B-156501, MAY 19, 1965, 44 COMP. GEN. 740

B-156501, MAY 19, 1965, 44 COMP. GEN. 740

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - QUARTERS AND MESSING FACILITIES FURNISHED - DETERMINATION OF AVAILABILITY CONTRARY TO POLICY OFFICERS OF THE UNIFORMED SERVICES ON TEMPORARY DUTY OVERSEAS IN CONNECTION WITH OPERATION LONGTHRUST VIII WHO WERE ISSUED CERTIFICATES OF NONAVAILABILITY OF A GOVERNMENT MESS FOR PER DIEM SUBSISTENCE PAYMENT PURPOSES BUT SUCH CERTIFICATES WERE SUBSEQUENTLY ADMINISTRATIVELY INVALIDATED BECAUSE OF AN ESTABLISHED POLICY REQUIRING OFFICERS ON TEMPORARY DUTY TO BE SUBSISTED AT ENLISTED FIELD MESSES MAY HAVE THE NONAVAILABILITY CERTIFICATES REGARDED AS A CONTEMPORANEOUS DETERMINATION OF THE FACTUAL SITUATION THEN EXISTING REGARDING THE NONAVAILABILITY OF A GOVERNMENT MESS AND, THEREFORE, PER DIEM PAYMENTS MADE TO THE OFFICERS NEED NOT BE RECOVERED.

TO THE SECRETARY OF THE ARMY, MAY 19, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25, 1965, REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF PER DIEM PAYMENTS MADE TO OFFICERS ON TEMPORARY DUTY IN CONNECTION WITH OPERATION LONGTHRUST VIII IN GERMANY UNDER THE CIRCUMSTANCES DESCRIBED BELOW. THE REQUEST WAS ASSIGNED CONTROL NO. 65-13 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY MOVEMENT ORDER NO. 17, DATED JULY 15, 1963, HEADQUARTERS FORT RILEY, FORT RILEY, KANSAS, TASK FORCE 2/8 COMPOSED OF THE 2ND BATTLE GROUP, 8TH INFANTRY FROM FORT RILEY, KANSAS, WAS DIRECTED TO PROCEED IN 2 PARTIES (ADVANCE PARTY AND MAIN BODY) ON OR ABOUT JULY 6 AND 20, 1963, RESPECTIVELY, ON TEMPORARY DUTY FOR APPROXIMATELY 180 DAYS WITH HEADQUARTERS, UNITED STATES ARMY, EUROPE (USAREUR) IN CONNECTION WITH THE STRATEGIC MOBILITY EXERCISE LONGTHRUST VIII, THE ASSIGNED MISSION BEING TO "PREPARE FOR FOREIGN SERVICE AND DEPLOY FROM FORT RILEY, KANSAS TO USAREUR.' THE ORDERS PROVIDED THAT PER DIEM WAS NOT AUTHORIZED. AMENDMENT NO. 1 DATED AUGUST 30, 1963, AS CORRECTED, DELETED THE NO PER DIEM PROVISION IN THE ORDERS AND ADDED THE PROVISION THAT ALL TRAVEL AND TEMPORARY DUTY DIRECTED BY THE ORDER WERE NOT OF A TYPE CONTEMPLATED BY PARAGRAPH 4250, ITEM 3, JOINT TRAVEL REGULATIONS, AS IMPLEMENTED BY ARMY REGULATIONS 35-30.

IT IS STATED THAT THE TASK FORCE DEPARTED FROM FORT RILEY, KANSAS, ON JULY 19, 1963, AND AFTER ARRIVAL IN EUROPE WAS STATIONED AT WILDFLECKEN SUBPOST, GERMANY. THE COMMANDING OFFICER OF THAT INSTALLATION ISSUED A CERTIFICATE DATED SEPTEMBER 4, 1963, WHICH STATED:

"A GOVERNMENT MESS, AS DEFINED IN PARAGRAPH 1150-4, IS NOT AVAILABLE TO THE OFFICERS LISTED ON MOVEMENT ORDER NO. 17, HQ FT RILEY, KANSAS,DATED 15 JULY 1963, DURING THE MISSION OF LONG THRUST VIII AT THIS INSTALLATION.'

BASED UPON THIS CERTIFICATE OF NON-AVAILABILITY OF A GOVERNMENT MESS, THE 73 OFFICER MEMBERS OF THE TASK FORCE WERE PAID PER DIEM FOR THEIR TOURS OF TEMPORARY DUTY AT THE RATE OF $5.15 BY THE 42ND FINANCE DISBURSING SECTION (FDS) FULDA POST, GERMANY. SUBSEQUENTLY, REPRESENTATIVES OF HEADQUARTERS, USAREUR, NOTIFIED THE 42ND FDS THAT THE CERTIFICATES WERE INVALID SINCE THEY HAD BEEN ISSUED CONTRARY TO AN EXISTING USAREUR POLICY WHICH HAD BEEN ESTABLISHED IN USAREUR MESSAGE SC 43431, DATED AUGUST 20, 1962. THAT MESSAGE PROVIDES THAT OFFICER MEMBERS OF UNITS ON TEMPORARY DUTY IN USAREUR ARE NOT ELIGIBLE FOR CERTIFICATES OF NON-AVAILABILITY OF GOVERNMENT MESS SINCE THEY MAY BE SUBSISTED IN THE ENLISTED FIELD RATION MESS OF THE ORGANIZATION TO WHICH THEY ARE ASSIGNED OR OTHER FIELD RATION MESS; THAT COMMANDERS WILL DISCONTINUE THE ISSUANCE OF THESE CERTIFICATES, AND NOTIFY ANY OFFICER ISSUED SUCH CERTIFICATES FOR ANY PERIOD SUBSEQUENT TO JULY 1, 1962, THAT THE CERTIFICATES ARE INVALID AND WITHDRAWN. CONSEQUENTLY ACTION WAS TAKEN TO RECOUP THE PER DIEM PAYMENTS.

YOU STATE THAT IN REQUESTING THAT COLLECTION ACTION IN THE MATTER BE REVIEWED, THE FORMER COMMANDING OFFICER OF THE TASK FORCE INVOLVED STATED THAT UPON ARRIVAL IN EUROPE THE TASK FORCE HEADQUARTERS WAS NOT INFORMED OF THE USAREUR POLICY CONCERNING THE MESSING OF OFFICER MEMBERS ANNOUNCED IN THE USAREUR MESSAGE OF AUGUST 20, 1962, AND THAT SINCE THE TASK FORCE ENLISTED FIELD MESSES WERE OVERCROWDED, AND BECAUSE THERE EXISTED AT THE BATTLE GROUP'S HOME STATION A POLICY THAT OFFICERS WOULD NOT EAT IN ENLISTED MESSES, HE DESIGNATED THE WILDFLECKEN OFFICERS' CLUB AS THE OFFICIAL MESSING FACILITY FOR THE TASK FORCE OFFICERS, SUCH ACTION BEING TAKEN AFTER CONSULTATION WITH AND APPROVAL OF THE WILDFLECKEN SUBPOST COMMANDER WHO LATER ISSUED THE NON-AVAILABILITY CERTIFICATES. THEREAFTER, ON THE BASIS OF CLAIMS BY SEVERAL OF THE OFFICERS AGAINST WHOM COLLECTION ACTION HAS BEEN TAKEN THAT THE CERTIFICATES CONSTITUTE A TRUE REPRESENTATION OF THE MESSING CONDITIONS WHICH EXISTED FOR THEM AT THE WILDFLECKEN SUBPOST, THE DEPARTMENT OF THE ARMY REQUESTED FURTHER CONSIDERATION OF THE MATTER BY THE COMMANDER IN CHIEF, USAREUR, ON THE BASIS THAT THE TASK FORCE OFFICERS WERE NOT PERMITTED TO USE THE ENLISTED FIELD RATION MESSES. IN REPLY, THE COMMANDER IN CHIEF, USAREUR STATED THAT ENLISTED FIELD RATION MESSES SHOULD HAVE BEEN MADE AVAILABLE TO OFFICER PERSONNEL IN ACCORDANCE WITH ESTABLISHED USAREUR POLICY; THAT THERE WAS NO AUTHORITY FOR ISSUANCE OF CERTIFICATES OF NON-AVAILABILITY OF GOVERNMENT MESS, AND THEREFORE THAT THE PAYMENTS OF PER DIEM MADE ON THE BASIS OF SUCH CERTIFICATES WERE ERRONEOUS AND COULD NOT BE RETAINED BY THE MEMBERS.

YOU ASK WHETHER THE CERTIFICATES OF NON-AVAILABILITY OF A GOVERNMENT MESS WHICH ARE A FACTUAL REPRESENTATION OF THE ACTUAL MESSING CONDITIONS WHICH EXISTED FOR THE MEMBERS TO WHOM THEY WERE ISSUED CAN BE ADMINISTRATIVELY INVALIDATED BECAUSE THE INSTALLATION COMMANDER SHOULD HAVE MADE THE ENLISTED FIELD MESSES AVAILABLE TO THE OFFICERS IN ACCORDANCE WITH ESTABLISHED USAREUR POLICY.

THE PERTINENT STATUTE, 37 U.S.C. 404, 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 4256 OF THE REGULATIONS PROVIDES FOR RATES OF TRAVEL PER DIEM ALLOWANCES APPLICABLE FOR TRAVEL OUTSIDE THE UNITED STATES. SUBPARAGRAPH 2 PROVIDES THAT WHEN BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE TO MEMBERS FOR PERIODS OF DELAY INCIDENT TO TRAVEL AND FOR TEMPORARY DUTY, PER DIEM ALLOWANCES WILL BE COMPUTED IN ACCORDANCE WITH PARAGRAPH 4205-5, ITEM C (4) OR E (WHICH INVOLVES TEMPORARY DUTY PERFORMED BY MEMBER WITH HIS UNIT) OF THE TABLE AS APPLICABLE. SUBPARAGRAPH 4256-5 PROVIDES THAT WHEN GOVERNMENT QUARTERS ARE AVAILABLE AND A GOVERNMENT MESS IS NOT AVAILABLE, BUT AN OFFICER'S OPEN MESS IS AVAILABLE TO OFFICER MEMBERS AT TEMPORARY DUTY POINTS, PER DIEM FOR THE PERIOD OF TEMPORARY DUTY SHALL BE COMPUTED IN ACCORDANCE WITH PARAGRAPH 4205-5, ITEM C (2) (B) OF THE TABLE WHICH PROVIDES FOR PER DIEM RATE OF $5.15.

FOR PER DIEM PURPOSES THE TERM "GOVERNMENT MESS" WAS DEFINED DURING THE PERIOD INVOLVED, IN PARAGRAPH 1150-4 OF THE JOINT TRAVEL REGULATIONS AS MEANING "ANY GENERAL OR SERVICE ORGANIZATIONAL MESS; ARMY AND AIR FORCE OFFICERS' OR STUDENT OFFICERS' FIELD MESS; NAVY, MARINE CORPS, AND COAST GUARD OFFICERS' CLOSED MESS; AND NATIONAL GUARD MESS.' IT WAS FURTHER PROVIDED IN THAT PARAGRAPH THAT A MESS ESTABLISHED AND OPERATED PRIMARILY FOR THE SUBSISTING OF ENLISTED MEMBERS WILL NOT BE CONSIDERED AS A GOVERNMENT MESS, INSOFAR AS OFFICER MEMBERS ARE CONCERNED, UNLESS THE MESS IS, IN FACT, UTILIZED BY, OR MADE AVAILABLE TO OFFICER MEMBERS. PARAGRAPH 4451-3 OF THE SAME REGULATIONS PROVIDES THAT CLAIMS OF OFFICERS FOR PER DIEM FOR PERIODS OF TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICE SHALL BE SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AS TO THE AVAILABILITY OF GOVERNMENT MESS. THIS IS TO PROVIDE EVIDENCE CONTEMPORANEOUSLY OBTAINED FROM AN OFFICIAL WHOSE KNOWLEDGE OF SURROUNDING FACTS AND PHYSICAL PRESENCE AT THE STATION PARTICULARLY QUALIFY HIM FOR MAKING A DETERMINATION.

THE PURPOSE OF THE LAW AND REGULATIONS AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY IS TO REIMBURSE THEM FOR THE MORE THAN NORMAL EXPENSES TO WHICH THEY ARE PUT IN OBTAINING QUARTERS AND SUBSISTENCE WHILE IN SUCH TRANSIENT STATUS. USAREUR MESSAGE SC 43431 DIRECTED INSTALLATION COMMANDERS TO SUBSIST OFFICER PERSONNEL ON TEMPORARY DUTY IN THE ENLISTED FIELD RATION MESS ON A REIMBURSABLE BASIS OR A CONSOLIDATED OR OFFICER FIELD RATION MESS IN ACCORDANCE WITH THE PROVISIONS OF ARMY REGULATIONS 30-41, DATED OCTOBER 22, 1954. OBVIOUSLY, THIS MESSAGE CONTEMPLATED THE AVAILABILITY AND FEASIBILITY FOR USE OF AT LEAST ONE OF THE ALTERNATIVE FACILITIES.

CLEARLY, THE LAW AND REGULATIONS RECOGNIZE THE GOVERNMENT'S OBLIGATION IN THE CIRCUMSTANCES INDICATED EITHER TO MAKE A GOVERNMENT MESS AVAILABLE TO THE OFFICER PERSONNEL OR PAY THEM THE PER DIEM AUTHORIZED BY THE REGULATIONS FOR CONDITIONS ACTUALLY EXISTING AT THE TIME. IN SUCH CIRCUMSTANCES, IF A MESS IS NOT AVAILABLE WITHIN THE CONTEMPLATION OF SUCH LAW AND REGULATIONS, THE FACT THAT THE ENLISTED FIELD RATION MESS SHOULD HAVE BEEN MADE AVAILABLE TO THEM IN ACCORDANCE WITH OFFICIAL POLICY AND THE REASON SUCH MESS WAS NOT MADE AVAILABLE ARE IMMATERIAL.

IN VIEW OF THE INSTALLATION COMMANDER'S CONTEMPORANEOUSLY MADE DETERMINATION THAT GOVERNMENT MESS WAS NOT AVAILABLE TO THE OFFICERS CONCERNED, PRESUMABLY REPRESENTING HIS JUDGMENT OF THE FACTUAL SITUATION THEN EXISTING, THERE IS NO LEGAL BASIS, IN THE ABSENCE OF EVIDENCE TO SHOW THAT DETERMINATION TO BE CLEARLY ERRONEOUS, TO RECOUP THE PER DIEM PAYMENTS MADE TO THE OFFICERS. ACCORDINGLY, COLLECTION ACTION NEED NOT BE TAKEN IN THE MATTER, AND YOUR QUESTION IS ANSWERED IN THE NEGATIVE.