B-145328, DEC 10, 1971

B-145328: Dec 10, 1971

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SINCE CLAIMANT WAS IN A FIELD DUTY STATUS OF THE TYPE PROVIDED IN PARAGRAPH 4250 OF THE JTR AND SINCE GOVERNMENT MESS FACILITIES WERE AVAILABLE. THERE IS NO LEGAL BASIS FOR ENTITLEMENT TO PER DIEM IN THIS CASE. ELLIS: FURTHER REFERENCE IS MADE TO YOUR CLAIM DATED MARCH 4. THAT CLAIM IS IN EFFECT A RESUBMISSION OF A CLAIM PREVIOUSLY SUBMITTED BY YOU WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED FEBRUARY 6. YOU WERE ADVISED THAT THE ADMINISTRATIVE DETERMINATION INDICATED IN YOUR ORDERS OF SEPTEMBER 26. THAT THE TEMPORARY DUTY TO WHICH YOU WERE DIRECTED AT FULDA WAS DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATION MUST BE CONSIDERED AS DETERMINATIVE OF YOUR RIGHT TO PER DIEM FOR THAT DUTY IN THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATION WAS NOT FACTUALLY CORRECT.

B-145328, DEC 10, 1971

MILITARY PERSONNEL - PER DIEM - ENTITLEMENT DECISION AFFIRMING SETTLEMENT OF FEBRUARY 6, 1961, AND DECISION B 145328, APRIL 24, 1961, REGARDING CLAIM OF CWO LEO E. ELLIS, U.S. ARMY, FOR PER DIEM INCURRED INCIDENT TO TEMPORARY DUTY PERFORMED AT FULDA, GERMANY. SINCE CLAIMANT WAS IN A FIELD DUTY STATUS OF THE TYPE PROVIDED IN PARAGRAPH 4250 OF THE JTR AND SINCE GOVERNMENT MESS FACILITIES WERE AVAILABLE, THOUGH HE APPARENTLY CHOSE NOT TO OBTAIN MEALS THERE, THERE IS NO LEGAL BASIS FOR ENTITLEMENT TO PER DIEM IN THIS CASE.

TO CHIEF WARRANT OFFICER LEO E. ELLIS:

FURTHER REFERENCE IS MADE TO YOUR CLAIM DATED MARCH 4, 1970, FORWARDED TO THIS OFFICE BY THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, FOR PER DIEM INCIDENT TO TEMPORARY DUTY YOU PERFORMED AT FULDA, GERMANY, DURING THE PERIODS OF SEPTEMBER 29 TO NOVEMBER 24, 1968, AND APRIL 1 TO JUNE 16, 1959, AS A MEMBER OF THE UNITED STATES ARMY. THAT CLAIM IS IN EFFECT A RESUBMISSION OF A CLAIM PREVIOUSLY SUBMITTED BY YOU WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED FEBRUARY 6, 1961.

PURSUANT TO YOUR LETTER OF FEBRUARY 28, 1961, WE REVIEWED THE DISALLOWANCE IN OUR SETTLEMENT OF FEBRUARY 6, 1961. IN OUR DECISION B 145328, APRIL 24, 1961, YOU WERE ADVISED THAT THE ADMINISTRATIVE DETERMINATION INDICATED IN YOUR ORDERS OF SEPTEMBER 26, 1958, AS AMENDED, AND CONFIRMATORY ORDERS DATED APRIL 8, 1959, AS AMENDED, THAT THE TEMPORARY DUTY TO WHICH YOU WERE DIRECTED AT FULDA WAS DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATION MUST BE CONSIDERED AS DETERMINATIVE OF YOUR RIGHT TO PER DIEM FOR THAT DUTY IN THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATION WAS NOT FACTUALLY CORRECT. SEE ALSO 37 COMP. GEN. 683 (1958) AND 44 COMP. GEN. 405 (1965), COPIES ENCLOSED.

YOU WERE ALSO ADVISED THAT IT IS INDICATED THAT A MAJOR OVERSEA COMMANDER (7TH ARMY COMMANDER) INTENDED TO PLACE YOU ON A FIELD DUTY STATUS OF THE TYPE PROVIDED IN PARAGRAPH 4250-3 AND, IT IS REPORTED THAT YOU DID PERFORM FIELD DUTY EVEN THOUGH YOU RETURNED TO A MILITARY INSTALLATION FOR MESSING AND QUARTERS.

YOU WERE FURTHER ADVISED THAT, WHILE IT APPEARS YOU OBTAINED QUARTERS IN BACHELOR'S OFFICER'S QUARTERS FOR WHICH YOU PAID A NOMINAL SERVICE CHARGE AND THAT YOU ALSO OBTAINED YOUR MEALS THERE, ALTHOUGH YOU COULD HAVE EATEN YOUR MEALS AT A SEPARATE TABLE FOR OFFICERS AT THE ENLISTED MEN'S MESS, UNDER THESE CIRCUMSTANCES THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

RECEIVED WITH YOUR PRESENT CLAIM IS A LETTER DATED MARCH 6, 1970, WITH ENCLOSURES, FROM YOU TO THE ARMY FINANCE CENTER IN WHICH YOU INDICATE THAT THE REASONS YOU HAVE AGAIN SUBMITTED THIS CLAIM ARE THAT YOU HAVE BECOME AWARE OF A DECISION OF THIS OFFICE IN WHICH IT WAS HELD THAT ACTUAL CONDITIONS AT THE TIME TEMPORARY DUTY IS PERFORMED GOVERN THE PAYMENT OF PER DIEM. YOU ALSO INDICATE IN THAT LETTER THAT YOU HAVE KNOWLEDGE THAT ANOTHER MEMBER OF YOUR GROUP, CHIEF WARRANT OFFICER PAUL L. PAGANO, USA, WAS ALLOWED PER DIEM UNDER CIRCUMSTANCES SIMILAR TO YOURS.

THE DECISION OF THIS OFFICE TO WHICH YOU REFER APPEARS TO BE B 156501, MAY 19, 1965, 44 COMP. GEN. 740, COPY ENCLOSED, INVOLVING A GROUP OF OFFICERS WHO, WHILE ON TEMPORARY DUTY, WERE PAID PER DIEM PURSUANT TO ORDERS AMENDED TO PROVIDE THAT ALL TRAVEL AND TEMPORARY DUTY DIRECTED THEREBY WERE NOT OF A TYPE CONTEMPLATED BY PARAGRAPH 4250 3 OF THE JOINT TRAVEL REGULATIONS. THE AMENDMENT TO THEIR ORDERS WAS BASED ON A CERTIFICATE OF THE COMMANDING OFFICER OF THE INSTALLATION AT WHICH THEY PERFORM SUCH DUTY, THAT A GOVERNMENT MESS WAS NOT AVAILABLE. IN HOLDING THAT SUCH OFFICERS WERE ENTITLED TO PER DIEM WE SAID IN EFFECT THAT THE LAW AND REGULATIONS RECOGNIZE THE GOVERNMENT'S OBLIGATION IN THE CIRCUMSTANCES INDICATED EITHER TO MAKE A GOVERNMENT MESS AVAILABLE TO THE OFFICERS OR PAY THEM THE PER DIEM AUTHORIZED BY THE REGULATIONS FOR THE CONDITIONS ACTUALLY EXISTING AT THE TIME.

IN YOUR CASE, IT IS REPORTED THAT A GOVERNMENT MESS WAS AVAILABLE IN THE FORM OF A SEPARATE TABLE FOR OFFICERS IN THE ENLISTED MEN'S MESS; HOWEVER, YOU APPARENTLY CHOSE NOT TO OBTAIN YOUR MEALS THERE. ALSO, ALTHOUGH YOU REQUESTED THAT YOUR ORDERS BE CHANGED, THE ORDER-ISSUING AUTHORITY DID NOT COMPLY WITH THAT REQUEST.

AS TO THE PARTIAL ALLOWANCE OF WARRANT OFFICER PAGANO'S CLAIM, YOU ARE ADVISED THAT IN CONTRAST TO THE CIRCUMSTANCES OF YOUR CASE THE RECORD AVAILABLE TO US SHOWS WITH REASONABLE CLARITY THAT DURING THE PERIOD FOR WHICH HE WAS ALLOWED PER DIEM NO FIELD MESS NOR OFFICER'S TABLE IN THE ENLISTED MEN'S MESS WAS IN FACT AVAILABLE TO HIM. WARRANT OFFICER PAGANO'S PERIOD OF TEMPORARY DUTY FOR WHICH HE CLAIMED PER DIEM ENDED AT ABOUT THE TIME THE FIRST PERIOD FOR WHICH YOU CLAIM PER DIEM BEGAN, WHICH APPEARS TO BE ABOUT THE TIME THE GOVERNMENT MESS WAS MADE AVAILABLE TO OFFICERS ON TEMPORARY DUTY AT FULDA.

IN VIEW OF THE CIRCUMSTANCES OF YOUR CASE WE FIND NO BASIS FOR ENTITLEMENT TO THE PER DIEM CLAIMED. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 6, 1961, AND OUR DECISION B-145328, APRIL 24, 1961, ARE AFFIRMED AND, YOUR CLAIM DATED MARCH 4, 1970, IS DISALLOWED.

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