B-97178, DECEMBER 5, 1950, 30 COMP. GEN. 226

B-97178, DECEMBER 5, 1950, 30 COMP. GEN. 226

SUBSISTENCE - PER DIEMS - TRAVEL INCIDENT TO MILITARY LEAVE OF ABSENCE AN ENLISTED MAN STATIONED OVERSEAS WHO WAS DIRECTED TO RETURN TO THE UNITED STATES ONLY FOR THE PURPOSE OF A LEAVE OF ABSENCE FROM MILITARY DUTY UNDER ORDERS ISSUED PURSUANT TO ADMINISTRATIVE REGULATIONS AUTHORIZING THE FURNISHING OF TRANSPORTATION BUT NOT SUBSISTENCE ALLOWANCE TO MILITARY PERSONNEL RETURNED TO THE UNITED STATES FOR EMERGENCY LEAVES OF ABSENCE IS NOT ENTITLED TO PER DIEM INCIDENT TO THE TRAVEL PERFORMED UNDER SAID ORDERS, SUCH TRAVEL BEING CONSIDERED AS HAVING BEEN FOR REASONS OF PERSONAL BENEFIT RATHER THAN IN THE PUBLIC INTEREST.

ASSISTANT COMPTROLLER GENERAL YATES TO BANKER C. TRAYLOR, DECEMBER 5, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 3, 1950, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 15, 1950, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL PERFORMED BY YOU DURING THE PERIOD FROM FEBRUARY 28 TO MARCH 3, 1947 (INADVERTENTLY STATED IN THE SETTLEMENTS AS APRIL 3, 1947), PURSUANT TO ORDERS OF HEADQUARTERS, U.S. FORCES, EUROPEAN THEATER, DATED FEBRUARY 28, 1947.

UNDER THE PROVISIONS OF PARAGRAPH 1, SPECIAL ORDERS NO. 41, HEADQUARTERS 559TH ENGINEER SERVICE BATTALION, APO 757, DATED FEBRUARY 27, 1947, YOU WERE DIRECTED TO PROCEED FROM YOUR DUTY STATION TO THE 7705TH AIR RETURNING CENTER FOR FURTHER TEMPORARY DUTY INCIDENT TO RETURN TO THE ZONE OF THE INTERIOR. BY THE ORDERS OF FEBRUARY 28, 1947, YOU WERE DIRECTED TO PROCEED THEREFROM ON OR ABOUT FEBRUARY 28, 1947, BY FIRST AVAILABLE AIR TRANSPORTATION TO THE UNITED STATES, REPORTING UPON ARRIVAL TO THE DEBARKATION OFFICER FOR MOVEMENT TO FORT DIX, NEW JERSEY, FOR THE PURPOSE OF BEING GRANTED A LEAVE OF ABSENCE NOT TO EXCEED 30 DAYS AT CHICAGO, ILLINOIS. UPON COMPLETION OF THE PERIOD OF LEAVE YOU WERE TO REPORT BACK TO FORT DIX FOR PROCESSING TO YOUR PROPER STATION IN THE EUROPEAN THEATER. AUTHORITY FOR THE PERFORMANCE OF THE TRAVEL DIRECTED AND THE LEAVE OF ABSENCE GRANTED WAS STATED IN THE ORDERS TO BE THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 14, JANUARY 15, 1946, AS AMENDED BY CIRCULAR NO. 225, JULY 26, 1946. YOU STATE THAT THE AIR TRAVEL FOR WHICH YOU CLAIM PER DIEM COMMENCED AT FRANKFORT, GERMANY, ON MARCH 1 AND ENDED AT WESTOVER FIELD, MASSACHUSETTS, ON MARCH 3, 1947.

UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, MEMBERS OF THE VARIOUS MILITARY SERVICES, INCLUDING ENLISTED PERSONNEL, MAY, UNDER REGULATIONS PRESCRIBED BY THE HEADS OF THE DEPARTMENTS CONCERNED, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY OR, IN LIEU OF SUBSISTENCE, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $7 PER DAY FOR TRAVEL PERFORMED BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS. IT IS WELL ESTABLISHED THAT THE RIGHT OF PERSONNEL OF THE ARMED SERVICES TO THOSE ALLOWANCES OR TO OTHER STATUTORY TRANSPORTATION OR SUBSISTENCE ALLOWANCES INCIDENT TO TRAVEL PERFORMED BY THEM DEPENDS UPON WHETHER SUCH TRAVEL IS ON PUBLIC BUSINESS OR IN THE PUBLIC INTEREST. LEAVE OF ABSENCE FROM THE PERFORMANCE OF MILITARY DUTY HAS BEEN CONSIDERED AS GRANTED FOR REASONS OF PERSONAL CONVENIENCE RATHER THAN AS A MATTER IN THE PUBLIC INTEREST AND, CONSEQUENTLY, IT HAS BEEN HELD THAT SUCH ALLOWANCES MAY NOT BE CONSIDERED TO ACCRUE TO MILITARY PERSONNEL INCIDENT TO THE PERFORMANCE OF PERSONAL TRAVEL ON LEAVE. ELMORE V. UNITED STATES, 61 C.1CLS. 173; B-93996, JUNE 21, 1950.

IT APPEARS THAT YOUR ORDERS OF FEBRUARY 28, 1947, DIRECTED TRAVEL TO THE UNITED STATES ONLY FOR THE PURPOSES OF ENABLING YOU TO AVAIL YOURSELF OF A LEAVE OF ABSENCE FROM MILITARY DUTY. UNDER SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED INCIDENT TO THE PERFORMANCE OF THAT TRAVEL. IN THAT CONNECTION, IT WILL BE NOTED THAT WHILE WAR DEPARTMENT CIRCULAR NO. 14, AS AMENDED, CITED IN YOUR ORDERS AS AUTHORITY FOR THE TRAVEL THEREIN DIRECTED, CONTEMPLATES THE FURNISHING OF TRANSPORTATION TO MILITARY PERSONNEL RETURNED TO THE UNITED STATES FOR EMERGENCY LEAVES OF ABSENCE, NOTHING THEREIN PURPORTS TO AUTHORIZE THE PAYMENT OF SUBSISTENCE ALLOWANCES INCIDENT TO TRAVEL PERFORMED UNDER THAT AUTHORITY.