B-174646, MAY 19, 1972

B-174646: May 19, 1972

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LLEWELLYN WAS PROPERLY PAID FIFTY PERCENT OF THE LOCAL PER DIEM RATE. WHICH PROVIDES THAT MEMBERS ARE NOT REQUIRED TO UTILIZE INADEQUATE GOVERNMENT QUARTERS. WAS NOT IN EFFECT DURING THE TEMPORARY DUTY PERIOD. THE REGULATION IS WITHOUT APPLICATION TO SGT. THE DUTY WAS PERFORMED PURSUANT TO LETTER ORDERS ISSUED ON OCTOBER 21. AMONG THE SPECIAL INSTRUCTIONS CONTAINED IN THE ORDER WAS ONE TO THE EFFECT THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT MESS AND QUARTERS SHOULD BE SECURED FROM THE COMMAND DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY STATION. IT WAS DETERMINED THAT YOU WERE ENTITLED TO PER DIEM FOR 174 DAYS OR $1.

B-174646, MAY 19, 1972

MILITARY PERSONNEL - RECOLLECTION OF PER DIEM - ALLEGED INADEQUATE GOVERNMENT QUARTERS DECISION AFFIRMING PRIOR DISALLOWANCE OF A CLAIM OF MASTER SERGEANT WILLIAM H. LLEWELLYN, JR., FOR REPAYMENT OF AN AMOUNT REPRESENTING PER DIEM COLLECTED BY DEDUCTIONS FROM PAY INCIDENT TO TEMPORARY DUTY PERFORMED IN VIETNAM. SGT. LLEWELLYN WAS PROPERLY PAID FIFTY PERCENT OF THE LOCAL PER DIEM RATE, IN ACCORDANCE WITH PARAGRAPH M4256-6, ITEM 3, JTR. SINCE JTR M4451, WHICH PROVIDES THAT MEMBERS ARE NOT REQUIRED TO UTILIZE INADEQUATE GOVERNMENT QUARTERS, WAS NOT IN EFFECT DURING THE TEMPORARY DUTY PERIOD, THE REGULATION IS WITHOUT APPLICATION TO SGT. LLEWELLYN AND HIS CLAIM MUST BE DENIED.

TO MASTER SERGEANT WILLIAM H. LLEWELLYN, JR.:

THIS REFERS TO YOUR LETTER DATED NOVEMBER 8, 1971, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 15, 1971, WHICH DISALLOWED YOUR CLAIM FOR REPAYMENT OF THE AMOUNT OF $611.50, REPRESENTING PER DIEM FOR THE PERIOD NOVEMBER 6, 1964, TO APRIL 21, 1965, WHILE ON TEMPORARY DUTY IN VIETNAM WHICH HAD BEEN PAID BUT LATER COLLECTED BY DEDUCTIONS IN YOUR PAY ACCOUNT.

THE DUTY WAS PERFORMED PURSUANT TO LETTER ORDERS ISSUED ON OCTOBER 21, 1964, WHICH DIRECTED YOU AND OTHER MEMBERS NAMED THEREIN TO PROCEED ON OR ABOUT OCTOBER 27, 1964, TO VIETNAM FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS FOR PARTICIPATION IN MILITARY ACTIVITIES. AMONG THE SPECIAL INSTRUCTIONS CONTAINED IN THE ORDER WAS ONE TO THE EFFECT THAT PER DIEM WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT MESS AND QUARTERS SHOULD BE SECURED FROM THE COMMAND DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY STATION. PURSUANT TO THE ABOVE ORDERS YOU TRAVELED FROM OKINAWA TO VIETNAM ON OCTOBER 30, 1964, AND RETURNED ON APRIL 21, 1965.

ON APRIL 27, 1965, YOU SUBMITTED A CLAIM VOUCHER TO THE FINANCE OFFICE IN OKINAWA FOR PER DIEM FOR THE INVOLVED PERIOD. IT WAS DETERMINED THAT YOU WERE ENTITLED TO PER DIEM FOR 174 DAYS OR $1,564; HOWEVER, ON THE BASIS OF A CERTIFICATE APPEARING OVER YOUR SIGNATURE IN WHICH IT WAS CERTIFIED THAT GOVERNMENT QUARTERS, AS DEFINED IN PARAGRAPH M1150 5, JOINT TRAVEL REGULATIONS, WERE UTILIZED ON CERTAIN SPECIFIED DATES, THE AMOUNT OF $611.50, REPRESENTING 50 PERCENT OF THE PER DIEM RATE FOR 136 DAYS (135 DAYS $4.50 ($607.50) AND 1 DAY $4), WAS DEDUCTED FROM THE AMOUNT PAYABLE TO YOU.

SOMETIME IN 1968 YOU SUBMITTED A CLAIM VOUCHER TO THE FINANCE OFFICE AT FORT BRAGG, NORTH CAROLINA, FOR PAYMENT OF THE INVOLVED $611.50 WHICH YOU BELIEVED TO HAVE BEEN ERRONEOUSLY DEDUCTED. SUPPORTING THAT VOUCHER WAS A CERTIFICATE DATED APRIL 1, 1965, TO THE EFFECT THAT THE GOVERNMENT QUARTERS WHICH HAD BEEN FURNISHED TO YOU WERE NOT ADEQUATE. IN AUGUST 1968 PAYMENT OF THAT AMOUNT WAS MADE TO YOU. UPON AUDITING THE LATTER PAYMENT, OUR DEFENSE DIVISION ISSUED A NOTICE OF EXCEPTION TO THE PAYMENT FOR THE REASON THAT THE CERTIFICATE CONCERNING THE INADEQUACY OF GOVERNMENT QUARTERS DID NOT ALTER THE FACT THAT YOUR CERTIFICATE SUPPORTING THE INITIAL CLAIM SHOWED UTILIZATION OF AVAILABLE QUARTERS. COLLECTION OF THE FULL AMOUNT WAS EFFECTED BY DEDUCTIONS IN YOUR PAY ACCOUNT.

BY LETTER DATED JUNE 22, 1971, YOU ADDRESSED AN APPEAL TO THE "COMPTROLLER GENERAL," DEPARTMENT OF THE ARMY, WASHINGTON, D.C. YOU STATED THAT YOU WERE AFFORDED NO OPPORTUNITY TO ARGUE, APPEAL OR PROTEST THROUGH CHANNELS COLLECTION OF THE AMOUNT INVOLVED AND THAT FOR 7 YEARS YOU AND YOUR FAMILY WERE "PLAGUED WITH VARIATIONS AND INTERPRETATIONS" OF THE JOINT TRAVEL REGULATIONS CONCERNING THIS MATTER. YOUR LETTER WAS REFERRED TO OUR CLAIMS DIVISION ON JULY 26, 1971, FOR APPROPRIATE ACTION AND BY SETTLEMENT DATED OCTOBER 15, 1971, YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT GOVERNMENT QUARTERS PROVIDING SLEEPING ACCOMMODATIONS WERE AVAILABLE DURING THE PERIOD OF YOUR TEMPORARY DUTY AND MUST BE CONSIDERED AS JUSTIFYING THE REDUCTION OF PER DIEM IN YOUR CASE.

YOU EXPRESS THE OPINION THAT THE SEVERAL LOCAL FINANCE OFFICES AND THIS OFFICE MAY HAVE MADE ERRONEOUS INTERPRETATIONS AND, THEREFORE, YOU REQUEST RECONSIDERATION OF YOUR CLAIM.

TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ARE GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404 AND 405. PARAGRAPH M1150-5 OF THOSE REGULATIONS DEFINES THE TERM "GOVERNMENT QUARTERS" AS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED.

PARAGRAPH M4451 OF THE REGULATIONS PROMULGATED BY CHANGE 183, APRIL 1, 1968, PROVIDES THAT MEMBERS IN A TRAVEL STATUS ARE NOT REQUIRED IN CERTAIN SITUATIONS TO USE "GOVERNMENT QUARTERS" DESIGNATED AS INADEQUATE. HOWEVER, THE REGULATIONS IN EFFECT PRIOR TO THAT CHANGE REQUIRED MEMBERS IN A TRAVEL STATUS TO UTILIZE AVAILABLE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND PROVIDED FOR A STATEMENT BY THE COMMANDING OFFICER AT THE POINT OF TEMPORARY DUTY AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS IF THE LENGTH OF TEMPORARY DUTY WAS FOR A PERIOD OF 24 HOURS OR MORE. THESE PROVISIONS, BY THEIR OWN TERMS, HAVE REFERENCE TO "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH M1150-5 OF THE REGULATIONS.

THERE ALSO WAS IN EFFECT PARAGRAPH M4256-6, ITEM 3, OF THE JOINT TRAVEL REGULATIONS. THAT REGULATION PROVIDED THAT WHEN A MEMBER PERFORMS TEMPORARY DUTY UNDER CONDITIONS WHEN QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE BY FOREIGN GOVERNMENTS, OTHER U.S. GOVERNMENT AGENCIES, U.S. GOVERNMENT CONTRACTORS OR PRIVATE ORGANIZATIONS SUCH AS THE NATIONAL RED CROSS IN DISASTER AREAS, THE MEMBER WILL BE ENTITLED TO PER DIEM AT 50 PERCENT OF THE LOCAL PER DIEM ESTABLISHED IN APPENDIX A OF THE REGULATIONS, PLUS ANY CHARGES PAID BY HIM FOR THE QUARTERS SO FURNISHED. UNDER THESE PROVISIONS MEMBERS WHO OCCUPY THE AVAILABLE QUARTERS ARE NOT ENTITLED TO THE FULL PER DIEM RATE REGARDLESS OF WHETHER THE QUARTERS WOULD CONSTITUTE ADEQUATE "GOVERNMENT QUARTERS." APPENDIX A IN EFFECT WHEN YOUR TEMPORARY DUTY WAS PERFORMED ESTABLISHED THE PER DIEM RATE AT $9 PER DAY FOR ENLISTED MEN ON TEMPORARY DUTY IN VIETNAM OTHER THAN CHOLON AND SAIGON. YOU WERE PAID 50 PERCENT OF THAT RATE FOR THE DAYS YOU OCCUPIED "GOVERNMENT QUARTERS."

UNDER THE ABOVE REGULATIONS AND YOUR TEMPORARY DUTY ASSIGNMENT ORDERS PAYMENT TO YOU OF THE FULL PER DIEM ALLOWANCE AT THE RATE OF $9 PER DAY FOR THE 136 DAYS CLAIMED ON THE SUPPLEMENTAL VOUCHER SUBMITTED IN 1968 COULD HAVE BEEN MADE ONLY UPON A SHOWING THAT YOU WERE NOT FURNISHED EITHER AVAILABLE QUARTERS BY THE UNITED STATES OR ANY QUARTERS BY THE SOUTH VIETNAM GOVERNMENT. THE CERTIFICATE WHICH WAS ATTACHED TO THAT VOUCHER DOES NOT SO CERTIFY BUT MERELY INDICATES THAT AVAILABLE GOVERNMENT QUARTERS WERE "NOT ADEQUATE." AT THE TIME INVOLVED, HOWEVER, THE REGULATION WITH RESPECT TO THE OCCUPANCY OF INADEQUATE QUARTERS HAD NOT BEEN ISSUED AND HAS NO APPLICATION IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 15, 1971, IS SUSTAINED.