B-171149, MAY 11, 1971, 50 COMP GEN 773

B-171149, MAY 11, 1971, 50 COMP GEN 773

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - FIREFIGHTING AS MEMBERS OF THE UNIFORMED SERVICES ORDERED TO PROCEED ON TEMPORARY DUTY IN GOVERNMENT VEHICLES TO ASSIST THE FOREST SERVICE IN FIREFIGHTING, WHETHER THEY SLEEP IN GOVERNMENT OR PERSONAL SLEEPING BAGS, IN THE VEHICLES, ON THE GROUND WITHOUT SLEEPING BAGS, ON THE FLOORS OF WAREHOUSES AND SIMILAR STRUCTURES, OR DO NOT SLEEP ON CERTAIN NIGHTS BECAUSE OF DUTY PERFORMANCE, ARE NOT PERFORMING THE TYPE DUTY IDENTIFIED AS MANEUVERS, JOINT FIELD EXERCISES, RESERVE TRAINING ENCAMPMENTS, AND SIMILAR ACTIVITIES, THE PAYMENT OF PER DIEM TO THEM IS GOVERNED BY PARAGRAPH M4205 -6 OF THE JOINT TRAVEL REGULATIONS, AND THE MEMBERS WHO WERE NOT CHARGED FOR MEALS OR SLEEPING FACILITIES PROVIDED BY THE FOREST SERVICE NOR WHO DID NOT OCCUPY COMMERCIAL FACILITIES, ARE ENTITLED FOR EACH DAY OF TEMPORARY DUTY TO A PER DIEM OF $2.50 AND $3.10 FOR EACH MEAL NOT FURNISHED, THE RATES PRESCRIBED BY THE REGULATION.

TO CAPTAIN W. PAUL KEARNS III, DEPARTMENT OF THE AIR FORCE, MAY 11, 1971:

WE REFER FURTHER TO YOUR LETTER DATED SEPTEMBER 21, 1970, WITH ATTACHMENTS, FORWARDED HERE BY COMMUNICATION OF JANUARY 25, 1971, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 71-1), IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF CLAIMS FOR PER DIEM BY MEMBERS STATIONED AT FAIRCHILD AIR FORCE BASE, WASHINGTON, WHILE ON TEMPORARY DUTY TO ASSIST IN FIREFIGHTING IN THE WENATCHEE FOREST, WENATCHEE, WASHINGTON.

BY ORDERS ISSUED ON AUGUST 27, 1970, HEADQUARTERS 92D STRATEGIC AEROSPACE WING (SAC), FAIRCHILD AIR FORCE BASE, WASHINGTON, CERTAIN MEMBERS STATIONED AT FAIRCHILD AIR FORCE BASE WERE DIRECTED TO PROCEED ON TEMPORARY DUTY FOR THE PURPOSE OF ASSISTING IN FIREFIGHTING AT THE WENATCHEE FOREST, WENATCHEE, WASHINGTON, FOR APPROXIMATELY 16 DAYS, AFTER WHICH TIME THEY WERE TO RETURN TO THAT BASE.

YOU SAY THAT APPROXIMATELY 63 MEMBERS RECEIVED SUCH ORDERS AND THAT THEY DROVE GOVERNMENT VEHICLES WHICH TRANSPORTED SUPPLIES AND PERSONNEL TO SUPPORT THE FIREFIGHTING OPERATION. YOU SAY FURTHER THAT BECAUSE OF EMERGENCY CONDITIONS MEMBERS SLEPT IN GOVERNMENT SLEEPING BAGS, IN VEHICLES, ON THE GROUND, ON THE FLOORS OF WAREHOUSES AND OTHER SIMILAR STRUCTURES, AND THAT BECAUSE OF DUTY REQUIREMENTS SOME MEMBERS DID NOT SLEEP ON CERTAIN NIGHTS.

OF ALL VOUCHERS RECEIVED IN CONNECTION WITH THE TEMPORARY DUTY AT WENATCHEE, WASHINGTON, YOU HAVE SUBMITTED THREE VOUCHERS SAID TO BE REPRESENTATIVE OF THE OTHERS. IN THIS CONNECTION, YOU ASK THE FOLLOWING QUESTIONS:

A. IF A MEMBER UTILIZES A GOVERNMENT SLEEPING BAG, DOES THIS CONSTITUTE GOVERNMENT QUARTERS AS CONTEMPLATED BY PARA M1150-5, JTR, AND WOULD THIS CORRESPONDINGLY REQUIRE A REDUCTION IN THE APPLICABLE PER DIEM RATE UNDER PARA M4205-5 OR PARA M4205-6, JTR, AS APPLICABLE?

B. IF A MEMBER SLEPT ON THE FLOOR OF A WAREHOUSE BUILDING, PRIVATE RESIDENCE, OR SIMILAR STRUCTURE, FOR WHICH NO EXPENSE WAS INCURRED, DOES THIS CONSTITUTE NON-GOVERNMENT QUARTERS AS CONTEMPLATED BY PARA M4205-6, JTR?

C. IF A MEMBER SLEPT IN A GOVERNMENT VEHICLE, WOULD THIS BE CONSIDERED AS QUARTERS PROVIDED; OR WOULD QUARTERS BE CONSIDERED AS NOT FURNISHED AND WOULD THE HIGHER PER DIEM RATE BE APPLICABLE?

D. IF A MEMBER SLEPT ON THE GROUND UNDER THE STARS WITH NO SLEEPING BAG OR WITH HIS OWN PERSONAL SLEEPING BAG, WOULD QUARTERS BE CONSIDERED AS NOT FURNISHED AND WOULD THE HIGHER PER DIEM RATE BE APPLICABLE?

E. IF A MEMBER DID NOT SLEEP AT ALL ON CERTAIN NIGHTS, WOULD HE BE ENTITLED TO FULL PER DIEM LESS THE APPLICABLE DEDUCTION FOR MEALS?

IN FORWARDING YOUR REQUEST THROUGH MILITARY CHANNELS, THE DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS FIFTEENTH AIR FORCE (SAC) AND THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS STRATEGIC AIR COMMAND, EXPRESSED THE BELIEF THAT ALTHOUGH THE TYPE OF DUTY PERFORMED IS NOT SPECIFICALLY IDENTIFIED IN SECTION D (MANEUVERS, JOINT FIELD EXERCISES, RESERVE TRAINING ENCAMPMENTS, AND OTHER SIMILAR ACTIVITIES) OF CHAPTER 4, PART TWO OF AIR FORCE MANUAL 177-103, IT APPEARS TO FALL WITHIN THE CONCEPT OF A "SIMILAR ACTIVITY." CONSEQUENTLY, THE VIEW IS EXPRESSED THAT REIMBURSEMENT FOR OCCASIONAL MEALS AND QUARTERS SHOULD BE MADE AS PRESCRIBED BY PARAGRAPH M4205-3 OF THE JOINT TRAVEL REGULATIONS, BUT NO PER DIEM IS AUTHORIZED.

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 ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS WHEN HE IS AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH M4201 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR THE FOLLOWING PERIODS:

6. WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. MEMBERS TO WHOM THIS LIMITATION OTHERWISE APPLIES MAY BE REIMBURSED, IN ACCORDANCE WITH PAR. M4205-3, FOR OCCASIONAL MEALS OR QUARTERS NECESSARILY PROCURED. ***

SECTION D OF CHAPTER 4, PART TWO OF AIR FORCE MANUAL 177-103, IMPLEMENTS PARAGRAPHS M4201-6 AND M4250-3 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 20433 OF THAT SECTION INDICATES THAT SLEEPING ACCOMMODATIONS UNDER FIELD CONDITIONS CONSIST OF TENTAGE, DUGOUTS, LEAN TOS, OR STRUCTURES NOT SUITABLE FOR REGULAR OCCUPANCY, AND SUBSISTENCE UNDER FIELD CONDITIONS CONSISTS OF RATIONS PREPARED IN A FIELD KITCHEN OR MESS, OR COLD PREPARED RATIONS COMMON TO THE OPERATION, AND MADE AVAILABLE TO PARTICIPANTS.

PARAGRAPH 20437 REFERS TO ARMY REGULATION 35-30 FOR DEFINITIVE GUIDANCE WITH RESPECT TO PER DIEM ENTITLEMENT FOR DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH M4201-6 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 5 OF AR 35- 30 PROVIDES:

DEFINITIONS. A. OTHER SIMILAR ACTIVITIES. FOR THE PURPOSE OF THESE REGULATIONS THE TERM "OTHER SIMILAR ACTIVITIES" AS USED IN THE JOINT TRAVEL REGULATIONS IS DEFINED AS ALL ACTIVITIES PERFORMED IN SUPPORT OF A MANEUVER, FIELD EXERCISE, TRAINING ENCAMPMENT, AND SIMULATED WAR GAMES, INCLUDING DUTIES CONNECTED WITH THE ESTABLISHMENT OR CLOSE OUT OF THE OPERATION.

AN ADMINISTRATIVE DETERMINATION THAT A PARTICULAR ASSIGNMENT IS OR IS NOT WITHIN THE SCOPE OF PARAGRAPH M4201-6 OF THE REGULATIONS, GENERALLY WILL NOT BE QUESTIONED UNLESS THERE IS A CLEAR SHOWING THAT IT IS CONTRARY TO THE FACTS SURROUNDING THE ASSIGNMENT. 31 COMP. GEN. 288 (1952); AND 37 COMP. GEN. 126, 128 (1957) AS MODIFIED IN 37 COMP. GEN. 683 (1958). CONSEQUENTLY, WE HAVE RECOGNIZED PROVISIONS IN ORDERS WHICH DESIGNATE A PARTICULAR DUTY AS OF A TYPE COVERED BY PARAGRAPHS M4201-6 AND M4250-3 OF THE JOINT TRAVEL REGULATIONS, AS VALID ADMINISTRATIVE DETERMINATIONS. COMP. GEN. 683 (1958).

ALTHOUGH THE CONDITIONS ENCOUNTERED BY MEMBERS ASSISTING IN FIREFIGHTING AT WENATCHEE FOREST MAY BE SIMILAR IN SOME RESPECTS TO THOSE EXPERIENCED UNDER FIELD TRAINING CONDITIONS, THIS, OF ITSELF, IS NOT A SUFFICIENT BASIS TO CONCLUDE THAT THE ACTIVITIES IN QUESTION ARE WITHIN THE SCOPE OF PARAGRAPH M4201-6 OF THE REGULATIONS. THE ORDERS CONTAIN NO DESIGNATION OF THE TEMPORARY DUTY AS A TYPE CONTEMPLATED BY PARAGRAPH M4201-6 OF THE JOINT TRAVEL REGULATIONS AND IT CLEARLY WAS NOT IN SUPPORT OF A FIELD TRAINING EXERCISE SO AS TO CONSTITUTE "OTHER SIMILAR ACTIVITY" AS DEFINED ABOVE.

IN DECISION B-140153, OCTOBER 28, 1959, WE HELD THAT AN AIR FORCE MEMBER WHOSE ORDERS AUTHORIZED PER DIEM WHILE ON TEMPORARY DUTY TO OPERATE RED CROSS MESSES IN A HURRICANE DISASTER AREA, AND WHO WAS PROVIDED WITH TENTAGE AND MEALS, WAS NOT ON FIELD DUTY OR ENGAGED IN "OTHER SIMILAR ACTIVITY" WITHIN THE MEANING OF PARAGRAPH M4201-6.

LIKEWISE, WE ARE OF THE OPINION THAT THE TEMPORARY DUTY IN QUESTION IS NOT WITHIN THE CONTEMPLATION OF PARAGRAPH M4201-6 OF THE REGULATIONS. THEREFORE, PARAGRAPH M4205-3 OF THE REGULATIONS IS NOT FOR APPLICATION AND THE PAYMENT OF PER DIEM IS GOVERNED BY PARAGRAPH M4205-6 OF THE REGULATIONS.

PARAGRAPH M4205-6 OF THE REGULATIONS PRESCRIBES THE RATE OF PER DIEM AUTHORIZED FOR TRAVEL AND TEMPORARY DUTY IN THE UNITED STATES WHEN NON GOVERNMENT MEALS AND/OR QUARTERS ARE FURNISHED. IT PROVIDES BY TABLE, IN PERTINENT PART, AS FOLLOWS:

RULE 1. WHEN MEALS AND/OR QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE FROM NON-GOVERNMENT SOURCES (SUCH AS LOCAL OR STATE GOVERNMENTS, FOREIGN GOVERNMENTS), OTHER UNITED STATES GOVERNMENT AGENCIES, UNITED STATES GOVERNMENT CONTRACTORS, OR BY PRIVATE ORGANIZATIONS SUCH AS THE NATIONAL RED CROSS DURING DISASTERS, THE MEMBER WILL BE ENTITLED TO PER DIEM FOR THE DAY OF ARRIVAL AND THE DAY OF DEPARTURE, IN THE AMOUNT OF $2.50 PER DAY PLUS $3.10 FOR EACH MEAL AND $13.20 FOR EACH SET OF LODGING PROCURED WHILE IN A TRAVEL STATUS FROM A COMMERCIAL SOURCE *** .

RULE 2. FOR ALL OTHER DAYS THE MEMBER WILL BE ENTITLED TO PER DIEM IN THE AMOUNT OF $2.50 WHEN BOTH MEALS AND QUARTERS ARE FURNISHED, $11.80 WHEN ONLY QUARTERS ARE FURNISHED, AND $15.70 WHEN ONLY MEALS ARE FURNISHED PLUS, IN EACH CASE, THE ACTUAL CHARGES FOR THE MEALS AND/OR QUARTERS SO FURNISHED.

FOOTNOTES TO THE TABLE PROVIDE THAT IN NO INSTANCE WILL THE PER DIEM PAYABLE EXCEED $25. AND WHEN LESS THAN THREE MEALS DAILY ARE FURNISHED, IT IS PROVIDED THAT THE PER DIEM OF $15.70 WILL BE INCREASED $3.10 FOR EACH MEAL NOT FURNISHED FROM THE GOVERNMENT OR NON-GOVERNMENT SOURCE INVOLVED.

THE INTENT, GENERALLY, OF PARAGRAPH M4205-6 COVERING DUTY SUCH AS HERE INVOLVED, WHERE SUBSISTENCE AND SLEEPING BAGS OR OTHER SLEEPING FACILITIES APPROPRIATE UNDER THE CIRCUMSTANCES ARE FURNISHED BY A GOVERNMENT OR NON- GOVERNMENT AGENCY AND MADE AVAILABLE TO THOSE WHO CAN UTILIZE THEM, THUS RELIEVING THE MEMBER OF THE EXPENSE OF OBTAINING QUARTERS AND MEALS COMMERCIALLY, IS TO LIMIT THE PAYMENT OF PER DIEM TO THE RATE OF $2.50 PLUS ANY CHARGES PAID BY HIM FOR MEALS OR QUARTERS.

IF, BY REASON OF THE MEMBER'S DUTY ASSIGNMENT, HE DOES NOT SLEEP AT ALL ON CERTAIN NIGHTS, OR SLEEPS UNDER THE CONDITIONS ENUMERATED IN YOUR LETTER, HE IS PUT TO NO EXPENSE FOR THE FACILITIES OCCUPIED. IN THESE CIRCUMSTANCES, IN THE ABSENCE OF A SHOWING THAT THE MEMBER UTILIZED COMMERCIAL SLEEPING FACILITIES, WE ARE OF THE OPINION THAT THE REGULATION DOES NOT AUTHORIZE AN INCREASED PER DIEM ON THE BASIS THAT QUARTERS WERE NOT AVAILABLE. UNDER SUCH CONDITIONS, THE MEMBER HAS BEEN PUT TO NO MORE EXPENSE FOR QUARTERS BY REASON OF HIS DUTY ASSIGNMENT THAN THE MEMBERS WHO UTILIZED THE SLEEPING FACILITIES THAT WERE OTHERWISE MADE AVAILABLE IN CONNECTION WITH THE OPERATION. SEE 24 COMP. GEN. 473 (1944) AND 44 COMP. GEN. 326 (1964).

AS THE MEMBERS ASSISTING IN FIRE FIGHTING AT WENATCHEE, WASHINGTON, WERE NOT CHARGED FOR MEALS OR SLEEPING FACILITIES PROVIDED BY THE FOREST SERVICE, AND YOUR LETTER INDICATES THEY DID NOT OCCUPY COMMERCIAL LODGINGS, FOR EACH DAY OF TEMPORARY DUTY THEY ARE ENTITLED TO PER DIEM OF $2.50 AND, IN ADDITION, $3.10 FOR EACH MEAL NOT FURNISHED, THE RATES PROVIDED IN PARAGRAPH M4205-6 OF THE REGULATIONS.

ACCORDINGLY, THE VOUCHERS SUBMITTED ARE RETURNED HEREWITH, AND IF OTHERWISE PROPER, PER DIEM MAY BE PAID ON THE BASIS INDICATED.