B-170972, OCT. 20, 1970

B-170972, OCT. 20, 1970

PER DIEM - GOVERNMENT QUARTERS - CERTIFICATE OF NONAVAILABILITY DECISION HOLDING THAT CLAIM FOR HIGHER PER DIEM RATE FOR AN EMPLOYEE WHO USED CIVILIAN ACCOMODATIONS WHILE SERVING TEMPORARY ASSIGNMENT IN VIETNAM, IS NOT VALID IN THE ABSENCE OF A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS. EMPLOYEE, WHO UPON ARRIVAL IN VIETNAM FOR TEMPORARY DUTY, INFORMED THE ADMINISTRATIVE OFFICER THAT HE WAS NOT STAYING IN GOVERNMENT QUARTERS, AND USED CIVILIAN QUARTERS WITHOUT CHECKING THE AVAILABILITY OF GOVERNMENT QUARTERS, IN THE ABSENCE OF A STATEMENT FROM AN APPROPRIATE SOURCE VERIFYING THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE, IS NOT TO BE REIMBURSED AT A RATE HIGHER THAN THAT ALLOWED FOR GOVERNMENT QUARTERS.

TO MR. GEORGE T. LENEHAN:

YOUR LETTER OF JUNE 24, 1970, WITH ENCLOSURES, REQUESTS A RULE ON YOUR CLAIM FOR PER DIEM AT THE RATE OF $26 FOR YOUR 6-1/4 DAYS OF TEMPORARY DUTY IN VIETNAM AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, MILITARY SEA TRANSPORTATION SERVICE (MSTS), FAR EAST, YOKOHAMA, JAPAN, UNDER TRAVEL ORDER NO. T-3179 DATED JUNE 4, 1970. YOU WERE ONLY ALLOWED PER DIEM AT RATE OF $10 PER DAY BECAUSE GOVERNMENT QUARTERS WERE AVAILABLE EVEN THOUGH YOU DID NOT OCCUPY THE SAME.

IN ACCORDANCE WITH DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS, VOLUME 2, PARAGRAPH C 1057-3, THE SECRETARY OF THE NAVY IN SECNAV NOTICE 4650 DATED MARCH 14, 1969, INFORMED ALL SHIPS AND STATIONS, AS FOLLOWS:

"3. POLICY. WITHIN THE PROVISIONS OF REFERENCES (A) AND (B) AND IN ACCORDANCE WITH RECOMMENDATIONS OF COMMANDER, U.S. MILITARY ASSISTANCE COMMAND, VIETNAM (COMUSMACV), MILITARY AND CIVILIAN PERSONNEL IN A TEMADD STATUS IN RVN WILL USE GOVERNMENT QUARTERS WHICH ARE CONSIDERED BY THE RESPONSIBLE MILITARY COMMANDER TO BE ADEQUATE WITHIN THE HOUSING RESOURCES AVAILABLE. THIS IS NECESSARY TO PROVIDE CONTROL AND SECURITY OF PERSONNEL AND TO INSURE PROPER HEALTH CONDITIONS WITHIN UNIFORM SANITARY STANDARDS.

"4. ACTION. ORDERS ISSUED FOR TEMADD IN RVN WILL REQUIRE THE UTILIZATION OF AVAILABLE GOVERNMENT QUARTERS. EXCEPTION TO THIS REQUIREMENT WILL BE INCLUDED IN ORDERS ONLY WHEN THE USE OF GOVERNMENT FACILITIES WILL ADVERSELY AFFECT THE INDIVIDUAL'S MISSION AND IS ABSOLUTELY NECESSARY AND COMPLETELY JUSTIFIED. TEMADD ORDERS WILL INCLUDE THE PROVISION THAT WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, A CERTIFICATION TO THIS EFFECT WILL BE OBTAINED FROM THE APPROPRIATE MILITARY COMMANDER IN RVN."

PURSUANT TO THE ABOVE NOTICE YOUR TRAVEL ORDER ITEM 16 INFORMED YOU, AS FOLLOWS:

"YOU ARE DIRECTED WHILE ON TEMADDU STATUS IN RVN TO USE AVAILABLE GOVERNMENT QUARTERS WHICH ARE CONSIDERED BY THE RESPONSIBLE MILITARY COMMANDER TO BE ADEQUATE WITHIN THE HOUSING RESOURCES AVAILABLE IN RVN. WHERE GOVERNMENT QUARTERS/MESSING ARE NOT AVAILABLE, A CERTIFICATION TO THIS EFFECT WILL BE OBTAINED FROM THE APPROPRIATE MILITARY COMMANDER IN RVN."

IN THAT REGARD YOU SAY THAT, UPON YOUR ARRIVAL IN SAIGON ON JUNE 8, 1970, NO QUARTERS WERE OFFERED TO YOU AND YOU TOLD THE ADMINISTRATION OFFICER AT THE MSTS OFFICE IN VIETNAM THAT YOU WERE NOT STAYING IN GOVERNMENT QUARTERS; THAT HE WAS SATISFIED WITH THIS, AND DID NOT OFFER YOU GOVERNMENT QUARTERS OR INFORM YOU THAT GOVERNMENT QUARTERS WERE AVAILABLE. YOU INDICATE THAT THE QUESTION OF AVAILABILITY OF GOVERNMENT QUARTERS WAS NOT RAISED AGAIN OFFICIALLY UNTIL THE CLEARANCE OF YOUR DEPARTURE FROM SAIGON ON JUNE 15, 1970. AT THAT TIME YOUR ORDER WAS ENDORSED TO THE EFFECT THAT GOVERNMENT QUARTERS HAD BEEN AVAILABLE DURING YOUR TEMPORARY DUTY PERIOD, ALTHOUGH NOT OFFERED TO YOU. YOU CONTEND THAT SOME OFFICIAL SHOULD HAVE MADE A POSITIVE OFFER OF SUCH QUARTERS, WHEREAS YOU INDICATE THE COMMAND OFFICE AT YOKOHAMA FEELS THAT YOU SHOULD HAVE MADE A MORE VIGOROUS EFFORT IN SAIGON TO ASCERTAIN THE AVAILABILITY OF GOVERNMENT QUARTERS.

WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF PARAGRAPHS C 1057-3, C 8101 -3D AND C 10105-1 OF VOLUME 2, JOINT TRAVEL REGULATIONS, WHICH WERE APPLIED TO THE FACTS CONSIDERED IN THE ENCLOSED COPY OF OUR DECISION B 169490 DATED JUNE 15, 1970. COMPARE B-170072 DATED JULY 20, 1970, AND B- 170194 DATED SEPTEMBER 15, 1970, COPIES ALSO ENCLOSED.

OUR VIEW IS THAT UNDER YOUR TRAVEL ORDER IT WAS INCUMBENT UPON YOU TO INQUIRE AS TO THE AVAILABILITY OF GOVERNMENT QUARTERS AND IF NOT AVAILABLE OBTAIN A CERTIFICATE TO THAT EFFECT FROM AN APPROPRIATE OFFICIAL. SINCE YOU DID NOT DO SO WE SEE NO BASIS FOR ALLOWANCE OF YOUR CLAIM.