B-144069, NOVEMBER 14, 1960, 40 COMP. GEN. 277

B-144069: Nov 14, 1960

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MILITARY PERSONNEL - PER DIEM - TEMPORARY DUTY ABOARD BRITISH VESSEL - EXCHANGE OFFICER PROGRAM SERVICE PERFORMED ON A BRITISH GOVERNMENT VESSEL BY A MARINE CORPS OFFICER UNDER THE EXCHANGE OFFICER PROGRAM BETWEEN THE UNITED STATES AND GREAT BRITAIN BY WHICH THE OFFICER WAS INTEGRATED INTO THE ROYAL NAVY AND WAS FURNISHED QUARTERS AND MESSING FACILITIES ON THE VESSEL. - WHICH WAS HIS POST OF DUTY. - COMPARABLE TO THOSE AVAILABLE ON UNITED STATES GOVERNMENT VESSELS TO MEMBERS OF THE UNITED STATES NAVY PERFORMING TEMPORARY DUTY ABOARD A VESSEL IS REGARDED AS TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS WHICH PRECLUDES PAYMENT OF PER DIEM FOR SUCH TEMPORARY DUTY.

B-144069, NOVEMBER 14, 1960, 40 COMP. GEN. 277

MILITARY PERSONNEL - PER DIEM - TEMPORARY DUTY ABOARD BRITISH VESSEL - EXCHANGE OFFICER PROGRAM SERVICE PERFORMED ON A BRITISH GOVERNMENT VESSEL BY A MARINE CORPS OFFICER UNDER THE EXCHANGE OFFICER PROGRAM BETWEEN THE UNITED STATES AND GREAT BRITAIN BY WHICH THE OFFICER WAS INTEGRATED INTO THE ROYAL NAVY AND WAS FURNISHED QUARTERS AND MESSING FACILITIES ON THE VESSEL--- WHICH WAS HIS POST OF DUTY--- COMPARABLE TO THOSE AVAILABLE ON UNITED STATES GOVERNMENT VESSELS TO MEMBERS OF THE UNITED STATES NAVY PERFORMING TEMPORARY DUTY ABOARD A VESSEL IS REGARDED AS TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS WHICH PRECLUDES PAYMENT OF PER DIEM FOR SUCH TEMPORARY DUTY.

TO LIEUTENANT R. W. ELLIS, UNITED STATES NAVAL SUPPORT ACTIVITY, NOVEMBER 14, 1960:

BY SECOND ENDORSEMENT DATED SEPTEMBER 16, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARD YOUR LETTER OF AUGUST 2, 1960, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF PER DIEM ALLOWANCES TO CAPTAIN C. L. BATTISTONE, UNITED STATES MARINE CORPS, FOR PERIODS DURING WHICH HE WAS ABOARD A FOREIGN GOVERNMENT VESSEL. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 60-32 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

ORDERS NO. T-138-60, DATED MARCH 7, 1960, DIRECTED CAPTAIN C. L. BATTISTONE, A UNITED STATES MARINE CORPS OFFICER ON EXCHANGE DUTY WITH THE BRITISH GOVERNMENT WITH REGULAR ASSIGNMENT TO 766 SQUADRON, ROYAL NAVY, YEOVILTON, SOMERSET, ENGLAND, TO PROCEED TO HMS ARK ROYAL FOR TEMPORARY ADDITIONAL DUTY ON OR ABOUT MARCH 3, 1960, AND RETURN TO HIS ASSIGNED STATION ON OR ABOUT JULY 15, 1960. DURING THE PERIOD COVERED BY THE ORDERS, THE MEMBER WAS FURTHER DIRECTED TO PERFORM TEMPORARY ADDITIONAL DUTY AT THE ROYAL NAVAL AIR STATION, HALFAR, MALTA, AND AT THE ROYAL AIR FORCE NORTH FRONT, GIBRALTAR. THE TEMPORARY ADDITIONAL DUTY WAS AUTHORIZED WITH THE UNDERSTANDING THAT TRAVEL ARRANGEMENTS WOULD BE MADE THROUGH THE BRITISH GOVERNMENT AND THE MEMBER WOULD NOT BE ENTITLED TO TRANSPORTATION EXPENSES FROM THE UNITED STATES GOVERNMENT.

PURSUANT TO THESE ORDERS CAPTAIN BATTISTONE LEFT YEOVILTON, SOMERSET, ON MARCH 3, 1960, TRAVELED TO HMS ARK ROYAL AND WAS ABOARD THAT VESSEL UNTIL JUNE 21, 1960, WITH THE EXCEPTION OF THE PERIODS APRIL 8 TO 20, 1960, AND MAY 1 TO 22, 1960 WHEN HE PERFORMED DUTY AT THE ROYAL NAVAL AIR STATION, HALFAR, MALTA. YOU TRANSMITTED A COPY OF VOUCHER NO. 970, PAID IN YOUR JULY 1960 ACCOUNTS, EVIDENCING PAYMENT OF PER DIEM IN THE AMOUNT OF $199.80 FOR THE MEMBER'S TRAVEL TIME AND WHILE ON TEMPORARY ADDITIONAL DUTY SHORE AT MALTA. A VOUCHER HAS NOW BEEN SUBMITTED TO YOU FOR THE PAYMENT TO CAPTAIN BATTISTONE OF PER DIEM ALLOWANCE FOR THE PERIODS DURING WHICH HE WAS ABOARD HMS ARK ROYAL, BASED UPON OUR DECISION OF OCTOBER 30, 1956, B-129320, 36 COMP. GEN. 344, PERMITTING PAYMENT OF PER DIEM TO A NAVAL OFFICER DURING A TEMPORARY DUTY ASSIGNMENT ABOARD A BRITISH GOVERNMENT VESSEL. IN THE INSTANT CASE, HOWEVER, THE MEMBER WAS AN EXCHANGED OFFICER OCCUPYING A ROYAL NAVY OPERATIONAL BILLET DURING THE PERIOD IN QUESTIONS AND YOU HAVE, THEREFORE, QUESTIONED THE PROPRIETY OF PAYING PER DIEM ALLOWANCE IN THESE CIRCUMSTANCES.

IN THE CASE CONSIDERED IN OUR DECISION OF OCTOBER 30, 1956, COMMANDER JAMES R. BRASCOME, UNITED STATES NAVAL OFFICER, WAS ORDERED TO LIMITED TEMPORARY DUTY IN THE COURSE OF WHICH HE WENT ABOARD HMS ZEST AT 7:00 P.M. ON JULY 9, 1956, AND LEFT THE VESSEL AT 8:00 P.M. ON JULY 11, 1956. BASED UPON THE CONSTRUCTION THAT THE PROHIBITION CONTAINED IN PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS AGAINST THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES FOR TEMPORARY DUTY ABOARD A " GOVERNMENT VESSEL" HAS REFERENCE TO UNITED STATES GOVERNMENT VESSELS PER DIEM WAS ALLOWED FOR A FULL DAY SPENT ON BOARD THE BRITISH GOVT VESSEL.

THE CASE NOW BEFORE US IS DISTINGUISHABLE FROM THAT OF COMMANDER BRASCOME IN THAT, DURING THE PERIOD OF THE TEMPORARY DUTY HERE INVOLVED, CAPTAIN BATTISTONE WAS SERVING UNDER THE EXCHANGE OFFICER PROGRAM. GENERAL INSTRUCTIONS RELATIVE TO THAT PROGRAM WERE PROMULGATED BY OPNA INSTRUCTION 5700.7 DATED MAY 5, 1960. THE INSTRUCTIONS ARE IN PART AS FOLLOWS:

5. DEFINITIONS AND TERMINOLOGY.

A. THE FOLLOWING ITEMS REFER TO EXCHANGE PERSONNEL ONLY:

(1) EXCHANGE OFFICERS ARE PERSONNEL OF THE DEPARTMENT OF THE NAVY AND FRIENDLY FOREIGN SERVICES WHO ARE ASSIGNED FOR DUTY WITHIN EACH OTHER'S SERVICE FOR THE MUTUAL BENEFIT OF BOTH SERVICES. THESE PERSONNEL ARE NORMALLY FULLY INTEGRATED INTO THE HOST SERVICE, FILLING AN ASSIGNED POSITION WITHIN THE CHAIN OF COMMAND.

(3) EXCHANGE OFFICERS WILL NORMALLY SERVE BETWEEN TWO AND THREE YEARS AT THE DISCRETION OF THE PARENT SERVICE AND AS CONSISTENT WITH THE DEPLOYMENT AND TRAINING SCHEDULES OF THE HOST SERVICE. THE PERIOD OF INTERCHANGE WILL BE EXCLUSIVE OF TIME SPENT IN TRAVEL ON TAKING UP AND RETURNING FROM SUCH DUTY. * * *

WHILE THE ABOVE INSTRUCTIONS WERE ISSUED DURING THE PERIOD OF DUTY INVOLVED, IT IS ASSUMED THAT THE QUOTED PROVISIONS SET FORTH THE CONDITIONS UNDER WHICH CAPTAIN BATTISTONE WAS SERVING AND THAT HE WAS FULLY INTEGRATED INTO THE ROYAL NAVY OF GREAT BRITAIN, FILLING AN ASSIGNED POSITION WITHIN THE CHAIN OF COMMAND PURSUANT TO THE EXCHANGE OFFICER PROGRAM UNDER WHICH NAVAL AND MARINE CORPS OFFICERS ARE INTERCHANGED WITH FRIENDLY ALLIED NATIONS. THE TEMPORARY ADDITIONAL DUTY TO WHICH HE WAS ENJOINED RESULTED FROM AND WAS MADE NECESSARY BY THE DEPLOYMENT FOR THE BENEFIT OF THE HOST COUNTRY OF THE SQUADRON TO WHICH HE WAS ASSIGNED. WHILE HE WAS ABOARD THE HMS ARK ROYAL IN THE STATUS OF AN EXCHANGE OFFICER PERFORMING THE DUTIES OF AN OFFICER OF THE ROYAL NAVY THE SHIP WAS HIS POST OF DUTY AND IT IS ASSUMED THAT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO HIM ON A BASIS COMPARABLE TO THOSE AVAILABLE ON UNITED STATES GOVERNMENT VESSELS TO MEMBERS OF THE UNITED STATES NAVY PERFORMING TEMPORARY DUTY ABOARD A VESSEL OPERATED BY THE UNITED STATES NAVY. IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, IT MUST THEREFORE BE CONCLUDED THAT WHILE THE OFFICER WAS SERVING WITH THE NAVY OF GREAT BRITAIN THE RESTRICTIONS WITH RESPECT TO THE PAYMENT OF PER DIEM WERE APPLICABLE THE SAME AS IF HE HAD BEEN SERVING WITH THE UNITED STATES NAVY. HENCE, IT IS CONCLUDED THAT THE SERVICE INVOLVED WAS TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE CONTEMPLATION OF PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS AND PAYMENT OF THE PER DIEM CLAIMED IS NOT AUTHORIZED. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.