B-149562, SEP. 10, 1962

B-149562: Sep 10, 1962

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HARNSTROM: REFERENCE IS MADE TO YOUR COMMUNICATION OF JULY 16. YOU WERE DIRECTED TO PROCEED ON OR ABOUT AUGUST 2. YOU CERTIFIED THAT YOU OCCUPIED GOVERNMENT QUARTERS WHILE AT INDIANTOWN GAP MILITARY RESERVATION BUT THAT GOVERNMENT MESS WAS NOT UTILIZED. YOU WERE PAID PER DIEM ALLOWANCE OF $4 FOR THE PERIOD OF TEMPORARY DUTY. YOU SAY THAT THE PROVISIONS OF THE ORDERS WERE NOT MET BECAUSE A GOVERNMENT MESS WAS NOT AVAILABLE AND THEREFORE YOU BELIEVE THAT YOU ARE ENTITLED TO ADDITIONAL PER DIEM BASED ON THE $6 RATE AUTHORIZED BY PARAGRAPH 4205-5E (2). PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS PROHIBITS PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES WHILE PARTICIPATING IN FIELD DUTY TYPE ACTIVITIES (OTHER THAN ADVANCE PLANNING AND CRITIQUE PHASES) WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED EXCEPT FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH THE REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED.

B-149562, SEP. 10, 1962

TO LIEUTENANT COLONEL EDMUND V. HARNSTROM:

REFERENCE IS MADE TO YOUR COMMUNICATION OF JULY 16, 1962, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 28, 1962, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD AUGUST 3 TO 18, 1961, INCIDENT TO TEMPORARY DUTY PERFORMED AT INDIANTOWN GAP MILITARY RESERVATION, ANNVILLE, PENNSYLVANIA.

BY ORDERS DATED APRIL 18, 1961, AS AMENDED, YOU WERE DIRECTED TO PROCEED ON OR ABOUT AUGUST 2, 1961, TO INDIANTOWN GAP MILITARY RESERVATION FOR APPROXIMATELY 18 DAYS' TEMPORARY DUTY. THE ORDERS STATED "TDY PERF UNDER THIS 0 CONST A TYPE DY CONTEM IN PAR 4201.6 JTR AS IMPL BY AR 35-3080. GOVT QTRS/MESS WB PROVIDED.' YOU CERTIFIED THAT YOU OCCUPIED GOVERNMENT QUARTERS WHILE AT INDIANTOWN GAP MILITARY RESERVATION BUT THAT GOVERNMENT MESS WAS NOT UTILIZED. YOU WERE PAID PER DIEM ALLOWANCE OF $4 FOR THE PERIOD OF TEMPORARY DUTY. YOU SAY THAT THE PROVISIONS OF THE ORDERS WERE NOT MET BECAUSE A GOVERNMENT MESS WAS NOT AVAILABLE AND THEREFORE YOU BELIEVE THAT YOU ARE ENTITLED TO ADDITIONAL PER DIEM BASED ON THE $6 RATE AUTHORIZED BY PARAGRAPH 4205-5E (2), JOINT TRAVEL REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED.

PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS PROHIBITS PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES WHILE PARTICIPATING IN FIELD DUTY TYPE ACTIVITIES (OTHER THAN ADVANCE PLANNING AND CRITIQUE PHASES) WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED EXCEPT FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH THE REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. PARAGRAPH 4 OF ARMY REGULATIONS NO. 35-3080 DATED JUNE 9, 1958, PROVIDES FOR PAYMENT OF PER DIEM ALLOWANCES FOR ACTIVE ARMY PERSONNEL FOR TEMPORARY DUTY IN CONNECTION WITH TRAINING ENCAMPMENTS DURING THE ENTIRE PERIOD OF TEMPORARY DUTY AT RATES PRESCRIBED IN PARAGRAPH 7 ON THE BASIS THAT SUCH PERSONNEL ARE NOT MEMBERS OF THE GROUPS BEING TRAINED AND THESE DUTIES ARE NORMALLY PERFORMED UNDER CONDITIONS MORE CLOSELY CONFORMING TO GARRISON DUTY.

PARAGRAPH 7C (2) AUTHORIZES PAYMENT OF PER DIEM ALLOWANCES OF $4 FOR OFFICERS AND $1 FOR ENLISTED MEN FOR TEMPORARY DUTY AT THE SITE OF A TRAINING ENCAMPMENT. PARAGRAPH 9 PROVIDES THAT OFFICERS WHO ARE ENTITLED TO PER DIEM WILL BE ASSESSED MINIMUM MESSING CHARGES OF $2.25 PER DAY AND SERVICE CHARGES FOR THE UTILIZATION OF GOVERNMENT QUARTERS. IF PER DIEM IS NOT PAYABLE, NO CHARGE IS ASSESSED FOR SLEEPING ACCOMMODATIONS AND THE RATE FOR MEALS IS REDUCED. UNDER SUCH REGULATIONS OFFICERS ASSIGNED TO TEMPORARY DUTY AT CAMPS AND INSTALLATIONS ARE REQUIRED TO PAY CERTAIN SPECIFIED CHARGES FOR QUARTERS AND SUBSISTENCE UTILIZED. FOR PER DIEM PURPOSES THE TERM ,GOVERNMENT MESS" WAS DEFINED DURING THE PERIOD INVOLVED, IN PARAGRAPH 1150-4 OF THE JOINT TRAVEL REGULATIONS AS MEANING "ANY GENERAL OR SERVICE ORGANIZATIONAL MESS; ARMY AND AIR FORCE OFFICERS' OR STUDENT OFFICERS' FIELD MESS; NAVY, MARINE CORPS, AND COAST GUARD OFFICERS' CLOSED MESS; AND NATIONAL GUARD MESS.' IT WAS FURTHER PROVIDED IN THAT PARAGRAPH THAT "MEALS PROCURED FROM RESTAURANTS AND CAFETERIAS OPERATED BY ARMED SERVICES EXCHANGES, OFFICERS' CLUBS AND OFFICERS' OPEN MESSES ARE NOT CONSIDERED TO BE MEALS FURNISHED BY THE GOVERNMENT.' PARAGRAPH 4451-3 OF THE SAME REGULATIONS PROVIDES THAT CLAIM OF OFFICERS FOR PER DIEM FOR PERIODS OF TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES SHALL BE SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AS TO THE AVAILABILITY OF GOVERNMENT MESS. THE PURPOSE OF SUCH REQUIREMENT IS TO PROVIDE EVIDENCE CONTEMPORANEOUSLY OBTAINED FROM AN OFFICIAL WHOSE KNOWLEDGE OF SURROUNDING FACTS AND PHYSICAL PRESENCE AT THE STATION PARTICULARLY QUALIFY HIM FOR MAKING A DETERMINATION. NO SUCH CERTIFICATE HAS BEEN FURNISHED IN YOUR CASE.

SINCE PAYMENT OF YOUR CLAIM FOR ADDITIONAL PER DIEM IS DEPENDENT UPON SUBMISSION OF A SUPPORTING CERTIFICATE OF THE COMMANDING OFFICER THAT GOVERNMENT MESS AS CONTEMPLATED BY THE REGULATIONS WAS NOT AVAILABLE TO YOU, WE ARE WITHOUT AUTHORITY ON THE BASIS OF THE PRESENT RECORD TO ALLOW YOUR CLAIM. THEREFORE, THE SETTLEMENT OF JUNE 28, IS SUSTAINED.

WE HAVE SO SPECIFIC INFORMATION WITH RESPECT TO YOUR ALLEGATION THAT OTHER OFFICERS WERE PAID PER DIEM AT THE $6 RATE UNDER CIRCUMSTANCES SIMILAR TO YOURS. HOWEVER, THE CORRECTNESS OF SUCH PAYMENTS WILL BE FOR CONSIDERATION IN THE AUDIT OF THE DISBURSING OFFICERS' ACCOUNTS. IN ANY EVENT, WE HOPE YOU WILL UNDERSTAND THAT THE FACT THAT ERRONEOUS PAYMENTS MAY HAVE BEEN MADE TO OTHER OFFICERS DOES NOT PROVIDE A LEGAL BASIS TO ALLOW YOUR CLAIM.