B-167588, SEP. 3, 1969

B-167588, SEP. 3, 1969

MILITARY - PER DIEM - GOVERNMENT QUARTERS AVAILABILITY DECISION TO ARMY MEMBER SUSTAINING SETTLEMENT DISALLOWING CLAIM FOR INCREASED PER DIEM WHILE IN SAIGON ON TEMPORARY DUTY. MEMBER WHO CLAIMS ADDITIONAL PER DIEM REPRESENTING DEDUCTIONS FOR SUBSISTENCE ALLOWANCE WHILE ON TEMPORARY DUTY IN SAIGON MAY NOT HAVE FACT THAT QUARTERS WERE NOT USED AND THAT MEMBER SUBSISTED ON CIVILIAN ECONOMY REGARDED AS COMPLIANCE WITH REGULATIONS REQUIRING STATEMENT OF COMMANDING OFFICER AS TO NONAVAILABILITY OF QUARTERS. THEREFORE REDUCTION OF PER DIEM FOR MEALS WAS PROPER.

TO MASTER SERGEANT MARVIN GIRSON:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1969, REQUESTING RECONSIDERATION OF THE SETTLEMENT OF JUNE 20, 1969, WHICH DISALLOWED YOUR CLAIM FOR INCREASED PER DIEM FOR THE PERIOD FROM MARCH 11 TO JULY 12, 1968.

BY LETTER ORDER NO. 778, HEADQUARTERS, U.S. ARMY QUARTERMASTER CENTER AND FORT LEE, FORT LEE, VIRGINIA, DATED AUGUST 24, 1967, YOU WERE PLACED ON TEMPORARY DUTY AND DIRECTED TO TRAVEL OVERSEAS IN A GROUP TRAVEL STATUS TO PARTICIPATE IN PROJECT COUNTER I FOR APPROXIMATELY 120 DAYS (SUBSEQUENTLY AMENDED TO 300 DAYS), UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION.

THE TRAVEL VOUCHER EVIDENCING PAYMENT UNDER THE ORDERS SHOWS THAT YOU ARRIVED IN SAIGON, VIETNAM, ON AUGUST 30, 1967, PERFORMING TEMPORARY DUTY THERE UNTIL SEPTEMBER 25, AT WHICH TIME YOU TRAVELED TO QUINNON, VIETNAM. YOU REMAINED THERE IN A TEMPORARY DUTY STATUS UNTIL DECEMBER 14, 1967, AND THEN RETURNED TO SAIGON FOR FURTHER TEMPORARY DUTY. YOU COMPLETED YOUR TEMPORARY DUTY ASSIGNMENT THERE ON JULY 12, 1968, AND RETURNED TO YOUR DUTY STATION, FORT LEE, VIRGINIA, ON AUGUST 16, 1968.

THE VOUCHER SHOWS THAT YOU WERE PAID PER DIEM AT THE RATE OF $26 FROM DECEMBER 14, 1967, THROUGH MARCH 10, 1968, AND AT $15.08 ($26 LESS 42 PERCENT FOR THREE MEALS) FROM MARCH 11 THROUGH JULY 12, 1969. CERTIFICATE (DD FORM 1351-5-GOVERNMENT QUARTERS AND MESS) DATED JULY 12, 1968, STATES THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FROM DECEMBER 14, 1967, TO JULY 12, 1968, AND GOVERNMENT MESS WAS NOT AVAILABLE FOR THREE MEALS DAILY FROM DECEMBER 14, 1967, TO MARCH 10, 1968.

IN YOUR CLAIM DATED SEPTEMBER 6, 1968, YOU STATED THAT ON DECEMBER 14, 1967, YOU REPORTED TO THE HOUSING MANAGEMENT OFFICE IN SAIGON, VIETNAM, FOR QUARTERS AND RATIONS. AT THAT TIME YOU SAID YOU WERE INFORMED THAT THEY WERE NOT AVAILABLE AND THAT YOU WOULD HAVE TO SUBSIST AND RESIDE ON THE CIVILIAN ECONOMY. YOU STATED FURTHER THAT UPON COMPLETION OF YOUR TEMPORARY DUTY ON JULY 12, 1968, YOU REPORTED TO THE HOUSING MANAGEMENT OFFICE FOR CLEARANCE AT WHICH TIME YOU RECEIVED A CERTIFICATE OF NON- AVAILABILITY OF QUARTERS FROM DECEMBER 14, 1967, THROUGH JULY 12, 1968, BUT FOR RATIONS THE CERTIFICATE COVERED ONLY THE PERIOD FROM DECEMBER 14, 1967, THROUGH MARCH 10, 1968.

YOU RELATED THAT YOU WERE TOLD AT THAT TIME THAT AN ENLISTED MAN'S FIELD RATION MESS WAS ESTABLISHED IN SAIGON FOR MEMBERS ON TEMPORARY DUTY EFFECTIVE MARCH 11, 1968, AND THAT INFORMATION TO THAT EFFECT WAS POSTED AT THE HOUSING MANAGEMENT OFFICE. YOU CONTENDED THAT IT WAS THE RESPONSIBILITY OF THE HOUSING MANAGEMENT OFFICE TO NOTIFY ALL MEMBERS PLACED ON THE CIVILIAN ECONOMY PRIOR TO MARCH 10, 1968, THAT SUCH FACILITIES WERE AVAILABLE, BUT THAT YOU WERE NOT GIVEN ANY SUCH NOTICE. YOU CONTENDED FURTHER THAT YOU DID NOT SUBSIST IN ANY GOVERNMENT MESS EXCEPT DURING THE TET OFFENSIVE AT WHICH TIME YOU PAID FOR THE MEALS AT PER DIEM RATES. YOU THEREFORE CLAIMED ADDITIONAL PER DIEM REPRESENTING SUBSISTENCE ALLOWANCE DEDUCTIONS MADE ON THE TRAVEL VOUCHER FOR THE PERIOD FROM MARCH 11 THROUGH JULY 12, 1968.

YOUR CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED JUNE 20, 1969, FOR THE REASONS THEREIN STATED. BY LETTER OF JULY 16, 1969, YOU CONTEND THAT THE SETTLEMENT GAVE NO CONSIDERATION TO THE FACT THAT YOU RECEIVED NO ORDERS OR OTHER INFORMATION THAT YOUR RATION ALLOWANCE WOULD BE TERMINATED MARCH 10, 1968.

PARAGRAPH M4253-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PROVISIONS OF SECTION 404 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT UNLESS OTHERWISE PROVIDED FOR OR RESTRICTED IN THE REGULATIONS, TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR EACH DAY A TRAVEL STATUS EXISTS OUTSIDE THE UNITED STATES. PARAGRAPH M4254-2 OF THE REGULATIONS PROVIDES THAT A DEDUCTION OF 14 PERCENT OF THE APPLICABLE TRAVEL PER DIEM ALLOWANCE RATE WILL BE MADE FOR EACH GOVERNMENT MEAL AVAILABLE TO ENLISTED MEMBERS.

PARAGRAPH M4451-1 OF THE REGULATIONS REQUIRES THAT GOVERNMENT QUARTERS AND MESS BE UTILIZED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE, EXCEPT UNDER CERTAIN CONDITIONS LISTED IN THAT PARAGRAPH WHICH INCLUDE TWO PERTINENT EXCEPTIONS LISTED AS ITEMS 1 AND 2 OF THAT SUBPARAGRAPH AS FOLLOWS: "1. WHEN THE ORDER-ISSUING AUTHORITY EITHER PRIOR TO OR SUBSEQUENT TO THE TRAVEL INVOLVED ISSUES A STATEMENT TO THE EFFECT THAT THE UTILIZATION OF EXISTING GOVERNMENT FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF THE ASSIGNED MISSION * * *; "2. WHEN THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AT THE TEMPORARY DUTY OR DELAY POINT FURNISHES A STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE; "

PARAGRAPH M4451-3 PROVIDES IN PERTINENT PART THAT IF THE LENGTH OF THE TEMPORARY DUTY IS FOR A PERIOD OF 24 HOURS OR MORE AND THE POINT OF TEMPORARY DUTY IS A RECOGNIZED MILITARY POST, CAMP, STATION, BASE, OR DEPOT OWNED OR OPERATED BY THE UNITED STATES, OR IF THE TEMPORARY DUTY IS PERFORMED AT A POINT WHERE THE UTILIZATION OF AVAILABLE QUARTERS IS REQUIRED BY THE REGULATIONS OF THE UNIFORMED SERVICE CONCERNED, A STATEMENT BY THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, AS TO THE NON-AVAILABILITY OF GOVERNMENT QUARTERS OR MESS IS REQUIRED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY EXCEPT UNDER ITEMS 1 AND 2 LISTED ABOVE, OR WHERE THE AVAILABILITY OF SUCH QUARTERS OR MESS CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION OF THE SERVICE CONCERNED. IN INSTANCES OF THESE EXCEPTIONS, A MEMBER'S STATEMENT AS TO THE UTILIZATION AS DISTINGUISHED FROM AVAILABILITY OF GOVERNMENT QUARTERS SHALL SUPPORT PAYMENT OF PER DIEM. SUCH STATEMENT WILL THEN HAVE THE EFFECT OF A STATEMENT OF NON-AVAILABILITY.

THE DEPARTMENTAL REGULATIONS MAKE NO PROVISION FOR WRITTEN NOTICES OR ORDERS TO MEMBERS PLACING THEM ON THE CIVILIAN ECONOMY BECAUSE OF NON- AVAILABILITY OF FACILITIES. NOR DO THEY PROVIDE FOR SUCH NOTICES OR ORDERS TO BE FURNISHED TO MEMBERS PLACED ON THE CIVILIAN ECONOMY WHEN SUCH FACILITIES BECOME AVAILABLE. ALSO, IT HAS BEEN INFORMALLY ASCERTAINED FROM THE DEPARTMENT OF THE ARMY THAT IT HAS NO PUBLICATION LISTING ITS FACILITIES, CAMPS, ETC., WHICH SHOW AVAILABILITY OR NON AVAILABILITY OF GOVERNMENT QUARTERS OR MESSING FACILITIES AND THAT THEY RELY ON A CERTIFICATE (DD FORM 1351-5) AS A BASIS OF SUCH INFORMATION.

YOUR CLAIMS FILE DOES NOT CONTAIN STATEMENTS INDICATING THAT ANY EXCEPTIONS WERE MADE TO THE UTILIZATION OF AVAILABLE FACILITIES, AS LISTED IN THE EXCEPTIONS CONTAINED IN ITEMS 1 OR 2, PARAGRAPH M4451-1, JOINT TRAVEL REGULATIONS. IN THE ABSENCE OF SUCH STATEMENTS, THE CERTIFICATE (DD FORM 1351-5) DATED JULY 12, 1968, MUST BE ACCEPTED AS REQUIRING THE DEDUCTION OF 14 PERCENT MADE FROM THE APPLICABLE PER DIEM RATE FOR EACH MEAL AVAILABLE FROM MARCH 11 TO JULY 12, 1968, AS SHOWN ON THE VOUCHER EVIDENCING PAYMENT OF THE TRAVEL AND OTHER TRANSPORTATION ALLOWANCES UNDER LETTER ORDER NO. 778, DATED AUGUST 24, 1967, AS AMENDED. ACCORDINGLY, THE SETTLEMENT OF JUNE 20, 1969, IS SUSTAINED.

CONCERNING YOUR REQUEST FOR THE RETURN OF YOUR COMPLETE FILE, YOU ARE ADVISED THAT THE FILE IS THE BASIS UPON WHICH OUR ACTION IS TAKEN AND IT HAS BECOME A PART OF THE PERMANENT RECORD OF THIS OFFICE AND MAY NOT BE RETURNED. 8 GAO 4. HOWEVER, WE ARE RETURNING COPIES OF YOUR CLAIM, STATEMENTS, ORDERS, THE CERTIFICATE DATED JULY 12, 1968, AND OTHER PAPERS FOR YOUR RECORDS.