B-148417, JUL. 13, 1962

B-148417: Jul 13, 1962

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SERGEANT DARGIN WAS DIRECTED TO PROCEED. WAS LOCATED FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS REGULAR STATION AND RESUME HIS REGULAR DUTIES. BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESSING FACILITIES WERE AVAILABLE. IN YOUR LETTER YOU STATE THAT WHILE THE ORDERS ARE SILENT ON THE QUESTION OF WHETHER THE DUTY TO BE PERFORMED WAS FIELD DUTY WITHIN THE MEANING OF PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS. IT APPEARS THAT IT WAS THE INTENT OF THE ORDER-ISSUING AUTHORITY. - THAT THE TEMPORARY ADDITIONAL DUTY WAS TO BE PERFORMED ON A PER DIEM BASIS. YOU SAY THIS IS SUBSTANTIATED BY LETTER OF FEBRUARY 8. IN WHICH HE MADE A DETERMINATION THAT THE DUTY PERFORMED AT MILLPOND BY MEMBERS INVOLVED HERE DID NOT CONSTITUTE FIELD DUTY AS DEFINED IN THE JOINT TRAVEL REGULATIONS AND THAT THE PAYMENT OF PER DIEM ALLOWANCE CLAIMED BY SERGEANT DARGIN IS PROPER.

B-148417, JUL. 13, 1962

TO MAJOR O. D. COONEY, DISBURSING OFFICER:

BY FOURTH INDORSEMENT DATED MARCH 13, 1962, PDTATAC CONTROL NO. 62 7, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED HERE YOUR LETTER OF FEBRUARY 5, 1962, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF SERGEANT DAVID L. DARGIN, 495178, USMC, TO PER DIEM UNDER THE CIRCUMSTANCES STATED BELOW.

BY ORDERS DATED MAY 12, 1961, SERGEANT DARGIN WAS DIRECTED TO PROCEED, AS A MEMBER OF A GROUP, AND REPORT TO SUCH PLACES AS THE SENIOR OFFICER PRESENT, MILLPOND, WAS LOCATED FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD IN EXCESS OF 30 DAYS, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS REGULAR STATION AND RESUME HIS REGULAR DUTIES. HE DEPARTED FUTEMA, OKINAWA, IN A GROUP TRAVEL STATUS ON MARCH 23, 1961, AND ARRIVED AT MILLPOND ON MARCH 24, 1961. DURING THE PERIOD OF TEMPORARY ADDITIONAL DUTY, BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESSING FACILITIES WERE AVAILABLE. SERGEANT DARGIN DEPARTED MILLPOND ON OCTOBER 26, 1961, AND REPORTED BACK TO HIS REGULAR STATION AT FUTEMA, OKINAWA, FOR REASSIGNMENT ON OCTOBER 27, 1961.

IN YOUR LETTER YOU STATE THAT WHILE THE ORDERS ARE SILENT ON THE QUESTION OF WHETHER THE DUTY TO BE PERFORMED WAS FIELD DUTY WITHIN THE MEANING OF PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS, IT APPEARS THAT IT WAS THE INTENT OF THE ORDER-ISSUING AUTHORITY--- AS INDICATED BY THE ESTIMATED COST OF THE TRAVEL ORDERS--- THAT THE TEMPORARY ADDITIONAL DUTY WAS TO BE PERFORMED ON A PER DIEM BASIS. ALSO, YOU SAY THIS IS SUBSTANTIATED BY LETTER OF FEBRUARY 8, 1962, FROM THE COMMANDING GENERAL, FLEET MARINE FORCE, PACIFIC, IN WHICH HE MADE A DETERMINATION THAT THE DUTY PERFORMED AT MILLPOND BY MEMBERS INVOLVED HERE DID NOT CONSTITUTE FIELD DUTY AS DEFINED IN THE JOINT TRAVEL REGULATIONS AND THAT THE PAYMENT OF PER DIEM ALLOWANCE CLAIMED BY SERGEANT DARGIN IS PROPER. YOUR DOUBT IN THE MATTER, HOWEVER, IS STATED TO HAVE ARISEN BY REASON OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF OCTOBER 26, 1961, WHICH DISALLOWED THE CLAIM OF PRIVATE FIRST CLASS GENE W. PHILLIPS, 1933700, USMC, FOR PER DIEM FOR TEMPORARY DUTY AT MILLPOND UNDER SIMILAR ORDERS.

WITH RESPECT TO PHILLIPS, IT WAS AFFIRMATIVELY DETERMINED AND SPECIFIED IN THE ORDERS THAT THE TRAVEL AND TEMPORARY DUTY DIRECTED CONSTITUTED FIELD DUTY OF THE TYPE CONTEMPLATED IN SECNAV INSTRUCTION 7220.24B DATED JANUARY 17, 1961, AND PARAGRAPH 4250-3, JOINT TRAVEL REGULATIONS, A MATERIAL FACT IN CASES SUCH AS THIS, AND THE SETTLEMENT TURNED ON THE FACT THAT WHEN THE ORDERS WERE ISSUED IT APPARENTLY WAS ADMINISTRATIVELY DETERMINED, AND INTENDED TO SPECIFY, THAT THE DUTY INVOLVED WAS FIELD DUTY OF A TYPE FOR WHICH PER DIEM WAS NOT AUTHORIZED. IN THIS CONNECTION, IT WAS EXPLAINED IN THE SETTLEMENT THAT A SUBSEQUENT ADMINISTRATIVE DETERMINATION THAT MILLPOND WAS NOT FIELD DUTY COULD NOT SERVE AS A LEGAL BASIS TO AUTHORIZE PER DIEM IN THE ABSENCE OF A SHOWING THAT THE ORIGINAL ORDERS ACTUALLY WERE IN ERROR. 24 COMP. GEN. 439.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY TATION" UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS. PARAGRAPH 4250-3, JOINT TRAVEL REGULATIONS, PROHIBITS PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVES, AND OTHER SIMILAR ACTIVITIES EXCEPT FOR ADVANCED PLANNING AND CRITIQUE PHASES, OR WHEN PER DIEM IS AUTHORIZED BY REGULATIONS OF THE DEPARTMENT CONCERNED FOR SUCH DUTY ON AN INSTALLATION OF THE SERVICES.

PARAGRAPH 4256 OF THE REGULATIONS PROVIDES FOR RATES OF TRAVEL PER DIEM ALLOWANCES APPLICABLE FOR TRAVEL OUTSIDE THE UNITED STATES. SUBPARAGRAPH 3 PROVIDES THAT WHEN COMBAT ACTION, UNITED NATIONS POLICE ACTION, UNUSUAL MILITARY OPERATIONS, OR EMERGENCY CIRCUMSTANCES WARRANT MODIFICATION OR DELETION OF TRAVEL PER DIEM RATES (AND STATION ALLOWANCE RATES) IN ANY PARTICULAR FOREIGN COUNTRY, PLACE, OR AREA, THE THEATER COMMANDER CONCERNED WILL NOTIFY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE BY MESSAGE OF HIS RECOMMENDATIONS CONCERNING MODIFICATION, OR DELETION OF THE RATES INVOLVED AS WARRANTED BY THE SITUATION, AND DEFINING THE AREA TO WHICH THEY WILL APPLY.

THE RECORD DOES NOT DISCLOSE THE NATURE OF OPERATION MILLPOND. HOWEVER, IN LETTER OF FEBRUARY 8, 1962, FROM THE COMMANDING GENERAL, FLEET MARINE FORCE, PACIFIC, IT IS EMPHATICALLY STATED THAT THE DUTY WAS NOT OF THE TYPE SPECIFIED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS FOR WHICH PER DIEM IS NOT AUTHORIZED. IT IS FURTHER STATED THAT MILLPOND WAS A CONTINGENCY DEPLOYMENT AND WAS IN EVERY SENSE AN ACTUAL MILITARY OPERATION; THAT IT WAS NOT A TRAINING MANEUVER, FIELD EXERCISE OR SIMILAR ACTIVITY, THERE BEING NO ELEMENT OF PRACTICE OR TRAINING INVOLVED, THAT THE MARINES ASSIGNED TO THAT OPERATION WERE, AND ARE, ENTITLED TO PER DIEM IN THE SAME MANNER AS PERSONNEL OF THE OTHER SERVICES WHO PARTICIPATED WITH THEM IN THE OPERATION. IT IS FURTHER STATED THAT THE INITIAL ORDERS ASSIGNING THIRD MARINE DIVISION PERSONNEL TO MILLPOND IMPROPERLY SPECIFIED THAT"FIELD DUTY" WAS INVOLVED. THE COMMANDING GENERAL ALSO POINTS OUT THAT THE THEATER COMMANDER DID NOT INITIATE ACTION TO MODIFY OR DELETE PER DIEM RATES IN THE EVENT OF COMBAT ACTION OR THE OTHER CIRCUMSTANCES PROVIDED FOR IN PARAGRAPH 4256-3 OF THE JOINT TRAVEL REGULATIONS, THUS INDICATING THAT THIS WAS NOT CONSIDERED AS DUTY WITHIN THE SCOPE OF THAT REGULATION.

APPARENTLY IT IS THE ADMINISTRATIVE VIEW THAT MILLPOND WAS SIMPLY A DEPLOYMENT OF THE UNIT AWAY FROM ITS PERMANENT STATION AND THAT THE MEMBERS ASSIGNED TO THE OPERATION ACTUALLY WERE ON TEMPORARY DUTY. SUCH VIEW IS NOT UNTENABLE AND WE HAVE HELD THAT UNDER THE REGULATIONS THEN IN EFFECT PER DIEM WAS PAYABLE TO AN OFFICER ASSIGNED TO TEMPORARY DUTY WITH A UNIT OF HIS ORGANIZATION DEPLOYED AWAY FROM HIS PERMANENT STATION. OUR CONCLUSION IN THAT SITUATION WAS BASED UPON REPRESENTATIONS OF THE DEPARTMENT OF THE NAVY THAT THE DUTY PERFORMED BY THE OFFICER WAS TEMPORARY DUTY IN A TRAVEL STATUS. SEE 34 COMP. GEN. 284. IN THIS CONNECTION PARAGRAPH 4250-13 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED IN CHANGE NO. 116, DATED JULY 1, 1962, WOULD APPEAR TO PRECLUDE THE PAYMENT OF PER DIEM FROM THE EFFECTIVE DATE THEREOF FOR DUTY SUCH AS WAS INVOLVED IN 34 COMP. GEN. 284 AND IN THIS CASE.

GENERALLY, THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT IS FOR TEMPORARY DUTY FOR WHICH PER DIEM IS AUTHORIZED IS A QUESTION OF FACT TO BE DETERMINED BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, THE CHARACTER OF THE SERVICE AND THE CIRCUMSTANCES UNDER WHICH IT IS PERFORMED. 24 COMP. GEN. 667, 670. IN VIEW OF THE ADMINISTRATIVE REPRESENTATIONS IN THE MATTER AND SINCE IT DOES NOT OTHERWISE APPEAR THAT THE DUTY WAS SUCH AS TO PRECLUDE THE PAYMENT OF PER DIEM, IT IS CONCLUDED THAT MILLPOND WAS A DEPLOYMENT FOR TEMPORARY DUTY WITHIN THE CONTEMPLATION OF OUR DECISION IN 34 COMP. GEN. 284 FOR WHICH PER DIEM IS AUTHORIZED.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER AND OTHER PAPERS SUBMITTED WITH YOUR LETTER ARE ENCLOSED.