B-170300, SEP. 8, 1970

B-170300: Sep 8, 1970

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BECAUSE OF THE NATURE OF WORK INVOLVED IT WAS NECESSARY TO ASSIGN MEMBER INVOLUNTARILY TO INADEQUATE QUARTERS. FROM WHICH HE ELECTED TO MOVE OFF BASE AND SECURED PRIVATE QUARTERS MAY NOT HAVE THE EXPENSES INCURRED IN SUCH A MOVE REGARDED FOR REIMBURSEMENT. SINCE PROVISIONS WITHIN THE JTR PROVIDE THAT A SERVICE MEMBER ON TEMPORARY DUTY ASSIGNED TO INADEQUATE GOVERNMENT QUARTERS BECAUSE OF MILITARY NECESSITY IS DEEMED TO HAVE BEEN ASSIGNED ADEQUATE QUARTERS. COST OF PER DIEM WAS ESTIMATED TO BE $56 FOR FISCAL YEAR 1969 AND $146 FOR FISCAL YEAR 1970. GOVERNMENT MESS WAS AVAILABLE. THE ENDORSEMENT STATED THAT THE MODIFICATION WAS MADE TO COVER ADDITIONAL FUNDS REQUIRED AS A RESULT OF INVOLUNTARY ASSIGNMENT TO INADEQUATE QUARTERS.

B-170300, SEP. 8, 1970

PER DIEM ALLOWANCE - TEMPORARY QUARTERS OFF BASE REAFFIRMING SETTLEMENT OF JUNE 5, 1970, DISALLOWING UNIFORMED SERVICE MEMBER'S CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE FOR QUARTERS WHILE PERFORMING TEMPORARY DUTY AT NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VA. UNIFORMED SERVICE MEMBER, WHO AFTER REPORTING TO THE NORFOLK NAVAL SHIPYARD AS ORDERS DIRECTED, TO PERFORM TEMPORARY ADDITIONAL DUTY, AND BECAUSE OF THE NATURE OF WORK INVOLVED IT WAS NECESSARY TO ASSIGN MEMBER INVOLUNTARILY TO INADEQUATE QUARTERS, FROM WHICH HE ELECTED TO MOVE OFF BASE AND SECURED PRIVATE QUARTERS MAY NOT HAVE THE EXPENSES INCURRED IN SUCH A MOVE REGARDED FOR REIMBURSEMENT, SINCE PROVISIONS WITHIN THE JTR PROVIDE THAT A SERVICE MEMBER ON TEMPORARY DUTY ASSIGNED TO INADEQUATE GOVERNMENT QUARTERS BECAUSE OF MILITARY NECESSITY IS DEEMED TO HAVE BEEN ASSIGNED ADEQUATE QUARTERS, AND ADDITIONAL PER DIEM MAY NOT BE PAID, TO SUCH A MEMBER WHO DOES NOT UTILIZE THESE QUARTERS FOR PERSONAL REASONS.

TO MR. GARY M. TAMER:

IN YOUR LETTER OF JUNE 9, 1970, YOU REQUEST RECONSIDERATION OF THE SETTLEMENT OF JUNE 5, 1970, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM JUNE 9 THROUGH OCTOBER 14, 1969, WHILE PERFORMING TEMPORARY ADDITIONAL DUTY AT NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA.

STANDARD TRAVEL ORDER 37-69, COMMANDER MINE FORCE, UNITED STATES ATLANTIC FLEET, DATED MAY 1, 1969, DIRECTED YOU TO PERFORM TEMPORARY ADDITIONAL DUTY FOR APPROXIMATELY SIX MONTHS AT NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA 23709. COST OF PER DIEM WAS ESTIMATED TO BE $56 FOR FISCAL YEAR 1969 AND $146 FOR FISCAL YEAR 1970.

BY MEMORANDUM ENDORSEMENT TO YOUR ORDERS, THE COMMANDING OFFICER, ENLISTED PERSONNEL, NORFOLK NAVAL SHIPYARD, ASSIGNED YOU INVOLUNTARILY TO EXISTING INADEQUATE GOVERNMENT QUARTERS AS A MILITARY NECESSITY. GOVERNMENT MESS WAS AVAILABLE.

MEMORANDUM ENDORSEMENT ISSUED JANUARY 21, 1970, BY COMMANDER MINE FORCE, UNITED STATES ATLANTIC FLEET, MODIFIED THE BASIC ORDERS TO INCLUDE ADDITIONAL PER DIEM OF $307 FOR FISCAL YEAR 1969 AND $888 FOR FISCAL YEAR 1970. THE ENDORSEMENT STATED THAT THE MODIFICATION WAS MADE TO COVER ADDITIONAL FUNDS REQUIRED AS A RESULT OF INVOLUNTARY ASSIGNMENT TO INADEQUATE QUARTERS.

YOU TRAVELED FROM USS FIDELITY (MSO 443) TO THE NORFOLK NAVAL SHIPYARD WHERE YOU REPORTED ON MAY 23, 1969. YOU SAY THAT UPON YOUR ARRIVAL AT THE SHIPYARD YOU WERE ASSIGNED TO INADEQUATE QUARTERS WHERE YOU REMAINED UNTIL JUNE 9, 1969, WHEN YOU SECURED PRIVATE QUARTERS IN PORTSMOUTH, VIRGINIA, WHICH YOU UTILIZED UNTIL DEPARTURE FROM THE SHIPYARD ON OCTOBER 15, 1969.

BY LETTER OF DECEMBER 11, 1969, YOU REQUESTED THE PERSONNEL OFFICER, NORFOLK NAVAL SHIPYARD, TO ENDORSE YOUR ORDERS TO PERMIT PAYMENT OF INCREASED PER DIEM TO INCLUDE ALLOWANCE FOR QUARTERS FOR THE PERIOD THAT YOU OCCUPIED PRIVATE QUARTERS. IN REPLY, YOU WERE INFORMED THAT YOUR ORDERS HAD AUTHORIZED THE EXPENDITURE OF $202 FOR PER DIEM, THE EQUIVALENT OF $1 PER DAY, BUT THAT PER DIEM AT RATE OF $9.30 DAILY, INCLUDING QUARTERS ALLOWANCE, WOULD TOTAL $1,357.80. YOU WERE THEREFORE ADVISED TO FILE A FORMAL CLAIM.

IN YOUR LETTER OF JANUARY 19, 1970, TO COMMANDER MINE FORCE, UNITED STATES ATLANTIC FLEET, YOU CLAIMED ADDITIONAL PER DIEM BECAUSE OF USE OF OFF-BASE ACCOMMODATIONS INSTEAD OF THE ASSIGNED INADEQUATE QUARTERS AT NORFOLK NAVAL SHIPYARD. YOUR CLAIM WAS DENIED ADMINISTRATIVELY AND FORWARDED TO THIS OFFICE BY THE UNITED STATES NAVY FINANCE CENTER. IT WAS RECEIVED MARCH 10, 1970, AND DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF JUNE 5, 1970.

YOU INDICATE THAT YOU ARE OF THE OPINION THAT THE MEMORANDUM ENDORSEMENT OF JANUARY 21, 1970, CONSTITUTES AUTHORITY FOR THE PAYMENT OF ADDITIONAL PER DIEM DURING THE PERIOD YOU SAY YOU OCCUPIED PRIVATE QUARTERS. ALSO, YOU SAY THAT OTHER MEMBERS WHO WERE IN THE SAME STATUS AND WERE ASSIGNED INADEQUATE QUARTERS WERE PAID ADDITIONAL PER DIEM WHILE OCCUPYING PRIVATE QUARTERS.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH M4451-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT A MEMBER IN A TRAVEL STATUS WILL NOT BE REQUIRED TO USE GOVERNMENT QUARTERS DESIGNATED AS INADEQUATE BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED, EXCEPT WHEN DIRECTED BECAUSE OF MILITARY NECESSITY. AVAILABLE GOVERNMENT QUARTERS, DESIGNATED AS ADEQUATE BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED, AND MESS WILL BE USED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE, EXCEPT WHEN THE ORDER-ISSUING AUTHORITY EITHER PRIOR OR SUBSEQUENT TO THE TRAVEL INVOLVED ISSUES A STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION, OR WHEN THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY POINT FURNISHES A STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE.

PARAGRAPH M4451-3 OF THE REGULATIONS STATES THAT IF THE USE OF INADEQUATE GOVERNMENT QUARTERS IS REQUIRED BECAUSE OF MILITARY NECESSITY, THEY WILL BE CONSIDERED AS ADEQUATE.

PARAGRAPH M4205-5 (TABLE OF PER DIEM RATES WITHIN THE UNITED STATES) CHANGES 189, OCTOBER 1, 1968, AND 200, SEPTEMBER 1, 1969, IN EFFECT AT THE TIME OF YOUR TEMPORARY ADDITIONAL DUTY, PROVIDED FOR A PER DIEM OF $9.30 FOR ENLISTED PERSONNEL IF A GOVERNMENT MESS WAS AVAILABLE, AND GOVERNMENT QUARTERS WERE NOT AVAILABLE OR NOT UTILIZED, AS APPLICABLE, AND A PER DIEM OF $1 IF GOVERNMENT QUARTERS WERE AVAILABLE OR UTILIZED AND A GOVERNMENT MESS WAS AVAILABLE.

A SERVICE MEMBER ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY WHO IS INVOLUNTARILY ASSIGNED TO INADEQUATE GOVERNMENT QUARTERS DUE TO MILITARY NECESSITY IS DEEMED TO HAVE BEEN ASSIGNED ADEQUATE QUARTERS AND ADDITIONAL PER DIEM MAY NOT BE PAID SUCH A MEMBER WHO DOES NOT UTILIZE THESE QUARTERS FOR PERSONAL REASONS.

YOUR BASIC ORDERS INDICATED HOW PER DIEM TOTALING $202, IF PAID, WAS TO BE ALLOCATED FOR FISCAL YEARS 1969 AND 1970. MEMORANDUM ENDORSEMENT DATED JANUARY 21, 1970, WHICH PROVIDED FOR ADDITIONAL ALLOCATION OF $1,195, DID NOT CONSTITUTE ADMINISTRATIVE APPROVAL OF YOUR CLAIM, BUT MERELY STATED FOR ACCOUNTING PURPOSES THE AMOUNTS CHARGEABLE TO THE FISCAL YEAR APPROPRIATIONS IN THE EVENT THE CLAIM IS PAID. THE ENDORSEMENT MADE NO REFERENCE TO THE DETERMINATION OF MILITARY NECESSITY CONTAINED IN THE PRIOR ENDORSEMENT TO YOUR ORDERS, AND DID NOT PURPORT TO CHANGE IT. THE NAVY REGIONAL FINANCE CENTER, PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR CLAIM NOTED THAT THE MILITARY NECESSITY STATEMENT HAD NOT BEEN COUNTERMANDED.

SINCE YOU WERE ASSIGNED TO GOVERNMENT QUARTERS WHICH WERE INADEQUATE, BUT BECAUSE OF MILITARY NECESSITY, ARE DEEMED ADEQUATE, AND YOU VOLUNTARILY FAILED TO OCCUPY THESE QUARTERS, THE PAYMENT OF INCREASED PER DIEM OF $9.30, INCLUDING QUARTERS, FOR THE PERIOD FROM JUNE 9, 1969, THROUGH OCTOBER 14, 1969, IS NOT AUTHORIZED AND THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

CONCERNING YOUR STATEMENT THAT OTHER MEMBERS HAVE BEEN PAID $9.30 PER DIEM RATE, IT MAY BE STATED THAT IF SUCH PAYMENTS WERE MADE IN SIMILAR CIRCUMSTANCES, 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.

YOUR LETTER OF DECEMBER 11, 1969, AND MEMORANDUM ENDORSEMENT DATED JANUARY 21, 1970, ARE RETURNED HEREWITH. OTHER ORDERS WHICH YOU FORWARDED TO THIS OFFICE WERE RETURNED WITH THE SETTLEMENT CERTIFICATE.