B-147040, OCT. 10, 1961

B-147040: Oct 10, 1961

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VALDES: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10. YOU WERE DIRECTED TO PROCEED FROM YOUR OFFICIAL STATION STUTTGART. YOUR CLAIM FOR PER DIEM WAS DISALLOWED BY SETTLEMENT OF JUNE 22. FOR THE REASON THAT THE RECORDS ON FILE SHOW THAT COMPETENT AUTHORITY HAS DETERMINED THAT TRAVEL OF THE SEVENTH ARMY SYMPHONY ORCHESTRA IS OF A TYPE SPECIFIED IN PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS. FOR WHICH INCURRED EXPENSES ARE NOT PAYABLE BY THE GOVERNMENT. YOU CONTEND THAT INASMUCH AS A FUNDING PROGRAM FOR TEMPORARY DUTY WAS GRANTED THE ORCHESTRA FOR THE FISCAL YEAR 1962. THE OBJECTIONS CITED IN THE SETTLEMENT ARE NO LONGER IN EXISTENCE. IS SET FORTH IN THE FILE AS FOLLOWS: "A. THE STATED MISSION OF THE ORCHESTRA DOES NOT SAY THAT ANY OF ITS PERFORMANCES ARE TO BE REGARDED AS OFFICIAL UNITED STATES ARMY ORDERED AND SPONSORED ACTIVITIES.

B-147040, OCT. 10, 1961

TO STAFF SERGEANT RICHARD E. VALDES:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 22, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIODS JANUARY 31 TO MARCH 30, 1960, AND APRIL 2 TO 12, 1960, WHILE PERFORMING TEMPORARY DUTY AND TRAVEL AS A MEMBER OF THE SEVENTH UNITED STATES ARMY SYMPHONY ORCHESTRA.

BY ORDERS DATED JANUARY 18, MARCH 4 AND APRIL 1, 1960, ISSUED BY HEADQUARTERS, SPECIAL TROOPS, SEVENTH UNITED STATES ARMY, APO 46, YOU WERE DIRECTED TO PROCEED FROM YOUR OFFICIAL STATION STUTTGART, GERMANY, TO VARIOUS EUROPEAN CITIES FOR THE PURPOSE OF PARTICIPATING IN THE PERFORMANCE OF SYMPHONY CONCERTS. YOUR CLAIM FOR PER DIEM WAS DISALLOWED BY SETTLEMENT OF JUNE 22, 1961, FOR THE REASON THAT THE RECORDS ON FILE SHOW THAT COMPETENT AUTHORITY HAS DETERMINED THAT TRAVEL OF THE SEVENTH ARMY SYMPHONY ORCHESTRA IS OF A TYPE SPECIFIED IN PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS, AS NOT INVOLVING PUBLIC BUSINESS, FOR WHICH INCURRED EXPENSES ARE NOT PAYABLE BY THE GOVERNMENT. WITH YOUR LETTER OF AUGUST 10, 1961, YOU ENCLOSE A COPY OF DISPOSITION FORM, FILE NO. AETCO- BF, DATED JUNE 30, 1961, AND ATTACHED INSTRUCTION SHEET FROM THE COMPTROLLER, SEVENTH ARMY, TO THE COMMANDING OFFICER, SEVENTH ARMY SYMPHONY ORCHESTRA, ESTABLISHING A TEMPORARY DUTY FUNDING PROGRAM FOR THE ORCHESTRA FOR THE FISCAL YEAR 1962, AND YOU CONTEND THAT INASMUCH AS A FUNDING PROGRAM FOR TEMPORARY DUTY WAS GRANTED THE ORCHESTRA FOR THE FISCAL YEAR 1962, THE OBJECTIONS CITED IN THE SETTLEMENT ARE NO LONGER IN EXISTENCE.

THE MISSION OF THE SEVENTH ARMY SYMPHONY ORCHESTRA, AS PROVIDED BY G 1, IS SET FORTH IN THE FILE AS FOLLOWS:

"A. TO PERFORM CONCERTS OF SYMPHONIC MUSIC FOR THE ENTERTAINMENT AND CULTURAL DEVELOPMENT OF US ARMY TROOPS IN EUROPE AND TO MAINTAIN AND IMPROVE CULTURAL RELATIONS BETWEEN VARIOUS FOREIGN POPULATIONS AND THE UNITED STATES ARMY.

"B. TO PLAN, PROMOTE, AND DEVELOP MUSICAL AND THEATRICAL ACTIVITIES FOR THE ENTERTAINMENT OF SEVENTH ARMY PERSONNEL.'

THE STATED MISSION OF THE ORCHESTRA DOES NOT SAY THAT ANY OF ITS PERFORMANCES ARE TO BE REGARDED AS OFFICIAL UNITED STATES ARMY ORDERED AND SPONSORED ACTIVITIES. IN THIS REGARD THE FILE SHOWS THAT UNDER THE LANGUAGE CONTAINED IN THE DESCRIPTION OF PROJECT 3022, MAINTENANCE AND OPERATIONS, ARMY APPROPRIATION, THE LAST SENTENCE OF WHICH READS: "THIS PROJECT WILL INCLUDE THE COSTS, INCLUDING TRAVEL, OF PERSONNEL ENGAGED IN ENTERTAINMENT OF TROOPS," HEADQUARTERS, UNITED STATES ARMY, EUROPE, ON AUGUST 6, 1956, HELD IN EFFECT THAT PAYMENT OF PER DIEM FOR TRAVEL OF THE ORCHESTRA PERSONNEL MIGHT BE MADE ONLY WHEN THE TRAVEL WAS FOR THE ENTERTAINMENT OF TROOPS. THAT DETERMINATION, HOWEVER, APPEARS TO HAVE RELATED TO OFFICIALLY SPONSORED AND ORDERED TROOP ENTERTAINMENT PROGRAMS AND PRESUMABLY THE 1962 TEMPORARY DUTY FUNDING PROGRAM RELATES TO TRAVEL OF THE ORCHESTRA FOR SUCH PROGRAMS. INSOFAR AS THE RECORD SHOWS THE TRAVEL COVERED BY YOUR CLAIM WAS NOT INCIDENT TO ANY OFFICIALLY SPONSORED AND ORDERED TROOP ENTERTAINMENT PROGRAM WITHIN THE CONTEMPLATION OF THAT DETERMINATION BUT WAS INCIDENT TO ITS NONOFFICIAL RECREATIONAL ACTIVITIES.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE TERM ,PUBLIC BUSINESS" RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.

SINCE ON THE PRESENT RECORD IT APPEARS THAT THE TRAVEL OF THE SEVENTH ARMY SYMPHONY ORCHESTRA COVERED BY YOUR CLAIM WAS NOT PURSUANT TO ANY OFFICIALLY SPONSORED AND ORDERED TROOP ENTERTAINMENT PROGRAM BUT WAS OF A TYPE CONTEMPLATED IN PARAGRAPH 6454, JOINT TRAVEL REGULATIONS, AS NOT INVOLVING PUBLIC BUSINESS, YOU ARE NOT ENTITLED TO THE PER DIEM CLAIMED. THE SETTLEMENT OF JUNE 22, 1961, IS SUSTAINED.