B-152875, DEC. 23, 1963

B-152875: Dec 23, 1963

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INASMUCH AS A PRIOR CLAIM FOR PER DIEM COVERING THE SAME PERIOD WAS DISALLOWED BY SETTLEMENT DATED APRIL 10. THE MATTER WILL BE TREATED AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE ACTION TAKEN IN THE SETTLEMENT. WERE DIRECTED BY ORDERS DATED DECEMBER 21. UPON COMPLETION OF SUCH TEMPORARY ADDITIONAL DUTY YOU ARE DIRECTED TO RETURN TO YOUR COMMAND AND RESUME YOUR REGULAR DUTIES. PARAGRAPH 7 STATES THAT IT WILL BE PRESUMED THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE UNLESS A CERTIFICATE OR ENDORSEMENTS ON ORDERS TO THE CONTRARY WERE OBTAINED. THAT SUCH DUTY WAS TERMINATED ON FEBRUARY 8. YOUR CLAIM INDICATES THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR THE PERIOD FROM JANUARY 3 THROUGH FEBRUARY 8.

B-152875, DEC. 23, 1963

TO MAJOR LEE C. REECE, USMC:

BY LETTER DATED OCTOBER 16, 1963, THE DISBURSING OFFICER, MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, TRANSMITTED TO OUR OFFICE FOR DECISION, VIA THE COMMANDANT OF THE MARINE CORPS, YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY DURING THE PERIOD FROM JANUARY 3 TO FEBRUARY 9, 1963. INASMUCH AS A PRIOR CLAIM FOR PER DIEM COVERING THE SAME PERIOD WAS DISALLOWED BY SETTLEMENT DATED APRIL 10, 1963, THE MATTER WILL BE TREATED AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE ACTION TAKEN IN THE SETTLEMENT.

YOU AND OTHER MEMBERS OF THE MOBILE TRAINING TEAM, A-63, WERE DIRECTED BY ORDERS DATED DECEMBER 21, 1962, FROM THE COMMANDING GENERAL, LANDING FORCE TRAINING UNIT, AMPHIBIOUS TRAINING COMMAND, PACIFIC FLEET, U.S. NAVAL AMPHIBIOUS BASE, SAN DIEGO, CALIFORNIA, TO PROCEED ON OR ABOUT JANUARY 3, 1963, TO 1ST MARINE BRIGADE, HAWAII, FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF ABOUT 38 DAYS IN CONNECTION WITH PRESENTING AN AMPHIBIOUS RECONNAISSANCE COURSE (RECON 1) TO MEMBERS OF THAT COMMAND. UPON COMPLETION OF SUCH TEMPORARY ADDITIONAL DUTY YOU ARE DIRECTED TO RETURN TO YOUR COMMAND AND RESUME YOUR REGULAR DUTIES. PARAGRAPH 5 OF THESE ORDERS STATED THAT THE ORDERS CONSTITUTED GROUP TRAVEL ORDERS AS DEFINED IN PARAGRAPH 4100, JOINT TRAVEL REGULATIONS, AND PROVIDED FOR THE TEAM CHIEF TO DIRECT GROUP TRAVEL FOR THE RETURN TRAVEL, IF APPLICABLE. PARAGRAPH 7 STATES THAT IT WILL BE PRESUMED THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE UNLESS A CERTIFICATE OR ENDORSEMENTS ON ORDERS TO THE CONTRARY WERE OBTAINED.

THE RECORD SHOWS THAT YOU REPORTED AT YOUR TEMPORARY ADDITIONAL DUTY STATION ON JANUARY 3, 1963, AND THAT SUCH DUTY WAS TERMINATED ON FEBRUARY 8, 1963. THE FOLLOWING DAY YOU RETURNED TO YOUR DUTY STATION AT SAN DIEGO. YOUR CLAIM INDICATES THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR THE PERIOD FROM JANUARY 3 THROUGH FEBRUARY 8, 1963, AND IT APPEARS THAT GOVERNMENT MESSING FACILITIES WERE ALSO AVAILABLE DURING THAT PERIOD.

ON MARCH 4, 1963, SUBSEQUENT TO YOUR RETURN TO YOUR DUTY STATION, THE COMMANDING GENERAL AT YOUR STATION ADDRESSED A LETTER TO YOU AND THE OTHER MEMBERS INVOLVED WHICH PURPORTED TO RETROACTIVELY MODIFY THE ORDERS OF DECEMBER 21, 1962. IT WAS STATED THAT THE BASIC ORDERS WERE PREPARED ERRONEOUSLY SINCE THEY IMPLIED THAT MOBILE TRAINING TEAM A-63 WAS DEPLOYED AS A UNIT OF THE AMPHIBIOUS TRAINING COMMAND, PACIFIC FLEET. IT WAS STATED FURTHER THAT IT WAS NOT THE INTENT OF THAT COMMAND TO DEPLOY ANY "DETACHMENT" ON TEMPORARY ADDITIONAL DUTY AND FOR THAT REASON THE ORDERS OF DECEMBER 21, 1962, WERE MODIFIED BY DELETING MOBILE TRAINING TEAM A-63 AS THE IDENTIFICATION SYMBOL, ELIMINATING REFERENCE TO THE SPECIFIC PURPOSE OF THE ASSIGNMENT OR REFERENCE TO ANY MOBILE TRAINING TEAM IN THE ORDERS AND SUBSTITUTING INSTEAD A GENERAL PROVISION FOR THE ASSIGNMENT OF THE INDIVIDUALS INVOLVED UNDER GROUP TRAVEL ORDERS FOR TEMPORARY ADDITIONAL DUTY TO BE IN CONNECTION WITH TRAINING MATTERS.

BY LETTER DATED MARCH 5, 1963, THE COMMANDING GENERAL OF YOUR COMMAND TRANSMITTED YOUR CLAIM TO OUR CLAIMS DIVISION FOR SETTLEMENT VIA THE DISBURSING OFFICER AND THE COMMANDANT OF THE MARINE CORPS. INCLUDED IN THE REFERENCES WAS A COPY OF A LETTER DATED DECEMBER 13, 1962, FROM THE DISBURSING OFFICER, LANDING FORCE TRAINING UNIT, ATLANTIC, NAVAL AMPHIBIOUS BASE, LITTLE CREEK, VIRGINIA, REQUESTING AN ADVANCE DECISION FROM OUR OFFICE WITH RESPECT TO A SIMILAR SITUATION INVOLVING MOBILE TRAINING TEAM 1-63. DOUBT WAS EXPRESSED AS TO WHETHER THE MOBILE TRAINING TEAM WAS DEPLOYED AT ITS TEMPORARY DUTY STATION SO AS TO BE DENIED PER DIEM UNDER THE PROVISIONS OF PARAGRAPH 4201-14, JOINT TRAVEL REGULATIONS. IN LETTER OF JANUARY 8, 1963, THE COMMANDANT OF THE MARINE CORPS RETURNED THE CLAIM WITH THE INFORMATION THAT THE TEAM WAS TO BE CONSIDERED A DEPLOYED DETACHMENT IN ALL RESPECTS AND SUBJECT TO THE RESTRICTIONS OF PARAGRAPH 4201-14, JOINT TRAVEL REGULATIONS. THE COMMANDING GENERAL'S LETTER OF MARCH 5, 1963, OBJECTED TO THE CLASSIFICATION OF A MOBILE TRAINING TEAM AS "DEPLOYED" AND SUGGESTED THAT THE PROVISION IN THE JOINT TRAVEL REGULATIONS REFERRED TO ABOVE DOES NOT APPLY TO SUCH TEAMS AS THERE IS NO TABLE OF ORGANIZATION FOR A MOBILE TRAINING TEAM. IT WAS STATED THAT THEY ARE ARRANGED FOR ON AN "AD HOC" BASIS, THERE ARE NO ADVANCE SCHEDULES FOR SUCH TEAMS, THEY ARE NOT REPETITIVE AND THE SENIOR MEMBER IS NOT VESTED WITH ANY ADDITIONAL AUTHORITY OR RESPONSIBILITY. FOR THOSE REASONS, IT WAS CONTENDED THAT A MOBILE TRAINING TEAM FULFILLS ALL THE REQUIREMENTS FOR THE PAYMENT OF PER DIEM.

IN A LETTER DATED MARCH 14, 1963, THE COMMANDANT OF THE MARINE CORPS REQUESTED THE CHAIRMAN, PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TO CLARIFY PARAGRAPHS 1150 AND 4201-14 OF THE JOINT TRAVEL REGULATIONS BY REPLYING TO SEVERAL QUESTIONS HE PRESENTED. THE REPLY DATED MARCH 27, 1963, CONSIDERED THESE QUESTIONS AND STATED IN PERTINENT PART THAT IT IS NOT MATERIAL WHETHER THE TEMPORARY DUTY IS IN CONNECTION WITH FURTHERING THE MISSION OF THE PARENT COMMAND, AS THE DETERMINING FEATURE IS THE PERFORMANCE OF TEMPORARY DUTY AS A UNIT, OR A DETACHMENT THEREOF. ALSO, THE COMMITTEE EXPRESSED THE VIEW THAT THERE NEED NOT BE ANY MINIMUM LIMITATION TO THE SIZE OF A UNIT OR DETACHMENT. IT STATED FURTHER THAT A DENIAL OF PER DIEM MAY NOT BE AVOIDED BY THE OMISSION OF THE NAME OR NUMBER OF THE PARENT UNIT AND WHEN IT IS DETERMINED FROM THE TERMS OF THE ORDERS THAT TEMPORARY DUTY OF A UNIT OR DETACHMENT IS INVOLVED, PER DIEM SHOULD BE DENIED, NOTWITHSTANDING THE OMISSION OF THE NAME OR NUMBER OF THE UNIT.

YOUR CLAIM AND SUPPORTING PAPERS WERE SUBSEQUENTLY TRANSMITTED TO OUR OFFICE FOR CONSIDERATION AND BY SETTLEMENT DATED APRIL 10, 1963, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED THEREIN.

PARAGRAPH 4201-14 OF THE REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, AND IN EFFECT AT THE TIME THE TEMPORARY ADDITIONAL DUTY WAS PERFORMED, PROVIDED THAT PER DIEM ALLOWANCES WERE NOT PAYABLE FOR PERIODS OF TEMPORARY DUTY PERFORMED BY A MEMBER WITH HIS UNIT OR A DETACHMENT THEREOF, WHEN THAT UNIT OR DETACHMENT IS TEMPORARILY ORDERED BY NAME (OR NUMBER) AWAY FROM ITS PERMANENT DUTY STATION AND WHEN GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. PARAGRAPH 1150-18 OF THE REGULATIONS DEFINES THE TERM "DETACHMENT" AS A PART OF A UNIT SEPARATED FROM ITS MAIN ORGANIZATION FOR DUTY ELSEWHERE OR A TEMPORARY MILITARY OR NAVAL UNIT FORMED FROM OTHER UNITS OR PARTS OF UNITS. PARAGRAPH 1150-19 DEFINES A "UNIT" AS ANY MILITARY ELEMENT WHOSE STRUCTURE IS PRESCRIBED BY COMPETENT AUTHORITY, SUCH AS A TABLE OF ORGANIZATION AND EQUIPMENT.

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 WAS PERFORMED. 24 COMP. GEN. 667, 670. ALSO, IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO PER DIEM AND OTHER TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED BY THE MEMBER UNDER HIS ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 CT.CL. 32; 23 COMP. GEN. 713; 24 ID. 439.

THE ORDERS OF DECEMBER 21, 1962, CLEARLY SHOW THAT THE MEMBERS OF MOBILE TRAINING TEAM A-63, WERE ORDERED AS A UNIT OR DETACHMENT FOR THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY AWAY FROM THEIR PERMANENT DUTY STATION. SINCE THE TEAM WAS DIRECTED TO REPORT AT A LOCATION WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE, THE MEMBERS OF THAT TEAM WERE SUBJECT TO THE RESTRICTIONS OF PARAGRAPH 4201-14 OF THE JOINT TRAVEL REGULATIONS, WHILE PERFORMING TEMPORARY ADDITIONAL DUTY AT THAT LOCATION. EVEN IF THE ORIGINAL ORDERS HAD NOT NAMED A UNIT OR TEAM, IT COULD HAVE BEEN DETERMINED FROM THE TERMS OF THOSE ORDERS THAT TEMPORARY DUTY OF A UNIT OR DETACHMENT WAS INVOLVED AND THAT PER DIEM WAS NOT PAYABLE. THEREFORE, UNDER SUCH ORDERS YOU WERE NOT ENTITLED TO A PER DIEM ALLOWANCE FOR THE PERIOD YOU WERE ON TEMPORARY ADDITIONAL DUTY AS A MEMBER OF MOBILE TRAINING TEAM A-63. THE ORDERS OF MARCH 4, 1963, WHICH PURPORTED TO RETROACTIVELY MODIFY THE ORDERS OF DECEMBER 21, 1962, BY DELETING ALL REFERENCES TO ANY MOBILE TRAINING TEAM WERE WITHOUT EFFECT TO INCREASE THE RIGHTS WHICH VESTED WHEN YOU HAD COMPLETED THE TEMPORARY ADDITIONAL DUTY UNDER THE ORIGINAL ORDERS. ACCORDINGLY, THE SETTLEMENT OF APRIL 10, ..END :