B-164265, JUL. 5, 1968

B-164265: Jul 5, 1968

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RAWLINGS: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY IN VIETNAM DURING THE PERIOD AUGUST 15. THE DUTY WAS PERFORMED PURSUANT TO LETTER ORDER T-224. WERE NOT AVAILABLE TO YOU. WERE NOT UTILIZED. THOSE DOCUMENTS WERE ATTACHED TO A TRAVEL VOUCHER WHICH WAS PREPARED FOR PAYMENT SHOWING THAT FOR THE TEMPORARY DUTY IN VIETNAM YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $9 PER DAY LESS $4.50 PER DAY FOR QUARTERS. YOU CERTIFIED THAT THE VOUCHER WAS CORRECT. THE VOUCHER WAS PAID ON FEBRUARY 23. THAT UPON YOUR RETURN TO OKINAWA YOU WERE ADVISED BY THE FINANCE OFFICE THAT YOU COULD BE PAID ONLY THE SUBSISTENCE PORTION OF PER DIEM AND NOT THE QUARTERS PORTION.

B-164265, JUL. 5, 1968

TO MR. PATRICK L. RAWLINGS:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY IN VIETNAM DURING THE PERIOD AUGUST 15, 1965, THROUGH JANUARY 31, 1966, WHILE SERVING AS FIRST LIEUTENANT, ARMY.

THE DUTY WAS PERFORMED PURSUANT TO LETTER ORDER T-224, ISSUED ON AUGUST 11, 1965, BY HEADQUARTERS, 1ST SPECIAL FORCES GROUP (AIRBORNE), 1ST SPECIAL FORCES, APO SAN FRANCISCO 96331. THE ORDER DIRECTED YOU AND OTHER MEMBERS NAMED THEREIN TO PROCEED TO VIETNAM FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS FOR THE PURPOSE OF MILITARY ACTIVITY. YOU TRAVELED FROM OKINAWA TO VIETNAM ON AUGUST 15, 1965, BY MILITARY AIRCRAFT AND RETURNED TO OKINAWA ON FEBRUARY 1, 1966, BY THE SAME MODE OF TRANSPORTATION.

ON FEBRUARY 1, 1966, THE SECTOR ADVISOR, BINH DINH SECTOR, ADVISORY TEAM 27, MACV, APO, U.S. FORCES 96238, EXECUTED A CERTIFICATE STATING THAT GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH M1150-5, JOINT TRAVEL REGULATIONS, WERE NOT AVAILABLE TO YOU. ALSO, YOU EXECUTED FAO FORM 1 R STATING THAT GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH M1150-5, JOINT TRAVEL REGULATIONS, WERE NOT UTILIZED. THOSE DOCUMENTS WERE ATTACHED TO A TRAVEL VOUCHER WHICH WAS PREPARED FOR PAYMENT SHOWING THAT FOR THE TEMPORARY DUTY IN VIETNAM YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $9 PER DAY LESS $4.50 PER DAY FOR QUARTERS. ON FEBRUARY 7, 1966, YOU CERTIFIED THAT THE VOUCHER WAS CORRECT. THE VOUCHER WAS PAID ON FEBRUARY 23, 1966.

IN YOUR LETTER OF MAY 11, 1967, YOU STATED, IN SUPPORT OF YOUR CLAIM, THAT UPON YOUR RETURN TO OKINAWA YOU WERE ADVISED BY THE FINANCE OFFICE THAT YOU COULD BE PAID ONLY THE SUBSISTENCE PORTION OF PER DIEM AND NOT THE QUARTERS PORTION, THAT YOU SUBSEQUENTLY WERE INFORMED BY A FRIEND WHO ALSO SERVED IN THE FIRST SPECIAL FORCES GROUP THAT DETACHMENTS RETURNING FROM VIETNAM AT A LATER DATE IN THE SAME STATUS AS YOUR DETACHMENT WERE PAID FULL PER DIEM BY THE FINANCE OFFICE IN OKINAWA, THAT THE RULING IN THIS RESPECT WAS RETROACTIVE AND THAT EVERYONE WHO HAD BEEN IN YOUR DETACHMENT THEN RECEIVED THE QUARTERS PORTION OF PER DIEM. THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN TRANSMITTING YOUR CLAIM TO THIS OFFICE DID NOT RECOMMEND PAYMENT.

IN YOUR LETTER OF FEBRUARY 14, 1968, YOU REFUSED TO FURNISH INFORMATION AS TO HOW YOU WERE QUARTERED AND PLACED RELIANCE ON THE CERTIFICATE OF FEBRUARY 1, 1966, AS ESTABLISHING THAT YOU DID NOT OCCUPY GOVERNMENT QUARTERS. ALSO, YOU FURNISHED THE NAMES OF THREE MEMBERS, TWO OF WHOM YOU SAID WERE MEMBERS OF DETACHMENT A-213 AND SAID THAT THESE MEMBERS RECEIVED THE PER DIEM IN QUESTION.

TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ARE GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404 AND 405. AT THE TIME HERE INVOLVED THERE WAS IN EFFECT PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDED THAT THE TERM "GOVERNMENT QUARTERS" MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED. THAT PARAGRAPH, HOWEVER, IS NOT FINALLY DETERMINATIVE OF YOUR ENTITLEMENT TO FULL PER DIEM FOR YOUR TEMPORARY DUTY IN VIETNAM.

THERE ALSO WAS IN EFFECT PARAGRAPH M4256-6-3 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDED THAT WHEN A MEMBER PERFORMS TEMPORARY DUTY UNDER CONDITIONS WHEN QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE BY FOREIGN GOVERNMENTS, OTHER U.S. GOVERNMENT AGENCIES, U.S. GOVERNMENT CONTRACTORS OR PRIVATE ORGANIZATIONS SUCH AS THE NATIONAL RED CROSS IN DISASTER AREAS, THE MEMBER WILL BE ENTITLED TO PER DIEM AT 50 PERCENT OF THE LOCAL PER DIEM RATE ESTABLISHED IN APPENDIX A AND ANY CHARGES PAID BY HIM FOR QUARTERS SO FURNISHED. APPENDIX A OF THE REGULATIONS IN EFFECT WHEN YOUR TEMPORARY DUTY WAS PERFORMED ESTABLISHED THE PER DIEM RATE AT $9 PER DAY FOR LOCATIONS IN VIETNAM OTHER THAN CHOLON AND SAIGON.

SINCE THE DISBURSING OFFICER AT OKINAWA, WHO PRESUMABLY HAD FIRSTHAND KNOWLEDGE OF THE CIRCUMSTANCES IN YOUR CASE, COMPUTED PER DIEM AT THE RATE OF $9 PER DAY LESS A 50 PERCENT DEDUCTION FOR QUARTERS, IT APPEARS THAT HE WAS OF THE OPINION THAT YOU OCCUPIED QUARTERS OF THE TYPE DESCRIBED IN PARAGRAPH M4256-6-3 OF THE JOINT TRAVEL REGULATIONS WITHOUT PAYMENT OF A CHARGE. IN SUCH CIRCUMSTANCES, THE CERTIFICATE OF FEBRUARY 1, 1966, STATING THAT YOU DID NOT OCCUPY GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS AFFORDS NO BASIS FOR PAYMENT OF THE QUARTERS PORTION OF THE PER DIEM.

ACCORDINGLY, IN THE ABSENCE OF EVIDENCE SHOWING THAT YOU INCURRED EXPENSES FOR QUARTERS, THE AMOUNT THEREOF, AND THE TYPE OF QUARTERS OCCUPIED THERE IS NO BASIS FOR THE PAYMENT OF ANY PART OF YOUR CLAIM.

IF THE MEMBERS MENTIONED BY YOU OR OTHER MEMBERS WERE PAID THE QUARTERS PORTION OF PER DIEM UNDER CIRCUMSTANCES WHERE SUCH PAYMENT IS PRECLUDED BY PARAGRAPH M4256-6-3 OF THE REGULATIONS, THE PAYMENTS WERE ERRONEOUS AND AFFORD NO BASIS FOR THE PAYMENT OF YOUR CLAIM.