B-44885, DECEMBER 28, 1944, 24 COMP. GEN. 473

B-44885, DECEMBER 28, 1944, 24 COMP. GEN. 473

SUBSISTENCE - PER DIEMS - REDUCTIONS - OCCUPANCY OF QUARTERS FURNISHED COMBAT TROOPS A MARINE CORPS OFFICER WHOSE ORDERS FOR THE PERFORMANCE OF TEMPORARY DUTY AS OBSERVER IN CONNECTION WITH THE INVASION OF SAIPAN ISLAND PROVIDED FOR A REDUCED RATE OF PER DIEM WHILE OCCUPYING GOVERNMENT QUARTERS IS ENTITLED TO PER DIEM ONLY AT THE REDUCED RATE FOR THE PERIOD OF TEMPORARY DUTY ON THE ISLAND DURING WHICH HE OCCUPIED QUARTERS FURNISHED TROOPS IN ACTUAL COMBAT, REGARDLESS OF THE TYPE OF QUARTERS OCCUPIED AND REGARDLESS OF WHETHER THEY WERE CONSIDERED AS SUITABLE FOR OCCUPANCY BY OFFICER PERSONNEL.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. TOM E. THRASHER, JR., U.S. MARINE CORPS, RETIRED, DECEMBER 28, 1944:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF SEPTEMBER 28, 1944, YOUR LETTER OF SEPTEMBER 27, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF LIEUTENANT COLONEL WILLIAM A. KENGLA, USMC, FOR PER DIEM ALLOWANCE AT THE RATE OF $7 FOR THE PERIODS MAY 10 TO 12, 1944, AND JUNE 15, TO JULY 27, 1944, INCIDENT TO THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY UNDER ORDERS OF HEADQUARTERS, U.S. MARINE CORPS, WASHINGTON, D.C., DATED MAY 5, 1944.

THE ORDERS OF MAY 5 DIRECTED THAT COLONEL KENGLA PROCEED ON MAY 10, 1944, BY AIR, TO PEARL HARBOR, T.H., BY WAY OF SAN FRANCISCO, CALIFORNIA, FOR THE PURPOSE OF REPORTING TO THE COMMANDING GENERAL, MARINE ADMINISTRATIVE COMMAND, FIFTH AMPHIBIOUS CORPS, FOR TEMPORARY DUTY WITH THAT CORPS, AND, UPON COMPLETION OF THE TEMPORARY DUTY, RETURN BY AIR TO HIS STATION AT WASHINGTON, D.C. PARAGRAPH 3 OF THE ORDERS PROVIDED AS FOLLOWS:

3. THE TRAVEL HEREIN ENJOINED IS NECESSARY IN THE PUBLIC SERVICE. FOR THE TRAVEL INVOLVED AND WHILE ABSENT FROM YOUR PERMANENT STATION, YOU WILL BE ALLOWED A PER DIEM OF SEVEN DOLLARS IN LIEU OF SUBSISTENCE, EXCEPT WHILE OCCUPYING GOVERNMENT QUARTERS, WHEN A PER DIEM OF THREE DOLLARS WILL BE ALLOWED, AND EXCEPT WHILE TRAVELING IN A VESSEL, WHEN NO PER DIEM WILL BE ALLOWED.

IT APPEARS THAT COLONEL KENGLA DEPARTED BY AIR FROM WASHINGTON, D.C., PURSUANT TO THE ORDERS ON MAY 10, 1944, AND ARRIVED AT PEARL HARBOR ON MAY 12, 1944, REPORTING ON THAT DATE TO HEADQUARTERS, MARINE ADMINISTRATIVE COMMAND, FIFTH AMPHIBIOUS CORPS. BY ORDERS OF THAT COMMAND DATED MAY 12, 1944, THE OFFICER WAS FURTHER DIRECTED TO PROCEED AND REPORT TO THE COMMANDING GENERAL, 2ND MARINE DIVISION, FOR TEMPORARY DUTY AS OBSERVER, SUCH ORDERS PROVIDING THAT THE PER DIEM PRESCRIBED IN THE ORDERS OF MAY 5, 1944, WAS TO REMAIN IN EFFECT. INDORSEMENT THEREON SHOWS THAT THE OFFICER REPORTED FOR TEMPORARY DUTY WITH THE 2ND MARINE DIVISION AS DIRECTED ON MAY 14, 1944. IT FURTHER APPEARS THAT WHILE COLONEL KENGLA WAS ATTACHED TO THE 2ND MARINE DIVISION HE LANDED ON SAIPAN ISLAND ON JUNE 15, 1944, WHERE HE REMAINED UNTIL JULY 24, 1944, DEPARTING THEREFROM ON THAT DATE BY AIR AND RETURNING BY WAY OF PEARL HARBOR AND SAN FRANCISCO TO WASHINGTON, D.C., ON JULY 27, 1944. THE PER DIEM CLAIMED COVERS THE PERIODS INVOLVED IN TRAVEL BY AIR AND WHILE IN PERFORMANCE OF TEMPORARY DUTIES ON SAIPAN. COLONEL KENGLA STATES IN CONNECTION WITH HIS CLAIM THAT DURING THE PERIODS INVOLVED NO GOVERNMENT QUARTERS WERE OCCUPIED. YOU STATE THAT IN VIEW OF THE FACT THAT NO QUARTERS, GOVERNMENT OR OTHERWISE, OTHER THAN SUCH AS USED BY TROOPS IN ACTUAL COMBAT, APPEAR TO HAVE BEEN AVAILABLE DURING THE PERIOD OF THE INVASION OF SAIPAN, DOUBT EXISTS AS TO THE CORRECT RATE OF PER DIEM TO WHICH COLONEL KENGLA IS ENTITLED DURING THE PERIOD HE WAS IN PERFORMANCE OF DUTIES ON THAT ISLAND.

AUTHORITY FOR PRESCRIBING PER DIEM ALLOWANCES FOR OFFICERS OF THE MARINE CORPS IS CONTAINED IN THE SECOND PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, AS FOLLOWS:

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6 (INCREASED TO $7 BY THE PROVISIONS OF SECTION 119 OF THE NAVAL APPROPRIATIONS ACT, 1944, 57 STAT. 217, AND OF SECTION 211 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1945, PUBLIC LAW 358, APPROVED JUNE 27, 1944), IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *.

THE PER DIEM ALLOWANCE SO AUTHORIZED IS EXPRESSLY PROVIDED AS IN LIEU OF EXPENSES INCURRED FOR SUBSISTENCE. THE AUTHORIZATION CONTAINED IN THE ORDERS OF MAY 5, 1944, IS FOR THE PAYMENT TO THE OFFICER DURING PERIODS WHILE OCCUPYING GOVERNMENT QUARTERS OF A PER DIEM OF BUT $3, THE PURPOSE THEREOF BEING TO REDUCE THE ALLOWANCE AUTHORIZED WHERE BY REASON OF OCCUPANCY OF GOVERNMENT QUARTERS THE SUBSISTENCE EXPENSES INCURRED WOULD BE MATERIALLY LESSENED. SUCH AN ADMINISTRATIVE ADJUSTMENT IN THE PER DIEM ALLOWANCE AUTHORIZED BY TRAVEL ORDERS, SO THAT THE AMOUNT AUTHORIZED MORE NEARLY REPRESENTS THE EXPENSES WHICH ACTUALLY WOULD BE INCURRED BY THE OFFICER, IS ENTIRELY IN KEEPING WITH THE PURPOSE AND INTENT OF THE STATUTORY AUTHORIZATION.

WHILE COLONEL KENGLA STATES THAT NO GOVERNMENT QUARTERS WERE OCCUPIED BY HIM DURING THE PERIOD OF HIS CLAIM, IT WOULD APPEAR, IN VIEW OF YOUR STATEMENT TO THE EFFECT THAT APPARENTLY THE ONLY QUARTERS AVAILABLE ON SAIPAN DURING THE PERIOD CONSIDERED WERE THOSE USED BY TROOPS IN ACTUAL COMBAT, THAT THE OFFICER'S STATEMENT HAS REFERENCE TO GOVERNMENT QUARTERS ORDINARILY PROVIDED AND CONSIDERED SUITABLE FOR OCCUPANCY BY OFFICER PERSONNEL, AND THAT THE OFFICER ACTUALLY MUST HAVE BEEN QUARTERED IN SUCH QUARTERS AS WERE PROVIDED BY THE GOVERNMENT FOR THE USE OF THE COMBAT TROOPS. FOR THE PURPOSES OF THIS DECISION IT IS SO PRESUMED.

AS HAS BEEN STATED ABOVE, THE PER DIEM ALLOWANCE AUTHORIZED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 IS IN LIEU OF EXPENSES INCURRED FOR SUBSISTENCE. THE ORDERS HERE CONSIDERED AUTHORIZED THE PAYMENT OF A PER DIEM ALLOWANCE OF ONLY $3 WHILE OCCUPYING GOVERNMENT QUARTERS WITH A VIEW TO REIMBURSING THE OFFICER IN AN AMOUNT COMMENSURATE WITH HIS EXPENSES FOR SUBSISTENCE UNDER CIRCUMSTANCES WHERE HE WAS RELIEVED OF THE EXPENSE OF PROCURING QUARTERS AT PERSONAL EXPENSE. UNDER SUCH CIRCUMSTANCES THE OCCUPANCY OF ANY QUARTERS PROVIDED BY THE GOVERNMENT, REGARDLESS OF THE TYPE OF QUARTERS OCCUPIED AND REGARDLESS OF WHETHER THEY WERE CONSIDERED AS SUITABLE FOR OCCUPANCY BY OFFICER PERSONNEL, WOULD APPARENTLY CONSTITUTE OCCUPANCY BY THE OFFICER OF GOVERNMENT QUARTERS WITHIN THE INTENT OF THE ABOVE QUOTED PROVISION OF THE ORDERS OF MAY 5, 1944. THIS CONNECTION YOUR ATTENTION IS INVITED TO ARTICLE 2501-4 (F) (4), U.S. NAVY TRAVEL INSTRUCTIONS, DATED MAY 1, 1944, WITH REFERENCE TO PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED IN TRAVEL ORDERS, WHEREIN IT IS PROVIDED THAT "ANY QUARTERS ASHORE PROVIDED BY THE GOVERNMENT ARE CONSIDERED GOVERNMENT QUARTERS.'

ACCORDINGLY, YOU ARE ADVISED THAT ON THE RECORD PRESENTED AND UNDER THE FACTS HERE PRESUMED THE CONCLUSION IS REQUIRED THAT--- FOR PURPOSES OF PAYMENT OF PER DIEM--- COLONEL KENGLA IN FACT OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD WHILE IN PERFORMANCE OF TEMPORARY DUTIES AT SAIPAN AND, THEREFORE, THAT HE IS ENTITLED DURING SUCH PERIOD TO A PER DIEM ALLOWANCE NOT IN EXCESS OF THE $3 RATE PROVIDED BY THE ORDERS OF MAY 5, 1944. PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS NOT AUTHORIZED IN ITS PRESENT FORM. HOWEVER, WHEN ADJUSTED IN ACCORDANCE WITH THE FOREGOING, AND IF OTHERWISE CORRECT, PAYMENT THEREON MAY BE MADE.