B-167147, JUL. 25, 1969

B-167147: Jul 25, 1969

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SINCE THERE WAS NO SHOWING THAT MEMBER WAS NOT FURNISHED EITHER AVAILABLE QUARTERS BY U.S. OR ANY QUARTERS BY SOUTH VIETNAM GOVERNMENT AND THERE IS NO SHOWING THAT QUARTERS WERE INADEQUATE. KESSLING FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30. THE DUTY WAS PERFORMED PURSUANT TO PARAGRAPH 1. AMONG THE SPECIAL INSTRUCTIONS CONTAINED IN THE ORDER WAS ONE TO THE EFFECT THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT MESS AND QUARTERS SHOULD BE SECURED FROM THE COMMAND DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY STATION. YOU WERE IN A TEMPORARY DUTY STATUS IN VIETNAM UNTIL MARCH 4. WHEN YOU WERE HOSPITALIZED.

B-167147, JUL. 25, 1969

MILITARY - PER DIEM DECISION SUSTAINING DECISION OF AUGUST 20, 1968, AND SETTLEMENT DISALLOWING CLAIM FOR ADDITIONAL PER DIEM FOR ARMY RESERVE MEMBER INCIDENT TO TEMPORARY DUTY PERFORMED IN VIETNAM IN 1964-1965. SINCE THERE WAS NO SHOWING THAT MEMBER WAS NOT FURNISHED EITHER AVAILABLE QUARTERS BY U.S. OR ANY QUARTERS BY SOUTH VIETNAM GOVERNMENT AND THERE IS NO SHOWING THAT QUARTERS WERE INADEQUATE, PER DIEM AT RATE OF $9.00 MAY NOT BE PAID.

TO STAFF SERGEANT MAJOR JOHN E. KESSLING

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30, 1969, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED IN VIETNAM DURING THE PERIOD OCTOBER 27, 1964, TO MARCH 4, 1965.

THE DUTY WAS PERFORMED PURSUANT TO 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 (OKINAWA). THAT ORDER DIRECTED YOU AND OTHER MEMBERS NAMED THEREIN TO PROCEED TO VIETNAM FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS FOR PARTICIPATION IN MILITARY ACTIVITIES. AMONG THE SPECIAL INSTRUCTIONS CONTAINED IN THE ORDER WAS ONE TO THE EFFECT THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT MESS AND QUARTERS SHOULD BE SECURED FROM THE COMMAND DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY STATION.

PURSUANT TO THE ABOVE ORDERS YOU DEPARTED FROM OKINAWA BY MILITARY AIRCRAFT ON OCTOBER 27, 1964, AND ARRIVED IN VIETNAM ON THE SAME DATE. YOU WERE IN A TEMPORARY DUTY STATUS IN VIETNAM UNTIL MARCH 4, 1964, WHEN YOU WERE HOSPITALIZED. ON MARCH 9, 1965, YOU DEPARTED FROM VIETNAM FOR FURTHER HOSPITALIZATION AT CLARK AIR FORCE BASE, PHILIPPINES, AND REMAINED THERE UNTIL MARCH 17, 1969, ON WHICH DATE YOU RETURNED TO OKINAWA FOR CONTINUED HOSPITALIZATION. BASED ON A CLAIM VOUCHER SIGNED BY YOU ON APRIL 22, 1965, THE SUM OF $267.48 WAS PAID TO YOU ON APRIL 28, 1965, AS PER DIEM ALLOWANCE FOR THE PERIOD OCTOBER 27, 1964, TO MARCH 4, 1965. COMPUTING THE AMOUNT DUE YOU, THE DISBURSING OFFICER DETERMINED THAT YOU WERE ENTITLED TO PER DIEM FOR 129 DAYS AT THE RATE OF $9 PER DAY ($1,161), LESS A TRAVEL ADVANCE ($540) AND DEDUCTIONS FOR QUARTERS FOR 78 DAYS ($351) AND 2 MEALS ($2.52).

ON AUGUST 20, 1968, YOU PRESENTED A CLAIM THROUGH LOCAL ARMY CHANNELS FOR THE PER DIEM WHICH WAS DEDUCTED FOR QUARTERS, $4.50 PER DAY FOR 78 DAYS. THAT CLAIM WAS SUPPORTED BY A CERTIFICATE EXECUTED ON AUGUST 7, 1968, BY A MAJOR JOHN H. HALEY, CERTIFYING, AMONG OTHER THINGS, THAT DURING THE PERIOD OCTOBER 27, 1964, TO MARCH 4, 1965, GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPHS M1150-5 AND M4256-6, JOINT TRAVEL REGULATIONS, WERE NOT AVAILABLE TO YOU BECAUSE THEY WERE NOT ADEQUATE. THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION.

BY SETTLEMENT DATED APRIL 23, 1969, THE CLAIMS DIVISION DISALLOWED THE CLAIM FOR THE REASON THAT THE DISBURSING OFFICER WHO MADE THE DEDUCTION FROM YOUR PER DIEM BELIEVED THAT YOU HAD OCCUPIED QUARTERS OF THE TYPE DESCRIBED IN PARAGRAPH M4256-6-3 OF THE JOINT TRAVEL REGULATIONS AND THAT THE CERTIFICATE FURNISHED WITH YOUR CLAIM DID NOT MEET THE REQUIREMENTS OF THE REGULATIONS. THE CLAIMS DIVISION SETTLEMENT WAS BASED ON OUR DECISION OF AUGUST 20, 1968, B-165003, COPY ENCLOSED.

IN YOUR LETTER OF APRIL 30, 1969, YOU URGE RECONSIDERATION OF YOUR CLAIM ON THE GROUND THAT FOUR OTHER MEMBERS WHO ALSO WERE IN VIETNAM DURING THE SAME PERIOD OF TIME UNDER THE SAME ORDERS, AND WITH THE SAME UNIT WERE PAID THE DIFFERENCE IN THEIR PER DIEM ($9 AND $4.50 RATES). IN THIS CONNECTION YOU HAVE FURNISHED THE NAMES OF TWO OF THE MEMBERS, ONE HAVING BEEN PAID IN OKINAWA AND THE OTHER AT FORT BRAGG, NORTH CAROLINA. ALSO, YOU SAY THAT YOU WERE PAID PER DIEM AT THE RATE OF $9.00 PER DAY FOR TWO PREVIOUS TRIPS UNDER THE SAME TYPE CONDITIONS, COVERING THE PERIODS JANUARY TO JULY 1963 AND JANUARY TO JULY 1964.

AS POINTED OUT IN THE DECISION OF AUGUST 20, 1968, 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. PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM ,GOVERNMENT QUARTERS" AS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED.

PARAGRAPH M4451 OF THE REGULATIONS PROMULGATED BY CHANGE 138, APRIL 1, 1968, PROVIDES THAT MEMBERS IN A TRAVEL STATUS ARE NOT REQUIRED IN CERTAIN SITUATIONS TO USE "GOVERNMENT QUARTERS" DESIGNATED AS INADEQUATE. HOWEVER, THE REGULATIONS IN EFFECT PRIOR TO THAT CHANGE, REQUIRED MEMBERS IN A TRAVEL STATUS TO UTILIZE AVAILABLE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND PROVIDED FOR A STATEMENT BY THE COMMANDING OFFICER AT THE POINT OF TEMPORARY DUTY AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS IF THE LENGTH OF TEMPORARY DUTY IS FOR A PERIOD OF 24 HOURS OR MORE. THESE PROVISIONS, BY THEIR OWN TERMS, HAVE REFERENCE TO "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH M1150-5 OF THE REGULATIONS.

THERE ALSO WAS IN EFFECT PARAGRAPH M4256-6-3 OF THE JOINT TRAVEL REGULATIONS. THOSE REGULATIONS 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 ESTABLISHED IN APPENDIX A OF THE REGULATIONS, PLUS ANY CHARGES PAID BY HIM FOR THE QUARTERS SO FURNISHED. UNDER THESE PROVISIONS MEMBERS WHO OCCUPY THE FURNISHED QUARTERS ARE NOT ENTITLED TO THE FULL PER DIEM RATE REGARDLESS OF WHETHER THE QUARTERS WOULD CONSTITUTE ADEQUATE "GOVERNMENT QUARTERS.' 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. YOU WERE PAID 50 PERCENT OF THAT RATE.

UNDER THE ABOVE REGULATIONS AND YOUR TEMPORARY DUTY ASSIGNMENT ORDER PAYMENT TO YOU OF THE FULL PER DIEM ALLOWANCE AT THE RATE OF $9 PER DAY FOR THE FULL 129 DAYS CLAIMED ON THE ORIGINAL VOUCHER COULD HAVE BEEN MADE ONLY UPON A SHOWING THAT YOU WERE NOT FURNISHED EITHER AVAILABLE QUARTERS BY THE UNITED STATES OR ANY QUARTERS BY THE SOUTH VIETNAM GOVERNMENT. THE CERTIFICATE FURNISHED BY MAJOR HALEY DOES NOT SO CERTIFY BUT STATES THAT THE QUARTERS WERE INADEQUATE. UNDER THE REGULATIONS A CERTIFICATION OF THE INADEQUACY OF QUARTERS FURNISHED YOU BY SOUTH VIETNAM AFFORDS NO AUTHORITY FOR FAVORABLE CONSIDERATION OF YOUR CLAIM.

CONCERNING YOUR STATEMENT THAT FOUR OTHER MEMBERS HAVE BEEN PAID THE DIFFERENCE BETWEEN THE PER DIEM RATES IT MAY BE STATED THAT IF SUCH PAYMENTS WERE MADE, NOTWITHSTANDING THEY WERE FURNISHED QUARTERS BY SOUTH VIETNAM, THEY WERE ERRONEOUS AND COULD AFFORD NO BASIS FOR A LIKE PAYMENT TO YOU. THE VALIDITY OF THOSE PAYMENTS IS A MATTER FOR CONSIDERATION IN THE AUDIT OF THE DISBURSING OFFICER'S ACCOUNT. NEITHER DOES THE FACT THAT YOU MAY HAVE BEEN PAID PER DIEM AT THE RATE OF $9 PER DAY FOR TWO PREVIOUS TRIPS TO VIETNAM UNDER THE SAME TYPE CONDITIONS AFFORD A LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM.

IN VIEW OF THE FOREGOING, THE SETTLEMENT OF APRIL 23, 1969, IS SUSTAINED.