B-168379, DEC. 30, 1969

B-168379, DEC. 30, 1969

SUBSISTENCE--PER DIEM--TEMPORARY DUTY--REIMBURSEMENT BASIS IN RESPONSE TO OFFICER'S CLAIM FOR MAXIMUM PER DIEM AT VARIOUS LOCATIONS IN PACIFIC AREA WHILE ON TEMPORARY DUTY, WHERE CERTIFICATES FOR NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT OBTAINED, REIMBURSEMENT FOR DEDUCTIONS FROM PER DIEM ALLOWANCE, PROVIDED FOR IN M4254-1 AND M4254-3, JOINT TRAVEL REGULATIONS (JTR), WHEN QUARTERS AND MESS ARE AVAILABLE MAY NOT BE MADE SINCE OFFICER'S STATEMENT OF NONUTILIZATION THEREOF MAY NOT BE ACCEPTED AS EVIDENCE OF NONAVAILABILITY OR IMPRACTICABILITY WHEN PAYMENT ON OFFICER'S CERTIFICATION IS NOT SUPPORTED IN INSTANCES COVERED BY EXCEPTIONS SPECIFICALLY NOTED IN M4451- 1, M4451-2, M4451-3 AND M4451-4, JTR.

TO LIEUTENANT COLONEL ALAN H. CHENEVERT, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1969, REQUESTING RECONSIDERATION OF SETTLEMENT BY OUR CLAIMS DIVISION DATED OCTOBER 8, 1969, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED FROM MAY 7 TO JUNE 2, 1968, PURSUANT TO LETTER ORDER DATED MAY 6, 1968.

THE LETTER ORDER DATED MAY 6, 1968, ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT RESEARCH AND DEVELOPMENT CENTER, FORT BELVOIR, VIRGINIA, DIRECTED YOU TO TRAVEL IN A TEMPORARY DUTY STATUS TO VARIOUS LOCATIONS INCLUDING LOS ANGELES, CALIFORNIA; HONOLULU, HAWAII; OKINAWA; SAIGON, VIETNAM; AND SEOUL, KOREA. SPECIAL INSTRUCTIONS PROVIDED IN PERTINENT PART THAT IN LIEU OF SUBSISTENCE, THE MAXIMUM PER DIEM ALLOWANCE WAS AUTHORIZED IN ACCORDANCE WITH VOLUME 1, JOINT TRAVEL REGULATIONS.

THE TRAVEL VOUCHER PAID IN AUGUST 1968 EVIDENCES PAYMENT OF PER DIEM AND TRAVEL EXPENSES FOR COMMERCIAL AIR TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE ORDERS OF MAY 6, 1968. THE ITINERARY SHOWS THAT YOU DEPARTED YOUR DUTY STATION ON MAY 7, ARRIVED IN LOS ANGELES, CALIFORNIA, THAT DAY AND REMAINED ON TEMPORARY DUTY THERE UNTIL MAY 9, AT WHICH TIME YOU DEPARTED FOR HONOLULU, HAWAII, ARRIVING THE SAME DAY. THE VOUCHER SHOWS FURTHER THAT YOU WERE IN A TEMPORARY DUTY STATUS IN HONOLULU UNTIL MAY 14, THEN TRAVELED TO OKINAWA (GAINING ONE DAY CROSSING THE INTERNATIONAL DATE LINE), REMAINED OVERNIGHT AND THEN ARRIVED AT SAIGON, VIETNAM, ON MAY 16. YOU PERFORMED TEMPORARY DUTY THERE UNTIL MAY 29, AT WHICH TIME YOU TRAVELED BACK TO HONOLULU, ARRIVING THE SAME DATE (LOSING ONE DAY IN CROSSING THE INTERNATIONAL DATE LINE). YOU WERE ON TEMPORARY DUTY THERE UNTIL MAY 31, THEN TRAVELED TO LOS ANGELES, ARRIVING THE SAME DAY. YOU DEPARTED FROM LOS ANGELES ON JUNE 1 AND RETURNED TO YOUR DUTY STATION ON JUNE 2, 1968.

THE VOUCHER SHOWS THAT YOU WERE REIMBURSED TRAVEL EXPENSE ITEMS INCURRED WHILE TRAVELING AND WERE PAID PER DIEM ON THE BASIS THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE WHILE AT HONOLULU, OKINAWA AND SAIGON.

IN YOUR LETTER DATED JANUARY 2, 1969, REQUESTING ADDITIONAL PER DIEM FOR THE REASON THAT YOU DID NOT UTILIZE GOVERNMENT FACILITIES DURING THE ENTIRE PERIOD OF TEMPORARY DUTY, YOU STATED THAT AT THE TIME OF YOUR DEPARTURE FROM FORT BELVOIR, YOU WERE ADVISED THAT YOU WOULD NOT NEED CERTIFICATES OF NON-AVAILABILITY IN ORDER TO BE PAID MAXIMUM PER DIEM AS AUTHORIZED IN THE SPECIAL INSTRUCTIONS IF YOU DID NOT OCCUPY GOVERNMENT QUARTERS OR EAT IN A GOVERNMENT MESS. YOU STATED FURTHER THAT SUBSEQUENT TO THE PAYMENT MADE FOR THE TRAVEL PERFORMED, YOU ATTEMPTED TO OBTAIN CERTIFICATES OF NON-AVAILABILITY BUT WERE ABLE TO OBTAIN ONLY ONE PERTAINING TO YOUR STAY IN HONOLULU. YOU CONTENDED, HOWEVER, THAT WITHOUT SUCH CERTIFICATES YOU WERE ENTITLED TO THE MAXIMUM PER DIEM WHILE AT OKINAWA AND VIETNAM AS YOU HAD TO LIVE ON THE LOCAL ECONOMY AND DID NOT OCCUPY GOVERNMENT QUARTERS OR EAT IN A GOVERNMENT MESS.

BY SETTLEMENT DATED OCTOBER 8, 1969, YOUR CLAIM FOR ADDITIONAL PER DIEM WAS DISALLOWED FOR THE REASONS STATED. IN YOUR LETTER OF OCTOBER 21, 1969, REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU STATE THAT IT WAS REASONABLE TO ASSUME THAT THE SIGNATORY AUTHORITY ON THE FORM 1351 5 (CERTIFICATE OF NON-AVAILABILITY) WAS PROPERLY AUTHORIZED. ALSO, YOU EXPRESS THE VIEW THAT SINCE YOU SIGNED THE VOUCHER STATING THAT AT NO TIME DID YOU UTILIZE GOVERNMENT MESS OR QUARTERS DURING THE COURSE OF THE TRIP, SUCH CERTIFICATION SHOULD NOT BE QUESTIONED.

PARAGRAPH M4253-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE PROVISIONS OF SECTIONS 404 AND 405 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT, UNLESS OTHERWISE PROVIDED FOR OR RESTRICTED IN THE REGULATIONS, TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE UNITED STATES. PARAGRAPH M4254-1 OF THE REGULATIONS PROVIDES THAT A DEDUCTION OF 50% OF THE TRAVEL PER DIEM ALLOWANCE APPLICABLE FOR THE DAY WILL BE MADE WHEN GOVERNMENT QUARTERS ARE AVAILABLE TO MEMBERS UNDER THE CONDITIONS CITED IN PARAGRAPH M4451-2, ITEM 1, OF THE REGULATIONS. SUBPARAGRAPH 3 THEREOF PROVIDES THAT WHEN A GOVERNMENT MESS IS AVAILABLE TO OR UTILIZED BY AN OFFICER FOR AT LEAST 2 MEALS A DAY, INCLUDING TRAVEL DAYS, A DEDUCTION OF 42% OF THE APPLICABLE PER DIEM WILL BE MADE FOR THAT DAY. THE NET PER DIEM FOR THE DAY WILL THEN BE INCREASED BY $2.50 TO COVER COST OF FOOD IN A GOVERNMENT MESS.

PARAGRAPH M4451-1 OF THE JOINT TRAVEL REGULATIONS REQUIRES THAT AVAILABLE GOVERNMENT QUARTERS DESIGNATED AS ADEQUATE, AND MESS, BE UTILIZED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE, EXCEPT UNDER CERTAIN CONDITIONS INCLUDING THE FOLLOWING:

"1. WHEN THE ORDER-ISSUING AUTHORITY EITHER PRIOR OR SUBSEQUENT TO THE TRAVEL INVOLVED ISSUES A STATEMENT TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION * * *;

"2. WHEN THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AT THE TEMPORARY DUTY OR DELAY POINT FURNISHES A STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE;"

PARAGRAPH M4451-2 PROVIDES THAT IN THE ABSENCE OF A STATEMENT ISSUED UNDER THE PROVISIONS OF SUBPARAGRAPH 1, ITEM 1 OR 2, OR UNLESS THE NON AVAILABILITY OF ADEQUATE QUARTERS OR MESS CAN BE ASCERTAINED BY A PUBLICATION ISSUED BY THE UNIFORMED SERVICE CONCERNED, IT SHALL BE ASSUMED THAT ADEQUATE GOVERNMENT QUARTERS AND A GOVERNMENT MESS WERE AVAILABLE ON ANY DAY FOR WHICH THE MEMBER FAILS TO SUBMIT AN APPROPRIATE STATEMENT THAT SUCH QUARTERS AND/OR MESS WERE NOT AVAILABLE OR NOT UTILIZED.

PARAGRAPH M4451-3 OF THE REGULATIONS PROVIDES IN PERTINENT PART THAT IF THE LENGTH OF THE TEMPORARY DUTY IS FOR A PERIOD OF 24 HOURS OR MORE AND THE POINT OF TEMPORARY DUTY IS A RECOGNIZED MILITARY POST, CAMP, STATION, BASE, OR DEPOT OWNED OR OPERATED BY THE UNITED STATES, OR IF THE TEMPORARY DUTY IS PERFORMED AT A POINT WHERE THE UTILIZATION OF AVAILABLE QUARTERS IS REQUIRED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY, A STATEMENT BY THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AT THE POINT OF TEMPORARY DUTY OR DELAY AS TO THE NON AVAILABILITY OF ADEQUATE GOVERNMENT QUARTERS, GOVERNMENT MESS AND (FOR OFFICERS ONLY) OFFICERS' OPEN MESS, IS REQUIRED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY OR DELAY INVOLVED, EXCEPT UNDER THE CONDITIONS OUTLINED IN PARAGRAPH M4451-1, ITEMS 1 AND 2. THIS STATEMENT IS NOT REQUIRED BY THE REGULATIONS IF THE NON-AVAILABILITY OF GOVERNMENT FACILTIES CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION ISSUED BY THE UNIFORMED SERVICE CONCERNED.

PARAGRAPH M4451-4 PROVIDES THAT A MEMBER'S STATEMENT AS TO THE UTILIZATION, AS DISTINGUISHED FROM AVAILABILITY OF GOVERNMENT FACILITIES WILL SUPPORT PAYMENT OF PER DIEM ALLOWANCES ONLY UNDER THE CIRCUMSTANCES LISTED THEREIN, WHICH IN SUBSTANCE INCLUDE, IN PERTINENT PART, THE FOLLOWING:

FOR THE ENTIRE PERIOD OF TEMPORARY DUTY OR DELAY UNDER

CONDITIONS OR AT PLACES NOT INCLUDED IN PARAGRAPH M4451-3,

ITEMS 1 AND 2

FOR PERIODS WHERE PAYMENT IS SUPPORTED BY A STATEMENT

CONTEMPLATED IN PARAGRAPH M4451-1, ITEMS 1 AND 2

FOR ANY PERIOD OF TEMPORARY DUTY WHERE THE NON-AVAILABILITY

OF GOVERNMENT FACILITIES CAN BE ASCERTAINED BY REFERENCE TO

A PUBLICATION ISSUED BY THE SERVICE CONCERNED. THE REGULATION PROVIDES FURTHER THAT IT IS ONLY IN INSTANCES OF THESE EXCEPTIONS THAT A MEMBER'S STATEMENT AS TO THE UTILIZATION AS DISTINGUISHED FROM AVAILABILITY OF GOVERNMENT QUARTERS AND MESSING FACILITIES SHALL SUPPORT PAYMENT OF PER DIEM.

UNDER THE ABOVE REGULATIONS A CERTIFICATION BY A MEMBER AS TO THE NON- UTILIZATION OF GOVERNMENT QUARTERS AND MESSING FACILITIES WILL BE ACCEPTABLE TO SUPPORT PAYMENT ONLY IN INSTANCES COVERED BY THE EXCEPTIONS SPECIFICALLY NOTED IN THE APPLICABLE REGULATIONS. THE LANGUAGE USED IN THE SPECIAL INSTRUCTIONS CONTAINED IN THE ORDERS OF MAY 6, 1968, TO THE EFFECT THAT IN LIEU OF SUBSISTENCE, MAXIMUM PER DIEM ALLOWANCE IS AUTHORIZED IN ACCORDANCE WITH THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS MAY NOT BE CONSIDERED AS A STATEMENT BY THE ORDER-ISSUING AUTHORITY THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION WITHIN THE MEANING OF PARAGRAPH M4451-1, ITEM 1, JOINT TRAVEL REGULATIONS.

NEITHER DOES THE FILE CONTAIN ANY STATEMENT BY THE COMMANDING OFFICERS AT THE PLACES OF TEMPORARY DUTY TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICAL AS REQUIRED BY PARAGRAPH M4451-1, ITEM 2, OF THE REGULATIONS. ALSO, IT HAS BEEN INFORMALLY ASCERTAINED FROM THE DEPARTMENT OF THE ARMY THAT IT HAS NO PUBLICATION LISTING ITS FACILITIES, CAMPS, ETC; WHICH SHOWS AVAILABILITY OR NON- AVAILABILITY OF GOVERNMENT QUARTERS OR MESSING FACILITIES AND THAT IT RELIES ON A CERTIFICATE (DD FORM 1351-5) AS A BASIS FOR SUCH INFORMATION.

THE CERTIFICATE (DD FORM 1351-5) DATED SEPTEMBER 20, 1968, SUBMITTED BY YOU, CERTIFYING AS TO THE NON-AVAILABILITY OF GOVERNMENT QUARTERS AND MESS WHILE PERFORMING TEMPORARY DUTY AT HONOLULU, HAWAII, FROM MAY 9 THROUGH 14 AND FROM MAY 29 THROUGH 31, 1968, WAS NOT ISSUED CONTEMPORANEOUSLY AS CONTEMPLATED BY THE REGULATIONS, BUT WILL BE ACCEPTED TO SUPPORT PAYMENT OF PER DIEM AT $18 WHILE AT THAT PLACE. HOWEVER, UNDER THE REGULATIONS YOUR CERTIFICATION AS TO THE NONUTILIZATION OF GOVERNMENT QUARTERS AND MESSING FACILITIES MAY NOT BE ACCEPTED AS EVIDENCE THAT SUCH FACILITIES WERE NOT AVAILABLE AT THE OTHER TEMPORARY DUTY POINTS. IN THE ABSENCE OF SUCH EVIDENCE, OR A CERTIFICATION BY PROPER AUTHORITY AS REQUIRED BY THE REGULATIONS, THERE IS NO BASIS UPON WHICH ANY ADDITIONAL PER DIEM MAY BE AUTHORIZED.

ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ISSUE SETTLEMENT ON THE BASIS STATED ABOVE, LESS PER DIEM PAYMENTS PREVIOUSLY MADE AND LESS THE BALANCE OF $20 OF A TRAVEL ADVANCE OF $480 NOT LIQUIDATED AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY.