B-145328, APR. 24, 1961

B-145328: Apr 24, 1961

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ELLIS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28. BOTH ORDERS STATED THAT RATIONS IN KIND AND TENTAGE WERE TO BE PROVIDED AND THE TEMPORARY DUTY CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATIONS. YOU CONTEND THAT THE ORDERS ARE IN ERROR. THAT YOUR TEMPORARY DUTY WAS NOT A WAR GAME. THAT TENTAGE WAS NOT FURNISHED. YOU ALSO CONTEND THAT YOU WERE REQUIRED TO OBTAIN A BILLET AT YOUR OWN EXPENSE AND FIELD RATIONS IN KIND WERE NOT AVAILABLE ALTHOUGH YOU WERE OFFERED RATIONS AT ADDITIONAL EXPENSE IN ONE OF THE MESS HALLS. ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE TO MEMBERS FOR PERIODS OF TRAVEL OR TEMPORARY DUTY PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES "WHILE PARTICIPATING IN MANEUVERS.

B-145328, APR. 24, 1961

TO CHIEF WARRANT OFFICER LEO E. ELLIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1961, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 6, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT FULDA, GERMANY, DURING THE PERIODS SEPTEMBER 29 TO NOVEMBER 23, 1958, AND APRIL 1 TO JUNE 15, 1959, AS A MEMBER OF THE UNITED STATES ARMY.

ORDERS DATED SEPTEMBER 26, 1958, AS AMENDED, ISSUED BY HEADQUARTERS, 54TH TRANSPORTATION HELICOPTER BATTALION, APO 165, UNITED STATES FORCES, DIRECTED YOU AND CHIEF WARRANT OFFICER DAVE L. EASLEY TO PROCEED FROM HANAU, GERMANY, TO FULDA, GERMANY, FOR TEMPORARY DUTY OF APPROXIMATELY 60 DAYS FOR THE PURPOSE OF SUPPORT OF THE 14TH ARMORED CAVALRY REGIMENT. ORDERS DATED APRIL 8, 1959, AS AMENDED, ISSUED BY HEADQUARTERS, 54TH TRANSPORTATION TRANSPORT AIRCRAFT BATTALION, CONFIRMED VERBAL ORDERS OF YOUR COMMANDING OFFICER DIRECTING YOU AND OTHER OFFICERS AND ENLISTED MEN TO TEMPORARY DUTY OF APPROXIMATELY 77 DAYS FOR THE PURPOSE OF PARTICIPATING IN THE BORDER PATROL. BOTH ORDERS STATED THAT RATIONS IN KIND AND TENTAGE WERE TO BE PROVIDED AND THE TEMPORARY DUTY CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATIONS. YOU CONTEND THAT THE ORDERS ARE IN ERROR; THAT YOUR TEMPORARY DUTY WAS NOT A WAR GAME, MANEUVER, OR FIELD EXERCISE, AND THAT TENTAGE WAS NOT FURNISHED. YOU ALSO CONTEND THAT YOU WERE REQUIRED TO OBTAIN A BILLET AT YOUR OWN EXPENSE AND FIELD RATIONS IN KIND WERE NOT AVAILABLE ALTHOUGH YOU WERE OFFERED RATIONS AT ADDITIONAL EXPENSE IN ONE OF THE MESS HALLS. YOU STATE THAT YOU WORE A CLASS "A" UNIFORM AT TIMES AND HAD ALL OF THE ADDITIONAL EXPENSES THAT WOULD BE CONSIDERED PART OF ANY TEMPORARY DUTY.

REGULATIONS GOVERNING THE RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED BY SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE TO MEMBERS FOR PERIODS OF TRAVEL OR TEMPORARY DUTY PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES "WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' THE LIMITATION DOES NOT APPLY WHERE PARTICIPATION IN SUCH DUTY INVOLVES TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE SET FORTH IN PARAGRAPH 4201-6 OF THE REGULATIONS.

ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, ESTABLISH ARMY POLICY FOR THE PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN FIELD DUTY AS DESCRIBED, CONDUCTED ON INSTALLATIONS WITHIN THE UNITED STATES. PARAGRAPH 3 OF THE REGULATIONS PROVIDES THAT IN OVERSEA COMMANDS, THEY WILL BE USED AS A GUIDE, BUT THE POLICY PRESCRIBED MAY BE MODIFIED AS CONSIDERED APPROPRIATE BY THE MAJOR OVERSEAS COMMANDER CONCERNED BASED UPON PREVAILING CONDITIONS AND PROVIDED THAT THE MODIFICATION IS IN CONSONANCE WITH THE PROVISIONS OF PARAGRAPHS 4250-3 AND 4256-1B OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4 OF THE ARMY REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM ALLOWANCES AT RATES AND UNDER CONDITIONS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH FIELD DUTY ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION AND DURING THE CLOSE OUT PHASE OF THE OPERATION. PER DIEM ALLOWANCES ARE NOT PAYABLE DURING THE ACTUAL PERIOD OF MANEUVER OR EXERCISE ON THE PREMISE THAT SUCH OPERATIONS ARE DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS. PARAGRAPH 7 PROVIDES FOR PER DIEM ALLOWANCES FOR AUTHORIZED INDIVIDUAL OR NONGROUP TRAVEL TO AND FROM THE SITES OF THE OPERATION AND FOR CERTAIN TEMPORARY DUTY AT PLACES OTHER THAN THE SITE OF THE OPERATION AND TEMPORARY DUTY AT THE SITE OF OPERATION.

THE TYPE OF DUTY ENJOINED IN A PARTICULAR ASSIGNMENT IS DETERMINED PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE CIRCUMSTANCES SURROUNDING THE ASSIGNMENT. SUCH DETERMINATION IS CONTROLLING UNLESS EVIDENCE IS PRESENTED SUFFICIENT TO ESTABLISH THAT SUCH DETERMINATION WAS CLEARLY ERRONEOUS. IT IS INDICATED THAT A MAJOR OVERSEA COMMANDER (7TH ARMY COMMANDER), INTENDED TO PLACE YOU AND OTHER PERSONNEL ON A FIELD DUTY STATUS OF THE TYPE CONTEMPLATED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS. INSTRUCTIONS TO SUBORDINATE UNITS WERE TO PROVIDE MESSING BILLETING FACILITIES TO ALL PERSONNEL CONCERNED AND IT IS REPORTED THAT YOU PERFORMED FIELD DUTY EVEN THOUGH YOU RETURNED TO A MILITARY INSTALLATION FOR QUARTERS AND MESSING. THE TRAVEL WAS APPARENTLY TO BE PERFORMED IN OPERATIONAL MILITARY AIRCRAFT AND NO PROVISION WAS MADE FOR PAYMENT OF PER DIEM NOR WAS ANY APPROPRIATION AUTHORIZED TO BE CHARGED. WHILE THE ORDERS WERE NOT DESIGNATED AS "GROUP TRAVEL ORDERS" THE ORDERS DATED APRIL 8, 1959, INVOLVED THREE OR MORE INDIVIDUALS AND APPARENTLY DURING THE PERIODS OF YOUR CLAIM YOU WERE A MEMBER OF A TEAM OR GROUP PARTICIPATING IN BORDER OPERATIONS WHICH YOUR COMMANDER DETERMINED WAS FIELD DUTY FOR WHICH NO PER DIEM IS PAYABLE. IN THE ABSENCE OF SUFFICIENT INFORMATION OR FACTS WHICH WOULD ESTABLISH THAT THE DETERMINATION WAS CLEARLY ERRONEOUS, THERE IS NO BASIS FOR THE PAYMENT OF PER DIEM DURING THE PERIODS OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 6, 1961, MUST BE SUSTAINED.

WITH REFERENCE TO YOUR STATEMENT THAT TENTAGE AND FIELD RATIONS WERE NOT MADE AVAILABLE TO YOU, IT APPEARS THAT YOU OBTAINED QUARTERS IN BACHELOR OFFICERS' 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. THE PAYMENT OF A SERVICE CHARGE FOR THE OCCUPANCY OF SUCH QUARTERS IS REGARDED AS PROPER UNDER SUCH CIRCUMSTANCES AND A CHARGE IS REQUIRED TO BE MADE FOR ALL MEALS FURNISHED BY THE GOVERNMENT TO OFFICERS (INCLUDING WARRANT OFFICERS), A BASIC ALLOWANCE FOR SUBSISTENCE BEING PAYABLE TO THEM AT ALL TIMES. HENCE, THE PAYMENT OF SUCH CHARGES CONSTITUTES NO BASIS OF THE ALLOWANCE OF YOUR CLAIM.

PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS AT A TEMPORARY DUTY STATION WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION, EFFECTIVE IMMEDIATELY OR IN THE FUTURE, WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS. IF YOU HAD BEEN ENTITLED TO PER DIEM FOR YOUR TEMPORARY DUTY AT FULDA SUCH ENTITLEMENT WOULD HAVE CEASED ON THE DATE YOU RECEIVED THE ORDERS OF MAY 19, 1959, TRANSFERRING YOUR PERMANENT DUTY STATION FROM HANAU TO FULDA.

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