B-158771, MAY 3, 1966

B-158771, MAY 3, 1966

TO LIEUTENANT COLONEL JOSEPH V. CHAUFTY, CE:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM AND COST-OF LIVING AND HOUSING ALLOWANCES FOR VARIOUS PERIODS INCIDENT TO YOUR TOUR OF DUTY IN IRAN. THE HONORABLE EUGENE J. KEOGH, HOUSE OF REPRESENTATIVES, HAS EXPRESSED AN INTEREST IN YOUR CLAIM.

BY PARAGRAPH 127, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 97, DATED APRIL 29, 1963, YOU WERE TRANSFERRED FROM WASHINGTON, D.C., TO DUTY WITH U.S. ARMY ENGINEER DISTRICT GULF, IRAN, WITH STATION AT HAMADAN, IRAN, AS A PERMANENT CHANGE OF STATION WITH TEMPORARY DUTY EN ROUTE AT TEHRAN, IRAN, FOR APPROXIMATELY 2 DAYS. TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS WAS NOT AUTHORIZED. YOU ARRIVED AT HAMADAN ON JULY 18, 1963, AND BY ORDER NO. MDG 28-64, DATED JULY 22, 1963, YOU WERE PLACED ON TEMPORARY DUTY WITH U.S. ARMY ENGINEER DISTRICT GULF, AT TEHRAN, EFFECTIVE JULY 18, 1963, FOR APPROXIMATELY 45 DAYS. THE TEMPORARY DUTY ASSIGNMENT WAS TERMINATED ON SEPTEMBER 3, 1963, AT WHICH TIME YOU RETURNED TO YOUR PERMANENT STATION AT HAMADAN. YOU WERE PAID PER DIEM THROUGH AUGUST 7, 1963, AT THE RATE APPLICABLE AT TEHRAN WHEN GOVERNMENT QUARTERS ARE AVAILABLE, OR $10 PER DAY. PER DIEM WAS NOT PAID FOR THE PERIOD AUGUST 8 TO SEPTEMBER 3, 1963, FOR THE REASON THAT BY AMENDMENT NO. 1, ISSUED ON AUGUST 17, 1963, BY U.S. ARMY DISTRICT GULF, THE ORDERS OF JULY 22, 1963, WERE AMENDED TO READ "NO COST BEGINNING 8 AUG 63.' YOUR CLAIM FOR PER DIEM IS FOR THE PERIOD AUGUST 8 THROUGH SEPTEMBER 2, 1963.

IT IS ADMINISTRATIVELY REPORTED THAT THE PURPOSE OF THE AMENDMENT TO YOUR ORDERS WAS TO REDUCE THE PER DIEM TO ZERO BEGINNING AUGUST 8, 1963, FOR THE REASON THAT YOU WERE NOT SUBJECTED TO ANY UNREASONABLE COST IN YOUR DAILY EXPENSE BY VIRTUE OF THE TEMPORARY DUTY ASSIGNMENT AT TEHRAN. THIS REGARD IT IS REPORTED THAT WHILE YOU WERE IN TEHRAN YOU WERE PROVIDED WITH A ROOM RENTED AT GOVERNMENT EXPENSE AND MAINTAINED FOR SUCH PURPOSES; THAT MEALS WERE AVAILABLE AT THE CASTLE CLUB, A NONAPPROPRIATED FUND ACTIVITY OF THE GULF ENGINEER DISTRICT FOR ABOUT $2 PER DAY, AND THEREFORE THAT YOUR DAILY EXPENSE DID NOT EXCEED $2. WE HAVE BEEN ADVISED BY THE OFFICE, CHIEF OF ENGINEERS, HOWEVER, THAT THE CASTLE CLUB IS NEITHER GOVERNMENT MESS NOR OFFICER'S OPEN MESS BUT IS IN THE NATURE OF A POST EXCHANGE OPERATED FACILITY. THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME, DID NOT PROVIDE FOR A REDUCTION IN THE SUBSISTENCE PORTION OF PER DIEM WHEN MEALS WERE AVAILABLE IN SUCH FACILITIES.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 405, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES CONSIDERING ALL ELEMENTS OF THE COST OF LIVING. PARAGRAPH M4254-1 (CHANGE 126, JUNE 1, 1963) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT THERETO PROVIDES THAT WHEN GOVERNMENT QUARTERS ARE AVAILABLE FOR PERIODS OF TEMPORARY DUTY OVERSEAS THE PER DIEM ALLOWANCE WILL BE REDUCED BY 50 PERCENT. SINCE PER DIEM FOR TEMPORARY DUTY IS PAYABLE WITHOUT REGARD TO THE ACTUAL EXPENSES INCURRED, AND THE PERTINENT REGULATIONS DID NOT PROVIDE FOR REDUCING THE SUBSISTENCE PORTION OF THE PER DIEM UNLESS A GOVERNMENT MESS OR OFFICER'S OPEN MESS WAS AVAILABLE AT THE TEMPORARY DUTY POINT, INSTRUCTIONS ARE BEING ISSUED FOR THE ALLOWANCE OF YOUR PER DIEM CLAIM AT THE RATE APPLICABLE WHEN QUARTERS ARE FURNISHED. A SETTLEMENT FOR THE AMOUNT DUE WILL ISSUE SHORTLY.

WITH RESPECT TO YOUR CLAIM FOR HOUSING AND COST-OF-LIVING ALLOWANCES AT HAMADAN, FOR THE PERIOD SEPTEMBER 3, 1963, THROUGH JULY 5, 1964, IT IS ADMINISTRATIVELY REPORTED THAT THE GOVERNMENT CONTRACTOR AT HAMADAN, UNDER THE TERMS OF HIS CONTRACT, WAS REQUIRED TO PROVIDE QUARTERS FOR GOVERNMENT PERSONNEL AT NO COST TO THE INDIVIDUAL AND TO FURNISH THREE MEALS AT THE RATE OF $1.50 PER DAY, LATER INCREASED TO $1.65 PER DAY. THUS, HOUSING WAS FURNISHED AT NO COST TO YOU AND MEALS WERE FURNISHED AT A NOMINAL COST APPROXIMATELY EQUAL TO THE AMOUNT OF $47.88 PER MONTH, THE SUBSISTENCE ALLOWANCE TO WHICH YOU WERE ENTITLED UNDER THE PROVISIONS OF 37 U.S.C. 403. ANY ADDITIONAL COSTS TO THE CONTRACTOR FOR YOUR QUARTERS AND SUBSISTENCE OVER THE NOMINAL CHARGE TO YOU WAS PAID BY THE GOVERNMENT AS A PART OF THE CONTRACT PRICE.

PARAGRAPH M4301-1 OF THE JOINT TRAVEL REGULATIONS (CHANGE 123, FEBRUARY 1, 1963) IN EFFECT AT THE TIME OF YOUR ASSIGNMENT TO HAMADAN SPECIFICALLY PROVIDES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING AVERAGE "EXCESS COSTS" EXPERIENCED BY MEMBERS ON PERMANENT DUTY OUTSIDE THE UNITED STATES. PARAGRAPH M4301-3B/1) (SAME CHANGE) PROVIDES THAT COST-OF-LIVING ALLOWANCES ARE NOT PAYABLE TO A MEMBER WITHOUT DEPENDENTS FOR DAY OF DEPARTURE AND RETURN TO PERMANENT STATION WHEN ENTITLED TO TRAVEL PER DIEM ALLOWANCE FOR THOSE DAYS, OR FOR ANY DAY WHEN IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE.

WHILE GOVERNMENT CONTRACTORS FURNISHING MEALS AND QUARTERS TO MILITARY PERSONNEL PURSUANT TO CONTRACT WERE DELETED FROM THE DEFINITION OF GOVERNMENT MESS AND GOVERNMENT QUARTERS IN PARAGRAPHS M1150-4 AND 5 OF THE JOINT TRAVEL REGULATIONS BY CHANGE 134 OF FEBRUARY 1, 1964, THIS WAS SIMPLY A MATTER OF CLARIFICATION AND DID NOT RESULT IN NO CONSIDERATION BEING GIVEN TO MEALS AND QUARTERS FURNISHED BY A GOVERNMENT CONTRACTOR IN COMPUTING PER DIEM ALLOWANCES SINCE PARAGRAPHS M4205-6 AND M4256-6 OF THE REGULATIONS WERE CONTEMPORANEOUSLY REVISED TO CONTINUE THE REQUIREMENT FOR A REDUCTION IN PER DIEM WITHIN AN OUTSIDE THE UNITED STATES WHEN QUARTERS AND MESS ARE FURNISHED BY NON-GOVERNMENT SOURCES INCLUDING GOVERNMENT CONTRACTORS. THUS, THE CHANGE IN THE DEFINITION OF GOVERNMENT MESS EFFECTED BY THE REGULATION CHANGE OF FEBRUARY 1, 1964, DID NOT PURPORT TO REFLECT A VIEW THAT MILITARY PERSONNEL BEING QUARTERED AND SUBSISTED BY GOVERNMENT CONTRACTORS WERE NOT IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE.

YOU WERE SERVING AS AN OFFICER WITHOUT DEPENDENTS DURING YOUR OVERSEAS TOUR AND SINCE THE RECORD SHOWS THAT YOU WERE FURNISHED HOUSING AT NO COST AND MEALS AT NOMINAL COST AT HAMADAN BY A GOVERNMENT CONTRACTOR, IT SEEMS CLEAR THAT YOU NOT ONLY INCURRED NO EXCESS LIVING COSTS AT HAMADAN BUT WERE IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE WITHIN THE MEANING OF THE REGULATIONS. ACCORDINGLY, THERE IS NO BASIS FOR ALLOWANCE OF YOUR CLAIM FOR HOUSING AND COST-OF-LIVING ALLOWANCES.