B-155655, JAN. 26, 1967

B-155655, JAN. 26, 1967

TO MR. WALTER W. FRICKE, JR.:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER AND ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED JANUARY 13, 1965, B-155655. IN THAT DECISION WE SUSTAINED THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR PER DIEM DURING THE PERIOD NOVEMBER 23, 1963, TO JANUARY 25, 1964, WHILE ATTENDING A SKI PATROL TRAINING COURSE AT THE ARMED FORCES RECREATION AREA PURSUANT TO ORDERS DATED NOVEMBER 7 AND DECEMBER 4, 1963.

YOUR CLAIM FOR PER DIEM FOR THE PERIOD INVOLVED WAS DISALLOWED FOR THE REASON THAT THE CONTROLLING REGULATIONS (USAREUR CIRCULAR NO. 28 138-2 DATED SEPTEMBER 9, 1963) PROVIDED THAT NO PER DIEM WAS AUTHORIZED FOR ATTENDING THE TRAINING COURSE, WHICH WAS GIVEN BY THE ARMY AS PART OF THE ARMY RECREATION WELFARE PROGRAM.

IN THE DECISION OF JANUARY 13, 1965, WE STATED THAT THE APPLICABLE LAW AND REGULATIONS PERMITTING THE PAYMENT OF PER DIEM TO MEMBERS TRAVELING ON PUBLIC BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY OUTSIDE THE LIMITS OF THE UNITED STATES DO NOT AUTHORIZE PAYMENT OF PER DIEM FOR TEMPORARY DUTY INCIDENT TO THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY. WE EXPLAINED THAT THE TERM "PUBLIC BUSINESS" RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873.

IN YOUR PRESENT LETTER YOU SAY THAT YOU RECEIVED TRAINING AND PERFORMED DUTY AS A SKI PATROLMAN AND DID NOT PARTICIPATE IN SKI TRAINING AS INDICATED IN OUR DECISION OF JANUARY 13, 1965, OR PARTICIPATE IN SKI RACES OR OTHER SPORTS EVENTS. FURTHER, YOU SAY THAT THE PRIMARY FUNCTION OF THE SKI PATROL IS TO RENDER FIRST AID TREATMENT TO INJURED SKIERS AND TRANSPORT THEM TO AMBULANCES AND WHEN MEMBERS OF THE SPECIAL FORCES WERE INJURED WHILE SKIING, YOU AIDED IN THEIR RESCUE AND CARE. YOU CONTEND THAT IF YOU HAD BEEN PLACED ON TEMPORARY DUTY TO PROVIDE FOR THE SAFETY OF THE SPECIAL FORCES TROOPS, THE DUTY WOULD OBVIOUSLY BE OF AN OFFICIAL NATURE. IT APPEARS TO BE YOUR VIEW THAT SINCE YOU WERE TRAINING AS AND PERFORMING THE FUNCTIONS OF A SKI PATROLMAN AND SINCE YOUR PLACE OF DUTY, THE ARMED FORCES RECREATION CENTER, IS A REGULAR MILITARY ACTIVITY SERVING THE RECREATIONAL NEEDS OF UNITED STATES PERSONNEL STATIONED IN EUROPE, YOUR SKI ACTIVITIES CONSTITUTE PUBLIC BUSINESS AS CONTEMPLATED BY THE LAW AND REGULATIONS AND THEREFORE YOU ARE ENTITLED TO PER DIEM AS CLAIMED.

GENERALLY, THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT IS FOR TEMPORARY DUTY FOR WHICH PER DIEM IS AUTHORIZED IS A QUESTION OF FACT TO BE DETERMINED BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, THE CHARACTER OF THE SERVICE AND THE CIRCUMSTANCES UNDER WHICH IT IS PERFORMED. 24 COMP. GEN. 667, 670.

IN CONNECTION WITH THE ARMY RECREATION AND WELFARE PROGRAM, USAREUR CIRCULAR 28-138-2 DATED SEPTEMBER 9, 1963, INVITED APPLICATIONS FROM MEMBERS WHO WISHED TO UNDERGO INSTRUCTION AS SKI PATROLMAN. THE REGULATION PROVIDED THAT MEMBERS WHO WERE SELECTED WOULD BE ATTACHED TO THE SOUTHERN AREA COMMAND FOR RATIONS AND QUARTERS WITH NO PER DIEM AUTHORIZED EXCEPT WHILE IN A TRAVEL STATUS. YOUR ORDERS OF NOVEMBER 7 AND DECEMBER 4, 1963, WHICH WERE ISSUED PURSUANT TO THIS REGULATION REPEATED THE ADVICE THAT NO PER DIEM WAS AUTHORIZED AT THE TEMPORARY DUTY STATION.

IN SUCH CIRCUMSTANCES, IT IS APPARENT THAT THE SKI PATROL PROGRAM WAS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY AS DISTINGUISHED FROM AN ASSIGNED MILITARY DUTY AND THAT THE PARTICIPATION OF MEMBERS IN THE PROGRAM WAS WHOLLY VOLUNTARY.

WITH OUR DECISION OF JANUARY 13, 1965, WE ENCLOSED A COPY OF OUR DECISION TO THE SECRETARY OF THE ARMY B-150559, DATED APRIL 12, 1963, AND WE SAID THAT WE HAVE CONSISTENTLY HELD THAT, IN GENERAL, PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM TO MEMBERS TRAVELING IN CONNECTION WITH THEIR PARTICIPATION, OTHER THAN AS COMMAND SUPERVISORS, IN THE ATHLETIC AND RECREATIONAL PROGRAMS OF THE ARMED FORCES IS NOT AUTHORIZED SINCE SUCH TRAVEL MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY THE APPLICABLE PROVISIONS OF THE STATUTE OR REGULATIONS. IT FOLLOWS THAT VOLUNTARY PARTICIPATION IN ACTIVITIES DESIGNED TO ASSIST AND PROVIDE SAFETY AND COMFORT TO MEMBERS ENGAGING IN ATHLETIC AND RECREATIONAL PROGRAMS MAY NOT BE VIEWED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS (ASSIGNED MILITARY DUTY) FOR SUCH PURPOSES.

THE FACT THAT IN THE DECISION OF JANUARY 13, 1965, WE REFERRED TO THE COURSE OF TRAINING AS SKI TRAINING INSTEAD OF SKI PATROLMAN OR THAT YOU DID NOT PARTICIPATE IN SKI RACES OR OTHER SPORTS EVENTS HAS NO BEARING ON THE MATTER SINCE THE CHARACTER OF YOUR ASSIGNMENT AND YOUR ENTITLEMENT TO PER DIEM IS DETERMINED BY OUR ORDERS OF NOVEMBER 7 AND DECEMBER 4, 1963. THOSE ORDERS AUTHORIZED YOU TO ATTEND THE SKI PATROLMAN TRAINING COURSE WHICH WAS OFFERED TO MEMBERS ON A VOLUNTARY BASIS AS PART OF THE ARMY ATHLETIC AND RECREATIONAL PROGRAM FOR WHICH PAYMENT OF PER DIEM IS NOT AUTHORIZED.

ACCORDINGLY, WE FIND NO BASIS UPON WHICH THE CONCLUSION PREVIOUSLY REACHED IN YOUR CASE MAY BE CHANGED.