B-79985, APR. 29, 1965

B-79985: Apr 29, 1965

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RYAN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10. YOU AND OTHER DESIGNATED PERSONNEL WERE DIRECTED TO REPORT ON JUNE 11. THESE ORDERS WERE AMENDED BY ORDERS DATED MAY 23. WAS DISALLOWED BY SETTLEMENT DATED JUNE 16. SIMULATED WAR GAMES AND SIMILAR ACTIVITIES) EXCEPT IN CERTAIN SITUATIONS WHERE PER DIEM IS AUTHORIZED UNDER REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. WERE CONTAINED IN ARMY SPECIAL REGULATIONS 35-3080-5 DATED JANUARY 26. SUCH REGULATIONS CONTEMPLATED THE PAYMENT OF PER DIEM ONLY TO PERSONNEL WHO WERE ORDERED TO PARTICIPATE IN FIELD EXERCISES IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE EXERCISE. WITH OTHER DESIGNATED PERSONNEL TO PERFORM TRAVEL AND TEMPORARY DUTY AS INSTRUCTORS FOR THE PURPOSE OF CONDUCTING FIELD EXERCISES AND CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT SUCH DUTY WAS FIELD DUTY OF THE NATURE FOR WHICH PER DIEM IS DENIED UNDER THE REGULATIONS.

B-79985, APR. 29, 1965

TO COLONEL ALBERT J. RYAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10, 1965, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 16, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY PERFORMED AT FORT BELVOIR, VIRGINIA, DURING THE PERIODS JUNE 25 TO AUGUST 4, 1955, AND JUNE 23 TO AUGUST 2, 1956, INCIDENT TO ORDERS DATED MAY 19, 1955, AS AMENDED, AND MAY 17, 1956, RESPECTIVELY.

UNDER THE ORDERS OF MAY 19, 1955, YOU AND OTHER DESIGNATED PERSONNEL WERE DIRECTED TO REPORT ON JUNE 11, 1955, TO ROTC SUMMER CAMP, FORT BELVOIR, VIRGINIA, FOR A PERIOD OF APPROXIMATELY 61 DAYS' TEMPORARY DUTY AS INSTRUCTOR. THESE ORDERS WERE AMENDED BY ORDERS DATED MAY 23, 1955, TO ADD ,TDY AS CONTEMPLATED IN PAR 3 SR 35-3080-5.' YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 25 TO AUGUST 4, 1955, WAS DISALLOWED BY SETTLEMENT DATED JUNE 16, 1961, FOR THE REASON THAT THE DUTY INVOLVED CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. THIS PARAGRAPH PROHIBITS THE PAYMENT OF PER DIEM FOR DUTY OF THE TYPE COVERED BY YOUR ORDERS OF MAY 19, 1955, AS AMENDED, (MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES AND SIMILAR ACTIVITIES) EXCEPT IN CERTAIN SITUATIONS WHERE PER DIEM IS AUTHORIZED UNDER REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. IMPLEMENTING REGULATIONS CONCERNING THE APPLICATION OF THESE PROVISIONS TO ARMY PERSONNEL DURING THE PERIOD JUNE 25 TO AUGUST 4, 1955, WERE CONTAINED IN ARMY SPECIAL REGULATIONS 35-3080-5 DATED JANUARY 26, 1954. SUCH REGULATIONS CONTEMPLATED THE PAYMENT OF PER DIEM ONLY TO PERSONNEL WHO WERE ORDERED TO PARTICIPATE IN FIELD EXERCISES IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE EXERCISE. THE ORDERS OF MAY 19, 1955, AS AMENDED, DIRECTED YOU, WITH OTHER DESIGNATED PERSONNEL TO PERFORM TRAVEL AND TEMPORARY DUTY AS INSTRUCTORS FOR THE PURPOSE OF CONDUCTING FIELD EXERCISES AND CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT SUCH DUTY WAS FIELD DUTY OF THE NATURE FOR WHICH PER DIEM IS DENIED UNDER THE REGULATIONS. THEREFORE, THERE IS NO AUTHORITY TO ALLOW YOU PER DIEM FOR THE PERIOD JUNE 25 TO AUGUST 4, 1955.

WITH RESPECT TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 23 TO AUGUST 2, 1956, INCIDENT TO ORDERS OF MAY 17, 1956, ARMY REGULATIONS 35-3080 DATED MAY 15, 1956, IN EFFECT AT THE TIME, IN ADDITION TO THE PROVISIONS OF THE SUPERSEDED REGULATIONS GOVERNING YOUR PRIOR CLAIM, PROVIDE THAT A MEMBER PERFORMING TEMPORARY DUTY OF THE FIELD DUTY TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO A PER DIEM ALLOWANCE WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS. THE REGULATION PROVIDES FURTHER, THAT VOUCHERS CLAIMING SUCH PER DIEM WILL BE SUBSTANTIATED BY A CERTIFICATE EXECUTED BY COMPETENT AUTHORITY (COMMANDING OFFICER OF THE INSTALLATION, MANEUVER, OR EXERCISE DIRECTOR, OR COMMANDING OFFICER OF THE EXERCISE OR ACTIVITY AT THE INSTALLATION INVOLVED).

IN YOUR PRESENT LETTER YOU REFER TO A COPY OF A CERTIFICATE DATED JULY 20, 1960, ISSUED BY THE ADJUTANT, HEADQUARTERS, 588TH ENGINEER BATTALION (CONSTRUCTION) FORT BELVOIR, VIRGINIA. IN THE CERTIFICATE IT IS STATED THAT YOU WERE ON TEMPORARY DUTY AT FORT BELVOIR IN SUPPORT OF ROTC ANNUAL TRAINING AND THAT YOU WERE AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN ROTC ANNUAL TRAINING DURING THE PERIOD JUNE 23 TO AUGUST 3, 1956. YOU HAD PREVIOUSLY FURNISHED A COPY OF THIS CERTIFICATE WHEN YOU FIRST SUBMITTED YOUR CLAIM AND IT WAS CONSIDERED BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF JUNE 16, 1961.

THIS CERTIFICATE ISSUED ALMOST 4 YEARS AFTER THE PERIOD INVOLVED WAS NOT BASED ON THE PERSONAL KNOWLEDGE OF THE COMMANDING OFFICER OF THE INSTALLATION AND DOES NOT REFLECT THE OFFICIAL RECORDS OF THE INSTALLATION FOR THE PERIOD INVOLVED IN YOUR CLAIM. THIS IS SHOWN BY ANOTHER CERTIFICATE BEARING THE SAME DATE, JULY 20, 1960, ISSUED BY THE SAME ADJUTANT AT HEADQUARTERS 588TH ENGINEER BATTALION (CONSTRUCTION), FORT BELVOIR, VIRGINIA, WHICH IS AS FOLLOWS:

"I CERTIFY THAT, PRESENTLY, NO RECORDS ARE AVAILABLE TO THIS HEADQUARTERS THAT INDICATE AUTHORIZATION TO SEPARATE QUARTERS FOR ALBERT J. RYAN, LT COLONEL, 040631, DURING THE PERIODS 25 JUNE 1955 TO 5 AUGUST 1955 AND 23 JUNE 1956 TO 3 AUGUST 1956.'

THE ABOVE MENTIONED REGULATIONS PLACED THE RESPONSIBILITY UPON THE INSTALLATION COMMANDER TO ISSUE A CERTIFICATE BASED ON HIS PERSONAL KNOWLEDGE THAT JUSTIFICATION EXISTED TO SUPPORT A CLAIM FOR PER DIEM FOR TEMPORARY DUTY PERFORMED INCIDENT TO YOUR ORDERS OF MAY 17, 1956. IN THE ABSENCE OF SUCH CERTIFICATION OR OF OTHER EVIDENCE TO ESTABLISH CONCLUSIVELY THAT YOU WERE AFFIRMATIVELY AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN THE SUMMER ENCAMPMENT TO WHICH YOU WERE ASSIGNED, OUR OFFICE IS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. SEE 37 COMP. GEN. 639. THE APPARENTLY CONFLICTING CERTIFICATES OF JULY 20, 1960, DO NOT MEET THE REQUIREMENTS OF THE REGULATIONS. IF, AS YOU SAY, OTHER MEMBERS WHO PERFORMED SIMILAR DUTY UNDER THE SAME CIRCUMSTANCES WERE PAID PER DIEM, WITHOUT FURNISHING A CONTEMPORANEOUS CERTIFICATE OR OTHER COMPARABLE EVIDENCE, SUCH PAYMENTS WERE ERRONEOUS AND WOULD NOT FURNISH A LEGAL BASIS TO PAY YOUR CLAIM.

ACCORDINGLY, ON THE RECORD BEFORE US THE SETTLEMENT OF JUNE 16, 1961, WAS CORRECT AND IS SUSTAINED.