B-163134, JUL. 3, 1968

B-163134, JUL. 3, 1968

TO LIEUTENANT COLONEL CHARLES W. NORTON, JR.:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL AND PER DIEM ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY DURING THE PERIOD JANUARY 3THROUGH JUNE 25, 1956, PURSUANT TO LETTER ORDER 780-55 ISSUED ON DECEMBER 29, 1955, BY HEADQUARTERS, 10TH SPECIAL FORCES GROUP AIRBORNE, APO 108.

THE ORDER OF DECEMBER 29, 1955, DIRECTED YOU AND THE OTHER MEMBERS NAMED THEREON TO PROCEED ON OR ABOUT JANUARY 3, 1956, FOR A PERIOD OF APPROXIMATELY 182 DAYS ON TEMPORARY DUTY FROM BAD TOLZ TO OBERAMMERGAU, GERMANY, FOR THE PURPOSE OF ATTENDING CZECH INTELLIGENCE COURSE NO. 1 2 AT THE USAREUR INTELLIGENCE SCHOOL, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION. NO ACCOUNTING CLASSIFICATION WAS CITED IN THE ORDER FOR PAYMENT OF EXPENSES INCURRED IN COMPLYING WITH THE ORDER.

YOUR ITINERARY SHOWS THAT YOU DEPARTED BAD TOLZ, GERMANY, ON JANUARY 3, 1956, AND RETURNED ON JUNE 25, 1956. APPARENTLY NO TRAVEL OR PER DIEM ALLOWANCES WERE PAID FOR THE TRAVEL AND TEMPORARY DUTY ENJOINED BY THE ORDERS. ON MAY 18, 1967, APPROXIMATELY 11 YEARS AFTER THE TRAVEL AND TEMPORARY DUTY WERE PERFORMED, YOU FILED A CLAIM WITH THE ARMY WHILE STATIONED AT FORT BRAGG, NORTH CAROLINA, STATING THAT GOVERNMENT QUARTERS WERE FURNISHED BUT THAT NO OFFICERS' FIELD RATION MESS WAS AVAILABLE. THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN FORWARDING YOUR CLAIM TO THIS OFFICE ON OCTOBER 18, 1967, RECOMMENDED THAT IT NOT BE PAID SINCE YOUR ORDERS DID NOT AUTHORIZE ANY PAYMENT.

AT THE TIME HERE INVOLVED, TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES WERE GOVERNED BY THE JOINT TRAVEL REGULATIONS AND DEPARTMENTAL REGULATIONS PROMULGATED PURSUANT TO SECTIONS 303 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813 AND 814.

AT THAT TIME PARAGRAPH M4256-1 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT EXCEPT AS PROVIDED IN SUBPARAGRAPH B, THE RATES OF TRAVEL PER DIEM ALLOWANCE APPLICABLE FOR TRAVEL OUTSIDE THE UNITED STATES ARE AS PRESCRIBED IN TABLE 3, APPENDIX B. SUBPARAGRAPH B PROVIDED THAT WHEN BOTH GOVERNMENT MESS AND GOVERNMENT QUARTERS (AS CONTEMPLATED BY PARAGRAPHS M1150-4 AND M1150-5, RESPECTIVELY) ARE AVAILABLE TO MEMBERS UNDERGOING COURSES OF INSTRUCTION AT AN INSTALLATION OF THE UNIFORMED SERVICES, THE PER DIEM ALLOWANCE APPLICABLE WILL BE (1) THE SAME AS AUTHORIZED UNDER LIKE CONDITIONS IN PARAGRAPH M4205-6D (4) WITH NO DEDUCTIONS FOR QUARTERS OR SUBSISTENCE, OR (2) THE PER DIEM PRESCRIBED FOR NORMAL TEMPORARY DUTY AT THAT PLACE WITH APPROPRIATE DEDUCTIONS AS REQUIRED BY PARAGRAPH M4254, WHICHEVER IS LESSER.

WHILE YOU STATED THAT NO OFFICERS' FIELD RATION MESS WAS AVAILABLE, SINCE YOU WERE ATTENDING SCHOOL AT A MILITARY INSTALLATION AND WERE NOT ON FIELD DUTY YOUR STATEMENT THAT OFFICERS' FIELD DUTY MESS WAS NOT AVAILABLE MAY NOT BE ACCEPTED AS A PROPER CERTIFICATE BY A COMMANDING OFFICER AS REQUIRED BY PARAGRAPH M4451 OF THE REGULATIONS, THAT GOVERNMENT MESS AS DEFINED IN PARAGRAPH M1150-4 OF THE REGULATIONS WAS NOT AVAILABLE.

ON THE ASSUMPTION THAT BOTH QUARTERS AND MESS WERE AVAILABLE, THE APPLICABLE PER DIEM RATE IN AN OTHERWISE PROPER CASE WOULD BE AS SET FORTH IN PARAGRAPH M4205-6D (4) IN EFFECT AT THAT TIME FOR MEMBERS UNDERGOING A COURSE OF INSTRUCTION AT AN INSTALLATION OF THE UNIFORMED SERVICES WHERE BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. FOOTNOTE Z TO THAT PARAGRAPH PROVIDED THAT THE SECRETARY OF THE DEPARTMENT CONCERNED MAY AUTHORIZE NO PER DIEM OR LESSER RATES OF A PER DIEM WHEN THE CIRCUMSTANCES OF THE TRAVEL OR DUTY TO BE PERFORMED SO WARRANT AND ARE PECULIAR TO THAT DEPARTMENT AND THAT THIS AUTHORITY MAY BE DELEGATED TO A CHIEF OF AN APPROPRIATE BUREAU OR STAFF AGENCY OF THE HEADQUARTERS OF THE DEPARTMENT CONCERNED.

PARAGRAPH 4 OF YOUR ORDERS STATED THAT THE TRAVEL DIRECTED WAS CLEARED IN ACCORDANCE WITH PART 1, CIRCULAR 60, HEADQUARTERS EUROPEAN COMMAND 1951, AS CHANGED. PARAGRAPH 5 OF THE ORDER STATED THAT AUTHORITY TO ISSUE THE ORDER HAD BEEN GRANTED IN ACCORDANCE WITH PROVISIONS OF PARAGRAPH 6A, UNITED STATES ARMY EUROPE CIRCULAR 60, 1953, AS CHANGED, AND CIRCULAR 310- 25, HEADQUARTERS SEVENTH ARMY 1955. WE HAVE ATTEMPTED TO OBTAIN THOSE CIRCULARS OR OTHER PERTINENT REGULATIONS RELATING TO TRAVEL AND TEMPORARY DUTY IN GERMANY AT THE TIME INVOLVED TO DETERMINE WHAT RESTRICTIONS, IF ANY, THEY IMPOSED ON PAYMENT OF TRAVEL ALLOWANCES AND PER DIEM FOR TEMPORARY DUTY SUCH AS DIRECTED IN YOUR ORDERS BUT HAVE BEEN UNSUCCESSFUL DUE TO THE TIME THAT HAS ELAPSED SINCE THE ORDER WAS ISSUED.

SINCE IT IS REPORTED THAT THERE WAS NO ACCOUNTING CLASSIFICATION IN THE ORDERS FOR THE EXPENDITURE OF FUNDS FOR TRAVEL EXPENSES OR PER DIEM FOR THE REASON THAT NO PAYMENT WAS INTENDED, IT DOES NOT APPEAR UNREASONABLE TO ASSUME THAT TRANSPORTATION FOR YOU AND THE OTHERS NAMED IN THE ORDER WAS TO BE FURNISHED IN KIND AND THAT HEADQUARTERS EUROPEAN COMMAND HAD PRESCRIBED NO PER DIEM FOR DUTY OF THIS TYPE FOR THE REASON THAT EXPENSES AT THE SCHOOL WOULD NOT EXCEED EXPENSES AT THE PERMANENT STATION.

IN ANY EVENT, WE HAVE BEEN UNABLE TO OBTAIN THE CITED CIRCULARS OR OTHER REGULATIONS WHICH MIGHT HAVE SUPPORTED ALLOWANCE OF THE CLAIM OR CLEARLY REFUTED IT. THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY REFUSED TO ALLOW CLAIMS WHERE THE CLAIMANT HAS FAILED TO PRESENT HIS CLAIM FOR A LONG PERIOD OF TIME IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF THE VALIDITY OF THE CLAIM. 4 COMP. DEC. 276; 5 COMP. DEC. 282; AND 4 COMP. GEN. 805.

SINCE, BECAUSE OF THE LAPSE OF TIME, THERE ARE NO RECORDS PRESENTLY AVAILABLE TO US ON WHICH WE MAY CONCLUDE THAT PER DIEM WAS PROPERLY PAYABLE UNDER YOUR ORDERS, WE HAVE NO CHOICE BUT TO DISALLOW YOUR CLAIM.