B-145944, AUGUST 1, 1961, 41 COMP. GEN. 59

B-145944: Aug 1, 1961

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SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TRAVEL STATUS - DUTY INCIDENT TO TRAVEL AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS DUTY AS A MILITARY CONDUCTOR ON A COMPLETELY MILITARY TRAIN BETWEEN TWO OVERSEAS STATIONS IS REGARDED AS BEING ON DUTY AS A CONDUCTOR ON A MILITARY TRAIN AND NOT ABOARD A COMMERCIAL TRAIN FOR ENTITLEMENT TO TRANSPORTATION AND PER DIEM ALLOWANCES UNDER PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS. THE TRAVEL IS MERELY INCIDENTAL TO THE DUTY SO THAT PER DIEM IS NOT PAYABLE. DUTY PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES ON MILITARY CARS WHICH ARE ATTACHED TO CIVILIAN PASSENGER OR FREIGHT TRAINS MAY NOT BE REGARDED AS DUTY ON "COMMERCIAL CARRIERS" FOR PER DIEM PURPOSES UNDER PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS SO AS TO ENTITLE THE MEMBERS TO PER DIEM.

B-145944, AUGUST 1, 1961, 41 COMP. GEN. 59

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TRAVEL STATUS - DUTY INCIDENT TO TRAVEL AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS DUTY AS A MILITARY CONDUCTOR ON A COMPLETELY MILITARY TRAIN BETWEEN TWO OVERSEAS STATIONS IS REGARDED AS BEING ON DUTY AS A CONDUCTOR ON A MILITARY TRAIN AND NOT ABOARD A COMMERCIAL TRAIN FOR ENTITLEMENT TO TRANSPORTATION AND PER DIEM ALLOWANCES UNDER PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS, AND THE TRAVEL IS MERELY INCIDENTAL TO THE DUTY SO THAT PER DIEM IS NOT PAYABLE. DUTY PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES ON MILITARY CARS WHICH ARE ATTACHED TO CIVILIAN PASSENGER OR FREIGHT TRAINS MAY NOT BE REGARDED AS DUTY ON "COMMERCIAL CARRIERS" FOR PER DIEM PURPOSES UNDER PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS SO AS TO ENTITLE THE MEMBERS TO PER DIEM. A MEMBER OF THE UNIFORMED SERVICES WHO COMPLETES AN ASSIGNMENT TO DUTY AS MILITARY TRAIN CONDUCTOR AND ON THE RETURN TRIP TO HIS PERMANENT STATION DOES NOT PERFORM ANY SUCH DUTY IS REGARDED AS BEING IN A NORMAL TRAVEL STATUS ON THE RETURN TRIP FOR WHICH PER DIEM IS PAYABLE UNDER PARAGRAPH 4254 OF THE JOINT TRAVEL REGULATIONS.

TO MAJOR L. L. PERSONS, DEPARTMENT OF THE ARMY, AUGUST 1, 1961:

THERE HAS BEEN RECEIVED BY NINTH ENDORSEMENT DATED MAY 23, 1961, YOUR LETTER OF DECEMBER 13, 1960, REQUESTING DECISION AS TO WHETHER PAYMENT MAY BE MADE ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF SERGEANT HORST H. E. GUTSFELD, RA 12 507 898, FOR PER DIEM FOR TRAVEL AND TEMPORARY DUTY DURING THE PERIOD NOVEMBER 29 TO DECEMBER 1, 1960. THE REQUEST WAS ASSIGNED CONTROL NO. 61-7 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY TEMPORARY DUTY ORDERS DATED NOVEMBER 28, 1960, SERGEANT GUTSFELD WAS ORDERED TO PROCEED FROM FRANKFURT, GERMANY, TO BREMERHAVEN, GERMANY, AND RETURN FOR APPROXIMATELY 3 DAYS TO ACT AS MILITARY TRAIN CONDUCTOR ON MILITARY TRAINS. HE DEPARTED FRANKFURT AT 8:42 P.M. ON NOVEMBER 29, 1960, AND ARRIVED AT BREMERHAVEN AT 8:34 A.M. ON NOVEMBER 30, 1960. HE DEPARTED BREMERHAVEN AT 8:51 P.M. OF THE SAME DAY AND ARRIVED AT FRANKFURT AT 7:43 A.M. ON DECEMBER 1, 1960. THE RECORD INDICATES THAT HE PERFORMED THE DUTY DIRECTED BY HIS ORDERS ON THE TRIP TO BREMERHAVEN AND THAT HE PERFORMED NO DUTY AS MILITARY TRAIN CONDUCTOR SUBSEQUENT TO HIS ARRIVAL AT BREMERHAVEN. THE RETURN TRIP WAS ABOARD A MILITARY CAR ATTACHED TO A COMMERCIAL TRAIN. HIS CLAIM APPARENTLY IS FOR ONE MEAL NOT RECEIVED ON DECEMBER 1, 1960. YOUR QUESTIONS AS TO THE PROPRIETY OF PAYMENT ARE:

A. IS A NORMAL PER DIEM PAYABLE TO MEMBERS WHILE PERFORMING THEIR PRIMARY DUTIES AS TRAIN CONDUCTOR ABOARD A COMPLETELY MILITARY TRAIN?

B. IF ANSWER TO A IS NEGATIVE, IS A PER DIEM UP PAR 6552-2 PAYABLE TO MEMBERS FOR DUTY ABOARD A MILITARY CAR ATTACHED TO A CIVILIAN PASSENGER OR FREIGHT TRAIN?

PARAGRAPH 6550, JOINT TRAVEL REGULATIONS, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES WHO PERFORM TRAVEL ABOARD "COMMERCIAL CARRIERS" (FOR EXAMPLE, MILITARY POLICE, TRAIN GUARDS, RAILWAY CAR COMMANDERS, COAST GUARD MARINE INSPECTORS) WHERE THE TRAVEL INVOLVED IS NOT PERFORMED FOR THE PURPOSE OF MOVING FROM ONE PLACE TO ANOTHER BUT IS MERELY INCIDENTAL TO DUTIES PERFORMED ABOARD WHILE EN ROUTE WILL BE ENTITLED TO TRANSPORTATION ALLOWANCES PRESCRIBED IN PARAGRAPHS 4203 AND 4251 AS APPLICABLE, AND TO PER DIEM ALLOWANCES PRESCRIBED IN THAT PART. IN THE PRESENT CASE SINCE THE DUTY INVOLVED IN THE TRAVEL FROM FRANKFURT TO BREMERHAVEN WAS AS CONDUCTOR ON A MILITARY TRAIN AND NOT ABOARD A COMMERCIAL CARRIER AND THE TRAVEL WAS MERELY INCIDENTAL TO SUCH DUTY, PER DIEM IS NOT PAYABLE. 34 COMP. GEN. 23 AND 38 COMP. GEN. 871. QUESTION A IS ANSWERED ACCORDINGLY.

PARAGRAPH 6552-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT ENLISTED MEMBERS PERFORMING TRAVEL AS REFERRED TO IN PARAGRAPH 6550 OUTSIDE THE UNITED STATES, WHO ARE REQUIRED TO PROCURE MEALS OR QUARTERS AT PERSONAL EXPENSE, WILL BE ENTITLED TO A PER DIEM ALLOWANCE COMPUTED AT THE RATE OF 20 PERCENT OF THE APPLICABLE TRAVEL PER DIEM ALLOWANCE FOR EACH MEAL (NOT TO EXCEED 3 MEALS DAILY) AND 40 PERCENT OF THE APPLICABLE TRAVEL PER DIEM ALLOWANCE FOR EACH DAY'S LODGING THAT THE MEMBER WAS REQUIRED TO PROCURE AT PERSONAL EXPENSE. IN 38 COMP. GEN. 871 THE TERM "COMMERCIAL CARRIERS" WAS CONSIDERED TO REFER GENERALLY TO CARRIERS OWNED AND OPERATED BY THE SALE OF FARES BY INTERESTS OTHER THAN THE GOVERNMENT AND GOVERNMENT OWNERSHIP OF PASSENGER CARS, OR THE EXISTENCE OF RENTAL AGREEMENTS BY THE GOVERNMENT FOR THE USE OF PASSENGER CARS OR OTHER EQUIPMENT WERE NOT CONSIDERED TO BE FACTORS IN CONSONANCE WITH THAT CONCEPT. IT IS NOT CONSIDERED, THEREFORE, THAT THE SITUATION OF MILITARY CARS ATTACHED TO CIVILIAN TRAINS CATEGORIZES THOSE CARS AS CIVILIAN CARRIERS SO AS TO AUTHORIZE PER DIEM UNDER THE PROVISIONS OF PARAGRAPH 6550 OF THE JOINT TRAVEL REGULATIONS. THEREFORE, QUESTION B LIKEWISE IS ANSWERED IN THE NEGATIVE.

HOWEVER, IF, AS INDICATED, THE MEMBER HERE INVOLVED PERFORMED NO DUTY AS MILITARY TRAIN CONDUCTOR SUBSEQUENT TO ARRIVAL IN BREMERHAVEN BUT WAS RETURNING TO HIS PERMANENT STATION UPON COMPLETION OF SUCH DUTY HE IS ENTITLED TO NORMAL TRAVEL PER DIEM FOR NOVEMBER 30 AND DECEMBER 1, 1960, SUBJECT, OF COURSE, TO THE PROVISIONS OF PARAGRAPH 4254 OF THE JOINT TRAVEL REGULATIONS. SEE CASE OF PRIVATE GOYER IN 34 COMP. GEN. 23. THE VOUCHER WHICH IS RETURNED HEREWITH SHOULD BE AMENDED ACCORDINGLY, PAYMENT BEING AUTHORIZED ON THAT BASIS.