B-155318, DEC. 4, 1964, 44 COMP. GEN. 326

B-155318, DEC. 4, 1964, 44 COMP. GEN. 326

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - CONTRACTOR'S PLANT AN OFFICER OF THE UNIFORMED SERVICES ASSIGNED TO THE PLANT OF A GOVERNMENT CONTRACTOR ON TEMPORARY DUTY TO PARTICIPATE IN SIMULATED MANNED SPACE FLIGHT UNDER ORDERS STATING THAT GOVERNMENT MESSING AND OPEN MESSING FACILITIES WERE NOT AVAILABLE, WHO WAS FURNISHED AN EXPERIMENTAL DIET IN LIEU OF SUBSISTENCE, WAS PROPERLY PAID $1.25 PER DIEM PURSUANT TO PARAGRAPH 4205-6 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING THE PAYMENT OF A PER DIEM EQUIVALENT TO THE SUM OF $1.25 AND ANY CHARGES PAID BY A MEMBER TO THE CONTRACTOR FOR QUARTERS AND/OR MEALS, AND THE OFFICER HAVING BEEN FURNISHED QUARTERS AND MEALS APPROPRIATE FOR HIS ASSIGNED TEMPORARY DUTY, EVEN THOUGH UNIQUE IN CHARACTER, RECEIVED THE MAXIMUM PER DIEM AUTHORIZED BY PARAGRAPH 4205 6, AND HE IS NOT ENTITLED TO THE $16 PER DIEM PROVIDED BY PARAGRAPH 4205-5C ON THE BASIS THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE.

TO LIEUTENANT COLONEL FRANK LEMAK, DEPARTMENT OF THE AIR FORCE, DECEMBER 4, 1964:

BY SECOND INDORSEMENT DATED OCTOBER 2, 1964, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED YOUR LETTER OF AUGUST 31, 1964 (REF: PGBCA), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYING ADDITIONAL PER DIEM TO CAPTAIN ALFRED L. ATWELL, 44725A, INCIDENT TO TEMPORARY DUTY PERFORMED DURING THE PERIOD APRIL 13 THROUGH 20, 1964. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 64 30.

BY SPECIAL ORDER TA-565 DATED FEBRUARY 20, 1964, CAPTAIN ATWELL WAS DIRECTED TO PROCEED ON OR ABOUT MARCH 7, 1964, FROM EGLIN AIR FORCE BASE, FLORIDA, TO THE MARTIN PLANT, BALTIMORE, MARYLAND, FOR APPROXIMATELY 46 DAYS OF TEMPORARY DUTY TO PARTICIPATE IN STUDIES OF HUMAN RELIABILITY FOR MANNED SPACE FLIGHT. THIS ORDER, AS AMENDED BY SPECIAL ORDER TA-625 DATED FEBRUARY 26, 1964, STATED THAT GOVERNMENT MESSING AND OPEN MESSING FACILITIES WERE NOT AVAILABLE. IN YOUR LETTER OF AUGUST 31, 1964, YOU SAY THAT CAPTAIN ATWELL WAS SENT TO THE MARTIN PLANT FOR THE PURPOSE OF PARTICIPATING IN A COMPLETE SIMULATED LUNAR LANDING MISSION, CONDUCTED UNDER A NATIONAL AERONAUTICS AND SPACE ADMINISTRATION CONTRACT WITH THE MARTIN COMPANY IN AN EFFORT TO DEVELOP BETTER HUMAN RELIABILITY ESTIMATES FOR APPLICATION TO EXTENDED MANNED SPACE FLIGHT MISSIONS. YOU ALSO SAY IN YOUR LETTER THAT CAPTAIN ATWELL REMAINED IN A COPY OF AN APOLLO SPACE CRAFT SIMULATING FLIGHT DURING THE PERIOD FROM 1:30 P.M., APRIL 13, 1964, THROUGH 3:30 P.M., APRIL 20, 1964, AND WAS FURNISHED A DRIED AND PILL TYPE EXPERIMENTAL DIET DURING THIS PERIOD IN LIEU OF NORMAL SUBSISTENCE, FOR WHICH HE WAS PAID A PER DIEM OF $1.25 UNDER THE PROVISIONS OF PARAGRAPH 4205-6 OF THE JOINT TRAVEL REGULATIONS. CAPTAIN ATWELL CLAIMS A $16 PER DIEM RATE FOR THE REASON THAT QUARTERS AND MEALS WERE NOT FURNISHED OR AVAILABLE DURING THIS PERIOD, THERE BEING NO AREA IN THE SPACE CRAFT THAT COULD BE CONSIDERED FLOOR SPACE, NO BATHING AND TOILET FACILITIES EXCEPT IN THE FORM OF PAPER CUPS AND PLASTIC BAGS, AND NO FOOD OTHER THAN THE INDICATED EXPERIMENTAL DIET.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS WHEN HE IS AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH 4205-6 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT WHEN A MEMBER PERFORMS TEMPORARY DUTY UNDER CONDITIONS WHERE MEALS AND/OR QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE AS AN INCIDENT TO SUCH TEMPORARY DUTY BY A U.S. GOVERNMENT CONTRACTOR, HE WILL BE ENTITLED TO A PER DIEM EQUIVALENT TO THE SUM OF $1.25 AND ANY CHARGES PAID BY HIM FOR THE MEALS AND/OR QUARTERS SO FURNISHED WHEN BOTH MEALS AND QUARTERS ARE FURNISHED. PARAGRAPH 4205 5C OF THE REGULATIONS PROVIDES A PER DIEM RATE OF $16 FOR TEMPORARY DUTY AT A PLACE WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE NOT AVAILABLE.

THE INTENT OF THE CITED PARAGRAPH 4205-6, COVERING SITUATIONS SUCH AS THAT HERE INVOLVED WHERE BY REASON OF FACILITIES AND SUBSISTENCE FURNISHED BY A GOVERNMENT CONTRACTOR THE MEMBER IS RELIEVED OF THE EXPENSE OF OBTAINING QUARTERS OR MEALS COMMERCIALLY, IS TO LIMIT THE PAYMENT OF PER DIEM TO A RATE EQUIVALENT TO $1.25 PLUS ANY CHARGES PAID BY HIM TO THE CONTRACTOR FOR QUARTERS OR MEALS. THE REGULATION CONTAINS NOTHING PURPORTING TO DEFINE WITHIN ITS SCOPE THE RMS,"QUARTERS" AND "MEALS.' HOWEVER, QUARTERS AND MEALS FURNISHED BY THE CONTRACTOR WHICH ARE APPROPRIATE FOR THE DUTY ENJOINED, EVEN THOUGH UNIQUE IN CHARACTER, WOULD APPEAR TO BE WITHIN ITS CONTEMPLATED PURPOSE. COMPARE 35 COMP. GEN. 555; B-154065, JULY 28, 1964, 44 COMP. GEN. 32.

CAPTAIN ATWELL DOES NOT CLAIM THAT HE PAID ANY CHARGES FOR MEALS AND QUARTERS DURING THE PERIOD OF HIS CLAIM WHILE PERFORMING TEMPORARY DUTY UNDER CONDITIONS WHICH APPEAR TO COME WITHIN THE PROVISIONS OF PARAGRAPH 4205-6 OF THE JOINT TRAVEL REGULATIONS. IT APPEARS, THEREFORE, THAT HE HAS RECEIVED THE MAXIMUM PER DIEM AUTHORIZED UNDER THOSE PROVISIONS.

ACCORDINGLY, PAYMENT OF THE CLAIM IS NOT AUTHORIZED AND THE CLAIM TOGETHER WITH THE SUPPORTING DOCUMENTS WILL BE RETAINED HERE.