B-144733, MAY 25, 1961

B-144733, MAY 25, 1961

TO CAPTAIN ROBERT J. HOLLEY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1960, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF AUGUST 4, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD DECEMBER 7, 1957, TO DECEMBER 19, 1958, DURING WHICH YOU WERE IN A TEMPORARY DUTY STATUS AT CAMP ROBERTS, CALIFORNIA. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE DUTY PERFORMED BY YOU AT CAMP ROBERTS APPEARED TO HAVE BEEN IN SUPPORT OF TRAINING ACTIVITIES WHICH WERE CONSIDERED AS A FIELD DUTY TYPE WITHIN THE PURVIEW OF PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS. YOU WERE ADVISED ALSO THAT THE PERIOD OF TEMPORARY DUTY EXCEEDED WHAT REASONABLY MIGHT BE CONSIDERED AS BEING WITHIN TEMPORARY DUTY LIMITATIONS AND, THEREFORE, SUCH ASSIGNMENT WAS NOT CONSIDERED TEMPORARY DUTY FOR WHICH THE PAYMENT OF PER DIEM IS AUTHORIZED UNDER APPLICABLE REGULATIONS.

BY SPECIAL ORDERS NO. 162, ISSUED DECEMBER 6, 1957, BY HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY AND FORT ORD, CALIFORNIA, YOU WERE TRANSFERRED TO HEADQUARTERS AND HEADQUARTERS COMPANY, FIFTH BRIGADE (TRAINING), AND BY LETTER ORDER O-12-32, THAT DATE, YOU WERE ORDERED TO PROCEED FROM FORT ORD TO CAMP ROBERTS, CALIFORNIA, TO JOIN THAT ORGANIZATION WHICH, IT WAS STATED, WAS ON TEMPORARY DUTY ASSIGNMENT AT CAMP ROBERTS. THAT UNIT WAS ONE OF SEVERAL DIRECTED TO BE MOVED FROM FORT ORD TO CAMP ROBERTS BY MOVEMENT DIRECTIVE NO. 42, DATED NOVEMBER 15, 1957, FOR TEMPORARY DUTY NOT TO EXCEED 19 WEEKS FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENT EXPERIMENTATION CENTER (CDEC), UPON THE COMPLETION OF WHICH THE UNIT WAS TO RETURN TO HOME STATION. PARAGRAPH 8 OF THESE ORDERS PROVIDED THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED CONSTITUTED A TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS. BY GENERAL ORDERS NO. 7, ISSUED FEBRUARY 7, 1958, EFFECTIVE FEBRUARY 10, 1958, HEADQUARTERS AND HEADQUARTERS COMPANY, FIFTH BRIGADE, WAS DISCONTINUED AND THERE WAS ORGANIZED THE CAMP ROBERTS DETACHMENT, U.S. ARMY TRAINING CENTER, INFANTRY AND GARRISON (6003-01), WITH PERSONNEL OF THE DISCONTINUED UNIT TO BE REASSIGNED TO THE NEWLY ORGANIZED UNIT. SUCH NEW UNIT WAS MOVED TO CAMP ROBERTS, EFFECTIVE FEBRUARY 10, 1958, FOR TEMPORARY DUTY FOR A PERIOD NOT TO EXCEED 19 WEEKS BY VERBAL ORDERS OF FEBRUARY 10, 1958, AS CONFIRMED BY ORDERS DATED APRIL 22, 1958, TO DIRECT ACTIVITIES OF UNITS IN SUPPORT OF THE COMBAT DEVELOPMENT EXPERIMENTATION CENTER AND RESERVE COMPONENTS TRAINING CAMP, UPON THE COMPLETION OF WHICH THE UNIT WAS TO RETURN TO ITS HOME STATION. THOSE ORDERS ALSO CONTAINED THE NOTATION THAT THE TRAVEL AND TEMPORARY DUTY CONSTITUTED A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. THE ORDERS WERE AMENDED JUNE 13, 1958, TO EXTEND THE PERIOD OF TEMPORARY DUTY TO OCTOBER 19, 1958. BY SPECIAL ORDERS NO. 153, DATED DECEMBER 16, 1958, YOU WERE RELIEVED FROM ASSIGNMENT WITH CAMP ROBERTS DETACHMENT, USATC INFANTRY AND GARRISON, AT CAMP ROBERTS AND REASSIGNED TO HEADQUARTERS, USATC INFANTRY AND GARRISON, FORT ORD, CALIFORNIA, WHERE YOU REPORTED ON DECEMBER 19, 1958.

PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES WHILE PARTICIPATING IN FIELD DUTY TYPE ACTIVITIES (OTHER THAN ADVANCED PLANNING AND CRITIQUE PHASES) WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, EXCEPT FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED.

PARAGRAPH 3C OF ARMY REGULATIONS 35-3080, MAY 15, 1956, DEFINES AN "INSTALLATION OF THE UNIFORMED SERVICES" FOR THE PURPOSE OF ESTABLISHING PER DIEM RIGHTS IN FIELD DUTY SITUATIONS AS ,THE REAL ESTATE AND IMPROVEMENTS THEREON DESIGNATED AS A MILITARY CAMP, POST, STATION, DEPOT, OR RESERVATION AT WHICH FUNCTIONS OF THE UNIFORMED SERVICES ARE CARRIED ON AND WHICH HAS BEEN ESTABLISHED BY ORDER OF ONE OF THE UNIFORMED SERVICES.' PARAGRAPH 5C PROVIDES THAT A MEMBER PERFORMING TEMPORARY DUTY OF THE FIELD DUTY TYPE AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO PER DIEM WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN THE FIELD DUTY ACTIVITIES IF HIS CLAIM IS SUBSTANTIATED BY A PROPER CERTIFICATE STATING THAT FACT. YOU HAVE FURNISHED A CERTIFICATE TO THAT EFFECT COVERING THE PERIOD FROM DECEMBER 7, 1957, TO DECEMBER 19, 1958. HOWEVER, THOSE REGULATIONS WERE CONSIDERED APPLICABLE ONLY TO ACTIVE INSTALLATIONS IN OPERATION UNDER THE NORMAL CIRCUMSTANCES OF HAVING QUARTERS AND MESSING FACILITIES PROVIDED AND AVAILABLE, NOT ONLY TO PERSONNEL PERMANENTLY STATIONED THERE, BUT ALSO TO THOSE WHO MIGHT BE ASSIGNED THERE FROM TIME TO TIME ON A TEMPORARY BASIS. CAMP ROBERTS WAS CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE INSTALLATION DURING THE ENTIRE PERIOD OF YOUR TEMPORARY DUTY, AND IN SUCH INACTIVE STATUS, WAS NOT AN INSTALLATION OF THE UNIFORMED SERVICES AS CONTEMPLATED BY PARAGRAPHS 3C AND 5C OF THE ABOVE-CITED REGULATIONS. SEE 38 COMP. GEN. 225. CONSEQUENTLY, IF ENTITLEMENT TO PER DIEM OTHERWISE EXISTED THERE WOULD BE NO AUTHORITY FOR THE PAYMENT TO YOU OF SUCH ALLOWANCE UNDER THE LIMITATIONS OF THOSE REGULATIONS FOR THE PERIOD OF YOUR CLAIM PRIOR TO JUNE 15, 1958, THE EFFECTIVE DATE OF ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, UNDER WHICH THE DEFINITION OF THE TERM "INSTALLATION OF THE UNIFORMED SERVICES" WAS EXTENDED TO INCLUDE CAMPS OF THE STATUS OF CAMP ROBERTS.

UNDER THE CITED REGULATIONS OF JUNE 9, 1958, PER DIEM AT THE RATE OF $4 WAS AUTHORIZED FOR PERIODS OF TEMPORARY DUTY OF THE NATURE CONTEMPLATED IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS PERFORMED BY OFFICERS AT THE SITE OF A TRAINING ENCAMPMENT. ENTITLEMENT TO THAT AS WELL AS TO ANY OTHER TRAVEL ALLOWANCE AUTHORIZED UNDER AUTHORITY OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), HOWEVER, IS DEPENDENT UPON THE MEMBER INVOLVED BEING IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. WHILE MOVEMENT DIRECTIVE NO. 42, DATED NOVEMBER 15, 1957, CITED ABOVE, PURPORTED TO DIRECT THE MOVEMENT OF HEADQUARTERS AND HEADQUARTERS COMPANY, FIFTH BRIGADE, TO WHICH YOU WERE ATTACHED, FROM FORT ORD TO CAMP ROBERTS FOR TEMPORARY DUTY, INFORMATION ON FILE IN THIS OFFICE INDICATES THAT SUCH ORGANIZATION HAD IN FACT BEEN LOCATED AT CAMP ROBERTS FOR A CONSIDERABLE PERIOD PRIOR TO THE ISSUANCE OF THAT DIRECTIVE UNDER CIRCUMSTANCES CONSIDERED TO INDICATE THAT IT WAS PERMANENTLY ASSIGNED AT THAT STATION. SEE 38 COMP. GEN. 225 AND B-137005, DATED SEPTEMBER 18, 1958. SINCE YOU WERE DIRECTED BY THE ORDERS OF DECEMBER 6, 1957, TO PROCEED TO CAMP ROBERTS FOR THE PURPOSE OF JOINING HEADQUARTERS AND HEADQUARTERS COMPANY, FIFTH BRIGADE, WHICH WAS DESIGNATED AS YOUR PARENT ORGANIZATION, THE CONCLUSION APPEARS TO BE REQUIRED THAT CAMP ROBERTS WAS YOUR PERMANENT DUTY STATION WHEN YOU REPORTED THERE UNDER THOSE ORDERS. SO CONSIDERED, NO AUTHORITY WOULD EXIST FOR THE PAYMENT TO YOU OF PER DIEM FOR ANY PART OF THE PERIOD COVERED BY YOUR CLAIM FOR THE REASON ..END :