B-155423, JAN. 18, 1965, 44 COMP. GEN. 405

B-155423: Jan 18, 1965

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UNDER WHICH PER DIEM IS NOT PAYABLE. IN ORDERS AUTHORIZING TEMPORARY DUTY FOR A MARINE CORPS GROUP UNDER CIRCUMSTANCES THAT REASONABLY ESTABLISHED THE DUTY CONTEMPLATED BY THE ORDERS DID NOT CONSIST OF MANEUVERS OR FIELD DUTY EXERCISES BUT WAS THE OPERATIONAL MILITARY DUTY REQUIRED OF ANY MEMBER LOCATED AT THE DUTY STATION TO WHICH THE GROUP WAS TEMPORARILY ASSIGNED WAS AN ERROR THAT SHOULD HAVE BEEN APPARENT TO THE ORDER ISSUING AUTHORITY AND ITS INCLUSION DOES NOT OPERATE TO DENY PER DIEM. ORDERED BY NAME OR NUMBER AWAY FROM A PERMANENT STATION UNDER CONDITIONS IN WHICH GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17.

B-155423, JAN. 18, 1965, 44 COMP. GEN. 405

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - MANEUVERS, ETC. - AMENDATORY ORDERS FOR PER DIEM THE INCLUSION OF A FIELD DUTY PROVISION, UNDER WHICH PER DIEM IS NOT PAYABLE, IN ORDERS AUTHORIZING TEMPORARY DUTY FOR A MARINE CORPS GROUP UNDER CIRCUMSTANCES THAT REASONABLY ESTABLISHED THE DUTY CONTEMPLATED BY THE ORDERS DID NOT CONSIST OF MANEUVERS OR FIELD DUTY EXERCISES BUT WAS THE OPERATIONAL MILITARY DUTY REQUIRED OF ANY MEMBER LOCATED AT THE DUTY STATION TO WHICH THE GROUP WAS TEMPORARILY ASSIGNED WAS AN ERROR THAT SHOULD HAVE BEEN APPARENT TO THE ORDER ISSUING AUTHORITY AND ITS INCLUSION DOES NOT OPERATE TO DENY PER DIEM; THEREFORE, ON THE BASIS OF CORRECTED TEMPORARY DUTY ORDERS TO EFFECT ENTITLEMENT TO THE PER DIEM PRESCRIBED BY PARAGRAPH 4205-5D OF THE JOINT TRAVEL REGULATIONS, PER DIEM MAY BE PAID TO A MEMBER PERFORMING TEMPORARY DUTY WITH HIS UNIT, OR DETACHMENT, ORDERED BY NAME OR NUMBER AWAY FROM A PERMANENT STATION UNDER CONDITIONS IN WHICH GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE.

TO A. A. BUCCI, UNITED STATES MARINE CORPS, JANUARY 18, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1964, FORWARDED HERE BY THIRD INDORSEMENT DATED OCTOBER 15, 1964, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF A VOUCHER STATED IN FAVOR OF LANCE CORPORAL OTTO D. RETTIG, 1932288 USMC, REPRESENTING PER DIEM FOR THE PERIOD JUNE 14 TO SEPTEMBER 19, 1964 (3), LESS AMOUNT PREVIOUSLY PAID, IN THE CIRCUMSTANCES DISCLOSED. THE SUBMISSION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 64-31.

BY ORDERS DATED JUNE 10, 1963, UNITED STATES MARINE CORPS HEADQUARTERS, FORCE TROOPS FLEET MARINE FORCE, ATLANTIC, CAMP LEJEUNE, NORTH CAROLINA, CORPORAL RETTIG, AS A MEMBER OF A GROUP, WAS DIRECTED TO PROCEED AND REPORT ON JUNE 13, 1963, TO THE MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA, FOR FURTHER TRANSPORTATION TO SUCH PLACE AS DESIGNATED BY HIS COMMANDING OFFICER, ON TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH MARINE CORPS MATTERS, FOR A PERIOD IN EXCESS OF 30 DAYS AND NOT TO EXCEED 6 MONTHS. UPON COMPLETION OF SUCH TEMPORARY DUTY, HE WAS TO RETURN TO HIS PERMANENT ORGANIZATION AND RESUME HIS REGULAR DUTIES. PARAGRAPH 5 OF THESE ORDERS STATED THAT---

THESE ORDERS INVOLVED PARTICIPATION IN FIELD DUTY AS DEFINED IN SECNAVINST 7220.24B.

THE RECORD SHOWS THAT THE MEMBER REPORTED AT HIS TEMPORARY DUTY STATION WHICH WAS MARINE BARRACKS, U.S. NAVAL BASE, GUANTANAMO BAY, CUBA, ON JUNE 13, 1963, AND THAT HE DEPARTED THAT STATION ON SEPTEMBER 20, 1963, AND RETURNED TO HIS DUTY STATION AT CAMP LEJEUNE THE SAME DAY. GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE DURING THE PERIOD INVOLVED.

PARAGRAPH 5 OF THE ABOVE ORDERS OF JUNE 10, 1963, WAS MODIFIED BY ORDERS DATED AUGUST 8, 1963, OF THE SAME HEADQUARTERS, TO READ AS FOLLOWS:

5. THESE ORDERS INVOLVE PARTICIPATION IN FIELD DUTY AS DEFINED IN SECNAVINST 7220.24B. EFFECTIVE 5 AUGUST 1963, THESE ORDERS INVOLVED A DEPLOYED UNIT OR DETACHMENT AWAY FROM ITS PERMANENT DUTY STATION UNDER THE PROVISIONS OF JOINT TRAVEL REGULATIONS, PARAGRAPH 4256-2 WITH THE SECOND PLATOON, COMPANY "C," 2D TANK BATTALION, FORCE TROOPS FIELD MARINE FORCE, ATLANTIC.

ON JULY 14, 1964, PARAGRAPH 5 OF THE ABOVE ORDERS WAS AGAIN MODIFIED TO READ AS FOLLOWS:

5. THESE ORDERS INVOLVE DUTY WITH A DETACHMENT AWAY FROM ITS PERMANENT DUTY STATION UNDER THE PROVISIONS OF JOINT TRAVEL REGULATIONS, PARAGRAPH 4205-5, ITEM "D," WITH THE SECOND PLATOON, COMPANY "C," 2D TANK BATTALION FORCE TROOPS, FIELD MARINE FORCE, ATLANTIC.

BASED ON THE AMENDATORY ORDERS OF AUGUST 8, 1963, THE MEMBER WAS PAID PER DIEM AT THE RATE OF $1 FOR THE PERIOD AUGUST 5 TO SEPTEMBER 19, 1963.

IN TRANSMITTING YOUR REQUEST HERE, THE COMMANDING GENERAL, FORCE TROOPS, FIELD MARINE FORCE, CAMP LEJEUNE, NORTH CAROLINA, SAYS, IN SUBSTANCE, THAT AT THE TIME OF PROMULGATION OF THE BASIC ORDERS, IT WAS THE INTERPRETATION OF THAT HEADQUARTERS THAT 4256-2 OF THE JOINT TRAVEL REGULATIONS WAS NOT APPLICABLE TO THE UNITS DEPLOYED IN SUPPORT OF MARINE BARRACKS, U.S. NAVAL BASE, GUANTANAMO BAY, CUBA, AND HENCE, ORDERS WERE ISSUED INDICATING FIELD DUTY IN ACCORDANCE WITH SECNAVINST 7220.24B. IT IS ALSO STATED THAT IN ORDER TO DETERMINE IF THE UNITS SO EMPLOYED WERE IN FACT ENTITLED TO SOME REMUNERATION UNDER PARAGRAPH 4256-2 OF THE REGULATIONS, AN INQUIRY WAS DIRECTED TO THE COMMANDANT OF THE MARINE CORPS BY MESSAGE OF JULY 1963. IT IS FURTHER STATED THAT THE COMMANDANT'S REPLY MESSAGE OF JULY 1963 CONFIRMED THAT THE DUTY IN QUESTION WAS NOT FIELD DUTY AND DIRECTED THAT ORDERS ISSUED INDICATE PER DIEM PAYABLE IN ACCORDANCE WITH PARAGRAPH 4256- 2 OF THE REGULATIONS. IT WAS CONSIDERED PROPER TO DATE THE DIRECTED MODIFICATION OF THE ORIGINAL ORDERS AS OF AUGUST 5, 1963, THE FIRST WORKING DAY AFTER RECEIPT OF THE COMMANDANT'S REPLY. UPON RECEIPT OF LETTER OF JUNE 29, 1964, FROM THE COMMANDANT OF THE MARINE CORPS IN THIS MATTER, PARAGRAPH 5 OF THE ORIGINAL ORDERS WAS AGAIN MODIFIED BY ORDERS OF JULY 14, 1964, TO EFFECT ENTITLEMENT IN ACCORDANCE WITH PARAGRAPH 4256-2 OF THE REGULATIONS. THE JULY 1963 COMMUNICATIONS REFERRED TO ABOVE BETWEEN THE COMMANDANT OF THE MARINE CORPS AND THE COMMANDING GENERAL, CAMP LEJEUNE, NORTH CAROLINA, WERE NOT AMONG THE PAPERS RECEIVED HERE WITH YOUR REQUEST FOR DECISION.

IN THE ABOVE-MENTIONED LETTER OF JUNE 29, 1964, THE COMMANDANT OF THE MARINE CORPS REFERS AMONG OTHER THINGS TO THE SPECIFIC INSTRUCTIONS CONTAINED IN LETTER OF JULY 1963 TO THE COMMANDING GENERAL, CAMP LEJEUNE, NORTH CAROLINA, AND REITERATES THAT THE TYPE OF DUTY IN QUESTION INVOLVED REENFORCEMENT OF THE U.S. NAVAL BASE, GUANTANAMO BAY, CUBA, AND WAS NOT FIELD DUTY AS DEFINED IN SECNAVINST 7220.24C (FORMERLY 7220.24B). IT IS ALSO STATED IN THE LETTER OF JUNE 29, 1964, THAT IT IS DIFFICULT TO PERCEIVE WHY THE ORDERS WERE INITIALLY MODIFIED EFFECTIVE AUGUST 5, 1963, INSTEAD OF THE DATE THE MEMBER WAS ORDERED TO SUCH DUTY.

PARAGRAPH 4 OF SECNAVINST 7220.24B, DATED JANUARY 17, 1961--- CITED IN THE ABOVE ORDERS OF JUNE 10, 1963--- DEFINED THE TERM "FIELD DUTY" TO MEAN A MANEUVER, OR FIELD EXERCISES, ETC., FOR WHICH PER DIEM IS NOT PAYABLE UNDER PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4256-2 OF THE REGULATIONS--- CITED IN THE AMENDATORY ORDERS OF AUGUST 8, 1963--- PROVIDES THAT WHEN GOVERNMENT QUARTERS AND MESS ARE AVAILABLE TO MEMBERS WHILE ON TEMPORARY DUTY, PER DIEM ALLOWANCE WILL BE COMPUTED IN ACCORDANCE WITH PARAGRAPH 4205 5, ITEM C (4) OR D OF THE TABLE, AS APPLICABLE. PARAGRAPH 4205-5D OF THE REGULATIONS, AS ADDED BY CHANGE 126, EFFECTIVE MARCH 29, 1963, AUTHORIZES THE PAYMENT OF PER DIEM AT THE RATE OF $1 FOR THE PERIOD OF TEMPORARY DUTY PERFORMED BY A MEMBER WITH HIS UNIT, OR A DETACHMENT THEREOF, WHEN THAT UNIT OR DETACHMENT IS ORDERED BY NAME OR NUMBER AWAY FROM ITS PERMANENT STATION UNDER CONDITIONS IN WHICH GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE.

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.

THUS, AN ADMINISTRATIVE DETERMINATION THAT CERTAIN DUTY WAS FIELD DUTY, OR AN AMENDMENT OF ORDERS ISSUED LONG AFTER THE DUTY WAS PERFORMED, MAY NOT BE ACCEPTED AS AUTHORIZING PER DIEM IN THE ABSENCE OF A SHOWING THAT THE ORIGINAL ORDERS WERE IN ERROR.

WHILE THE ORIGINAL ORDERS OF JUNE 10, 1963, DESCRIBED THE TYPE OF DUTY AS FIELD DUTY, THE RECORD, VIEWED IN THE LIGHT OF THE SITUATION IN CUBA WHEN THE ORDERS WERE ISSUED, REASONABLY ESTABLISHES THAT THE DUTY CONTEMPLATED BY THE ORDERS DID NOT CONSIST OF MANEUVERS OR FIELD EXERCISES BUT WAS OPERATIONAL MILITARY DUTY SUCH AS WAS OR MIGHT BE REQUIRED OF ANY MILITARY PERSONNEL LOCATED AT THE GUANTANAMO BASE. IN SUCH CIRCUMSTANCE WE AGREE WITH THE DETERMINATION OF THE COMMANDANT OF THE MARINE CORPS THAT THE TEMPORARY DUTY AT THE U.S. NAVAL BASE, GUANTANAMO BAY, WAS NOT FIELD DUTY AS DEFINED IN SECNAVINST 7220.24B, AND THAT THIS FACT SHOULD HAVE BEEN APPARENT TO THE ORDER ISSUING AUTHORITY WHEN IT ISSUED THE ORDERS. HENCE, WE BELIEVE THE INCLUSION OF THE FIELD DUTY PROVISION IN THE ORDERS WAS AN OBVIOUS ERROR AND DOES NOT OPERATE TO DENY PER DIEM FOR THE TEMPORARY DUTY PERFORMED AT GUANTANAMO, CONTRARY TO THE EXPRESS PROVISIONS OF PARAGRAPH 4205-5D OF THE JOINT TRAVEL REGULATIONS.

ACCORDINGLY, PAYMENT OF THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED. CLAIMS FOR PER DIEM INVOLVING TEMPORARY DUTY AT GUANTANAMO BAY IN SIMILAR CIRCUMSTANCES LIKEWISE MAY BE PAID IF OTHERWISE PROPER.