B-80318, OCT 8, 1948

B-80318: Oct 8, 1948

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH. THE OFFICER WAS DIRECTED TO PROCEED TO TSINGTAO. HE WAS TO RETURN TO HIS POST AND RESUME HIS REGULAR DUTIES. THAT HE WAS ABSENT FROM TSINGTAO ON FURTHER TEMPORARY ADDITIONAL DUTY DURING THE PERIOD JANUARY 26 TO FEBRUARY 12. THAT TEMPORARY ADDITIONAL DUTY THEREAT WAS COMPLETED ON MARCH 17. THAT GOVERNMENT QUARTERS WERE AVAILABLE THEREAT. 'GOVERNMENT MESS' IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS CLOSED. WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THIS REGULATION ***. "8. STATION ALLOWANCES AS ESTABLISHED IN THIS CIRCULAR WILL BE PAID ONLY WHERE GOVERNMENT QUARTERS AND/OR GOVERNMENT MESSES ARE NOT AVAILABLE.

B-80318, OCT 8, 1948

PRECIS-UNAVAILABLE

CAPTAIN V. R. FITZGERALD, U.S.M.C.:

THERE HAS BEEN RECEIVED BY FIRST ENDORSEMENT OF SEPTEMBER 15, 1948, FROM THE QUARTERMASTER GENERAL OF THE MARINE CORPS, YOUR LETTER OF SEPTEMBER 9, 1948, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH, STATED IN FAVOR OF BRIGADIER GENERAL OMAR T. PFEIFFER, U.S.M.C., FOR PER DIEM DURING A PERIOD OF TEMPORARY ADDITIONAL DUTY AT TSINGTAO, CHINA, IN EXCESS OF 30 DAYS.

BY ORDERS OF JANUARY 7, 1948, HEADQUARTERS, MARINE BARRACKS, MARINE TRAINING AND REPLACEMENT COMMAND, SAN DIEGO AREA, CAMP JOSEPH H. PENDLETON, OCEANSIDE, CALIFORNIA, THE OFFICER WAS DIRECTED TO PROCEED TO TSINGTAO, CHINA, AND REPORT TO THE COMMANDING GENERAL, FLEET MARINE FORCE, WEST PACIFIC, FOR TEMPORARY ADDITIONAL DUTY AS PRESIDENT OF A GENERAL COURT-MARTIAL CONVENED AT THAT PLACE, UPON COMPLETION OF WHICH, AND WHEN DIRECTED, HE WAS TO RETURN TO HIS POST AND RESUME HIS REGULAR DUTIES. THE RECORD SHOWS THAT HE SO REPORTED ON JANUARY 14, 1948; THAT HE WAS ABSENT FROM TSINGTAO ON FURTHER TEMPORARY ADDITIONAL DUTY DURING THE PERIOD JANUARY 26 TO FEBRUARY 12, 1948, UNDER ORDERS OF JANUARY 15, 1948, HEADQUARTERS, FLEET MARINE FORCE, WESTERN PACIFIC, C/O FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA; THAT TEMPORARY ADDITIONAL DUTY THEREAT WAS COMPLETED ON MARCH 17, 1948; AND THAT HE HAS BEEN PAID PER DIEM FOR A PERIOD OF 30 DAYS OF THE TEMPORARY ADDITIONAL DUTY PERFORMED AT TSINGTAO. A COMMUNICATION TO YOU FROM THE CHIEF, DISBURSING BRANCH, SUPPLY DEPARTMENT, HEADQUARTERS, UNITED STATES MARINE CORPS, DATED JUNE 30, 1948, INDICATES THAT THE GENERAL MESS FOR ENLISTED MEN OPERATED AT THE STATION INVOLVED FURNISHED MEALS TO OFFICER PERSONNEL, AND THAT GOVERNMENT QUARTERS WERE AVAILABLE THEREAT.

PARAGRAPH 5(F)(1), 8 AND 9(A)(1), APPENDIX C, U.S. NAVY TRAVEL INSTRUCTIONS, DECEMBER 1947, PROVIDE IN PERTINENT PART, AS FOLLOWS:

"(F) GOVERNMENT MESS.

"(1) FOR OFFICERS.-- 'GOVERNMENT MESS' IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS CLOSED. ANY GENERAL MESS, OPERATED FOR ARMY OR NAVAL ENLISTED PERSONNEL, WHICH FURNISHED MEALS TO OFFICERS, WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THIS REGULATION ***.

"8. STATION ALLOWANCES FOR OFFICERS. BASIS FOR DETERMINATION, AND PAYMENT OF STATION ALLOWANCES.-- STATION ALLOWANCES AS ESTABLISHED IN THIS CIRCULAR WILL BE PAID ONLY WHERE GOVERNMENT QUARTERS AND/OR GOVERNMENT MESSES ARE NOT AVAILABLE. IT IS POLICY THAT GOVERNMENT QUARTERS AND GOVERNMENT MESS BE PROVIDED WHEREVER FEASIBLE. COMMANDING OFFICERS ARE DIRECTLY RESPONSIBLE THAT THIS POLICY IS STRICTLY ENFORCED ***.

"9. TRAVEL PER DIEM FOR OFFICERS.

(A) PERIOD FOR WHICH TRAVEL PER DIEM IS AUTHORIZED.

(1) OFFICERS IN A TRAVEL STATUS (INCLUDING TEMPORARY DUTY AND DETACHED SERVICE TRAVEL AWAY FROM THEIR PERMANENT STATION) TRAVELING WITHOUT TROOPS, IN A PLACE WHERE A STATION ALLOWANCE IS PROVIDED, WILL RECEIVE THE TRAVEL PER DIEM PRESCRIBED FOR THAT CLASSIFICATION FOR PERIODS NOT TO EXCEED 30 DAYS AT ANY ONE POINT. FOR PERIODS IN EXCESS OF 30 DAYS THEY SHALL BE ENTITLED TO RECEIVE AS A TRAVEL PER DIEM THE RATES SET FORTH AS STATION ALLOWANCES FOR THAT PLACE WITH APPROPRIATE DEDUCTIONS FOR QUARTERS AND SUBSISTENCE WHEN AVAILABLE."

UNDER THE FOREGOING REGULATIONS, OFFICERS IN A TRAVEL STATUS AT STATION OUTSIDE THE UNITED STATES ARE ENTITLED TO PER DIEM FOR PERIODS IN EXCESS OF 30 DAYS AT ANY ONE POINT ONLY IN THE EVENT THAT NEITHER GOVERNMENT QUARTERS NOR GOVERNMENT MESSES ARE AVAILABLE. SINCE IT IS SHOWN THAT GOVERNMENT QUARTERS WERE AVAILABLE AND THAT THE GENERAL MESS FOR ENLISTED MEN FURNISHED MEALS TO OFFICERS, IT APPEARS CLEAR THAT BOTH QUARTERS AND MESSING FACILITIES WERE AVAILABLE AT TSINGTAO. HENCE, NO RIGHT TO PER DIEM ACCRUED TO THE OFFICER DURING THE PERIOD INVOLVED. THE FACT THAT THE ABOVE QUOTED PARAGRAPH 5(F)(1), WAS AMENDED BY PARAGRAPH 1(B), SECNAV LETTER OF JANUARY 19, 1948, PUBLISHED IN NAVY DEPARTMENT BULLETIN OF JANUARY 31, 1948, AT PAGE 6, SO AS TO DELETE THE PHRASE, "WHICH FURNISHED MEALS TO OFFICERS," IS WITHOUT SIGNIFICANCE IN THIS CASE, SINCE IT APPEARS THAT THE PURPOSE OF SUCH AMENDMENT WAS MERELY TO CLARIFY THE ORIGINAL INTENT OF SAID REGULATIONS. SEE IN THIS CONNECTION PARAGRAPH 1 OF THE LETTER FROM THE COMMANDANT OF THE MARINE CORPS TO THE COMMANDING GENERAL, FLEET MARINE FORCE, WESTERN PACIFIC, DATED DECEMBER 12, 1947. EVEN IF SUCH AMENDMENT HAD CHANGED THE PRIOR REGULATIONS, YOU WILL NOT THAT THE AMENDMENT WAS PROMULGATED, PUBLISHED, AND IN EFFECT PRIOR TO THE TERMINATION OF THE FIRST 30 DAYS OF TEMPORARY DUTY AT TSINGTAO, AND CONSEQUENTLY, WOULD HAVE BEEN APPLICABLE IN THE PRESENT MATTER.

WITH RESPECT TO THE OFFICER'S STATEMENT THAT NO NOTICES WERE PROMINENTLY DISPLAYED STATING THAT A GOVERNMENT MESS WAS AVAILABLE AS REQUIRED BY THE REGULATIONS, IT MAY BE STATED THAT SUCH PROVISION OF THE REGULATIONS IS DIRECTORY ONLY, AND THAT FAILURE TO POST SUCH NOTICES WOULD NOT, IN ITSELF, ENTITLE AN OFFICER TO PER DIEM NOT OTHERWISE PAYABLE.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.