B-153282, MAR. 18, 1964

B-153282: Mar 18, 1964

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AF 1910 2467: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23. YOU WERE DIRECTED TO PROCEED ON OR ABOUT JANUARY 29. YOU WERE TO RETURN TO THE PROPER ORGANIZATION AND STATION. WERE CONFIRMED AND. E-39 WERE AMENDED TO INCLUDE WIESBADEN. T-405 WERE ISSUED PURPORTING TO CONFIRM THE VERBAL ORDERS OF THE COMMANDER OF JANUARY 29. E- 39 WERE AGAIN AMENDED TO INCLUDE "AS COMMAND SUPERVISORS" IN YOUR DUTIES AND THOSE OF THE TWO AIRMEN ALSO NAMED IN THE ORDERS. T-405 STATED THAT DUE TO AN ADMINISTRATIVE OVERSIGHT THE ORIGINAL INTENT WAS NOT STATED. DISALLOWED YOUR CLAIM FOR THE REASON THAT CONFIRMATORY ORDERS WERE ISSUED MORE THAN A YEAR AFTER YOUR PURPORTED VERBAL ORDERS AND THE TRAVEL AND TEMPORARY DUTY PERFORMED BY YOU MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS ENTITLING YOU TO TRAVEL EXPENSES AND PER DIEM.

B-153282, MAR. 18, 1964

TO STAFF SERGEANT ROBERT T. FRENCH, AF 1910 2467:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1963, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REFUND OF $297.90, COLLECTED FOR PER DIEM AND TRAVEL EXPENSES ALLOWED YOU INCIDENT TO YOUR ATTENDANCE AT THE 1960 AIR FORCE BASEBALL TRAINING SCHOOL.

BY SPECIAL ORDERS NO. E-29 DATED JANUARY 25, 1960, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JANUARY 29, 1960, FROM THE 3970TH COMBAT SUPPORT GROUP (SAC) TO GARMISH, GERMANY, ON TEMPORARY DUTY FOR APPROXIMATELY 10 DAYS TO ATTEND THE 1960 AIR FORCE BASEBALL TRAINING SCHOOL AND, UPON COMPLETION, YOU WERE TO RETURN TO THE PROPER ORGANIZATION AND STATION. BY SPECIAL ORDERS NO. E-150 DATED MARCH 28, 1960, THE VERBAL ORDERS OF THE COMMANDER OF JANUARY 29, 1960, WERE CONFIRMED AND, SINCE EXIGENCIES OF THE SERVICES PRECLUDED THE ISSUANCE OF COMPETENT WRITTEN ORDERS IN ADVANCE, SPECIAL ORDERS NO. E-39 WERE AMENDED TO INCLUDE WIESBADEN, GERMANY, IN YOUR TOUR OF TEMPORARY DUTY. ON APRIL 27, 1961, SPECIAL ORDERS NO. T-405 WERE ISSUED PURPORTING TO CONFIRM THE VERBAL ORDERS OF THE COMMANDER OF JANUARY 29, 1960, IT BEING STATED THAT, SINCE EXIGENCIES OF THE SERVICES PRECLUDED THE ISSUANCE OF COMPETENT WRITTEN ORDERS IN ADVANCE, SPECIAL ORDERS NO. E- 39 WERE AGAIN AMENDED TO INCLUDE "AS COMMAND SUPERVISORS" IN YOUR DUTIES AND THOSE OF THE TWO AIRMEN ALSO NAMED IN THE ORDERS. SPECIAL ORDERS NO. T-405 STATED THAT DUE TO AN ADMINISTRATIVE OVERSIGHT THE ORIGINAL INTENT WAS NOT STATED.

OUR CLAIMS DIVISION SETTLEMENT DATED DECEMBER 5, 1963, DISALLOWED YOUR CLAIM FOR THE REASON THAT CONFIRMATORY ORDERS WERE ISSUED MORE THAN A YEAR AFTER YOUR PURPORTED VERBAL ORDERS AND THE TRAVEL AND TEMPORARY DUTY PERFORMED BY YOU MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS ENTITLING YOU TO TRAVEL EXPENSES AND PER DIEM. YOU CONTEND THAT OUR DECISION OF NOVEMBER 8, 1962, 42 COMP. GEN.233, CLEARLY OUTLINES YOUR ELIGIBILITY FOR THE TEMPORARY PER DIEM ALLOWANCES FROM APPROPRIATED FUNDS AND, THEREFORE, THE DELAY OF MORE THAN A YEAR IN AMENDING YOUR ORDERS MUST BE CONSIDERED THE MAJOR CONTRIBUTING FACTOR IN DENYING YOUR CLAIM.

THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION IS GOVERNED BY REGULATIONS ISSUED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 404, TITLE 37 OF THE UNITED STATES CODE. PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. THE TERM "PUBLIC BUSINESS" RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.

IN THE DECISION OF NOVEMBER 8, 1962, 42 COMP. GEN. 233, WE ADVISED THE SECRETARY OF THE AIR FORCE THAT IT HAS BEEN CONSISTENTLY HELD THAT, IN GENERAL, PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM TO INDIVIDUALS TRAVELING IN CONNECTION WITH THEIR PARTICIPATION, OTHER THAN AS COMMAND SUPERVISORS, IN ATHLETIC AND RECREATIONAL PROGRAMS OF THE ARMED FORCES IS NOT AUTHORIZED SINCE SUCH TRAVEL MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY THE APPLICABLE PROVISIONS OF THE STATUTE AND REGULATIONS. SEE B-133593, OCTOBER 21, 1957; B-138197, FEBRUARY 6, 1959; B-141942, FEBRUARY 29, 1960; B-150559, APRIL 12, 1963; AND 38 COMP. GEN. 873. THE SECRETARY OF THE AIR FORCE WAS ALSO ADVISED THAT THE TERM "COMMAND SUPERVISOR" CAN HAVE REFERENCE ONLY TO PERSONNEL WHO HAVE BEEN ASSIGNED TO ACCOMPANY TEAMS TO OFF BASE SPORTS ACTIVITIES FOR PURPOSES OF CONTROL, SUPERVISION AND THE GENERAL WELFARE OF THE TEAMS' MEMBERS. MEMBERS ASSIGNED FOR THE SOLE PURPOSE OF PARTICIPATION OR TRAINING, EVEN THOUGH THE PARTICIPATION OR TRAINING MAY BE FOR THE PURPOSE OF QUALIFYING THE PERSONNEL CONCERNED TO SERVE AS COACHES, OFFICIALS, ETC., IN THE OFFICIAL SPORTS PROGRAM ARE NOT WITHIN THE SCOPE OF THE TERM. THE SECRETARY WAS ALSO ADVISED THAT WHILE A MEMORANDUM OF JUNE 27, 1960, ISSUED TO VARIOUS AIR FORCE UNITS AUTHORIZES PERSONNEL ATTENDING USAFE OR MAJOR SUB-COMMAND ATHLETIC TRAINING SCHOOLS WHO WILL RETURN TO COMMANDS AND BASES TO CONDUCT FOLLOW-UP CLINICS TO BE DESIGNATED AS COMMAND SUPERVISORS, THE MERE DESIGNATION ON TRAVEL ORDERS OF A SPORTS PARTICIPANT OR TRAINEE AS A COMMAND SUPERVISOR MAY NOT BE VIEWED AS ENTITLING HIM TO TRAVEL AT GOVERNMENT EXPENSE WHERE THE RECORD INDICATES THAT HE DOES NOT PERFORM SUCH DUTIES.

THE ORDERS IN YOUR CASE DIRECTED YOU TO ATTEND THE 1960 AIR FORCE BASEBALL TRAINING SCHOOL AND THERE IS NOTHING TO SHOW THAT WHILE YOU WERE THERE YOU PERFORMED THE DUTIES OF A COMMAND SUPERVISOR AS DEFINED ABOVE. RATHER, THE RECORD INDICATES THAT YOU AND THE TWO ENLISTED MEN INVOLVED WERE ORDERED TO THE BASEBALL TRAINING SCHOOL FOR COACHES TO RECEIVE SPECIAL TRAINING IN THAT RESPECT. APPARENTLY, AS A RESULT OF THAT TRAINING YOU LATER SERVED AS COACH AND SUPERVISOR OF THE BASEBALL PROGRAM AT YOUR BASE. HOWEVER, THE FACT THAT YOU MAY HAVE EXERCISED COMMAND SUPERVISION OF TEAMS AT YOUR BASE BEFORE ATTENDING THE SCHOOL AND AFTER RETURNING TO YOUR BASE AFFORDS NO LEGAL BASIS TO ALLOW YOUR CLAIM INCIDENT TO THE PERIOD OF SPECIAL TRAINING. WHILE YOU WERE THE SENIOR MEMBER ON THE ORDERS DIRECTING ATTENDANCE AT THE SCHOOL, IT SEEMS APPARENT THAT YOU AND THE TWO ENLISTED MEMBERS CONCERNED WERE ALL ASSIGNED TO THE SCHOOL FOR THE SAME PURPOSE, TO RECEIVE TRAINING. THEREFORE, THE FACT THAT YOUR ORDERS WERE AMENDED TO INCLUDE IN YOUR DUTIES THAT OF A COMMAND SUPERVISOR WITHOUT YOUR ACTUALLY PERFORMING SUCH DUTIES DOES NOT ENTITLE YOU TO TRAVEL AT GOVERNMENT EXPENSE. WE HAVE HELD THAT VERBAL ORDERS MUST BE CONFIRMED IN WRITING WITHIN A REASONABLE TIME AFTER THEY ARE ISSUED TO BE EFFECTIVE. HOWEVER, EVEN IF THE VERBAL ORDERS DESIGNATING YOU AS A COMMAND SUPERVISOR HAD BEEN CONFIRMED IN WRITING SHORTLY AFTER THEIR ISSUANCE, YOU WOULD NOT BE ENTITLED TO THE PER DIEM AND TRAVEL EXPENSES CLAIMED SINCE THE RECORD DOES NOT SHOW THAT YOU PERFORMED THE DUTIES OF A COMMAND SUPERVISOR DURING THE PERIOD YOU ATTENDED THE BASEBALL TRAINING SCHOOL.

ACCORDINGLY THE SETTLEMENT OF DECEMBER 5, 1963, WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR RETURN OF THE FILE RELATIVE TO YOUR CLAIM, THERE ARE ENCLOSED COPIES OF THE PAPERS THAT YOU SUBMITTED, THE OTHER PAPERS IN THE FILE BEING RETAINED HERE SINCE ..END :