B-145206, MAY 16, 1961

B-145206: May 16, 1961

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HOLBROOK: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13. IN THE SETTLEMENT IT WAS STATED. THAT PAYMENT WAS NOT AUTHORIZED FOR THE PORTION OF YOUR CLAIM SUBSEQUENT TO JUNE 15. "IN THE ABSENCE OF INFORMATION TO SHOW THAT YOUR DUTY ASSIGNMENT WAS TEMPORARY.'. WAS TEMPORARY AND ENCLOSE COPIES OF DOCUMENTS IN SUPPORT OF YOUR POSITION. STATE THAT PER DIEM WAS PAID FOR SIMILAR DUTY. IT APPEARS THAT YOU WERE A MEMBER OF ONE OF THE SEVERAL UNITS OF THE 10TH REGIMENTAL COMBAT TEAM WHICH WERE DIRECTED TO BE MOVED. WAS NOT FURNISHED. EXCEPT FOR PERIODS DURING WHICH PERSONNEL WERE PARTICIPATING IN FIELD EXERCISES OR TESTS OR DURING WHICH INDIVIDUALS RETURNED TO THE HOME STATION FOR ANY REASON. APPARENTLY YOU WERE PAID PER DIEM FOR THE PERIOD JUNE 1 TO AUGUST 31.

B-145206, MAY 16, 1961

TO CAPTAIN ROBERT E. HOLBROOK:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1961, AND ENCLOSURES, AND YOUR LETTER OF APRIL 28, 1961, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 23, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM (OR, IN LIEU THEREOF, PERMANENT CHANGE OF STATION ALLOWANCES) INCIDENT TO YOUR SERVICE AT CAMP ROBERTS, CALIFORNIA, AS AN OFFICER OF THE ARMY OF THE UNITED STATES, DURING THE PERIOD SEPTEMBER 6, 1957, TO MARCH 20, 1959, EXCEPT FOR PERIODS WHILE ON LEAVE AND WHILE ASSIGNED TO TEMPORARY DUTY AT FORT SILL, OKLAHOMA. IN THE SETTLEMENT IT WAS STATED, IN PART, THAT PAYMENT WAS NOT AUTHORIZED FOR THE PORTION OF YOUR CLAIM SUBSEQUENT TO JUNE 15, 1958,"IN THE ABSENCE OF INFORMATION TO SHOW THAT YOUR DUTY ASSIGNMENT WAS TEMPORARY.' YOU CONTEND THAT YOUR DUTY ASSIGNMENT FOR THE PERIOD SUBSEQUENT TO JUNE 15, 1958, WAS TEMPORARY AND ENCLOSE COPIES OF DOCUMENTS IN SUPPORT OF YOUR POSITION. YOU REITERATE YOUR REQUEST FOR PAYMENT, PARTICULARLY FOR THE PERIOD DECEMBER 19, 1958, TO MARCH 20, 1959, AND STATE THAT PER DIEM WAS PAID FOR SIMILAR DUTY, TO OTHER PERSONNEL WHO DID NOT REMAIN AT CAMP ROBERTS BUT TRAVELED FROM FORT ORD FOR THE PARTICULAR EXERCISE OR ASSIGNMENT AND RETURNED THEREAFTER.

IT APPEARS THAT YOU WERE A MEMBER OF ONE OF THE SEVERAL UNITS OF THE 10TH REGIMENTAL COMBAT TEAM WHICH WERE DIRECTED TO BE MOVED, ON OR ABOUT JUNE 1, 1957, FROM FORT ORD TO CAMP ROBERTS BY MOVEMENT ORDER NO. 16, HEADQUARTERS, FORT ORD, DATED MAY 31, 1957. THAT ORDER, IN ORIGINAL FORM, WAS NOT FURNISHED. ORDERS OF JUNE 28, 1957, DESIGNATED AS AMENDMENT NO. 1 TO MOVEMENT ORDER NO. 16, AMENDED THAT PART READING "FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENT TEST AND EXPERIMENTATION CENTER" TO READ "FOR THE PURPOSE OF RELOCATING TROOPS TO ACCOMMODATE THE EXPANDING REPLACEMENT TRAINING AT FORT ORD.' AMENDMENT NO. 2 TO MOVEMENT ORDER NO. 16, DATED JULY 30, 1957, FURTHER AMENDED THE ORIGINAL ORDER TO PROVIDE FOR PAYMENT OF PER DIEM, EFFECTIVE JUNE 1, 1957, EXCEPT FOR PERIODS DURING WHICH PERSONNEL WERE PARTICIPATING IN FIELD EXERCISES OR TESTS OR DURING WHICH INDIVIDUALS RETURNED TO THE HOME STATION FOR ANY REASON. APPARENTLY YOU WERE PAID PER DIEM FOR THE PERIOD JUNE 1 TO AUGUST 31, 1957, PRESUMABLY UNDER THAT AUTHORITY.

MOVEMENT ORDER NO. 2 OF HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY AND FORT ORD, DATED APRIL 22, 1958, CONFIRMED VERBAL ORDERS OF SEPTEMBER 1, 1957, DIRECTING THE MOVEMENT OF THE UNITS INVOLVED IN THE ABOVE-CITED MOVEMENT ORDER NO. 16 FROM FORT ORD TO CAMP ROBERTS, EFFECTIVE SEPTEMBER 1, 1957, FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENT EXPERIMENTATION CENTER ACTIVITIES. SUCH MOVEMENT WAS DESIGNATED A TEMPORARY CHANGE OF STATION, AND WAS STATED TO BE INITIALLY FOR A PERIOD OF 19 WEEKS BUT LATER EXTENDED BY THE UNITED STATES CONTINENTAL ARMY COMMAND PENDING COMPLETION OF DEPARTMENT OF ARMY STUDIES PERTAINING TO EVALUATION AND PERMANENT LOCATION OF THE COMBAT DEVELOPMENT EXPERIMENTATION CENTER. THAT ORDER PROVIDED THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED BY THE ORDER CONSTITUTES A TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS.' IT IS ASSUMED, ON THE BASIS OF EVIDENCE OF RECORD HERE, THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO YOU AT CAMP ROBERTS DURING THE PERIODS IN QUESTION.

UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, MEMBERS OF THE UNIFORMED SERVICES MAY BE PAID PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS OF TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS FURTHER PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. EXCEPTION TO THAT LIMITATION IS MADE FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES IF PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. CAMP ROBERTS, HOWEVER, WAS CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE INSTALLATION AND SO HAS NOT BEEN CONSIDERED AN INSTALLATION OF THE UNIFORMED SERVICES WITHIN THE CONTEMPLATION OF THAT EXCEPTION FOR THE PERIODS INVOLVED 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.

PRIOR TO ITS CORRECTION BY THE ORDERS OF JUNE 28 AND JULY 30, 1957, MOVEMENT ORDER NO. 16 OF MAY 31, 1957, DIRECTED THAT THE UNITS INVOLVED, INCLUDING THAT TO WHICH YOU WERE ASSIGNED, BE MOVED FROM FORT ORD TO CAMP ROBERTS FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENT TEST AND EXPERIMENTATION CENTER ACTIVITIES WHICH PURPOSE, IT WILL BE NOTED, IS SIMILAR TO THE PURPOSE STATED IN MOVEMENT ORDER NO. 2 CONFIRMING VERBAL ORDERS OF SEPTEMBER 1, 1957. PRESUMABLY THE DUTIES PERFORMED BY THOSE UNITS FROM MAY 31 TO AUGUST 31, 1957, WAS SUBSTANTIALLY OF THE SAME CHARACTER AS THOSE PERFORMED AFTER THAT PERIOD. MOVEMENT ORDER NO. 2 STATES THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED THEREUNDER IS OF THE TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. THAT DETERMINATION IS CONSISTENT WITH OUR VIEW THAT UNDER REGULATIONS IN EFFECT PRIOR TO JUNE 15, 1958, MEMBERS CHARGED WITH DUTIES OF PROVIDING SUPPORT FOR THOSE MEMBERS ENGAGED IN FIELD DUTY TYPE ACTIVITIES ARE ALSO PARTICIPANTS IN SUCH ACTIVITIES WITHIN THE CONTEMPLATION OF PARAGRAPH 4201.6 AND SUBJECT TO ITS LIMITATION. 38 COMP. GEN. 225. THEREFORE, TO THE EXTENT THAT THE DUTY PERFORMED BY YOU PRIOR TO JUNE 15, 1958, UNDER MOVEMENT ORDER NO. 16 OF MAY 31, 1957, AND MOVEMENT ORDER NO. 2 OF APRIL 22, 1958, MAY BE CONSIDERED TO HAVE BEEN TEMPORARY DUTY AWAY FROM YOUR DESIGNATED POST OF DUTY, IT MUST BE CONSIDERED FIELD DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH 4201.6. CONSEQUENTLY, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF PER DIEM FOR THE PERIOD SEPTEMBER 6, 1957, TO JUNE 14, 1958, SINCE CAMP ROBERTS WAS AN INACTIVE INSTALLATION AND FOR THE SAME REASON, NO AUTHORITY EXISTED FOR THE PAYMENT TO YOU OF THE PER DIEM THAT YOU RECEIVED FOR THE PERIOD JUNE 1 TO AUGUST 31, 1957. THE AMOUNT THUS IMPROPERLY PAID WILL BE RECOVERED BY SET OFF AGAINST ANY AMOUNT OTHERWISE FOUND DUE YOU.

REGULATIONS IMPLEMENTING PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS ARE CONTAINED IN ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, EFFECTIVE JUNE 15, 1958, AND PROVIDE FOR THE PAYMENT OF A PER DIEM ALLOWANCE DURING THE PERIODS THERE SPECIFIED TO ACTIVE ARMY PERSONNEL ON TEMPORARY DUTY AT MILITARY INSTALLATIONS IN CONNECTION WITH FIELD EXERCISES AND ALL ACTIVITIES PERFORMED IN SUPPORT OF SUCH EXERCISES INCLUDING THE CLOSE OUT OF THE OPERATION. AS STATED IN THE PRECEDING PARAGRAPH, IT WAS ADMINISTRATIVELY DETERMINED THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER MOVEMENT ORDER NO. 2 WAS OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. WHETHER A PARTICULAR ASSIGNMENT IS AN ASSIGNMENT WITHIN THE SCOPE OF PARAGRAPH 4201.6 IS A QUESTION OF FACT FOR DETERMINATION PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT. IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY, AS IS THE SITUATION HERE, THIS OFFICE WILL NOT QUESTION THE ADMINISTRATIVE DETERMINATION. CF. 37 COMP. GEN. 126. ACCORDINGLY, YOUR DUTY FOR THE ENTIRE PERIOD OF THE OPERATION COVERED BY MOVEMENT ORDER NO. 2, AS AMENDED, MUST BE CONSIDERED AS COMING WITHIN THE PURVIEW OF PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AS IMPLEMENTED BY ARMY REGULATIONS 35-3080, EVEN THOUGH THE RECORD SHOWS THAT FOR THE PERIOD OCTOBER 25 TO NOVEMBER 14, 1958, THE TRAINING WAS RESTRICTED TO "CLOSE IN" TRAINING AREAS.

PROVISION IS MADE IN PARAGRAPH 7C (1) OF ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, FOR PAYMENT OF A PER DIEM ALLOWANCE OF $4 FOR OFFICERS AND $1 FOR ENLISTED MEN FOR TEMPORARY DUTY PERFORMED AT THE SITE OF THE OPERATION ON AN INSTALLATION OF THE UNIFORMED SERVICES IN CONNECTION WITH MANEUVERS, EXERCISES, SIMULATED WAR GAMES AND OTHER SIMILAR ACTIVITIES DURING PERIODS FROM THE DAY FOLLOWING ARRIVAL AT THE SITE THROUGH THE DAY PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION, AND FROM AND INCLUDING THE CLOSING DATE OF THE ACTUAL OPERATION THROUGH THE DAY PRECEDING DEPARTURE FROM THE SITE. PER DIEM IS NOT AUTHORIZED FROM THE BEGINNING DATE OF THE ACTUAL OPERATION THROUGH THE DATE PRECEDING ITS TERMINATION.

INSOFAR AS THE RECORD SHOWS, THE ACTUAL OPERATION CONTINUED IN EFFECT FROM JUNE 15, 1958, THE EFFECTIVE DATE OF THE ABOVE REGULATIONS, UNTIL THE OPERATION WAS TERMINATED ON DECEMBER 19, 1958, ON WHICH DATE YOUR OUTFIT RETURNED TO FORT ORD. YOU REMAINED AT CAMP ROBERTS THROUGH MARCH 20, 1959, THE ENDING DATE OF YOUR CLAIM, ON TEMPORARY DUTY WITH A REAR DETACHMENT ENGAGED IN ACTIVITIES CONNECTED WITH THE CLOSE OUT OF THE OPERATION. ACCORDINGLY, ALLOWANCE OF PER DIEM FOR THE PORTION OF YOUR CLAIM FROM DECEMBER 19, 1958, TO MARCH 20, 1959, APPEARS AUTHORIZED.

PARAGRAPH 9B (2) OF THE ABOVE REGULATIONS PROVIDES:

"/2) DURING THE PERIODS OFFICERS AND WARRANT OFFICERS ARE NOT ENTITLED TO PER DIEM, MESSING CHARGES WILL BE MADE AT THE RATES PRESCRIBED IN PARAGRAPH 4 OR 5, AR 30-30. DURING THE PERIODS OFFICERS AND WARRANT OFFICERS ARE ENTITLED TO PER DIEM A MINIMUM CHARGE OF $2.25 PER DAY WILL BE MADE FOR MEALS FURNISHED AT GOVERNMENT MESSES.'

SINCE YOU WERE NOT PAID A PER DIEM ALLOWANCE WHILE ENGAGED IN THE CLOSE OUT ACTIVITIES, IT IS ASSUMED THAT IN ACCORDANCE WITH PARAGRAPH 4 OF ARMY REGULATIONS 30-30 YOU PAID FOR YOUR MEALS AT THE RATES PRESCRIBED IN PARAGRAPH 2 OF THE REGULATIONS FOR PERSONNEL FOR WHOM SUBSISTENCE CHARGES (FOOD COSTS) ONLY WERE APPLICABLE. THE PRESCRIBED DAILY RATE WAS $1.10 UNTIL IT WAS INCREASED TO $1.15 BY CHANGE NO. 1, EFFECTIVE JANUARY 1, 1959. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE AS TO THE NUMBER OF MEALS FURNISHED OR THAT YOU PAID HIGHER CHARGES FOR YOUR MEALS DURING THESE PERIODS WE WILL DEDUCT THE DIFFERENCE BETWEEN THE APPLICABLE LOWER SUBSISTENCE CHARGE AND THE DAILY RATE OF $2.25 FROM THE PER DIEM PAYABLE FOR THOSE PERIODS.

UPON ASCERTAINMENT OF THE AMOUNT OF PER DIEM ERRONEOUSLY PAID TO YOU DURING THE PERIOD JUNE 1 THROUGH AUGUST 31, 1957, A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR ANY AMOUNT REMAINING DUE ON YOUR CLAIM. IN THE EVENT THE CHARGES FOR MEALS AND THE AMOUNT YOU WERE IMPROPERLY PAID FOR PER DIEM EXCEED THE AMOUNT OF THE ALLOWANCE HEREIN AUTHORIZED, YOU WILL BE FURNISHED A STATEMENT SHOWING THE BASIS FOR SUCH DETERMINATION.

WITH REFERENCE TO YOUR STATEMENT THAT PER DIEM ALLOWANCES WERE PAID TO OTHER OFFICERS WHILE PERFORMING DUTY ASSIGNMENTS AT CAMP ROBERTS, IT MAY BE STATED THAT IT WAS DETERMINED THAT A NUMBER OF ERRONEOUS PER DIEM PAYMENTS WERE MADE TO PERSONNEL TEMPORARILY STATIONED AT CAMP ROBERTS FOR PERIODS WITHIN THE GENERAL OVER-ALL PERIOD OF YOUR CLAIM. APPROPRIATE ACTION IS BEING TAKEN TO RECOVER THOSE ERRONEOUS PAYMENTS.