B-148115, MARCH 26, 1962, 41 COMP. GEN. 618

B-148115: Mar 26, 1962

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SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - ON BOARD VESSELS - QUARTERS AVAILABILITY A TEMPORARY DUTY ASSIGNMENT OF A NAVY OFFICER TO ATTEND CONFERENCES ABOARD A SUBMARINE TENDER OUTSIDE THE UNITED STATES ON WHICH QUARTERS WERE NOT AVAILABLE TO TRANSIENT PERSONNEL CONSTITUTES TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS. PER DIEM TO THE OFFICER IS NOT AUTHORIZED. THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 62-2. COMMANDER BATY WAS ORDERED TO REPORT TO THE BUREAU OF NAVAL PERSONNEL FOR TRANSPORTATION IN TIME TO PROCEED TO HOLY LOCH. THIS ENDORSEMENT FURTHER STATES THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE.

B-148115, MARCH 26, 1962, 41 COMP. GEN. 618

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - ON BOARD VESSELS - QUARTERS AVAILABILITY A TEMPORARY DUTY ASSIGNMENT OF A NAVY OFFICER TO ATTEND CONFERENCES ABOARD A SUBMARINE TENDER OUTSIDE THE UNITED STATES ON WHICH QUARTERS WERE NOT AVAILABLE TO TRANSIENT PERSONNEL CONSTITUTES TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS, WHICH PROHIBITS PAYMENT OF PER DIEM FOR ANY TEMPORARY OR TRAINING DUTY ON GOVERNMENT VESSELS, AND, IN THE ABSENCE OF ANY PROVISION IN THE REGULATIONS PERMITTING PAYMENT OF PER DIEM ON THE BASIS THAT CONDITIONS OR CIRCUMSTANCES ABOARD SHIP MADE QUARTERS UNAVAILABLE, PER DIEM TO THE OFFICER IS NOT AUTHORIZED.

TO GLADYS B. SMITH, DEPARTMENT OF THE NAVY, MARCH 26, 1962:

BY THIRD ENDORSEMENT DATED FEBRUARY 2, 1962, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED YOUR LETTER OF DECEMBER 14, 1961, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYING A PER DIEM ALLOWANCE TO LIEUTENANT COMMANDER EDWARD M. BATY, 492977, USN, FOR THE PERIOD FROM OCTOBER 21 TO 23, 1961, UNDER THE CIRCUMSTANCES DESCRIBED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 62-2.

BY BUREAU OF NAVAL PERSONNEL ORDER T-018410, DATED OCTOBER 12, 1961, COMMANDER BATY WAS ORDERED TO REPORT TO THE BUREAU OF NAVAL PERSONNEL FOR TRANSPORTATION IN TIME TO PROCEED TO HOLY LOCH, SCOTLAND, ON OR ABOUT OCTOBER 20, 1961, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH FBM MATTERS, AND TO PROCEED TO ADDITIONAL PLACES AND ON BOARD SUCH NAVAL VESSELS AS NECESSARY, REPORTING TO THE COMMANDING OFFICERS OF SUCH VESSELS, ON SIMILAR TEMPORARY ADDITIONAL DUTY. PURSUANT TO THESE ORDERS COMMANDER BATY PROCEEDED FROM WASHINGTON, D.C., TO HOLY LOCH, SCOTLAND. SECOND ENDORSEMENT DATED OCTOBER 24, 1961, TO THE ORDERS STATES THAT HE REPORTED TO COMMANDER SUBMARINE SQUADRON FOURTEEN AT HOLY LOCH ON OCTOBER 21, 1961. THIS ENDORSEMENT FURTHER STATES THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE, THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE, AND THAT THE OFFICER WAS ATTACHED TO THAT ACTIVITY, A SEA COMMAND LOCATED ABOARD THE U.S.S. PROTEUS (AS-19), UNTIL OCTOBER 24, 1961. SINCE THE MEMBER PRESUMABLY WAS REQUIRED TO PROCURE QUARTERS ASHORE AT HIS OWN EXPENSE, YOU REQUEST DECISION AS TO WHETHER THE PROVISIONS OF PARAGRAPH 4201-8 (4250-8) OF THE JOINT TRAVEL REGULATIONS PRECLUDE PAYMENT OF PER DIEM.

IN EXPLANATION OF COMMANDER BATY'S TEMPORARY DUTY ASSIGNMENT, THE COMPTROLLER OF THE NAVY, IN FIRST ENDORSEMENT OF DECEMBER 28, 1961, TO YOUR LETTER, STATES AS FOLLOWS:

3. THE SITUATION IN HOLY LOCH, SCOTLAND INVOLVED IN THIS CASE IS SOMEWHAT UNUSUAL. THERE IS NO INSTALLATION ASHORE AND, THEREFORE, NO GOVERNMENT FACILITIES ARE AVAILABLE. THE USS PROTEUS (AS-19) IS AT THAT LOCATION AND IS THE SITE OF NAVY HEADQUARTERS THERE. AS IS THE CASE WITH MANY OTHER SHIP SQUADRONS, THE PERSONNEL PERMANENTLY ATTACHED TO SUBMARINE SQUADRON FOURTEEN ARE PHYSICALLY LOCATED ON BOARD A SHIP. IF TEMPORARY DUTY PERSONNEL WERE QUARTERED AND MESSED ABOARD THE SAME SHIP, PAYMENT OF PER DIEM WOULD BE PROHIBITED BY REFERENCE (B) (PARAGRAPH 4201-8, JOINT TRAVEL REGULATIONS). HOWEVER, THE UNUSUAL MISSION OF THE USS PROTEUS INVOLVING TWO-CREW POLARIS SUBMARINES MAKES QUARTERS ABOARD THE SHIP UNAVAILABLE, AT TIMES, TO TRANSIENT PERSONNEL. THIS IS THE SITUATION IN WHICH LCDR BATY WAS PLACED.

4. CORRESPONDENCE WITH THE PER DIEM, TRAVEL, AND TRANSPORTATION ALLOWANCE COMMITTEE HAS LED TO THE CONCLUSION THAT A LITERAL INTERPRETATION OF REFERENCE (B) IS MORE RESTRICTIVE THAN WAS INTENDED BY THE NAVY. AS A RESULT, A CHANGE TO THE LANGUAGE OF THE EXISTING PER DIEM PROHIBITION IS UNDER CONSIDERATION BY THE COMMITTEE. IN THE MEANTIME, A NUMBER OF INDIVIDUAL CLAIMS HAVE BEEN SUBMITTED TO THE CLAIMS DIVISION. CLAIMS NUMBERED Z-2112052 AND Z-2112053 WERE APPROVED FOR PAYMENT AFTER APPEALS BY THE MEMBERS CONCERNED. ON THE OTHER HAND, CLAIM NUMBER Z-2130978 WAS NOT ALLOWED.

COMMANDER BATY STATES IN HIS CLAIM COVERING THE INDICATED PERIOD THAT THE PURPOSE OF THE TRIP DIRECTED BY HIS ORDERS OF OCTOBER 12, 1961, WAS TO ATTEND CONFERENCES HELD ABOARD THE U.S.S. PROTEUS, A SUBMARINE TENDER, AND THAT QUARTERS COULD NOT BE PROVIDED FOR HIS USE ON THAT VESSEL.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (B), AUTHORIZES THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE PER DIEM FOR TRAVEL OUTSIDE THE UNITED STATES ,CONSIDERING ALL ELEMENTS OF COST OF LIVING" TO THE MEMBERS INVOLVED. THE PURPOSE OF SUCH PROVISION IS TO PROVIDE A BASIS FOR THE PAYMENT FROM PUBLIC FUNDS OF ONLY THOSE ADDITIONAL EXPENSES OF SUBSISTENCE WHICH ARE INCURRED BY MEMBERS AS A RESULT OF BEING REQUIRED TO MAINTAIN THEMSELVES AWAY FROM THEIR DESIGNATED POSTS OF DUTY. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE SET FORTH IN THE JOINT TRAVEL REGULATIONS. AS AN EXCEPTION TO THE GENERAL ENTITLEMENT OF MEMBERS UNDER PARAGRAPH 4250 OF THOSE REGULATIONS TO PER DIEM FOR PERIODS OF TRAVEL AND TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES, SUBPARAGRAPH 4250-8 PROHIBITS PAYMENT OF THE ALLOWANCES "FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL.' SIMILAR PROVISION FOR TEMPORARY DUTY IN THE UNITED STATES IS CONTAINED IN PARAGRAPH 4201-8 OF THE REGULATIONS. THE PURPOSE OF THE EXCEPTION IS TO DENY PER DIEM WHEN TEMPORARY DUTY OR TRAINING DUTY IS PERFORMED ON GOVERNMENT VESSELS BECAUSE OF A CONSIDERATION THAT SUBSISTENCE FACILITIES ARE AVAILABLE THERE, THE USE OF WHICH WOULD NOT INVOLVE THE ABOVE-NORMAL SUBSISTENCE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED. 38 COMP. GEN. 626. THE REGULATIONS, HOWEVER, CONTAIN NO PROVISION WHICH WOULD PERMIT PAYMENT OF THE PER DIEM ALLOWANCE ON THE BASIS THAT CONDITIONS OR CIRCUMSTANCES ABOARD SHIP MADE QUARTERS UNAVAILABLE. WHILE WE DO NOT DOUBT THAT THE SITUATION OF THE U.S.S. PROTEUS (AS-19) AT HOLY LOCH WAS SOMEWHAT UNUSUAL AND THAT CIRCUMSTANCES ABOARD THAT SHIP MADE QUARTERS UNAVAILABLE FOR COMMANDER BATY, PAYMENT OF PER DIEM FOR THE PERIOD OF THE CLAIM IS PROHIBITED BY THE CITED REGULATIONS REGARDLESS OF THE FACT THAT QUARTERS WERE NOT AVAILABLE ABOARD THAT VESSEL. COMPARE B-146671, OCTOBER 11, 1961, AND B-144083, APRIL 20, 1961. THE PAYMENTS TO THE MEMBERS INVOLVED IN CLAIMS NUMBERS Z-2112052 AND Z-2112053, UPON REVIEW, ARE FOUND TO HAVE BEEN ERRONEOUS AND FORM NO LEGAL BASIS FOR THE PAYMENT OF COMMANDER BATY'S CLAIM.

ACCORDINGLY, IT IS CONCLUDED THAT THE SERVICE PERFORMED BY COMMANDER BATY AT HOLY LOCH, SCOTLAND, DURING THE PERIOD IN QUESTION WAS TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WITHIN THE CONTEMPLATION OF PARAGRAPH 4250-8 OF THE REGULATIONS AND THAT PAYMENT OF THE PER DIEM CLAIMED IS NOT AUTHORIZED. COMMANDER BATY'S ORIGINAL ORDERS ARE RETURNED HEREWITH.