B-156257, MAY 20, 1965

B-156257, MAY 20, 1965

TO FIRST LIEUTENANT CLIFTON E. CUSHMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1965, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF DECEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED DURING THE PERIOD MAY 20 TO JULY 10, 1964, AND FOR REIMBURSEMENT OF THE ENTRY FEE IN THE NATIONAL AMATEUR ATHLETIC UNION TRACK MEET ON JUNE 27 AND 28, 1964, AT NEW BRUNSWICK, NEW JERSEY.

YOU WERE DIRECTED BY SPECIAL ORDER NO. T-1519, HEADQUARTERS, 3800TH AIR BASE WING (AU), MAXWELL AIR FORCE BASE, ALABAMA, DATED MAY 11, 1964, TO PROCEED ON OR ABOUT MAY 22, 1964, FROM YOUR PERMANENT DUTY STATION, LAWRENCE, KANSAS, TO MODESTO, CALIFORNIA, FOR SPECIALIZED TRAINING IN THE SPORT OF TRACK AND FIELD FOR A PERIOD OF APPROXIMATELY 6 DAYS. THOSE ORDERS WERE AMENDED BY SPECIAL ORDER T-1906 OF THE SAME COMMAND, DATED MAY 18, 1964, REESTABLISHING THE PERIOD OF TEMPORARY DUTY AS APPROXIMATELY 9 DAYS AND DIRECTING YOU TO PROCEED TO SHEPPARD AIR FORCE BASE, TEXAS, FOR APPROXIMATELY 5 DAYS' TEMPORARY DUTY UPON COMPLETION OF 4 DAYS' TEMPORARY DUTY AT MODESTO. THERE WAS INCLUDED IN THAT AMENDATORY ORDER A SPECIFIC PROVISION PROHIBITING THE PAYMENT OF PER DIEM TO YOU DURING THE PERIOD OF YOUR TEMPORARY DUTY AT SHEPPARD AIR FORCE BASE. ON JUNE 1, 1964, SPECIAL ORDER TB-1001, HEADQUARTERS, SHEPPARD TECHNICAL TRAINING CENTER (ATC), SHEPPARD AIR FORCE BASE, WAS ISSUED DIRECTING YOU TO PROCEED ON OR ABOUT JUNE 2, 1964, TO QUANTICO, VIRGINIA, NEW BRUNSWICK, NEW JERSEY, AND NEW YORK, NEW YORK, FOR FURTHER TEMPORARY DUTY OF APPROXIMATELY 34 DAYS, THE HOST BASE COMMANDER BEING AUTHORIZED TO EXTEND THE TEMPORARY DUTY FOR FURTHER TRAINING AND PARTICIPATION IN OTHER EVENTS.

IT APPEARS FROM THE RECORD THAT PURSUANT TO THE ORDER OF MAY 11, 1964, YOU DEPARTED FROM LAWRENCE ON MAY 20, 1964, FOR MODESTO, BUT UPON COMPLETION OF THE TEMPORARY DUTY THERE YOU DID NOT PROCEED TO SHEPPARD AIR FORCE BASE FOR FURTHER TEMPORARY DUTY, BUT RETURNED TO LAWRENCE ON MAY 26 FOR THE REASON THAT YOU WERE UNAWARE OF THE ISSUANCE OF THE AMENDATORY ORDERS UNTIL AFTER YOUR ARRIVAL IN LAWRENCE. IN COMPLIANCE WITH THE AMENDATORY ORDERS YOU DEPARTED FROM LAWRENCE ON MAY 27, 1964, FOR TEMPORARY DUTY AT SHEPPARD AIR FORCE BASE AND, ACCORDING TO YOUR CORRESPONDENCE, WHILE YOU WERE THERE YOU RECEIVED VERBAL INSTRUCTIONS TO PARTICIPATE IN THE SAN DIEGO INVITATIONAL TRACK MEET ON JUNE 13, 1964. YOU SAY YOU WERE GIVEN PERMISSION TO STOP IN LAWRENCE PRIOR TO PARTICIPATING IN THE SAN DIEGO INVITATIONAL TRACK MEET IN ORDER THAT YOU COULD ATTEND YOUR SISTER'S WEDDING ON JUNE 10, 1964. ACCORDINGLY, UPON COMPLETION OF THE TEMPORARY DUTY AT SHEPPARD AIR FORCE BASE AND LATER AT QUANTICO MARINE BASE ON JUNE 7, 1964, YOU RETURNED TO LAWRENCE ON JUNE 8, 1964, AND REMAINED THERE UNTIL JUNE 11, 1964. ON THE LATTER DATE YOU AGAIN DEPARTED FROM LAWRENCE AND PROCEEDED TO CAMP PENDLETON, CALIFORNIA, UNDER THE VERBAL INSTRUCTIONS TO PARTICIPATE IN THE SAN DIEGO MEET AND RETURNED TO LAWRENCE ON JUNE 16, 1964. IN YOUR CORRESPONDENCE YOU STATED THAT YOU WOULD CLAIM NO PER DIEM FOR THE PERIOD JUNE 7 TO 13, 1964. FURTHER APPEARS THAT YOU DEPARTED FROM LAWRENCE ON JUNE 21, 1964, FOR FURTHER TEMPORARY DUTY AT NEW BRUNSWICK AND NEW YORK, THAT SUCH TEMPORARY DUTY WAS COMPLETED ON JULY 4, 1964, AND THAT YOU RETURNED TO LAWRENCE ON JULY 10, 1964. SUBSEQUENTLY YOU PRESENTED A CLAIM FOR PER DIEM FOR THE PERIODS OF YOUR TRAVEL AND TEMPORARY DUTY UNDER THE ABOVE MENTIONED WRITTEN AND VERBAL ORDERS AND FOR REIMBURSEMENT OF THE $2 ENTRY FEE IN THE NATIONAL AMATEUR ATHLETIC UNION TRACK MEET. YOU STATED IN YOUR CORRESPONDENCE IN SUPPORT OF THE CLAIM THAT YOU BELIEVED THAT PAYMENT WAS DUE YOU BECAUSE THE "ORDERS SPECIFIED SPECIALIZED TRAINING IN SPORT OF TRACK AND FIELD IN THE FORM OF THE TRACK MEETS THEMSELVES" AND THAT YOU HAD PARTICIPATED THEREIN.

OUR CLAIMS DIVISION DISALLOWED THE CLAIM ON THE BASIS THAT PARTICIPATION IN THE ATHLETIC EVENTS INVOLVED IS NOT CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS. YOU SAY IN YOUR LETTER OF FEBRUARY 18, 1965, THAT YOU WERE INSTRUCTED TO FURNISH US DETAILS REGARDING YOUR TRAVEL AND TO ELIMINATE FROM YOUR CLAIM THE PERIOD WHILE YOU WERE AT SHEPPARD AIR FORCE BASE, BUT ASSERT THAT THE TRAVEL VOUCHER SUBMITTED BY YOU EXPLAINS IN DETAIL THE PARTICULARS OF YOUR TRAVEL AND THAT SUCH TRAVEL WAS AUTHORIZED BY THE ORDERS WHICH ACCOMPANIED THE TRAVEL VOUCHER.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS AND THAT THEY SHALL BE DEEMED TO BE IN 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.

WE ADVISED THE SECRETARY OF THE AIR FORCE IN A DECISION DATED NOVEMBER 8, 1962, 42 COMP. GEN. 233, COPY ENCLOSED, 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.

THERE IS NOTHING IN THE RECORD TO SHOW THAT YOU WERE REQUIRED TO PARTICIPATE IN THE SHEPPARD AIR FORCE BASE TRACK AND FIELD COMPETITION (AIR FORCE WORLD-WIDE TRACK AND FIELD CHAMPIONSHIPS) IN THE CAPACITY OF A COMMAND SUPERVISOR. RATHER, IT IS INDICATED THAT YOU WERE ASSIGNED TO THAT STATION TO COMPETE FOR SELECTION ON THE UNITED STATES AIR FORCE TRACK TEAM TO REPRESENT THE AIR FORCE IN THE INTERSERVICE TRACK AND FIELD CHAMPIONSHIP AT QUANTICO ON JUNE 5 TO 6, 1964. IN SUCH CIRCUMSTANCES AND INASMUCH AS THE AMENDATORY ORDERS OF MAY 11, 1964, SPECIFICALLY PRECLUDED THE PAYMENT OF PER DIEM TO YOU WHILE AT SHEPPARD AIR FORCE BASE, THE TRAVEL AND TEMPORARY DUTY PERFORMED BY YOU IN CONNECTION WITH YOUR ASSIGNMENT AT THAT BASE MAY NOT BE CONSIDERED AS INVOLVING PUBLIC BUSINESS UNDER THE PURVIEW OF THE APPLICABLE STATUTE AND REGULATIONS. HENCE, THE USE OF APPROPRIATED FUNDS TO PAY YOU PER DIEM INCIDENT TO THAT ASSIGNMENT IS NOT LEGALLY AUTHORIZED AND, ACCORDINGLY, THAT PART OF THE SETTLEMENT OF DECEMBER 18, 1964, DENYING YOU PER DIEM INCIDENT TO YOUR TRAVEL AND TEMPORARY DUTY AT SHEPPARD AIR FORCE BASE IS SUSTAINED.

SECTION 717 (FORMERLY SECTION 716) OF TITLE 10, U.S.C. PERMITS MEMBERS OF THE ARMED FORCES TO TRAIN FOR, ATTEND, AND PARTICIPATE IN PAN-AMERICAN GAMES, OLYMPIC GAMES, AND ANY OTHER INTERNATIONAL COMPETITION IN AMATEUR SPORTS IF THE SECRETARY OF STATE DETERMINES THAT THE INTERESTS OF THE UNITED STATES WILL BE SERVED BY PARTICIPATION IN THAT COMPETITION, AND IT AUTHORIZES THE EXPENDITURE OF APPROPRIATED FUNDS TO CARRY OUT SUCH PROVISIONS. PARAGRAPH 12D OF AIR FORCE REGULATION 34-47A, DATED APRIL 1, 1964, IMPLEMENTING THAT LAW, PROVIDES THAT SELECTED MEMBERS OF THE AIR FORCE MAY BE PLACED ON DUTY AT SUCH PLACES AND FOR SUCH PERIODS OF TIME AS ARE NECESSARY TO TRAIN FOR AND PARTICIPATE IN CERTAIN SPECIFIED INTERNATIONAL COMPETITIONS, INCLUDING THE OLYMPIC GAMES. THE ORDERS OF MAY 11, 1964, AS AMENDED, AUTHORIZED YOU TO ENGAGE IN SPECIALIZED TRAINING IN THE SPORT OF TRACK AND FIELD AT MODESTO FOR 4 DAYS AND THE ORDERS OF JUNE 1, 1964, DIRECTED YOU TO PARTICIPATE IN THE INTERSERVICE TRACK AND FIELD MEET AT QUANTICO ON JUNE 5 TO 6, 1964, THE NATIONAL AMATEUR ATHLETIC UNION MEET AT NEW BRUNSWICK ON JUNE 27 TO 28, 1964, AND THE OLYMPIC TRIALS AT NEW YORK ON JULY 3 TO 4, 1964. IN A LETTER DATED FEBRUARY 3, 1965, THE CHIEF, SPECIAL SERVICES DIVISION, DIRECTORATE OF PERSONNEL SERVICES, RANDOLPH AIR FORCE BASE, TEXAS, REPORTED THAT YOU WERE SELECTED BY HEADQUARTERS, UNITED STATES AIR FORCE (AFPMPPBI), FOR SPECIALIZED SPORTS TRAINING AND COMPETITION AS AUTHORIZED BY 10 U.S.C. 717 AND THAT HEADQUARTERS ISSUED THE REQUEST AND INSTRUCTION FOR THE ORDERS DIRECTING YOUR TRAVEL TO THE VARIOUS PLACES NAMED THEREIN. IT WAS FURTHER REPORTED THAT EXPENDITURES UNDER THE FOREGOING STATUTORY PROVISIONS WERE NOT AUTHORIZED FOR THE TRACK AND FIELD MEET AT SHEPPARD AIR FORCE BASE. VIEW OF THE FOREGOING IT SEEMS CLEAR THAT YOUR ENGAGEMENT IN SPECIALIZED TRAINING IN TRACK AND FIELD AT MODESTO AND YOUR PARTICIPATION IN THE TRACK AND FIELD MEETS IN QUANTICO, NEW BRUNSWICK, AND NEW YORK WERE FOR THE PURPOSE OF TRAINING AND TRYOUT FOR THE OLYMPIC GAMES, THUS COMING WITHIN THE SCOPE OF 10 U.S.C. 717.

THE ORDERS OF JUNE 1, 1964, DID NOT SPECIFICALLY DIRECT YOUR TRAVEL TO SAN DIEGO TO PARTICIPATE IN THE TRACK MEET THERE ON JUNE 13, BUT HAVING BEEN SELECTED FOR SPECIALIZED TRAINING AS AUTHORIZED BY THE FOREGOING STATUTORY PROVISIONS, YOU WERE TO CONTINUE UNDER THE TERMS OF YOUR ORDERS IN A TEMPORARY DUTY STATUS FOR SUCH TRAINING BETWEEN THE TRACK MEETS AT QUANTICO AND NEW BRUNSWICK. YOUR PARTICIPATION IN THE SAN DIEGO MEET AS YOU WERE VERBALLY DIRECTED DID NOT REQUIRE ANY EXTENSION OF THE PERIOD OF TRAINING DUTY PROVIDED IN YOUR ORDERS AND IT APPEARS TO BE THE ADMINISTRATIVE VIEW THAT YOU ARE ENTITLED TO PER DIEM INCIDENT TO SUCH PARTICIPATION AS A PART OF YOUR AUTHORIZED TRAINING. IN THE CIRCUMSTANCES WE DO NOT DISAGREE WITH THAT VIEW AND ARE OF THE OPINION THAT YOU ARE ENTITLED TO PER DIEM INCIDENT TO SUCH PARTICIPATION EXCEPT, OF COURSE, FOR THE PERIOD WHILE AT LAWRENCE, YOUR PERMANENT STATION. THEREFORE, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO DETERMINE THE PER DIEM ALLOWABLE TO YOU INCIDENT O YOUR ASSIGNMENTS AT MODESTO, QUANTICO (INCLUDING THE INTERVENING TRAINING AT SAN DIEGO), NEW BRUNSWICK AND NEW YORK, AND ALLOW TO YOU THE AMOUNT FOUND DUE. RECOGNITION MAY ALSO BE GIVEN THE ENTRY FEE PAID BY YOU FOR PARTICIPATION IN THE NATIONAL AMATEUR ATHLETIC UNION MEET AT NEW BRUNSWICK AS A NECESSARY EXPENSE INCIDENT TO YOUR AUTHORIZED PARTICIPATION THEREIN. WE ARE INSTRUCTING OUR CLAIMS DIVISION TO INCLUDE THIS ITEM WITH THE PER DIEM FOUND ALLOWABLE TO YOU.