B-145832, JUN. 14, 1961

B-145832, JUN. 14, 1961

TO CHIEF WARRANT OFFICER DON G. MARCUM, W 3 150 210:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED APRIL 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING PARTS OF THE PERIOD FROM JANUARY 28 TO AUGUST 7, 1959, INCIDENT TO SERVICE PERFORMED AS A MEMBER OF THE 110TH TRANSPORTATION LIGHT HELICOPTER COMPANY IN GERMANY.

CONFIRMATORY ORDERS DATED FEBRUARY 26, MARCH 11, MARCH 16, APRIL 17, AND MAY 4, 1959, ISSUED BY HEADQUARTERS, 8TH TRANSPORTATION HELICOPTER BATTALION ARMY, APO 29, UNITED STATES FORCES, SHOW THAT BY VERBAL ORDERS YOU WERE DIRECTED TO PROCEED FOR THE APPROXIMATE NUMBER OF DAYS OF TEMPORARY DUTY STATED IN EACH ORDER FROM OBER SCHLEISSHEIM, GERMANY, TO BAYREUTH, GERMANY, FOR THE PURPOSE OF PARTICIPATING IN BORDER OPERATIONS. CONFIRMATORY ORDERS OF APRIL 10, 1959, SHOW THAT BY VERBAL ORDERS OF APRIL 1, 1959, YOU WERE DIRECTED TO PROCEED TO THE SECOND ARMORED CAVALRY REGIMENT, BINDLOCH, GERMANY, FOR AN INDEFINITE PERIOD IN CONNECTION WITH THE OPERATIONAL MISSION OF HEADQUARTERS, 8TH TRANSPORTATION TRANSPORT AIRCRAFT BATTALION, PENDING ISSUANCE OF CHANGE OF STATION ORDERS WITHOUT CHANGE OF ORGANIZATIONAL ASSIGNMENT. THE CHANGE OF STATION ORDERS WERE SUBSEQUENTLY ISSUED ON MAY 4, 1959, ASSIGNING BINDLOCH AS YOUR PERMANENT DUTY STATION. WHILE STATIONED AT BINDLOCH YOU WERE DIRECTED BY ORDERS OF AUGUST 3, 1959, TO PROCEED TO NURNBERG, GERMANY, FOR A PERIOD OF APPROXIMATELY TWO DAYS, FOR THE PURPOSE OF CARRYING OUT INSTRUCTIONS OF THE REGIMENTAL COMMANDER, AND RETURN TO YOUR STATION.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 13, 1961, FOR THE REASON THAT BORDER OPERATIONS WERE ADMINISTRATIVELY REPORTED TO BE FIELD DUTY AND THE DUTY DIRECTED BY THE LATER ORDERS APPEARED TO BE OF THE SAME TYPE. IN YOUR LETTER YOU TAKE EXCEPTION TO THE DETERMINATION THAT THE DUTY INVOLVED WAS FIELD DUTY AS DEFINED IN THE JOINT TRAVEL REGULATIONS AND CALL ATTENTION TO THE CERTIFICATE DATED APRIL 25, 1960, OF CAPTAIN RICHARD A MCMAHON, FIRST BATTALION, SECOND ARMORED CAVALRY REGIMENT, WHEREIN HE CERTIFIES THAT THE DUTY PERFORMED DURING THE PERIOD JANUARY 28 TO MAY 5, 1959, WAS NOT IN SUPPORT OF FIELD OPERATIONS. YOU SAY THAT YOU WERE ASSIGNED FULL TIME DUTY WITH THE SECOND ARMORED CAVALRY REGIMENT BECAUSE OF THEIR NEED FOR A HELICOPTER PILOT WITH YOUR QUALIFICATIONS AND THAT THIS WAS TEMPORARY DUTY UNTIL QUARTERS WERE MADE AVAILABLE AT WHICH TIME PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. YOU ALSO SAY THAT NO QUARTERS OR RATIONS WERE AVAILABLE OR FURNISHED AND YOU HAD TO PAY FOR YOUR QUARTERS AND MEALS DURING THE PERIODS OF YOUR CLAIM.

AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH PROVIDES THAT UNDERREGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON CHANGE OF PERMANENT STATION OR OTHERWISE, "OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS LAW, BARS PAYMENT OF PER DIEM FOR FIELD DUTY OUTSIDE THE UNITED STATES, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. THE LIMITATION DOES NOT APPLY WHEN PARTICIPATION IN THE TYPES OF DUTY SPECIFIED INVOLVES 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.

ARMY REGULATIONS 35-3080 DATED JUNE 9, 1958, ESTABLISH ARMY POLICY CONCERNING PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN FIELD DUTY ACTIVITIES CONDUCTED ON INSTALLATIONS WITHIN THE UNITED STATES. PARAGRAPH 3 PROVIDES THAT IN OVERSEA COMMANDS, THE REGULATIONS WILL BE USED AS A GUIDE, BUT THE POLICY PRESCRIBED MAY BE MODIFIED AS CONSIDERED APPROPRIATE BY THE MAJOR OVERSEA COMMANDER CONCERNED BASED UPON PREVAILING CONDITIONS AND PROVIDED THAT THE MODIFICATION IS IN CONSONANCE WITH THE PROVISIONS OF PARAGRAPHS 4250-3 AND 4256-1B OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4 OF THE ARMY REGULATIONS AUTHORIZES PAYMENT OF PER DIEM ALLOWANCES AT RATES AND UNDER CONDITIONS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH FIELD DUTY ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION AND DURING THE CLOSE-OUT PHASE OF THE OPERATION. PER DIEM ALLOWANCES ARE NOT PAYABLE DURING THE ACTUAL PERIOD OF THE MANEUVER OR EXERCISE ON THE PREMISE THAT SUCH OPERATIONS ARE DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS. THE RECORD DOES NOT SHOW THAT THE DUTY YOU PERFORMED WAS ON A MILITARY INSTALLATION.

IN CONNECTION WITH A SIMILAR CLAIM FOR PER DIEM PRESENTED BY FRANCIS C. WALSH, JR., CWO, WHO ALSO WAS DIRECTED BY THE SAME ORDERS INVOLVED IN YOUR CASE TO PROCEED FROM OBER SCHLEISSHEIM TO BAYREUTH FOR BORDER DUTY, IT WAS ADMINISTRATIVELY REPORTED THAT THE COMMANDING GENERAL, SEVENTH UNITED STATES ARMY, DETERMINED THAT TEMPORARY DUTY FOR THE PURPOSE OF PARTICIPATING IN BORDER OPERATIONS WAS FIELD DUTY AS DEFINED IN THE JOINT TRAVEL REGULATIONS AND THAT NO PER DIEM WAS AUTHORIZED FOR SUCH DUTY. NOTWITHSTANDING CAPTAIN MCMAHON'S CERTIFICATION AS TO THE NATURE OF THE DUTY PERFORMED, SINCE YOUR MAJOR OVERSEAS COMMANDER, PURSUANT TO THE AUTHORITY VESTED IN HIM UNDER ARMY REGULATIONS 35-3080, DETERMINED THAT THE DUTY SHOULD BE CONSIDERED AS FIELD DUTY, AND IN THE ABSENCE OF SUFFICIENT EVIDENCE TO ESTABLISH THAT THE DETERMINATION WAS CLEARLY ERRONEOUS, THERE IS NO LEGAL BASIS ON THE PRESENT RECORD TO ALLOW YOUR CLAIM FOR PER DIEM FOR THE DUTY PERFORMED IN CONNECTION WITH BORDER OPERATIONS DURING THE PERIOD JANUARY 28 TO MARCH 26, 1959.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION, AND PARAGRAPH 1150-10 DEFINES A PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH 3003-2 DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. WHETHER A PARTICULAR DUTY ASSIGNMENT IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT FOR DETERMINATION UPON A CONSIDERATION OF SUCH FACTORS AS THE NATURE AND DURATION OF THE DUTY ASSIGNED, AND WHETHER THERE EXISTS OR HAS BEEN ASSIGNED ANOTHER STATION TO WHICH THE MEMBER MUST PROCEED UPON ITS COMPLETION TO RESUME HIS NORMAL DUTY ASSIGNMENT. THE CITED REGULATIONS REQUIRE THAT SUCH INFORMATION SHALL BE CONTAINED IN THE ORDERS DIRECTING THE DUTY ASSIGNMENT IN QUESTION.

THE DUTY ASSIGNED TO YOU AT THE SECOND ARMORED CAVALRY REGIMENT, BINDLOCH, GERMANY, BY VERBAL ORDERS OF APRIL 1, 1959, AS CONFIRMED BY ORDERS OF APRIL 10, 1959, WAS FOR AN INDEFINITE PERIOD AND THERE WAS NO PROVISION IN THOSE ORDERS DIRECTING THAT YOU RETURN TO YOUR OLD DUTY STATION OR PROCEED ELSEWHERE UPON ITS COMPLETION. INSTEAD, THE ORDERS EXPRESSLY STATED THAT YOU WERE ATTACHED TO THAT ORGANIZATION PENDING ISSUANCE OF CHANGE OF STATION ORDERS WITHOUT CHANGE OF ORGANIZATIONAL ASSIGNMENT. YOU STATE THAT YOU APPLIED FOR QUARTERS AT YOUR NEW DUTY STATION AND AS SOON AS THE QUARTERS WERE MADE AVAILABLE THE ORDERS OF MAY 4, 1959, WERE ISSUED ASSIGNING BINDLOCH AS YOUR PERMANENT DUTY STATION. UNDER SUCH CIRCUMSTANCES, IT MUST BE CONSIDERED THAT YOUR DUTY ASSIGNMENT WITH THE SECOND ARMORED CAVALRY REGIMENT AT BINDLOCH PURSUANT TO VERBAL ORDERS OF APRIL 1, 1959, WAS NOT TEMPORARY DUTY WITHIN THE CONTEMPLATION OF THE REGULATIONS AND, THEREFORE, THAT THAT POST WAS YOUR PERMANENT DUTY STATION DURING THE PERIOD APRIL 1 TO MAY 5, 1959, FOR WHICH PER DIEM MAY NOT BE ALLOWED IF DUTY WAS PERFORMED THERE DURING THAT PERIOD. HOWEVER, THE ITINERARY OF TRAVEL SUBMITTED WITH YOUR CLAIM SHOWS THAT UNDER AUTHORITY OF THE CONFIRMATORY ORDERS OF APRIL 10, 1959, YOU TRAVELED ON APRIL 1, 1959, FROM OBER SCHLEISSHEIM TO BAYREUTH AND THAT ON MAY 5, 1959, YOU RETURNED FROM BAYREUTH TO OBER SCHLESSHIEM. IF, AS INDICATED, DUTY WAS PERFORMED AT BAYREUTH RATHER THAN BINDLOCH THEN IT APPARENTLY CONSTITUTED BORDER DUTY FOR WHICH NO PER DIEM IS PAYABLE.

REGARDING THE DUTY PERFORMED AT NURNBERG, GERMANY, DURING THE PERIOD AUGUST 3 TO AUGUST 7, 1959, PURSUANT TO ORDERS DATED AUGUST 3, 1959, THE FILE DOES NOT REFLECT THE NATURE OF THE DUTY AND, INASMUCH AS THE ORDERS DO NOT CONTAIN ANY PROVISION FOR PAYMENT OF PER DIEM, IT IS ASSUMED IN THE ABSENCE OF EVIDENCE TO THE CONTRARY THAT THIS DUTY WAS OF THE SAME GENERAL TYPE AS THE OTHER TEMPORARY FIELD DUTY FOR WHICH PER DIEM WAS NOT AUTHORIZED.

CONCERNING YOUR STATEMENT THAT YOU UTILIZED TRANSIT BACHELOR OFFICER QUARTERS DURING THE PERIOD OF YOUR CLAIM AND WERE REQUIRED TO PAY FOR YOUR QUARTERS AND MEALS, YOU ARE ADVISED, AS STATED IN THE SETTLEMENT OF APRIL 13, 1961, THAT UNDER CIRCUMSTANCES SUCH AS THOSE HERE ENCOUNTERED THE PAYMENT FOR MEALS AND A NOMINAL SERVICE CHARGE FOR QUARTERS BY OFFICERS IS REGARDED AS PROPER AND AFFORDS NO BASIS FOR THE PAYMENT OF PER DIEM.

WITH RESPECT TO YOUR CONTENTION THAT INASMUCH AS ALL PERSONS DID NOT TRAVEL AND SINCE MEALS OR BOX LUNCHES WERE NOT FURNISHED, YOUR TRAVEL WAS NOT GROUP TRAVEL--- GROUP TRAVEL INVOLVES THREE OR MORE MEMBERS--- IT APPEARS THAT ON VARIOUS DATES YOU TRAVELED WITH OTHER MEMBERS OF YOUR OUTFIT BY OPERATIONAL MILITARY AIRCRAFT TO AND FROM BAYREUTH IN CONNECTION WITH PARTICIPATION ON BORDER OPERATIONS. EXCEPT FOR ONE INSTANCE THE ACTUAL TRAVEL TIME WAS NOT IN EXCESS OF TWO HOURS' DURATION AND WAS PERFORMED AT PERIODS WHICH DID NOT PRECLUDE THE POSSIBILITY OF OBTAINING MEALS AT GOVERNMENT FACILITIES. ACCORDINGLY, THE NECESSITY FOR PROVIDING BOX LUNCHES FOR THE SHORT PERIODS OF TRAVEL IS NOT APPARENT. IN THE CIRCUMSTANCES, AND SINCE NO PER DIEM WAS AUTHORIZED AND IT APPEARS THAT SUCH TRAVEL WAS ACCOMPLISHED AT NO EXPENSE TO YOU, THERE APPEARS TO BE NO BASIS TO QUESTION YOUR GROUP TRAVEL STATUS FOR THE TRAVEL PERFORMED BETWEEN OBER SCHLEISSHEIM AND BAYREUTH.

ACCORDINGLY, ON THE PRESENT RECORD THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT OF APRIL 13, ..END :