B-159754, NOV. 21, 1966

B-159754, NOV. 21, 1966

TO LIEUTENANT COLONEL J. G. KAMARAS, TC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1966, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 12, 1965, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD AUGUST 6 TO 17, 1961, AT FORT BRAGG, NORTH CAROLINA.

SPECIAL ORDERS 165 AND 166 DATED AUGUST 2 AND 3, 1961, RESPECTIVELY, ISSUED BY HEADQUARTERS, U.S. ARMY ARMOR CENTER, FORT KNOX, KENTUCKY, DIRECTED YOU AND OTHER OFFICERS AND ENLISTED MEN TO PROCEED ON OR ABOUT AUGUST 3, 1961, TO FORT BRAGG, NORTH CAROLINA, FOR TEMPORARY DUTY FOR APPROXIMATELY 20 DAYS TO PROVIDE ADMINISTRATIVE SUPPORT FOR EXERCISE SWIFT STRIKE.

THE RECORD SHOWS THAT YOU RECEIVED AN ADVANCE PER DIEM ALLOWANCE IN THE SUM OF $72 UPON YOUR DEPARTURE FROM FORT KNOX, KENTUCKY. UPON COMPLETION OF THE TEMPORARY DUTY, THE SUM OF $25.86, REPRESENTING REIMBURSEMENT FOR QUARTERS AND MEALS REQUIRED TO BE PURCHASED WHILE IN A GROUP TRAVEL STATUS, WAS APPLIED TO THE ADVANCE PAYMENT. YOU REFUNDED THE BALANCE OF THE TRAVEL ADVANCE OF $46.14 FOR THE REASON THAT IT WAS ADMINISTRATIVELY DETERMINED THAT THE DUTY INVOLVED WAS IN SUPPORT OF A MANEUVER AND UNDER THE APPLICABLE REGULATIONS PER DIEM IS NOT AUTHORIZED DURING THE ACTUAL PERIOD OF THE EXERCISE.

A MEMBER'S RIGHT TO PER DIEM FOR TEMPORARY DUTY OR TRAVEL AWAY FROM HIS DESIGNATED POST OF DUTY IS FIXED BY THE JOINT TRAVEL REGULATIONS. PARAGRAPH M4201-6 OF THE REGULATIONS BARS PAYMENT OF PER DIEM WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND "OTHER SIMILAR ACTIVITIES" WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.

ARMY REGULATIONS 35-3080 DATED JUNE 9, 1958, IN EFFECT AT THE TIME, ESTABLISH ARMY POLICY CONCERNING PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN FIELD DUTY ACTIVITIES CONDUCTED ON INSTALLATIONS OF THE UNIFORMED SERVICES WITHIN THE UNITED STATES. PARAGRAPH 4 OF THOSE REGULATIONS AUTHORIZES PAYMENT OF PER DIEM ALLOWANCES AT RATES AND UNDER CONDITIONS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH FIELD DUTY ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION AND DURING THE CLOSE-OUT PHASE OF THE OPERATION. PER DIEM ALLOWANCES ARE NOT PAYABLE DURING THE ACTUAL PERIOD OF THE MANEUVER OR EXERCISE ON THE PREMISE THAT SUCH OPERATIONS ARE DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS.

PARAGRAPH 5 OF THE SAME REGULATION DEFINES THE TERM "OTHER SIMILAR ACTIVITIES" AS ALL ACTIVITIES PERFORMED IN SUPPORT OF A MANEUVER, FIELD EXERCISE, TRAINING ENCAMPMENT, AND SIMULATED WAR GAMES, INCLUDING DUTIES CONNECTED WITH THE ESTABLISHMENT OR CLOSE-OUT OF THE OPERATION.

IT APPEARS FROM THE RECORD THAT THE DUTY YOU PERFORMED CONSISTED OF ADMINISTRATIVE AVIATION SUPPORT DURING THE ENTIRE PERIOD OF TEMPORARY DUTY. ALSO, THE RECORD SHOWS THAT THE ORDER-ISSUING AUTHORITY, HEADQUARTERS, U.S. ARMY ARMOR CENTER, FORT KNOX, KENTUCKY, REPORTED THE TEMPORARY DUTY (ADMINISTRATIVE AVIATION SUPPORT) PERFORMED UNDER SPECIAL ORDERS 165 COMES UNDER THE HEAD OF ,OTHER SIMILAR ACTIVITIES.'

WHETHER A PARTICULAR ASSIGNMENT IS AN ASSIGNMENT WITHIN THE SCOPE OF PARAGRAPH M4201-6, JOINT TRAVEL REGULATIONS, IS A QUESTION OF FACT FOR DETERMINATION PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT. IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY, AS IS THE SITUATION HERE, THIS OFFICE WILL NOT QUESTION THE ADMINISTRATIVE DETERMINATION. 31 COMP. GEN. 288. COMPARE 37 COMP. GEN. 126.

BASED ON THE FOREGOING, YOUR DUTY FOR THE PERIOD AUGUST 6 TO 17, 1961, THE PERIOD DURING WHICH THE EXERCISE WAS CONDUCTED, MUST BE CONSIDERED AS COMING WITHIN THE PURVIEW OF PARAGRAPH M4201-6, JOINT TRAVEL REGULATIONS, AS IMPLEMENTED BY ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958. ACCORDINGLY, THE RECORD BEFORE US PRESENTS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR PER DIEM FOR THAT PERIOD.

PARAGRAPH 9 (A) OF ARMY REGULATIONS 35-3080 DATED JUNE 9, 1958, PROVIDES THAT WHEN OFFICERS AND WARRANT OFFICERS ARE ENTITLED TO PER DIEM, THEY WILL BE ASSESSED SERVICE CHARGES FOR UTILIZATION OF GOVERNMENT QUARTERS, BUT WHEN SUCH PERSONNEL ARE NOT ENTITLED TO PER DIEM, SLEEPING ACCOMMODATIONS WILL BE MADE AVAILABLE TO THEM WITHOUT COST. PARAGRAPH 6B, ARMY REGULATIONS 210-14 DATED DECEMBER 10, 1958, AS CHANGED BY CHANGE 1, DATED MAY 25, 1959, PROVIDES THAT INSTALLATION COMMANDERS MAY ESTABLISH A SERVICE CHARGE FOR SLEEPING ACCOMMODATIONS PROVIDED TO MILITARY PERSONNEL ON TEMPORARY DUTY ORDERS IN ORDER TO DEFRAY THE COST OF LAUNDERING LINENS, FOR JANITORIAL SERVICES AND OTHER SERVICE COSTS AT A RATE NOT TO EXCEED 50 CENTS PER DAY.

PARAGRAPH 9B (2) OF ARMY REGULATIONS 35-3080 DATED JUNE 9, 1958, PROVIDES THAT DURING PERIODS OFFICERS AND WARRANT OFFICERS ARE NOT ENTITLED TO PER DIEM, MESSING CHARGES WILL BE MADE AT THE RATES PRESCRIBED IN PARAGRAPH 4 OR 5, ARMY REGULATIONS 30-30. ARMY REGULATIONS 30-30 DATED DECEMBER 24, 1957, AS CHANGED BY CHANGE 3, SEPTEMBER 13, 1961, EFFECTIVE JANUARY 1, 1960, SHOWS THAT OFFICERS ON TEMPORARY DUTY RECEIVING PER DIEM ALLOWANCES WERE TO BE CHARGED $2.50 A DAY FOR 3 MEALS EATEN IN ANY ARMY FIELD MESS. THE SAME REGULATION SHOWS THAT OFFICERS NOT RECEIVING A PER DIEM ALLOWANCE WHILE ON MANEUVERS AND FIELD DAY EXERCISES WERE TO BE CHARGED MEAL RATES OF $1.10 PER DAY.

SINCE YOU HAD BEEN PAID AN ADVANCE PER DIEM ALLOWANCE, IT WILL BE ASSUMED IN THE ABSENCE OF EVIDENCE OF THE CHARGES ACTUALLY PAID, THAT WHILE YOU WERE AT FORT BRAGG DURING THE PERIOD AUGUST 6 TO 17, 1961, YOU PAID $2.50 A DAY FOR 3 MEALS AND 50 CENTS A DAY FOR QUARTERS. SINCE YOU WERE NOT ENTITLED TO A PER DIEM ALLOWANCE IT APPEARS THAT YOU ARE ENTITLED TO BE REIMBURSED THE SUM OF $6 FOR THE SERVICE CHARGE FOR QUARTERS (12 DAYS AT 50 CENTS PER DAY) AND THE SUM OF $16.80 FOR MEALS ($2.50 LESS $1.10 OR $1.40 A DAY FOR 12 DAYS) OR A TOTAL OF $22.80 FOR MEALS AND QUARTERS. SETTLEMENT ON THIS BASIS WILL ISSUE IN DUE COURSE.