B-160445 L/M, DEC 7, 1966

B-160445 L/M: Dec 7, 1966

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COTTOM: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11. WERE ORDERED TO ANNUAL ACTIVE DUTY FOR TRAINING AT INDIANTOWN GAP MILITARY RESERVATION. YOU AND FIVE OTHER MEMBERS WERE PLACED ON TEMPORARY DUTY AT THE U. UPON COMPLETION OF THE DUTY AT READING YOU RETURNED TO INDIANTOWN GAP MILITARY RESERVATION AND CLAIMED PER DIEM STATING THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE. IN YOUR PRESENT LETTER YOU SAY YOU UNDERSTAND THAT THERE IS AN ARTICLE WHICH PREVENTS THE PAYMENT OF PER DIEM IN YOUR CASE. THAT THE ERROR IN THE CASE WAS MADE BY THE ORDER ISSUING AUTHORITY AND URGE THAT YOU SHOULD NOT BE MADE TO SUFFER FOR THAT ERROR. IN SUCH CIRCUMSTANCES AND ON THE BASIS THAT THE SUBSISTENCE RATE OF $2.57 PER DAY IS INADEQUATE FOR THREE MEALS A DAY.

B-160445 L/M, DEC 7, 1966

PRECIS-UNAVAILABLE

WALTER R. COTTOM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11, 1966, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 23, 1966, WHICH ALLOWED $28.09 ON YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY AT READING, PENNSYLVANIA, WHILE ON ACTIVE DUTY FOR TRAINING AS AN ENLISTED ARMY RESERVIST. ALSO, THE HONORABLE JOSEPH S. CLARK, UNITED STATES SENATE, HAS CONTACTED US CONCERNING THE MATTER.

BY LETTER ORDERS TEG)03-5(UN) ISSUED MARCH 2, 1966, BY HEADQUARTERS XXI UNITED STATES ARMY CORPS, INDIANTOWN GAP MILITARY RESERVATION, ANNVILLE, PENNSYLVANIA, THE ASSIGNED MEMBERS OF THE 2153D CORPS AUGMENTATION UNIT, INDIANTOWN GAP MILITARY RESERVATION, WERE ORDERED TO ANNUAL ACTIVE DUTY FOR TRAINING AT INDIANTOWN GAP MILITARY RESERVATION, FOR 13 DAYS BEGINNING APRIL 17, 1966, PLUS ALLOWABLE TRAVEL TIME. BY LETTER ORDER (AS)04-122 OF THE SAME HEADQUARTERS DATED APRIL 11, 1966, YOU AND FIVE OTHER MEMBERS WERE PLACED ON TEMPORARY DUTY AT THE U. S. ARMY RESERVE CENTER IN THE READING, PENNSYLVANIA, AREA FOR THE PERIOD APRIL 19 THROUGH 28, 1966, FOR THE PURPOSE OF RENDERING ADMINISTRATIVE ASSISTANCE TO THE XXI CORPS SRF UNITS WITHIN THE READING AREA. UPON COMPLETION OF THE DUTY AT READING YOU RETURNED TO INDIANTOWN GAP MILITARY RESERVATION AND CLAIMED PER DIEM STATING THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE.

THE SETTLEMENT OF AUGUST 23, 1966, DENIED YOUR CLAIM FOR PER DIEM AND ALLOWED YOU $28.09 REPRESENTING PRO-RATED RATIONS FOR THE PERIOD 0800 HOURS ON APRIL 19, 1966, TO 1500 HOURS ON APRIL 28, 1966 ($24.13), PLUS MILEAGE AT $0.06 PER MILE FROM INDIANTOWN GAP TO READING AND RETURN (3.96). IN YOUR PRESENT LETTER YOU SAY YOU UNDERSTAND THAT THERE IS AN ARTICLE WHICH PREVENTS THE PAYMENT OF PER DIEM IN YOUR CASE. YOU CONTEND, HOWEVER, THAT THE ERROR IN THE CASE WAS MADE BY THE ORDER ISSUING AUTHORITY AND URGE THAT YOU SHOULD NOT BE MADE TO SUFFER FOR THAT ERROR. IN SUCH CIRCUMSTANCES AND ON THE BASIS THAT THE SUBSISTENCE RATE OF $2.57 PER DAY IS INADEQUATE FOR THREE MEALS A DAY, YOU ASK THAT WE ALLOW YOU FULL REIMBURSEMENT. ALSO, YOU INQUIRE AS TO AN ALLOWANCE FOR QUARTERS DURING THE PERIOD OF YOUR DUTY, STATING THAT FOUR OF THE MEMBERS IN YOUR PARTY RECEIVED AN ALLOWANCE FOR QUARTERS IN SETTLEMENTS BY THIS OFFICE IN ADDITION TO THE ALLOWANCE FOR SUBSISTENCE AND MILEAGE.

SECTION 404 OF TITLE 37 U. S. CODE, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF STATION, OR OTHERWISE, OR "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY," REGARDLESS OF THE LENGTH OF TIME INVOLVED. SECTION 411(C) OF TITLE 37 U. S. CODE, AUTHORIZES THE SECRETARIES CONCERNED TO DETERMINE WHAT SHALL CONSTITUTE A "TRAVEL STATUS." PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF RESERVE COMPONENTS CALLED OR ORDERED TO ACTIVE DUTY FOR TRAINING WITH PAY. HOWEVER, THAT PARAGRAPH SPECIFICALLY PROVIDES THAT "NO TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR ANY PERIOD A MEMBER IS AT HIS TRAINING DUTY STATION."

IN DECISION OF MAY 3, 1962, B-148049, 41 COMP. GEN. 726, COPY ENCLOSED, WE ADVISED THE SECRETARY OF THE AIR FORCE THAT WHEN MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ORDERED DUTY IS PERFORMED, THE LOCATION OF THE PLACE WHERE THE MAJORITY OF THE DUTY IS PERFORMED IS IN FACT THE TRAINING DUTY STATION AND SUCH MEMBERS MAY NOT BE CONSIDERED AWAY FROM THEIR DESIGNATED POST OF DUTY FOR ENTITLEMENT TO PER DIEM. SINCE THE MAJORITY OF YOUR TRAINING DUTY WAS PERFORMED AT READING, PENNSYLVANIA, READING WAS YOUR POST OF DUTY AND CONSEQUENTLY YOU WERE NOT ENTITLED, UNDER THE LAW AND REGULATIONS, TO PER DIEM WHILE AT READING.

IN THESE CIRCUMSTANCES OUR OFFICE HAD NO CHOICE BUT TO DENY YOUR CLAIM FOR PER DIEM. THE FACT THAT THE ORDER WRITING AUTHORITY ERRED IN THE ISSUANCE OF YOUR ORDERS AFFORDS NO BASIS UPON WHICH WE MAY AUTHORIZE A PAYMENT TO YOU WHICH WOULD BE CONTRARY TO LAW AND REGULATIONS.

SECTION 402 OF TITLE 37 U.S.C. PROVIDES THAT AN ENLISTED MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE IN THE AMOUNT OF $2.565 A DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE. THIS AMOUNT IS ROUNDED OUT TO $2.57 A DAY IN PARAGRAPH 10423, ARMY REGULATIONS 37-104 (CHANGE 4, FEBRUARY 28, 1966). THE AMOUNT ALLOWED YOU AS SUBSISTENCE WAS COMPUTED AT THAT STATUTORY RATE AND THERE IS NO BASIS ON WHICH THIS OFFICE MAY ALLOW A GREATER AMOUNT.

SECTION 403 OF TITLE 37 U.S.C. PROVIDES FOR A BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS ENTITLED TO BASIC PAY AT THE RATES PRESCRIBED THEREIN. AN ENLISTED MEMBER IN PAY GRADE E-4 WITH OVER 4 YEARS' SERVICE, WITH DEPENDENTS (YOUR SITUATION), IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $105 PER MONTH. THIS RATE IS ALSO SHOWN IN PARAGRAPH 10306, ARMY REGULATIONS 37-104. THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA, IN FORWARDING YOUR CLAIM TO THIS OFFICE STATED THAT YOU HAD RECEIVED CREDIT IN YOUR PAY ACCOUNT OF BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD APRIL 17 TO 29, 1966, AT THE RATE OF $105 PER MONTH. SINCE YOU HAD BEEN CREDITED AND PAID THE BASIC ALLOWANCE FOR QUARTERS THERE WAS NO AUTHORITY TO ALLOW YOU ANY AMOUNT FOR QUARTERS IN THE SETTLEMENT. THIS WAS ALSO TRUE IN THE CASE OF CHARLES J. HILER WHOSE PAY ACCOUNT LIKEWISE HAD BEEN CREDITED WITH BASIC ALLOWANCE FOR QUARTERS IN THE PROPER AMOUNT FOR THE PERIOD INVOLVED. HOWEVER, IT WAS REPORTED THAT PAY ACCOUNTS HAD NOT BEEN CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS IN THE CASES OF ROBERT F. CHEATWOOD, KENNETH E. GREENE, ERNEST M. LEVY, AND KENNETH L. MARCH, THE OTHER MEMBERS NAMED IN THE ORDERS OF APRIL 11, 1966. THEREFORE, THE SETTLEMENTS IN THEIR CASES INCLUDED VARIOUS APPLICABLE AMOUNTS AS BASIC ALLOWANCE FOR QUARTERS FOR THE DUTY AT READING.

THE SETTLEMENT OF AUGUST 23, 1966, WAS CORRECT AND MUST BE SUSTAINED.

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