B-84776, JUNE 10, 1949, 28 COMP. GEN. 704

B-84776, JUNE 10, 1949, 28 COMP. GEN. 704

PER DIEM - TRAVEL WITH TROOPS - MARINE CORPS OFFICER COMMANDING ENLISTED PERSONNEL DURING TRAVEL BY GOVERNMENT AIRCRAFT A MARINE CORPS OFFICER WHO WAS ORDERED TO TAKE CHARGE OF DESIGNATED ENLISTED PERSONNEL DURING THE ENTIRE PERIOD OF AUTHORIZED TRAVEL BY GOVERNMENT AIRCRAFT AND TEMPORARY ADDITIONAL DUTY AWAY FROM HIS PERMANENT STATION, AND WHO WAS NOT REQUIRED TO OBTAIN QUARTERS AT PERSONAL EXPENSE OR MEALS FROM OTHER THAN GOVERNMENT FACILITIES DURING SUCH TRAVEL AND DUTY, IS TO BE REGARDED AS HAVING BEEN IN A TRAVEL WITH TROOPS STATUS AND, AS SUCH, NOT ENTITLED, IN VIEW OF THE PROVISIONS OF THE APPLICABLE TRAVEL REGULATIONS PRECLUDING THE PAYMENT OF PER DIEM TO OFFICERS IN A TRAVEL STATUS WHILE "TRAVELING WITH TROOPS," AS THAT TERM IS DEFINED THEREIN, TO PER DIEM FOR THE ENTIRE PERIOD OF HIS TRAVEL AND TEMPORARY ADDITIONAL DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. G. R. FRANK, U.S. MARINE CORPS, JUNE 10, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 16, 1949, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON A VOUCHER FORWARDED THEREWITH DRAWN IN FAVOR OF COMMISSIONED WARRANT OFFICER CARL F. JOHNSON, USMC, FOR PER DIEM COVERING THE PERIOD FROM JUNE 28 TO AUGUST 20, 1948, LESS DEDUCTION FOR A PRIOR PARTIAL REIMBURSEMENT FOR TRAVEL EXPENSES, INCIDENT TO TRAVEL AND TEMPORARY ADDITIONAL DUTY PERFORMED DURING THAT PERIOD UNDER ORDERS OF THE COMMANDING GENERAL, HEADQUARTERS, FLEET MARINE FORCE, PACIFIC, DATED JUNE 21, 1948.

THE SAID ORDERS OF JUNE 21, 1948, PROVIDED THAT ON OR ABOUT JUNE 28, 1948, AND WHEN DIRECTED BY THE COMMANDING OFFICER, MARINE CORPS SUPPLY DEPOT, OAHU, T.H., THE OFFICER SHOULD TAKE CHARGE OF DESIGNATED ENLISTED PERSONNEL, MEMBERS OF AN AUDIT AND INVENTORY TEAM AND PROCEED TO TSINGTAO ( CHINA), FOR THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY, UPON THE COMPLETION OF WHICH HE AND THE MEN UNDER HIS CHARGE WERE TO RETURN TO OAHU AND RESUME THEIR REGULAR DUTIES. TRAVEL BY GOVERNMENT AIRCRAFT WAS DIRECTED AS BEING NECESSARY TO EXPEDITE COMPLETION OF THE MISSION. ENDORSEMENTS TO THE ORDERS SHOW THAT TRAVEL WAS PERFORMED BY GOVERNMENT AIRCRAFT FROM HONOLULU, T.H., TO TSINGTAO, CHINA, DURING THE PERIOD FROM JUNE 28 TO JULY 2, 1948, INCLUDING AN OVERNIGHT DELAY AT GUAM (WHERE QUARTERS AND, PRESUMABLY, MESSING FACILITIES WERE AVAILABLE) AND, SUBSEQUENT TO THE PERFORMANCE OF TEMPORARY DUTY AT TSINGTAO, THAT TRAVEL IN RETURNING TO OAHU WAS PERFORMED BY GOVERNMENT AIRCRAFT DURING THE PERIOD FROM AUGUST 19 TO 20, 1948. ALSO, IT IS SHOWN THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR THE OFFICER'S OCCUPANCY WHILE AT TSINGTAO. YOU STATE THAT THE RECORDS SHOW THAT BOTH SHELTERING AND MESSING FACILITIES WERE AVAILABLE FOR THE OFFICER'S OCCUPANCY WHILE AT TSINGTAO. YOU STATE THAT THE RECORDS SHOW THAT BOTH SHELTERING AND MESSING FACILITIES WERE AVAILABLE AT THE TEMPORARY ADDITIONAL DUTY STATION AT TSINGTAO DURING THE PERIOD INVOLVED. A MEMORANDUM ENDORSEMENT ON THE ORDERS, DATED JULY 1, 1948, STATES THAT THE OFFICER WAS FURNISHED FOUR MEALS WHILE PROCEEDING FROM GUAM TO TSINGTAO. PRESUMABLY MEALS WERE FURNISHED IN A SIMILAR MANNER DURING THE REMAINDER OF THE PERIODS OF AIR TRAVEL OR WERE OBTAINED AT REFUELING STOPS WHERE GOVERNMENT FACILITIES FOR FURNISHING MEALS TO MILITARY PERSONNEL UNDOUBTEDLY ARE MAINTAINED.

REGULATIONS GOVERNING THE PAYMENT OF PER DIEM ALLOWANCES IN LIEU OF ACTUAL AND NECESSARY TO MEMBERS OF THE NAVY AND MARINE CORPS ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, PROMULGATED BY THE SECRETARY OF THE NAVY UNDER AUTHORITY OF THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 858, AND OF EXECUTIVE ORDER NO. 871, ARE CONTAINED IN APPENDIX C TO THE U.S. NAVY TRAVEL INSTRUCTIONS. UNDER THE PROVISIONS OF PARAGRAPH 9 (A) (1) OF SUCH REGULATIONS THE PAYMENT OF PER DIEM TO OFFICERS IN A TRAVEL STATUS (INCLUDING TEMPORARY DUTY AND DETACHED SERVICE TRAVEL AWAY FROM THEIR PERMANENT STATION) IS EXPRESSLY LIMITED TO PERIODS DURING WHICH THEY ARE "TRAVELING WITHOUT TROOPS.' REGULATIONS CONCERNING THE DETERMINATION OF WHETHER OFFICERS OF THE NAVY OR MARINE CORPS ARE IN A TRAVEL WITH TROOPS STATUS WITHIN THE MEANING OF LAWS GOVERNING THE PAYMENT OF MILEAGE OR OTHER TRAVEL EXPENSES, IN EFFECT DURING THE PERIOD HERE INVOLVED, ARE CONTAINED IN PARAGRAPH 4000-1 OF THE U.S. NAVY TRAVEL INSTRUCTIONS, DATED MAY 15, 1947, WHICH PROVIDES AS FOLLOWS:

OFFICERS ENGAGED IN A MOVEMENT OF THE ORGANIZATIONAL UNIT TO WHICH THEY ARE ATTACHED OR ENGAGED IN A MOVEMENT OF ANY BODY OF ENLISTED PERSONNEL--- EITHER BY GOVERNMENT OR COMMERCIAL TRANSPORTATION--- SHALL BE CONSIDERED AS TRAVELING WITH TROOPS IF BOTH SHELTERING AND MESSING FACILITIES (SUCH AS TROOP KITCHEN CARS, OFFICERS' MESS, WARDROOM MESS, GENERAL MESS OR OTHER COMPARABLE GOVERNMENT FACILITIES FOR PROVIDING MEALS) ARE AVAILABLE TO THE OFFICERS. TRAVEL WITH TROOPS WILL INCLUDE TIME SPENT AWAITING FURTHER TRANSPORTATION OR AT TEMPORARY DUTY STATIONS, IF BOTH SHELTERING AND MESSING FACILITIES ARE AVAILABLE TO THE OFFICER AND IF THE ORDERS REQUIRE THAT THE TROOPS REMAIN UNDER THE OFFICERS'S (S-) JURISDICTION DURING SUCH TIME.

YOU QUOTE PROVISIONS APPEARING IN PARAGRAPH 4153-4 AND PARAGRAPH 5 (E), APPENDIX C, OF THE NAVY TRAVEL INSTRUCTIONS WHICH STATE, IN EFFECT, THAT SPACE IN AIRCRAFT, TRAINS, OR BUSSES IS NOT CONSIDERED AS CONSTITUTING THE FURNISHING OF GOVERNMENT QUARTERS, APPARENTLY ON THE ASSUMPTION THAT THE REFERENCE TO SHELTERING FACILITIES IN THE ABOVE QUOTED DEFINITION OF TRAVEL WITH TROOPS REFERS ONLY TO THE FURNISHING OF GOVERNMENT QUARTERS AND THAT AS A CONSEQUENCE THE OFFICER, WHILE TRAVELING BY AIR FROM OAHU TO TSINGTAO AND RETURN, SHOULD NOT BE CONSIDERED AS TRAVELING WITH TROOPS. HOWEVER, CONSIDERATION THAT THE TERM "SHELTERING FACILITIES," AS USED IN THE TRAVEL WITH TROOPS DEFINITION, REFERS TO GOVERNMENT QUARTERS AS DEFINED IN THE CITED REGULATIONS, THEREBY EXCLUDING SPACE ON AIRCRAFT, TRAINS, OR BUSSES WOULD, OF NECESSITY, REQUIRE THE CONCLUSION THAT AN OFFICER COULD NOT, UNDER ANY CIRCUMSTANCES, BE IN A TRAVEL WITH TROOPS STATUS WHILE TRAVELING BY PLANE, RAIL, OR BUS. OBVIOUSLY, SUCH A CONCLUSION IS NOT CONTEMPLATED UNDER THE LAW.

UNDER THE ABOVE-QUOTED DEFINITION OF THE TERM "TRAVEL WITH TROOPS," AN OFFICER ENGAGED IN THE MOVEMENT OF ANY BODY OF ENLISTED PERSONNEL--- EITHER BY GOVERNMENT OR COMMERCIAL TRANSPORTATION--- IS TRAVELING WITH TROOPS IF BOTH SHELTERING AND MESSING FACILITIES ARE AVAILABLE TO HIM, AND THE TERM "MESSING FACILITIES" IS EXEMPLIFIED THEREIN BY THE PHRASE "SUCH AS TROOP KITCHEN CARS, OFFICERS' MESSES, WARDROOM MESS, GENERAL MESS OR OTHER COMPARABLE GOVERNMENT FACILITIES FOR PROVIDING MEALS.' THE ORDERS OF JUNE 21, 1948, CLEARLY CONTEMPLATED THAT THE ENLISTED PERSONNEL PLACED IN WARRANT OFFICER JOHNSON'S CHARGE SHOULD REMAIN UNDER HIS JURISDICTION DURING THE ENTIRE PERIOD OF TRAVEL AND TEMPORARY DUTY THEREIN DIRECTED AND IT APPEARS THAT HE WAS NOT REQUIRED TO OBTAIN QUARTERS AT PERSONAL EXPENSE OR MEALS FROM OTHER THAN GOVERNMENT FACILITIES FOR PROVIDING MEALS DURING EITHER THE PERIODS OF TRAVEL FROM OAHU TO TSINGTAO AND RETURN OR WHILE ON TEMPORARY DUTY AT TSINGTAO. HENCE, IT IS CONCLUDED THAT HE WAS IN A TRAVEL WITH TROOPS STATUS DURING THE ENTIRE PERIOD OF HIS ABSENCE FROM HIS STATION AT OAHU UNDER THE ORDERS OF JUNE 21, 1948, AND, THEREFORE, THAT HE WAS NOT IN A STATUS FOR WHICH THE PAYMENT OF PER DIEM IS AUTHORIZED UNDER THE PROVISIONS OF THE CITED REGULATIONS.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE PRESENT VOUCHER, WHICH IS RETAINED IN THIS OFFICE. THE ORIGINAL ORDERS OF JUNE 21, 1948, AND ENDORSEMENTS THERETO, ARE RETURNED HEREWITH FOR PROPER DISPOSITION.