B-168806, FEB. 27, 1970

B-168806, FEB. 27, 1970

TO CAPTAIN M. G. HUNT:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 9, 1970, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF INCREASED PER DIEM TO CAPTAIN ROBERT W. WADE, AIR FORCE, FOR TEMPORARY DUTY IN KOREA UNDER THE CIRCUMSTANCES PRESENTED.

BY SPECIAL ORDER T-2788, HEADQUARTERS 475TH COMBAT SUPPORT GROUP (PACAF), APO SAN FRANCISCO 96519, DATED SEPTEMBER 17, 1969, 45 OFFICERS OF THE 356TH TACTICAL FIGHTER SQUADRON, INCLUDING CAPTAIN WADE, WERE DIRECTED TO PROCEED FROM MISAWA AIR BASE, JAPAN, TO KUNSAN AIR BASE, KOREA, PERFORMING THREE ROUND TRIPS MONTHLY DURING THE PERIOD FROM OCTOBER 1 TO DECEMBER 31, 1969, ON TEMPORARY DUTY FOR THE PURPOSE OF CARRYING OUT 5AF OPERATIONAL REQUIREMENTS AND UPON COMPLETION OF EACH MISSION TO RETURN TO PROPER STATION. SPECIAL ORDER T-2826, BY THE SAME HEADQUARTERS, DATED SEPTEMBER 22, 1969, DIRECTED THE SAME GROUP OF OFFICERS TO PROCEED DURING THE SAME PERIOD TO TAEGU AIR BASE, KOREA, ON TEMPORARY DUTY, PERFORMING THREE ROUND TRIPS MONTHLY AND UPON COMPLETION OF EACH, TO RETURN TO PROPER STATION. THE PURPOSE SHOWN WAS THE SAME AS INDICATED IN THE ORDERS OF SEPTEMBER 17, 1969. HOWEVER, THIS ORDER STATED THAT THE TRAVEL WOULD BE IN A UNIT MOVE STATUS AND PROVIDED THAT THE MEMBERS WOULD NOT BE CHARGED FOR USE OF BOQ/VOQ, PER AIR FORCE MANUAL 176-6.

IN A LETTER DATED NOVEMBER 6, 1969, CAPTAIN WADE STATED THAT HE WAS PAID PER DIEM AT THE RATE OF $1.90 FOR TEMPORARY DUTY PERFORMED UNDER THE ORDERS CITED ABOVE. HE CLAIMED THE DIFFERENCE IN PER DIEM BETWEEN $3.50 AND $1.90 FOR THE PERIOD FROM OCTOBER 14 TO 22, 1969. THE VOUCHER SUBMITTED WITH HIS CLAIM INDICATES ADDITIONAL PER DIEM IS CLAIMED FOR THE PERIOD FROM OCTOBER 23 THROUGH NOVEMBER 1, 1969.

THE ITINERARY ON THE VOUCHER SHOWS THAT THE OFFICER DEPARTED MISAWA AIR BASE, JAPAN AT 2000 HOURS ON OCTOBER 14, 1969, AND ARRIVED AT KUNSAN AIR BASE, KOREA, AT 0030 HOURS THE FOLLOWING DAY. HE PERFORMED TEMPORARY DUTY AT THAT BASE UNTIL OCTOBER 22, 1969, AT WHICH TIME HE DEPARTED KUNSAN AIR BASE AT 1130 HOURS, ARRIVING AT TAEGU AIR BASE, KOREA, AT 1230 HOURS THAT DAY FOR ADDITIONAL TEMPORARY DUTY. HE COMPLETED HIS TEMPORARY DUTY ON NOVEMBER 2, 1969, DEPARTING THAT STATION AT 1620 HOURS AND RETURNED TO HIS DUTY STATION AT MISAWA AIR BASE AT 2130 HOURS THAT DAY.

CAPTAIN WADE STATES THAT SINCE HE ARRIVED AT HIS DUTY STATION IN JAPAN ON OCTOBER 24, 1967, HE HAS PERFORMED NUMEROUS TEMPORARY DUTY ASSIGNMENTS IN KOREA. HE SAYS THAT WHILE THE REASON FOR SUCH TEMPORARY DUTY HAS NOT CHANGED, THE PER DIEM RATES HAVE VARIED FROM $5.15 TO $3.50 TO $1.90. CONTENDS THAT A FINANCIAL HARDSHIP IS BEING IMPOSED ON HIM BY REDUCING THE PER DIEM RATE TO $1.90.

BY LETTER DATED NOVEMBER 14, 1969, YOU SUBMITTED FOR ADVANCE DECISION CAPTAIN WADE'S CLAIM FOR THE DIFFERENCE IN PER DIEM BETWEEN$3.50 AND $1.90 FOR TEMPORARY DUTY PERFORMED AT KUNSAN AIR BASE FROM OCTOBER 16 TO 21, 1969, AND AT TAEGU AIR BASE FROM OCTOBER 23 TO NOVEMBER 1, 1969. YOU SAY THAT YOU MADE SETTLEMENT AT THE RATE OF $1.90 IN ACCORDANCE WITH INSTRUCTIONS RECEIVED OCTOBER 24, 1969, BUT YOU HAVE SOME DOUBT REGARDING THE PROPER PAYMENT FOR TEMPORARY DUTY PERFORMED AT KUNSAN AIR BASE DURING THE PERIOD FROM OCTOBER 16 TO 21, 1969.

YOU INDICATE THAT YOUR DOUBT IS BASED ON INSTRUCTIONS RECEIVED ON OCTOBER 24, 1969, FROM HEADQUARTERS FIFTH AIR FORCE (PACAF) CONVEYING A DETERMINATION BY HEADQUARTERS PACIFIC AIR FORCES THAT ALL TEMPORARY DUTY PERFORMED IN KOREA BY OFFICER PERSONNEL FROM YOUR GROUP AND OTHER SPECIFIED GROUPS IN SUPPORT OF PACAF ROTE AND SIOP COMMITMENTS ARE CONSIDERED IN A "UNIT MOVE STATUS." HOWEVER, YOU SAY THAT INSTRUCTIONS HAD PREVIOUSLY BEEN RECEIVED FROM THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO THE EFFECT THAT THE RESPONSIBILITY OF DETERMINING WHETHER A SPECIFIC ASSIGNMENT MEETS THE CRITERIA OF A "WITH UNIT ASSIGNMENT" IS THAT OF THE ORDERS REQUESTING OFFICER.

IN ACCORDANCE WITH SUCH INSTRUCTIONS YOU RELATE THAT THE ORDERS REQUESTING OFFICER AT YOUR STATION MADE THE DETERMINATION THAT TEMPORARY DUTY PERFORMED AT KUNSAN AIR BASE WAS NOT IN A "UNIT MOVE STATUS" BECAUSE THE TEMPORARY DUTY PERFORMED THERE WAS IN SUPPORT OF A PERMANENTLY ASSIGNED UNIT AND NOT IN SUPPORT OF OPERATIONAL AND TACTICAL DEPLOYMENTS. FOR THAT REASON YOU SAY HE DID NOT INCLUDE ANY RESTRICTIVE WORKING IN THE TRAVEL ORDERS DIRECTING TEMPORARY DUTY AT THAT BASE AND, AS A RESULT, YOU PAID PER DIEM AT THE RATE OF $3.50 FOR TEMPORARY DUTY PERFORMED AT THAT STATION THROUGH OCTOBER 23, 1969.

IN VIEW OF THE CIRCUMSTANCES DESCRIBED, YOU STATE THE QUESTIONS AT ISSUE ARE AS FOLLOWS:

"A. DOES THE DETERMINATION MADE BY HIGHER HEADQUARTERS THAT TDY PERFORMED AT KUNSAN AB, KOREA IS CONSIDERED TO BE 'WITH UNIT MOVE'PREVAIL OVER THE DETERMINATION OF THE ORDERS REQUESTING OFFICIAL THAT IT WAS NOT A UNIT MOVE AS EVIDENCED IN TRAVEL ORDER T2788, 17 SEPTEMBER 1969, 475 COMBAT SUPPORT GROUP? WHAT IS THE ACCOUNTING AND FINANCE OFFICER'S RESPONSIBILITY?

"B. DOES THE DETERMINATION MADE BY HIGHER HEADQUARTERS THAT TDY PERFORMED AT KUNSAN AB, KOREA WAS A 'WITH UNIT MOVE' HAVE RETROACTIVE PROVISIONS PRIOR TO THE DATE OF THE CORRESPONDENCE WAS RECEIVED AT THIS STATION?

"C. DID THE PAYMENT OF THE $1.90 PER DIEM RATE FOR THE PERIOD 16 OCTOBER TO 21 OCTOBER 1969 DISCHARGE THE GOVERNMENT'S OBLIGATIONS UNDER TRAVEL ORDER T-2788, 17 SEPTEMBER 1969, 475 COMBAT SUPPORT GROUP OR DID THE $3.50 PER DIEM RATE ACCRUE UNDER THESE ORDERS THAT APPEAR TO BE COMPETENT, WHEN A UNIT MOVE WAS NOT THE INTENT OF THE ORDERS REQUESTING OFFICIAL? THE ORDER WAS NOT AMENDED AND THE VOUCHER WAS PRESENTED FOR PAYMENT.

"D. IS TDY PERFORMED BY AN INDIVIDUAL OR INDIVIDUALS TO A DETACHMENT AT ITS PERMANENT LOCATION CONSIDERED A 'WITH UNIT MOVE.' (ATCH 5)

"E. WHEN COMMAND HAS MADE THE DETERMINATION THAT TDY WILL BE PERFORMED UNDER ROTE AND/OR SIOP COMMITMENTS IN A 'WITH UNIT MOVE STATUS' AND THIS INFORMATION IS OMITTED FROM THE TRAVEL ORDER BY THE ORDERS REQUESTING OFFICIAL, WHO SHOULD MAKE THE DECISION ON A CASE BY CASE BASIS WHETHER A PERSON SUPPORTS THE SIOP OR ROTE COMMITMENTS?

"F. IF THE ORDERS REQUESTING OFFICIAL OMITS MENTION OF A UNIT MOVE AS DIRECTED BY 10 OCTOBER 1969 HQ, PACAF LETTER, DOES THIS LAY THE RESPONSIBILITY ON THE ACCOUNTING AND FINANCE OFFICER MAKING PAYMENT TO HAVE THE 'UNIT MOVE' IN THE ORDER? (REF AFAFC MSG 301818Z SEPTEMBER 1969)"

YOUR REQUEST FOR ADVANCE DECISION WAS RETURNED BY HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, BY LETTER DATED DECEMBER 24, 1969. OPINION WAS EXPRESSED THAT THERE APPEARS TO BE NO DIFFERENCE IN THE CIRCUMSTANCES OR DUTIES PERFORMED BY THE SAME GROUP OF OFFICERS AT THE TWO LOCATIONS IN QUESTION. REFERENCE WAS MADE TO A DECISION OF OUR OFFICE, B- 154400, DATED MARCH 23, 1966 (45 COMP. GEN. 599) FOR A STATEMENT OF THE PRINCIPLES GOVERNING THE MATTER. IT WAS THEN SUGGESTED THAT IF YOU DESIRE TO FORWARD THE CLAIM TO OUR OFFICE, YOU SHOULD FURNISH ADDITIONAL DOCUMENTATION TO SHOW THAT THE CONDITIONS, DUTIES AND CIRCUMSTANCES AT ONE LOCATION DIFFER FROM THOSE AT THE OTHER LOCATION TO WARRANT AN INCREASE IN THE PER DIEM RATE.

IN YOUR LETTER OF JANUARY 9, 1970 YOU CONTEND THAT THE ORDERS REQUESTING OFFICIAL IS THE PERSON MOST QUALIFIED TO MAKE ANY DISTINCTION REGARDING "CONDITIONS, DUTIES AND CIRCUMSTANCE" AT A PARTICULAR TEMPORARY DUTY LOCATION. YOU STATE FURTHER THAT THE ADDITIONAL DOCUMENTATION REQUESTED TO SUBSTANTIATE THE CLAIM IS CLASSIFIED INFORMATION AVAILABLE TO THAT OFFICIAL RATHER THAN THE ACCOUNTING AND FINANCE OFFICER.

PARAGRAPH M4256-2, JOINT TRAVEL REGULATIONS, PROVIDES THAT FOR TRAVEL AND TEMPORARY DUTY OUTSIDE THE UNITED STATES, WHEN BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE TO MEMBERS DURING PERIODS OF DELAY INCIDENT TO TRAVEL AND FOR TEMPORARY DUTY, PER DIEM ALLOWANCES WILL BE COMPUTED IN ACCORDANCE WITH PARAGRAPH M4205-5, TABLE ITEM C(4) OR D, AS APPLICABLE.

PARAGRAPH M4205-5, TABLE ITEM C(4) PROVIDES THAT FOR DELAYS INCIDENT TO TRAVEL AND FOR TEMPORARY DUTY, WHEN GOVERNMENT QUARTERS ARE AVAILABLE OR UTILIZED AND GOVERNMENT MESS IS AVAILABLE, OFFICERS ARE ENTITLED TO $3.50 PER DAY, EXCEPT THAT IN INSTANCES WHEN SUBSISTENCE IS FURNISHED WITHOUT CHARGE TO THE OFFICER, THE AMOUNT WILL BE REDUCED TO $1.

PARAGRAPH M4205-5, TABLE ITEM D, PROVIDES THAT FOR PERIODS OF TEMPORARY DUTY PERFORMED BY AN OFFICER WITH HIS UNIT, OR A DETACHMENT THEREOF, WHEN THAT UNIT OR DETACHMENT IS ORDERED BY NAME OR NUMBER AWAY FROM ITS PERMANENT STATION UNDER CONDITIONS WHEN GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE THE PER DIEM RATE WILL BE $1.00. IT FURTHER PROVIDES THAT IF A MEMBER IS ASSIGNED TO A UNIT ON A PERMANENT BASIS OR IS ONLY ATTACHED TO IT ON A TEMPORARY BASIS, THAT UNIT IS HIS UNIT FOR THE PURPOSE OF THAT PARAGRAPH, THROUGHOUT THE PERIOD OF SUCH ASSIGNMENT OR ATTACHMENT, AND THAT THE PER DIEM ALLOWANCE WILL BE INCREASED BY THE EXCESS, IF ANY, OF THE DAILY COST OF FOOD IN THE GOVERNMENT MESS OVER ONE-THIRTIETH OF THE MONTHLY BASIC ALLOWANCE FOR SUBSISTENCE (WHICH HAS BEEN INFORMALLY ASCERTAINED AS $ .90 PER DAY).

PARAGRAPH M1150-18, JOINT TRAVEL REGULATIONS, DEFINES THE TERM "DETACHMENT" AS:

"1. A PART OF A UNIT SEPARATED FROM ITS MAIN ORGANIZATION FOR DUTY ELSEWHERE, OR

"2. A TEMPORARY MILITARY OR NAVAL UNIT FORMED FROM OTHER UNITS OR PARTS OF UNITS."

PARAGRAPH M1150-19 DEFINES THE WORD "UNIT" AS ANY MILITARY ELEMENT WHOSE STRUCTURE IS PRESCRIBED BY COMPETENT AUTHORITY, SUCH AS A TABLE OF ORGANIZATION AND EQUIPMENT.

IN 45 COMP. GEN. 599, COPY ENCLOSED, WE CONSIDERED A SOMEWHAT SIMILAR SITUATION INVOLVING DEPLOYMENT OF AIR FORCE PERSONNEL. WE EXPRESSED OUR AGREEMENT WITH THE VIEWS SET FORTH BY THE PER DIEM, TRAVEL AND TRANSPORTATION COMMITTEE ON MARCH 27, 1963, IN RESPONSE TO A SERIES OF QUESTIONS SUBMITTED BY THE COMMANDANT OF THE MARINE CORPS, WITH RESPECT TO THE APPLICATION OF PARAGRAPH M4201-14, JOINT TRAVEL REGULATIONS, A PREDECESSOR TO PARAGRAPH M4205-5, TABLE ITEM D, IN DETERMINING PER DIEM ENTITLEMENT FOR PERSONNEL ON DEPLOYMENT IN VARYING SITUATIONS.

IT WAS THERE STATED THAT IT WAS THE PERFORMANCE OF TEMPORARY DUTY AS A UNIT, OR A DETACHMENT THEREOF, AND NOT THE NATURE OF THE TEMPORARY DUTY, WHICH WAS THE DETERMINING FACTOR IN THE APPLICATION OF THAT REGULATION. ALSO IT WAS SAID THAT THERE WAS NO MINIMUM LIMITATION ON THE NUMBER OF PERSONNEL IN A "UNIT" OR "DETACHMENT" SO LONG AS THE MEMBERS WERE PERFORMING DUTY AS A "UNIT" OR "TEAM" AND THAT IT WAS NOT MATERIAL WHETHER ALL ELEMENTS OF A "UNIT" OR "DETACHMENT" LEAVE AND ARRIVE AT THE PRINCIPAL STATIONS AT DIFFERENT TIME INTERVALS, SO LONG AS ALL ELEMENTS ARE ACCOMPLISHING THE SAME MISSION CONTEMPLATED IN THE ORDERS.

IN THAT DECISION, WE HELD THAT THE FACT THAT THE MEMBERS WERE NOT WITH THEIR UNIT OR A DETACHMENT THEREOF, OR THAT THE ORDERS WERE ISSUED PIECEMEAL FOR INDIVIDUALS OR GROUPS OF INDIVIDUALS BY NAME, OR THAT THE UNIT OR DETACHMENT WAS NOT ORDERED TO THE TEMPORARY DUTY BY NAME OR NUMBER MAY NOT BE CONSIDERED AS ESTABLISHING A RIGHT IN THE MEMBERS CONCERNED TO THE PER DIEM CLAIMED IN THE CIRCUMSTANCES INVOLVED. THIS WAS SO BECAUSE THE TEMPORARY DUTY WAS IN FACT PERFORMED BY THE MEMBERS AS A DETACHMENT OF A UNIT AND THE FAILURE TO DESIGNATE THE TEMPORARY DUTY AS A UNIT ASSIGNMENT DID NOT EXEMPT THE MEMBERS FROM THE RESTRICTION IN THE REGULATIONS.

WITH RESPECT TO THE OBJECTION MADE BY THE UNDER SECRETARY OF THE AIR FORCE TO A RETROACTIVE APPLICATION OF THE COMMITTEE'S VIEWS EXPRESSED SIX MONTHS AFTER THE TEMPORARY DUTY TERMINATED IN THE CASE UNDER CONSIDERATION, IT WAS HELD THAT SUCH INTERPRETATION APPARENTLY DID NOT MODIFY ANY PRIOR CONTRARY INTERPRETATION OF THE REGULATION BY THAT COMMITTEE AND APPARENTLY CONSTITUTED AN ORIGINAL INTERPRETATION OF THE REGULATION. HENCE, IT WAS FOR APPLICATION FROM THE EFFECTIVE DATE OF THE REGULATION.

IN THIS CASE, BOTH SPECIAL ORDERS T-2788, DATED SEPTEMBER 17, 1969, DIRECTING TEMPORARY DUTY AT KUNSAN AIR BASE, AND T-2826, DATED SEPTEMBER 22, 1969, DIRECTING TEMPORARY DUTY AT TAEGU AIR BASE, INVOLVE THE SAME GROUP OF 45 OFFICERS OF THE 356 TACTICAL FIGHTER SQUADRON, 475TH SUPPORT SUPPLY GROUP, INCLUDING CAPTAIN WADE. BOTH ORDERS PROVIDE FOR THE PERFORMANCE BY THE GROUP OF THREE ROUND TRIPS MONTHLY FROM OCTOBER 1 TO DECEMBER 31, 1969, AND STATE THE TEMPORARY DUTY WAS FOR THE PURPOSE OF "CARRYING OUT 5AF OPERATIONAL REQUIREMENTS."

INASMUCH AS IT APPEARS THAT GOVERNMENT QUARTERS WERE AVAILABLE TO MEMBERS OF THE GROUP WITHOUT CHARGE AND GOVERNMENT MESS WAS AVAILABLE AT BOTH LOCATIONS, THE REQUIREMENTS OF PARAGRAPH M4205-5, TABLE ITEM D APPEAR TO HAVE BEEN MET, THE DUTY IN FACT HAVING BEEN PERFORMED IN A UNIT MOVE STATUS AS DETERMINED BY HEADQUARTERS FIFTH AIR FORCE (PACAF) IN ITS LETTER OF OCTOBER 22, 1969. ACCORDINGLY, THE OMISSION OF "TRAVEL IS IN A UNIT MOVE STATUS" IN THE ORDERS OF SEPTEMBER 17, 1969, PROVIDES NO BASIS FOR THE PAYMENT OF PER DIEM AT A HIGHER RATE THAN $1.90 FOR TEMPORARY DUTY PERFORMED AT EITHER BASE UNDER THOSE ORDERS. THEREFORE, PAYMENT OF CAPTAIN WADE'S CLAIM IS NOT AUTHORIZED AND THE SUBMITTED VOUCHER WILL BE RETAINED HERE. THE QUESTIONS YOU HAVE PRESENTED, EXCEPT AS THEY RELATE TO THE CLAIM OF CAPTAIN WADE, ARE NOT PROPERLY BEFORE THIS OFFICE FOR RESOLUTION, BUT IT IS BELIEVED THAT WHAT IS STATED ABOVE WILL BE OF ASSISTANCE IN ANSWERING SUCH QUESTIONS.

IT MAY BE STATED, GENERALLY, THAT IN DETERMINING THE LEGALITY OF PAYMENTS FOR TRAVEL AND TEMPORARY DUTY, OUR OFFICE ACCEPTS IN SUPPORT OF THE PAYMENTS TRAVEL ORDERS AS WRITTEN UNLESS ERROR IS OTHERWISE APPARENT, AND IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE TO ISSUE ORDERS CORRECTLY. HOWEVER, A MEMBER'S ENTITLEMENT IS FOR DETERMINATION ON THE BASIS OF THE ACTUAL FACTS AND CIRCUMSTANCES UNDER WHICH DUTY IS PERFORMED. ANY FAILURE TO PROPERLY INCLUDE IN THE ORDERS LANGUAGE INDICATING THE TRUE NATURE OF THE ASSIGNMENT WOULD NOT ENTITLE THE MEMBER TO AN AMOUNT IN EXCESS OF THAT OTHERWISE AUTHORIZED FOR THE ACTUAL DUTY INVOLVED.

AS INDICATED IN OUR DECISION OF JULY 14, 1969, B-154400, A COPY OF WHICH WAS ENCLOSED WITH YOUR REQUEST FOR DECISION, IF DOUBT EXISTS IN SUCH CASES AS TO THE MEMBER'S ENTITLEMENT, THE MATTER MAY BE SUBMITTED TO US FOR DECISION.

THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE BEING RETAINED IN OUR FILES.