B-148776, OCT. 3, 1962

B-148776: Oct 3, 1962

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JR: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23. YOU REQUEST INFORMATION AS TO HOW THE AMOUNT ALLOWED WAS COMPUTED. PARAGRAPH 4451 OF THE JOINT TRAVEL REGULATIONS REQUIRES A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS WHEN TEMPORARY DUTY IS PERFORMED AT A PLACE WHERE GOVERNMENT QUARTERS AND MESS ARE NOT AVAILABLE. IN THE ABSENCE OF THE APPROPRIATE CERTIFICATE OF THE COMMANDING OFFICER AT THE TEMPORARY DUTY POINT SHOWING THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE OR UTILIZED. IT WILL BE ASSUMED BOTH WERE AVAILABLE OR UTILIZED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY. THAT PARAGRAPH PROVIDES THAT A DEDUCTION OF 40 PERCENT OF THE PER DIEM ALLOWANCE RATE APPLICABLE FOR THE DAY WILL BE MADE WHEN GOVERNMENT QUARTERS ARE AVAILABLE AND THAT A DEDUCTION OF 15 PERCENT WILL BE MADE FOR EACH MEAL AVAILABLE TO ENLISTED MEN.

B-148776, OCT. 3, 1962

TO A/1C MARVIN T. ASHLEY, JR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1962, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 22, 1962, WHICH ALLOWED $71.10 AS PER DIEM FOR THE PERIOD OCTOBER 9 TO DECEMBER 21, 1958, WHILE ON TEMPORARY DUTY AT TAINAN AIR BASE, TAIWAN, UNDER ORDERS DATED OCTOBER 3, NOVEMBER 3, AND DECEMBER 8, 1958. ALSO, YOU REQUEST INFORMATION AS TO HOW THE AMOUNT ALLOWED WAS COMPUTED.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 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 CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR PERMANENT STATION. PARAGRAPH 4451 OF THE JOINT TRAVEL REGULATIONS REQUIRES A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS WHEN TEMPORARY DUTY IS PERFORMED AT A PLACE WHERE GOVERNMENT QUARTERS AND MESS ARE NOT AVAILABLE. IN THE ABSENCE OF THE APPROPRIATE CERTIFICATE OF THE COMMANDING OFFICER AT THE TEMPORARY DUTY POINT SHOWING THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE OR UTILIZED, IT WILL BE ASSUMED BOTH WERE AVAILABLE OR UTILIZED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY. PARAGRAPH 4254 OF THE JOINT TRAVEL REGULATIONS REQUIRES DEDUCTIONS FROM PER DIEM FOR QUARTERS AND MESS WHEN AVAILABLE. THAT PARAGRAPH PROVIDES THAT A DEDUCTION OF 40 PERCENT OF THE PER DIEM ALLOWANCE RATE APPLICABLE FOR THE DAY WILL BE MADE WHEN GOVERNMENT QUARTERS ARE AVAILABLE AND THAT A DEDUCTION OF 15 PERCENT WILL BE MADE FOR EACH MEAL AVAILABLE TO ENLISTED MEN. THE APPLICABLE PER DIEM RATE IN YOUR CASE WAS $6 FOR TEMPORARY DUTY AT TAIWAN AND $9 TRAVEL PER DIEM FOR DAY OF DEPARTURE. THE AMOUNT ALLOWED WAS COMPUTED AS FOLLOWS:

TABLE

OCTOBER 9, 1958, 1 DAY AT $6 LESS 40 PERCENT

FOR QUARTERS $ 3.60

OCTOBER 10 TO DECEMBER 20, 1958, 72 DAYS AT

$6 LESS 40 PERCENT FOR QUARTERS AND 45

PERCENT FOR 3 MEALS 64.80

DECEMBER 21, 1958, 1 DAY AT $9 LESS 40 PERCENT

FOR QUARTERS AND 30 PERCENT FOR 2 MEALS 2.70

TOTAL $71.10

THE RECORD SHOWS THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AT TAINAN AIR BASE, TAIWAN, AND FOR THAT REASON THE CERTIFICATE OF NONAVAILABILITY WAS NOT ISSUED. WHILE IT APPEARS THAT YOU DID NOT UTILIZE THE QUARTERS OR MESS DUE TO MISUNDERSTANDING OR ERRONEOUS ADVICE FURNISHED BY PERSONNEL AT THE AIR BASE, IT LONG HAS BEEN HELD THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE OR NEGLIGENCE OF ITS OFFICERS, EMPLOYEES AND AGENTS. GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573; ROBERTSON V. SICHEL, 127 U.S. 507.

SINCE THE RECORD IN YOUR CASE DOES NOT INCLUDE A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS, THE SETTLEMENT OF JUNE 22, 1962, WAS CORRECT AND IS SUSTAINED.