B-92324, JUN. 18, 1958

B-92324: Jun 18, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TOWNSEND: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26. ON THE BASIS THAT YOU WERE IN A FIELD DUTY STATUS DURING THOSE PERIODS. REGULATIONS GOVERNING THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED. EXCEPT THAT SUCH LIMITATION DOES NOT APPLY "DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION.'. ALSO WHETHER THERE EXISTS AN EXEMPTION FROM THOSE LIMITATIONS FOR A PORTION OR PORTIONS OF THE ASSIGNMENT BECAUSE THE MEMBER IS ENGAGED IN ADVANCE PLANNING OR CRITIQUE PHASES. ARE QUESTIONS OF FACT. 37 COMP.

B-92324, JUN. 18, 1958

TO MAJOR ROBERT T. TOWNSEND:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF FEBRUARY 24, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS FEBRUARY 28 TO MARCH 26, 1957, AND APRIL 16, 1957, INCIDENT TO TEMPORARY DUTY PERFORMED IN CONNECTION WITH EXERCISE KING COLE, ON THE BASIS THAT YOU WERE IN A FIELD DUTY STATUS DURING THOSE PERIODS.

REGULATIONS GOVERNING THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4201.6 OF THOSE REGULATIONS PROVIDES THAT MEMBERS TRAVELING OR IN THE PERFORMANCE OF TEMPORARY DUTY IN THE UNITED STATES MAY NOT BE PAID TRAVEL PER DIEM ALLOWANCES FOR PERIODS WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, EXCEPT THAT SUCH LIMITATION DOES NOT APPLY "DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION.' WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF THE LIMITATIONS CONTAINED IN PARAGRAPH 4201.6, AND ALSO WHETHER THERE EXISTS AN EXEMPTION FROM THOSE LIMITATIONS FOR A PORTION OR PORTIONS OF THE ASSIGNMENT BECAUSE THE MEMBER IS ENGAGED IN ADVANCE PLANNING OR CRITIQUE PHASES, ARE QUESTIONS OF FACT. 37 COMP. GEN. 126. SUCH FACTS USUALLY ARE DETERMINED ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE CIRCUMSTANCES SURROUNDING THE ASSIGNMENT BECAUSE THE ADMINISTRATIVE PERSONNEL CONCERNED ARE BEST SITUATED TO HAVE KNOWLEDGE OF THOSE CIRCUMSTANCES.

PARAGRAPH 8 OF ARMY REGULATIONS 35-3080, MAY 15, 1956, IN EFFECT DURING THE PERIOD IN QUESTION, PROVIDES THAT MANEUVER DIRECTORS WILL ADVISE THOSE COMMANDS OUTSIDE THEIR JURISDICTION WHO ARE RESPONSIBLE FOR ORDERING INDIVIDUALS OR UNITS TO MANEUVER AREAS AS TO THE AVAILABILITY OF GOVERNMENT QUARTERS AND MESS DURING THE PERIOD OF MANEUVERS AND PROVIDE SPECIFIC DATES FOR THE PLANNING, PREMANEUVER TRAINING, ACTUAL MANEUVERS, CRITIQUE, AND CLOSE-OUT PERIODS, THOSE DATES TO GOVERN IN THE ISSUANCE OF ORDERS FOR PARTICIPANTS IN THE MANEUVERS. SUCH PROVISIONS CONTEMPLATE THAT THE ESTABLISHMENT OF THE FACTUAL MATTER OF WHETHER ADVANCE PLANNING AND CRITIQUE PHASES EXIST SHALL BE THE RESPONSIBILITY OF MANEUVER DIRECTORS. THEIR UNCONTROVERTED DETERMINATIONS IN THAT RESPECT, WHETHER OR NOT ACTUALLY REFLECTED IN THE ORDERS, MUST BE CONSIDERED TO BE THE GOVERNING FACTOR IN THE ESTABLISHMENT OF PER DIEM RIGHTS INVOLVED IN FIELD EXERCISE SITUATIONS.

YOU WERE DIRECTED TO PERFORM TEMPORARY DUTY WITH HEADQUARTERS EXERCISE KING COLE AT NORTH FORT POLK, LOUISIANA, BY PARAGRAPH 5 OF SPECIAL ORDERS NO. 11, HEADQUARTERS EXERCISE KING COLE, DATED FEBRUARY 14, 1957, WHICH STATED ALSO THAT THE DUTY DIRECTED WAS OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS EXCEPT FOR PERIODS OF ADVANCE PLANNING PHASE (JULY 2, 1956, THROUGH MARCH 26, 1957) AND CRITIQUE PHASE (APRIL 15, 1957). HOWEVER, THOSE ORDERS WERE AMENDED BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 35 OF THE SAME COMMAND DATED APRIL 6, 1957, TO PROVIDE THAT TEMPORARY DUTY PERFORMED UNDER THAT ORDER AT FORT POLK IS CONSIDERED TO BE FIELD DUTY OF A TYPE CONTEMPLATED IN PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. SUCH ACTION APPEARS TO HAVE BEEN TAKEN PURSUANT TO INSTRUCTIONS CONTAINED IN A MESSAGE OF THE DEPUTY DIRECTOR, EXERCISE KING COLE, DATED FEBRUARY 21, 1957, QUOTED IN WEEKLY MEMORANDUM NO. 9 OF HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, DATED MARCH 1, 1957, STATING THAT THE EXERCISE DIRECTOR, KING COLE, ANNOUNCED THE POLICY THAT ALL PERSONNEL ARRIVING IN THE EXERCISE AREA SUBSEQUENT TO FEBRUARY 26 FOR DUTY IN EXERCISE KING COLE, INCLUDING THOSE AT FORT POLK,"WILL BE CONSIDERED ON FIELD DUTY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR FOR THE PERFORMANCE OF DUTIES IN CONNECTION WITH THE ESTABLISHMENT AND OPERATION OF EXERCISE KING COLE," AND REQUESTING THAT EXISTING ORDERS BE AMENDED TO SO PROVIDE. THOSE INSTRUCTIONS, REPRESENT A FACTUAL DETERMINATION OF THE DUTY SITUATION UNDER THE AUTHORITY OF THE CITED ARMY REGULATIONS. IN VIEW OF SUCH INSTRUCTIONS, AND IN THE ABSENCE OF EVIDENCE TO ESTABLISH THAT THAT DETERMINATION WAS IN ERROR, IT MUST BE CONCLUDED THAT YOU WERE IN A FIELD DUTY SITUATION DURING THE PERIODS IN QUESTION IRRESPECTIVE OF WHETHER YOUR ORDERS, EITHER ORIGINALLY OR AS SUBSEQUENTLY AMENDED, CONTAINED PROVISION TO THE CONTRARY. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 24, 1958, IS SUSTAINED.

WITH REFERENCE TO THE CASE OF CAPTAIN J. D. KURZ, YOU ARE ADVISED THAT UPON FURTHER CONSIDERATION OF HIS CLAIM, IT HAS BEEN DETERMINED THAT ITS ALLOWANCE IN OUR SETTLEMENT OF AUGUST 13, 1957, WAS IN ERROR FOR THE REASONS STATED ABOVE. CONSEQUENTLY, REQUEST WILL BE MADE THAT HE REFUND TO THE GOVERNMENT THE AMOUNT ERRONEOUSLY ALLOWED IN THAT SETTLEMENT.