B-144128, JAN. 6, 1961

B-144128: Jan 6, 1961

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BROWN: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14. OF WHICH YOU WERE A MEMBER. COMPANY "A" WAS ORDERED TO MOVE AT CURRENT STRENGTH ON OR ABOUT DECEMBER 14. THIS ORDER WAS AMENDED BY TROOP MOVEMENT AND ASSIGNMENT ORDER NO. 9. ORDER NO. 48 WAS FURTHER AMENDED BY DELETING PARAGRAPH 1B PROVIDING FOR A TEMPORARY CHANGE OF STATION FOR 90 DAYS AND SUBSTITUTING A PROVISION MAKING THE MOVE A PERMANENT CHANGE OF STATION. YOU WERE TO RETURN TO YOUR PROPER UNIT AND STATION. MAXIMUM PER DIEM ALLOWANCE WAS AUTHORIZED ON THE BASIS THAT UTILIZATION OF ANY AVAILABLE GOVERNMENT FACILITIES WAS DEEMED IMPRACTICABLE IN THAT SUCH UTILIZATION WOULD ADVERSELY AFFECT THE PERFORMANCE OF YOUR ASSIGNED DUTIES.

B-144128, JAN. 6, 1961

TO MR. DUANE B. BROWN:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1960, REQUESTING REVIEW OF SETTLEMENT OF MAY 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE DURING THE PERIODS JULY 24 TO DECEMBER 27, 1951, AND MARCH 1 TO OCTOBER 23, 1952, INCIDENT TO YOUR SERVICE AS FIRST LIEUTENANT, COMPANY "A," 83RD ENGINEER CONSTRUCTION BATTALION, UNITED STATES ARMY.

TROOP MOVEMENT AND ASSIGNMENT ORDER NO. 3, DATED JULY 20, 1951, AS AMENDED, DIRECTED COMPANY " 83RD ENGINEER CONSTRUCTION BATTALION, OF WHICH YOU WERE A MEMBER, TO MOVE FROM LANDES DE BUSSAC, FRANCE, YOUR PERMANENT STATION, TO COSNE, FRANCE, EFFECTIVE JULY 24, 1951, FOR A PERIOD OF TEMPORARY DUTY OF APPROXIMATELY 150 DAYS TO ACCOMPLISH SUCH MISSIONS AS MIGHT BE PRESCRIBED BY THE COMMANDING GENERAL, EUCOM COMMUNICATION ZONE. BY TROOP MOVEMENT AND ASSIGNMENT ORDER NO. 48, DATED DECEMBER 1, 1951, COMPANY "A" WAS ORDERED TO MOVE AT CURRENT STRENGTH ON OR ABOUT DECEMBER 14, 1951, FROM COSNE, FRANCE, TO POITIERS, FRANCE, FOR TEMPORARY DUTY FOR APPROXIMATELY 90 DAYS. THIS ORDER WAS AMENDED BY TROOP MOVEMENT AND ASSIGNMENT ORDER NO. 9, DATED JANUARY 25, 1952, TO PROVIDE PER DIEM FOR OFFICER PERSONNEL AND ENLISTED PERSONNEL WITH DEPENDENTS. HOWEVER, BY TROOP MOVEMENT AND ASSIGNMENT ORDER NO. 24, DATED MARCH 25, 1952, ORDER NO. 48 WAS FURTHER AMENDED BY DELETING PARAGRAPH 1B PROVIDING FOR A TEMPORARY CHANGE OF STATION FOR 90 DAYS AND SUBSTITUTING A PROVISION MAKING THE MOVE A PERMANENT CHANGE OF STATION.

ORDERS LO 12-50, DATED DECEMBER 28, 1951, DIRECTED YOU TO PROCEED FROM POITIERS TO LA ROCHELLE, FRANCE, FOR APPROXIMATELY 60 DAYS FOR THE PURPOSE OF SUPERVISING A CONSTRUCTION PROJECT THERE AND UPON COMPLETION OF THE TEMPORARY DUTY ENJOINED, YOU WERE TO RETURN TO YOUR PROPER UNIT AND STATION. MAXIMUM PER DIEM ALLOWANCE WAS AUTHORIZED ON THE BASIS THAT UTILIZATION OF ANY AVAILABLE GOVERNMENT FACILITIES WAS DEEMED IMPRACTICABLE IN THAT SUCH UTILIZATION WOULD ADVERSELY AFFECT THE PERFORMANCE OF YOUR ASSIGNED DUTIES. YOU CLAIMED AND WERE PAID PER DIEM UNDER THESE ORDERS FOR THE PERIOD JANUARY 1 TO FEBRUARY 27, 1952; HOWEVER, YOU WERE REQUIRED TO REMAIN ON DUTY AT LA ROCHELLE UNTIL OCTOBER 23, 1952, WHEN YOU APPARENTLY RETURNED TO POITIERS, FRANCE, THE PERMANENT STATION OF YOUR COMPANY.

YOUR CLAIM HAS BEEN DIVIDED INTO THREE PERIODS, AS FOLLOWS: (1) JULY 24 TO DECEMBER 13, 1951 (LESS ONE DAY OF LEAVE), FOR TRAVEL BY GOVERNMENT VEHICLE FROM BUSSAC TO COSNE, FRANCE, AND WHILE YOU WERE ASSIGNED TO COMPANY "A" AT COSNE, (2) DECEMBER 14 TO 27, 1951, FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM COSNE TO POITIERS, FRANCE, AND WHILE WITH COMPANY "A" AT POITIERS AND (3) MARCH 1 TO OCTOBER 23, 1952, WHILE ON TEMPORARY DUTY AT LA ROCHELLE, FRANCE, WITH THE EXCEPTION OF 45 DAYS ON AUTHORIZED LEAVE.

IN CONNECTION WITH YOUR DUTY AT COSNE AND POITIERS YOUR CLAIM THAT GOVERNMENT QUARTERS AND SUBSISTENCE WERE NOT AVAILABLE IS SUPPORTED BY CERTIFICATES OF YOUR COMMANDING OFFICER CORROBORATING YOUR STATEMENT. CONNECTION WITH YOUR DUTY AT LA ROCHELLE THERE IS ON FILE A CERTIFICATE THAT YOU, AS A MEMBER OF COMPANY "A," 83RD ENGINEER CONSTRUCTION BATTALION, WERE PRESENT ON TEMPORARY DUTY AT LA ROCHELLE, FRANCE, FROM DECEMBER 28, 1951, TO OCTOBER 23, 1952, WITH THE EXCEPTION OF 45 DAYS SPENT ON LEAVE, AND YOU HAVE CERTIFIED THAT GOVERNMENT QUARTERS AND GOVERNMENT MESS WERE NOT AVAILABLE.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), PROVIDES THAT UNDER REGULATIONS ISSUED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED "UNDER COMPETENT ORDERS" UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3000 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THE ABOVE AUTHORITY, PROVIDES THAT NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR, AND PARAGRAPH 3001 DEFINES COMPETENT ORDERS AS WRITTEN ORDERS ISSUED BY PROPER AUTHORITY. PARAGRAPH 4250-4 OF THE REGULATIONS IN EFFECT DURING THE PERIOD OF YOUR CLAIM PROVIDED THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL PER DIEM ALLOWANCES AT THE RATES UNIFORMLY ESTABLISHED BY THE SECRETARIES INVOLVED FOR PERIODS OF TRAVEL AND/OR TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS OUTSIDE CONTINENTAL UNITED STATES, EXCEPT FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS AND DUTY AS OBSERVER, UMPIRE AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. DEPARTMENT OF THE ARMY SPECIAL REGULATIONS NO. 35-3080-5, DATED AUGUST 26, 1952, ISSUED AS GUIDANCE IN CONNECTION WITH THE PROVISIONS OF PARAGRAPH 4250-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES IN PARAGRAPH 2B (2) THAT WHEN GOVERNMENT QUARTERS AND SUBSISTENCE ARE FURNISHED OR MADE AVAILABLE, A MEMBER OF THE UNIFORMED SERVICE IS NOT ENTITLED TO PER DIEM FOR ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION ACTIVITIES, CARGO LOADING OR UNLOADING, TRANSPORTING AMMUNITION, ETC. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT DURING THE PERIOD OF YOUR CLAIM YOU WERE PERFORMING FIELD DUTY AS A MEMBER OF A GROUP ENGAGED IN CONSTRUCTION ACTIVITIES AND, THEREFORE, YOU WERE NOT ENTITLED TO PER DIEM ALLOWANCE.

SINCE IT HAS BEEN DECIDED THAT THE PROVISIONS OF SPECIAL REGULATIONS NO. 35-3080-5 PROPERLY SHOULD NOT BE USED AS A BASIS FOR ESTABLISHING THE EXISTENCE OF A FIELD DUTY STATUS PRIOR TO AUGUST 26, 1952, THE DATE OF THE REGULATIONS, YOUR CLAIM WILL BE FURTHER CONSIDERED ON THAT BASIS. IT NOW IS CONSIDERED THAT LANDES DE BUSSAC WAS YOUR OFFICIAL STATION DURING THE PERIOD OF TEMPORARY DUTY FROM JULY 24 TO DECEMBER 27, 1951, AND THE RECORD DOES NOT ESTABLISH A FIELD DUTY STATUS DURING SUCH PERIOD. THUS, UNDER THE CIRCUMSTANCES SHOWN, YOU ARE ENTITLED TO A PER DIEM ALLOWANCE AT THE RATE OF $9 A DAY FOR THE PERIOD JULY 24 TO DECEMBER 27, 1951, LESS THE PER DIEM ALLOWANCE PAID FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD NOVEMBER 30 TO DECEMBER 2, 1951, UNDER ORDERS DATED NOVEMBER 29, 1951.

PARAGRAPH 4301-3, JOINT TRAVEL REGULATIONS, DEFINES A MEMBER WITHOUT DEPENDENTS AS A MEMBER WHOSE DEPENDENTS DO NOT RESIDE WITH HIM IN THE VICINITY OF HIS DUTY STATION LOCATED OUTSIDE THE UNITED STATES. PARAGRAPH 4305-2 PROHIBITS PAYMENT OF STATION PER DIEM ALLOWANCE FOR SUBSISTENCE TO A MEMBER WITHOUT DEPENDENTS WHILE ENTITLED TO TRAVEL PER DIEM ALLOWANCES FOR TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION.

SINCE THE RECORD SHOWS YOU WERE PAID STATION PER DIEM SUBSISTENCES AND QUARTERS ALLOWANCES AT THE RATE OF $4.75 PER DAY DURING THE PERIOD JULY 24 TO DECEMBER 27, 1951, AND SINCE THE RECORD BEFORE US DOES NOT SHOW THAT YOUR DEPENDENT (WIFE) RESIDED IN THE VICINITY OF YOUR DUTY STATION (PERMANENT STATION), LANDES DE BUSSAC, DURING THIS PERIOD, $3.75 PER DAY (STATION PER DIEM SUBSISTENCE ALLOWANCE) MUST ALSO BE DEDUCTED, ON THE BASIS OF THE PRESENT RECORD, FROM THE PER DIEM DUE FOR THIS PERIOD. FURTHERMORE, THE RECORD SHOWS THAT YOU WERE PAID A TRAVEL PER DIEM ALLOWANCE THROUGH FEBRUARY 27, 1952, INCIDENT TO YOUR ASSIGNMENT AT LA ROCHELLE FOR APPROXIMATELY 60 DAYS BY THE ORDERS OF DECEMBER 28, 1951, AND WERE ALSO CREDITED WITH STATION SUBSISTENCE AND QUARTERS ALLOWANCES AT THE RATE OF $4.75 A DAY DURING THAT PERIOD. IN THE ABSENCE OF EVIDENCE THAT YOUR WIFE RESIDED AT OR IN THE VICINITY OF YOUR PERMANENT STATION DURING SUCH PERIOD, IT IS CONSIDERED THAT THERE SHOULD BE DEDUCTED FROM THE PER DIEM OTHERWISE DUE YOU THE STATION SUBSISTENCE ALLOWANCE OF $3.75 A DAY FOR THE PERIOD DECEMBER 28, 1951, THROUGH FEBRUARY 27, 1952.

WITH REGARD TO THE PERIOD MARCH 1 TO OCTOBER 23, 1952, YOU WERE SENT TO LA ROCHELLE FOR APPROXIMATELY 60 DAYS' TEMPORARY DUTY UNDER THE ORDERS OF DECEMBER 28, 1951, AND YOUR COMMANDING OFFICER HAS CERTIFIED THAT HE WAS ORDERED TO RETAIN YOU THERE FOR SUPERVISION OF FURTHER CONSTRUCTION PROJECTS AFTER THE EXPIRATION OF THE 60-DAY PERIOD. ALSO, HE HAS CERTIFIED THAT YOU WERE ON TEMPORARY DUTY AT LA ROCHELLE UNTIL OCTOBER 23, 1952, AND THAT ORDERS WERE REQUESTED ON THREE OCCASIONS TO COVER SUCH DUTY BUT WERE NEVER RECEIVED. AS STATED ABOVE, THE STATUTE AND REGULATIONS AUTHORIZE THE PAYMENT OF TRAVEL ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY PERFORMED AWAY FROM A MEMBER'S STATION "UNDER COMPETENT ORDERS.' COMPETENT ORDERS AS DEFINED IN THE JOINT TRAVEL REGULATIONS ARE NOT ISSUED THERE IS NO PROPER BASIS FOR PAYMENT OF A PER DIEM ALLOWANCE FOR SUCH DUTY. THE REASON ORDERS WERE NOT ISSUED IN YOUR CASE AS REQUESTED IS NOT DISCLOSED BY THE RECORD. THE FAILURE TO ISSUE SUCH ORDERS, HOWEVER, SUGGESTS THAT LA ROCHELLE WAS REGARDED BY THE ORDER ISSUING AUTHORITY AS YOUR PERMANENT STATION, OR THAT YOU WERE PERFORMING DUTY OF A TYPE FOR WHICH PER DIEM WAS NOT PROPERLY PAYABLE. IN ANY EVENT, THE ISSUANCE OF TRAVEL ORDERS IS A MATTER FOR ADMINISTRATIVE DETERMINATION AND CLAIMS OF THIS TYPE ARE CONSIDERED HERE ON THE BASIS OF THE ORDERS FURNISHED IN SUPPORT THEREOF. THEREFORE, IN THE ABSENCE OF COMPETENT ORDERS COVERING THE PERIOD MARCH 1 TO OCTOBER 23, 1952, THERE IS NO AUTHORITY TO ALLOW YOU ANY AMOUNT FOR SUCH PERIOD.

A SETTLEMENT ALLOWING THE AMOUNT FOUND DUE IN ACCORDANCE WITH THIS DECISION WILL ISSUE IN DUE COURSE.