B-159975, DEC. 12, 1966

B-159975: Dec 12, 1966

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HOUSE: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD OF PERMISSIVE TEMPORARY DUTY AT ATHENS. WHICH WAS FORWARDED HERE FOR SETTLEMENT BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER. IT APPEARS FROM YOUR LETTER AND ENCLOSURES THAT YOU WERE ACCUSED BY GREECE. YOU WERE INFORMED THAT YOU WERE FREE TO RETURN TO YOUR HOME PRELIMINARY HEARING IN THE OFFICE OF THE DISTRICT ATTORNEY IN ATHENS. YOU WERE INFORMED THAT YOU WERE FREE TO RETURN TO YOUR HOME BASE IN TURKEY. YOU WERE OFFICIALLY DETAINED IN ATHENS FROM FEBRUARY 15 THROUGH JULY 31. YOUR CLAIM FOR PER DIEM FOR THAT PERIOD APPEARS TO BE BASED ON YOUR BELIEF THAT YOU WERE DETAINED IN GREECE BY THE UNITED STATES MILITARY AUTHORITIES AND NOT ON BEHALF OF THE GREEK CIVIL AUTHORITIES.

B-159975, DEC. 12, 1966

TO MR. CLYDE W. HOUSE:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD OF PERMISSIVE TEMPORARY DUTY AT ATHENS, GREECE, WHICH WAS FORWARDED HERE FOR SETTLEMENT BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER.

IT APPEARS FROM YOUR LETTER AND ENCLOSURES THAT YOU WERE ACCUSED BY GREECE, YOU WERE INFORMED THAT YOU WERE FREE TO RETURN TO YOUR HOME PRELIMINARY HEARING IN THE OFFICE OF THE DISTRICT ATTORNEY IN ATHENS, GREECE, YOU WERE INFORMED THAT YOU WERE FREE TO RETURN TO YOUR HOME BASE IN TURKEY. HOWEVER, YOU SAY THAT THAT THE AIR FORCE STAFF JUDGE ADVOCATE IN ATHENS DETERMINED THAT YOU HAD TO REMAIN IN GREECE. CONSEQUENTLY, YOU WERE OFFICIALLY DETAINED IN ATHENS FROM FEBRUARY 15 THROUGH JULY 31, 1964. YOUR CLAIM FOR PER DIEM FOR THAT PERIOD APPEARS TO BE BASED ON YOUR BELIEF THAT YOU WERE DETAINED IN GREECE BY THE UNITED STATES MILITARY AUTHORITIES AND NOT ON BEHALF OF THE GREEK CIVIL AUTHORITIES. ALSO, YOU SAY THAT WHILE YOU WERE IN GREECE YOU WERE PERFORMING YOUR NORMALLY ASSIGNED DUTIES.

THE PAYMENT OF PER DIEM ALLOWANCES TO WHICH MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED IS LIMITED TO THAT AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. UNDER THE PERTINENT STATUTE, 37 U.S.C. 404 (A), IT IS PROVIDED THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, INCLUDING PERIODS OF NECESSARY TEMPORARY DUTY, UPON PUBLIC BUSINESS. PARAGRAPH M6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.

THE RECORD FURNISHED US BY THE UNITED STATES AIR FORCE SHOWS THAT YOU AND ANOTHER MEMBER ASSIGNED TO TUSLOG DET 10 WERE CREW MEMBERS OF A C-54 AIRCRAFT WHICH ARRIVED IN ATHENS, GREECE, ON FEBRUARY 15, 1964, EN ROUTE TO ADANA FROM MALTA. ON THAT DAY, YOU AND THE OTHER MEMBER WERE APPREHENDED BY GREEK CUSTOMS AGENTS AND POLICE AND CHARGED WITH ILLEGAL IMPORT, TRANSPORTATION, POSSESSION AND ATTEMPTED SALE OF CIGARETTES.

THE GREEK GOVERNMENT DENIED A WAIVER OF JURISDICTION IN FAVOR OF THE AIR FORCE AND DETERMINED TO EXERCISE CRIMINAL JURISDICTION IN THE MATTERS AS PROVIDED FOR IN ARTICLE III OF THE STATUS OF FORCES TREATY BETWEEN THE KINGDOM OF GREECE AND THE UNITED STATES DATED SEPTEMBER 7, 1956, 7 UST 2557. ARTICLE III PROVIDES THAT IN SUCH CASES THE UNITED STATES AUTHORITIES SHALL TAKE CUSTODY OF THE ACCUSED WHICH WILL BE MAINTAINED IN GREECE PENDING COMPLETION OF TRIAL PROCEEDINGS. BY VERBAL ORDERS DATED FEBRUARY 15, 1964, YOUR HEADQUARTERS COMMAND PLACED YOU ON PERMISSIVE TEMPORARY DUTY IN ATHENS AT NO EXPENSE TO THE GOVERNMENT EFFECTIVE FEBRUARY 15, 1964. CONFIRMATORY ORDERS WERE ISSUED ON APRIL 30, 1964.

YOU AND THE OTHER MEMBER PAID CUSTOM FINES OF 20,000 DRACHMAE ($666.66) EACH AND ON SEPTEMBER 23, 1964, WERE TRIED AND CONVICTED OF ILLEGAL POSSESSION AND ATTEMPTED SALE OF UNTAXED CIGARETTES. THE COURT SENTENCED EACH OF YOU TO 4 MONTHS' CONFINEMENT, SUSPENDED FOR 3 YEARS. YOU DID NOT APPEAL THE CONVICTION AND YOUR ORIGINAL SENTENCE REMAINS. YOU WERE DISCHARGED UNDER HONORABLE CONDITIONS UNDER AIR FORCE REGULATION 36-12 SDN 588 ON APRIL 30, 1965.

IN OUR DECISION OF OCTOBER 19, 1960, B-140669, 40 COMP. GEN. 218, TO THE SECRETARY OF DEFENSE, COPY HEREWITH, WE CONSIDERED THE PROVISIONS OF THE ACT OF JULY 24, 1956, 70 STAT. 630, 10 U.S.C. 1037, RELATING TO THE PAYMENT OF CERTAIN EXPENSES INCIDENT TO REPRESENTATION BEFORE FOREIGN JUDICIAL AND ADMINISTRATIVE TRIBUNALS OF PERSONS SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE. IN THAT DECISION WE RECOGNIZED THAT, IN ENACTING THE LAW, CONGRESS INTENDED, REGARDLESS OF ANY MILITARY DUTY STATUS AND INDEPENDENTLY OF ANY QUESTION OF PUBLIC BUSINESS TO AUTHORIZE SUCH EXPENDITURES AS ARE ACTUALLY NECESSARY TO PROVIDE ADEQUATELY FOR THE DEFENSE OF THE ACCUSED, INCLUDING EXPENDITURES TO COVER THE COST OF TRAVEL BY THE ACCUSED WHEN NECESSARY IN THE PREPARATION OF THE DEFENSE. POINTED OUT, HOWEVER, THAT UNDER THE LAW THE MEMBER MAY NOT BE CONSIDERED AS REMAINING IN A TRAVEL STATUS FOR THE PURPOSE OF ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES AT THE PLACE TO WHICH HE TRAVELED INCIDENT TO SUCH PROCEEDINGS.

THE RECORD SHOWS YOU WERE ARRESTED BY THE GREEK CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CRIMINAL OFFENSE AND THAT YOU WERE RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES ON CONDITION THAT YOU WOULD BE MADE AVAILABLE FOR TRIAL BY A COURT OF GREECE. HENCE WHILE AWAITING TRIAL, YOU WERE IN A STATUS TANTAMOUNT TO THAT OF A PRISONER OF THE GREEK AUTHORITIES. IN SUCH CIRCUMSTANCES, THE VERBAL ORDERS OF FEBRUARY 15, 1964, PLACING YOU ON PERMISSIVE TEMPORARY DUTY IN ATHENS AT NO EXPENSE TO THE GOVERNMENT PENDING COURT ACTION IN YOUR CASE DID NOT AND COULD NOT CONSTITUTE A SPECIAL ASSIGNMENT FOR THE PERFORMANCE OF DUTY AWAY FROM YOUR PERMANENT STATION WITHIN THE CONTEMPLATION OF A JOINT TRAVEL REGULATIONS SO AS TO ENTITLE YOU TO PER DIEM AS PRESCRIBED IN THOSE REGULATIONS. ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF PER DIEM DURING THE PERIOD CLAIMED.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER IN TRANSMITTING THE CLAIM TO THIS OFFICE RECOGNIZED THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF THE CLAIM BUT SUBMITTED IT FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236. THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.'

SINCE YOU WERE DETAINED IN GREECE IN THE CUSTODY OF THE UNITED STATES PENDING COMPLETION OF CRIMINAL TRIAL PROCEEDINGS, YOU WERE NOT THERE INCIDENT TO AN ASSIGNMENT TO PERFORM TEMPORARY DUTY. THEREFORE, THERE IS NO LIABILITY ON THE PART OF THE GOVERNMENT TO PAY YOU PER DIEM. ALSO, SINCE THE UNITED STATES WAS REQUIRED TO MAINTAIN CUSTODY OF YOU IN GREECE BECAUSE OF YOUR CONDUCT WHICH RESULTED IN YOUR ARREST, WE WOULD NOT BE JUSTIFIED IN REPORTING THE MATTER TO CONGRESS AS A MERITORIOUS CLAIM, AS WE DO NOT VIEW CASES SUCH AS THIS AS COMING WITHIN THE PURVIEW OF THE ACT OF APRIL 10, 1928.

ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM.