B-106440, MAY 2, 1952

B-106440, MAY 2, 1952

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL R.A. LOCKWOOD, FC:

BY FIRST INDORSEMENT OF NOVEMBER 6, 1951, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 15, 1951, TO THIS OFFICE FOR ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, COVERING THE PAYMENT OF PER DIEM TO CAPTAIN JOHN W. MALLORY, TC, FOR TRAVEL AND DUTY PERFORMED BY HIM DURING THE PERIOD JANUARY 3 TO FEBRUARY 6, 1951.

BY DEPARTMENT OF THE ARMY TRAVEL ORDERS OF DECEMBER 20, 1950, CAPTAIN MALLORY AND OTHER NAMED OFFICER PERSONNEL WERE DIRECTED TO PROCEED FROM THEIR DIFFERENT STATIONS IN THE UNITED STATES TO BIG DELTA, ALASKA, FOR TEMPORARY DUTY OF APPROXIMATELY 36 DAYS FOR THE PURPOSE OF ATTENDING THE ARCTIC INDOCTRINATION FIELD EXERCISE, UPON COMPLETION OF WHICH THEY WERE TO RETURN TO THEIR PROPER STATIONS. PER DIEM WAS PRESCRIBED IN SUCH ORDERS AS AUTHORIZED IN ARMY REGULATIONS 35 4820, JANUARY 30, 1948, AND IN SPECIAL REGULATIONS 35-3080-1, IF APPLICABLE. IT IS STATED THAT CAPTAIN MALLORY TRAVELED FROM NEW YORK, NEW YORK, TO BIG DELTA, DURING THE PERIOD JANUARY 3 TO 5, 1951, AND RETURNED TO NEW YORK DURING THE PERIOD FEBRUARY 4 TO 6, 1951, TRANSPORTATION BEING FURNISHED BY COMMERCIAL AND MILITARY AIRCRAFT; THAT GOVERNMENT QUARTERS WERE OCCUPIED DURING THE PERIOD JANUARY 4 TO FEBRUARY 3, 1951, AND THAT 85 MEALS WERE AVAILABLE AT A GOVERNMENT MESS DURING THE PERIOD INVOLVED.

IT APPEARS THAT THE DUTY HERE INVOLVED WAS DIVIDED INTO TWO PRINCIPAL PHASES, THE FIRST CONSISTING OF TRAINING IN TECHNIQUES OF ARTIC OPERATIONS FROM JANUARY 8 TO 20, 1951, AND THE SECOND CONSISTING PRIMARILY OF OPERATIONS IN THE FIELD FROM JANUARY 21 TO FEBRUARY 3, 1951. IT IS DISCLOSED ALSO THAT APPROXIMATELY 20% OF THE FIRST PHASE AND 90% OF THE SECOND WAS CONDUCTED OUTSIDE THE LIMITS OF THE ARMY ARCTIC CENTER RESERVATION AT BIG DELTA. THE RECORD IS IN CONFLICT AS TO WHETHER THE ARCTIC INDOCTRINATION FIELD EXERCISE SHOULD BE CLASSED AS A FIELD EXERCISE IN THE NATURE OF A MANEUVER, HEADQUARTERS, UNITED STATES ARMY, ALASKA, A.P.O. 942, IN CARE OF POSTMASTER, SEATTLE, WASHINGTON, TAKING THE AFFIRMATIVE VIEW IN SIXTH INDORSEMENT OF OCTOBER 4, 1950, AND THE OFFICE OF THE ASSISTANT CHIEF OF STAFF, G-3, DEPARTMENT OF THE ARMY, CONTENDING FOR THE OPPOSITE VIEW IN SIXTH INDORSEMENT OF JULY 5, 1951. IT IS STATED THAT THE EXERCISE INVOLVED INDIVIDUALS RATHER THAN TROOP UNITS AND THAT THE ONLY TROOP UNITS PARTICIPATING WERE THOSE PERMANENTLY STATIONED AT OR NEAR BIG DELTA, WHO WERE UTILIZED BY THE ARMY ARCTIC CENTER IN CONDUCTING THE INSTRUCTION AND OTHER PHASES OF THE EXERCISE FOR THE INDIVIDUALS ATTENDING.

IN CONSTRUING THE PROVISIONS OF PARAGRAPH 2D(2) (D) ARMY REGULATIONS 35- 4820, JANUARY 30, 1948, WHICH DEFINE THE TERM "TRAVEL STATUS" AS INCLUDING NECESSARY TEMPORARY DUTY AWAY FROM PERMANENT STATION WITHOUT REGARD TO WHETHER SOME DUTY EN ROUTE MAY BE INVOLVED, SUCH AS RECONNAISSANCE, MILITARY SURVEY, CONVOY, "OR DUTY PERTAINING TO AERIAL OR OTHER MANEUVERS," IT WAS HELD IN THE DECISION OF THIS OFFICE DATED APRIL 27, 1950, 29 COMP. GEN. 431, THAT INDIVIDUALS ORDERED TO ONE OR MORE OF THE HEADQUARTERS OF THE MANEUVER OPERATIONS THERE INVOLVED FOR TEMPORARY DUTY, AS DISTINGUISHED FROM DUTY WITH PARTICIPATING TROOPS IN SAID MANEUVERS, MAY BE REIMBURSED FOR TRAVELING EXPENSES INCLUDING PER DIEM WHEN PROPERLY PRESCRIBED, PROVIDED THEY WERE NOT IN A TRAVEL WITH TROOPS STATUS. PARAGRAPH 2D(3) OF THE ABOVE CITED REGULATIONS PROVIDES THAT AN OFFICER IS TRAVELING WITH TROOPS "WHEN HE IS TRAVELING AS A MEMBER OF, OR ON DUTY WITH ANY BODY OF TROOPS WHICH IS SUBSISTED EN ROUTE FROM A KITCHEN CAR, ROLLING KITCHEN, FIELD RANGE, OR OTHER COMPARABLE FACILITIES FOR PREPARING COMPLETE COOKED MEALS."

CAPTAIN MALLORY WAS ORDERED TO PROCEED TO BIG DELTA FOR THE PURPOSE OF ATTENDING THE ARCTIC INDOCTRINATION FIELD EXERCISE, WHICH APPEARS TO HAVE INVOLVED DUTY BOTH AT BIG DELTA AND IN THE FIELD, WITH TROOP UNITS STATIONED AT OR NEAR BIG DELTA BEING UTILIZED IN CONDUCTING THE INSTRUCTION AND OTHER PHASES OF THE EXERCISE. IT APPEARS THAT DURING THAT PERIOD, THE OFFICERS INVOLVED WERE FURNISHED SHELTERING FACILITIES AND MEALS BY THE GOVERNMENT. DURING A MAJORITY OF THE PERIOD, IT APPEARS THAT SUCH MEALS WERE FURNISHED THROUGH THE USE OF ROLLING KITCHENS OR FIELD RANGES WHICH SERVED THE ENLISTED MEN AND THAT SHELTERING WAS PROVIDED WITH THE TROOPS IN THE FIELD. UNDER SUCH CIRCUMSTANCES THE OFFICERS APPEAR TO HAVE BEEN IN A TRAVEL WITH TROOPS STATUS, AS CONTEMPLATED BY THE REGULATIONS, DURING THE PERIOD OF THEIR ASSIGNMENT AT BIG DELTA. COMPARE PARAGRAPH 4201 OF THE CURRENT JOINT TRAVEL REGULATIONS WHICH PROVIDES:

"PER DIEM ALLOWANCES ARE NOT PAYABLE FOR THE FOLLOWING PERIODS:

"7. FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS, AND DUTY AS OBSERVER, UMPIRE, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. (THIS EXCEPTION DOES NOT APPLY TO MEMBERS DURING THE PERIOD THEY ARE ACTUALLY ENGAGED IN THE ADVANCE PLANNING AND CRITIQUE PHASES OF THE OPERATION.);"

ACCORDINGLY, IT IS NOT ESTABLISHED THAT CAPTAIN MALLORY IS ENTITLED TO PER DIEM EXCEPT FOR THE PERIODS OF ACTUAL TRAVEL FROM NEW YORK TO BIG DELTA AND RETURN. IF THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AMENDED TO PROVIDE FOR PAYMENT IN ACCORDANCE WITH THE FOREGOING, PAYMENT THEREON IS AUTHORIZED, IF CORRECT IN OTHER RESPECTS.