B-150059, OCT. 30, 1962

B-150059: Oct 30, 1962

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THE RECORD SHOWS YOU WERE A MEMBER OF AN ENTERTAINMENT GROUP KNOWN AS COUNT CARTER'S ROLLICKING RHYTHM REVUE AND THAT THE LEADER OF THIS GROUP. YOU WERE FURNISHED ALL NECESSARY TRANSPORTATION AND PAID A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE AT THE RATE OF $7 DURING THE PERIOD OF THE TOUR UNDER DEPARTMENT OF THE ARMY INVITATIONAL TRAVEL ORDERS AGPA-O. NO CONTRACT WAS EXECUTED FOR THE PAYMENT OF FEES TO YOU OR ANY OTHER MEMBER OF THIS UNIT BUT RATHER THE SERVICES OF THE GROUP WERE ACCEPTED AS OFFERED BY THE LEADER ONLY UPON A GRATUITOUS BASIS. CARTER PRIOR TO THE ACCEPTANCE OF HIS OFFER WAS INFORMED BY THE DEPARTMENT OF THE ARMY AS FOLLOWS: "THE OFFER YOU MAKE IS NOT SUFFICIENTLY CLEAR TO PERMIT CONSIDERATION.

B-150059, OCT. 30, 1962

TO MR. HERMAN B. MITCHELL:

YOUR LETTER OF SEPTEMBER 26, 1962, REQUESTS REVIEW OF OUR SETTLEMENT OF AUGUST 24, 1962, WHICH DISALLOWED YOUR CLAIM FOR SIX WEEKS SALARY AT $250 PER WEEK ALLEGED TO BE DUE YOU FROM THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS YOU WERE A MEMBER OF AN ENTERTAINMENT GROUP KNOWN AS COUNT CARTER'S ROLLICKING RHYTHM REVUE AND THAT THE LEADER OF THIS GROUP, CECIL "COUNT" CARTER, OFFERED THE SERVICES OF THE GROUP ON A GRATUITOUS BASIS FOR AN OVERSEAS TOUR OF MILITARY INSTALLATIONS COMMENCING ON SEPTEMBER 1, 1958, FOR A PERIOD OF SIX WEEKS. YOU WERE FURNISHED ALL NECESSARY TRANSPORTATION AND PAID A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE AT THE RATE OF $7 DURING THE PERIOD OF THE TOUR UNDER DEPARTMENT OF THE ARMY INVITATIONAL TRAVEL ORDERS AGPA-O, DATED AUGUST 19, 1958.

NO CONTRACT WAS EXECUTED FOR THE PAYMENT OF FEES TO YOU OR ANY OTHER MEMBER OF THIS UNIT BUT RATHER THE SERVICES OF THE GROUP WERE ACCEPTED AS OFFERED BY THE LEADER ONLY UPON A GRATUITOUS BASIS. MR. CARTER PRIOR TO THE ACCEPTANCE OF HIS OFFER WAS INFORMED BY THE DEPARTMENT OF THE ARMY AS FOLLOWS:

"THE OFFER YOU MAKE IS NOT SUFFICIENTLY CLEAR TO PERMIT CONSIDERATION. THIS OFFICE BOOKS NO ACTS AND HIRES NO ENTERTAINERS, THEREFORE, IF YOU WISH TO GO FOR PAY, YOU SHOULD MAKE YOUR OFFER TO MR. JEROME B. CORAY, DIRECTOR OF USO SHOWS, 237 EAST 52ND STREET, NEW YORK 22, NEW YORK. ALL PAID PROFESSIONAL ENTERTAINMENT FURNISHED TO THE DEPARTMENT OF DEFENSE FOR OVERSEAS TOURS BY USO IS HIRED BY MR. CORAY'S OFFICE.

"IF YOU ARE OFFERING THE SERVICES OF YOUR GROUP ON A GRATUITOUS BASIS, THAT IS WITHOUT SALARY, BUT IN RETURN FOR GOVERNMENT TRANSPORTATION AND A PER DIEM ALLOWANCE OF $7.00 PER INDIVIDUAL FOR BILLETING, MESSING AND OTHER OUT OF POCKET EXPENSES, THEN THIS OFFICE WILL CONSIDER THE OFFER DIRECTLY. HOWEVER, IT IS POINTED OUT THAT THE POWER TO ACCEPT OR DECLINE THE SERVICES YOU OFFER RESTS WITH THE PACIFIC COMMAND.'

THE OFFER OF ENTERTAINMENT ULTIMATELY WAS ACCEPTED ON THE GRATUITOUS BASIS.

YOU WERE NOT AN EMPLOYEE OF THE GOVERNMENT; NEITHER WAS THE GOVERNMENT A PARTY TO ANY AGREEMENT OBLIGATING IT TO PAY YOU $250 A WEEK FOR YOUR SERVICES. IF YOU HAD SUCH AN AGREEMENT WITH MR. CARTER IT WOULD APPEAR THAT YOU MUST LOOK TO HIM RATHER THAN TO THE GOVERNMENT FOR PAYMENT.

IT FOLLOWS, THEREFORE, THAT THE DISALLOWANCE OF YOUR CLAIM WAS PROPER, AND UPON REVIEW, THE SETTLEMENT IS SUSTAINED.