B-165003, AUG. 20, 1968

B-165003, AUG. 20, 1968

TO MR. JOHN C. KELLY, JR.:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, YOUR LETTER OF JULY 8, 1968, WITH ENCLOSURES, RELATIVE TO YOUR CLAIM FOR THE QUARTERS PORTION OF PER DIEM FOR TEMPORARY DUTY DURING THE PERIOD OCTOBER 27, 1964, TO APRIL 21, 1965, WHILE SERVING AS A PRIVATE FIRST CLASS, UNITED STATES ARMY. SINCE YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED MAY 27, 1968, YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT.

BY PARAGRAPH 1, LETTER ORDER T-351, ISSUED ON OCTOBER 21, 1964, BY HEADQUARTERS, 1ST SPECIAL FORCES GROUP (AIRBORNE) 1ST SPECIAL FORCES, APO 331, SAN FRANCISCO, CALIFORNIA, YOU WERE DIRECTED TO PROCEED ON OCTOBER 27, 1964, FROM YOUR PERMANENT STATION IN OKINAWA TO VIETNAM FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS FOR THE PURPOSE OF PARTICIPATING IN MILITARY ACTIVITIES UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PERMANENT STATION. THE ORDERS CONTAINED SPECIAL INSTRUCTIONS THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS SHOULD BE OBTAINED FROM THE COMMANDER'S DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY POINT.

THE RECORD SHOWS THAT YOU TRAVELED FROM OKINAWA TO VIETNAM ON OCTOBER 27, 1964, AND RETURNED APRIL 21, 1965. ON MAY 3, 1965, YOU CERTIFIED AS CORRECT A VOUCHER COVERING PER DIEM FOR 177 DAYS LESS DEDUCTIONS FOR QUARTERS ON 153 DAYS AND FOR 4 MEALS. THE VOUCHER WAS PAID BY THE DISBURSING OFFICER AT OKINAWA ON MAY 12, 1965. THE VOUCHER SHOWS THAT FOR THE 175 DAYS YOU WERE IN VIETNAM YOU WERE PAID PER DIEM AT THE RATE OF $9 PER DAY LESS $4.50 PER DAY FOR QUARTERS ON 152 DAYS AND $4 FOR QUARTERS ON ONE DAY OF TRAVEL.

YOU CONTEND THAT A CLAIM FILED BY YOU IN JANUARY 1968, WITH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, SUPPORTED BY A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS LOST. YOU FILED ANOTHER CLAIM WHICH YOU SUBSEQUENTLY SUPPORTED WITH AN UNDATED CERTIFICATE SIGNED BY FRANK A. ROBERTSON, FIRST LIEUTENANT, CE (ORGANIZATION OR FURTHER IDENTIFICATION NOT SHOWN) THAT QUARTERS WERE NOT AVAILABLE TO YOU FROM OCTOBER 29, 1964, TO APRIL 20, 1965. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT CERTIFICATES OF NONAVAILABILITY OF QUARTERS ARE REQUIRED TO BE ISSUED CONTEMPORANEOUSLY BY THE COMMANDING OFFICER AT THE TEMPORARY DUTY POINT.

WITH YOUR PRESENT LETTER YOU HAVE FURNISHED A CERTIFICATE FROM THE COMMANDER, DETACHMENT A-322, 1ST SPECIAL FORCES GROUP (ABN), 1ST SPECIAL FORCES, THAT "GOVERNMENT QUARTERS" WERE NOT AVAILABLE TO YOU FOR THE PERIOD OCTOBER 27, 1964, THROUGH APRIL 20, 1965. THE CERTIFICATE DOES NOT SHOW WHEN IT WAS ISSUED.

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 ,GOVERNMENT QUARTERS" MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED. THE CERTIFICATE WHICH YOU SUBMITTED HAS REFERENCE TO THOSE QUARTERS. 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 OF THE REGULATIONS, PLUS ANY CHARGES PAID BY HIM FOR THE QUARTERS SO FURNISHED. APPENDIX A IN EFFECT WHEN YOUR TEMPORARY DUTY WAS PERFORMED ESTABLISHED THE PER DIEM RATE AT $9 PER DAY FOR ENLISTED MEN ON TEMPORARY DUTY AT LOCATIONS IN VIETNAM OTHER THAN CHOLON AND SAIGON.

THE FACT THAT THE DISBURSING OFFICER AT OKINAWA, WHO PRESUMABLY HAD FIRST -HAND KNOWLEDGE OF THE CIRCUMSTANCES IN YOUR CASE, COMPUTED PER DIEM AT THE RATE OF $9 PER DAY LESS A 50 PERCENT DEDUCTION FOR QUARTERS, INDICATES THAT AT THAT TIME, 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 FOR ALL BUT 23 DAYS OF YOUR TEMPORARY DUTY IN VIETNAM. THERE IS NOTHING OF RECORD WHICH SUGGESTS THAT THE DISBURSING OFFICER'S OPINION WAS INCORRECT AND AS STATED ABOVE YOU CERTIFIED ON THE PAYMENT VOUCHER THAT THE PAYMENT WAS CORRECT.

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.