHICH COMMANDER CALLAHAN AND MR. CREECH WERE PAID. IT IS ASSUMED, HOWEVER, THAT SUCH RATES DO NOT VARY SUBSTANTIALLY FROM THOSE CHARGED OFFICERS ABOARD UNITED STATES NAVY VESSELS OR EXCEED THE BASIC SUBSISTENCE ALLOWANCE AUTHORIZED FOR ENLISTED MEN WHERE RATIONS IN KIND ARE NOT AVAILABLE.

IN THE CIRCUMSTANCES AND CONSIDERING THE PURPOSE OF THE LIMITATION OF PARAGRAPHS 4250.8 AND 4200.8 OF THE JOINT TRAVEL REGULATIONS, AND ALSO THE FACT THAT TITLE TO THE VESSEL REMAINS WITH THE UNITED STATES, THE CONCLUSION APPEARS WARRANTED THAT THE MEMBERS CONCERNED PERFORMED TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE CONTEMPLATION OF THE CITED REGULATIONS. SINCE NO PER DIEM IS PRESCRIBED INCIDENT TO SUCH DUTY, IT MUST BE CONCLUDED THAT THE PER DIEM PAYMENTS IN QUESTION WERE NOT PROPER. WHERE, HOWEVER, AS IN MR. CREECH'S CASE, A BASIC ALLOWANCE FOR SUBSISTENCE WAS NOT PAID BECAUSE OF THE RECEIPT BY AN ENLISTED MEMBER OF THE PER DIEM PAYMENT, HE PROPERLY IS ENTITLED TO CREDIT FOR SUCH BASIC ALLOWANCE. SUBJECT TO THAT ADJUSTMENT, THE EXCEPTIONS IN QUESTION APPEAR TO HAVE BEEN PROPERLY ISSUED, AND NO BASIS IS FOUND ON THE PRESENT RECORD FOR THEIR REMOVAL.