B-122179, APRIL 17, 1958, 37 COMP. GEN. 683

B-122179, APRIL 17, 1958, 37 COMP. GEN. 683

MILITARY PERSONNEL - PER DIEM - FIELD DUTY - AMENDATORY ORDERS ON THE BASIS OF A SHOWING THAT AN ADMINISTRATIVE ERROR WAS MADE IN DESIGNATING DUTY IN CONNECTION WITH " OPERATION DEEPFREEZE" ON THE ANTARCTIC CONTINENT AS MANEUVERS, FIELD EXERCISES OR OTHER SIMILAR ACTIVITIES AS CONTEMPLATED BY PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS AND THAT THE AMENDATORY ORDERS WERE ISSUED ON A RE EVALUATION OF THE ACTUAL FACTS WHICH INDICATES THAT THE DUTY RELATES TO THE INTERNATIONAL GEOPHYSICAL YEAR AND INCLUDES RESEARCH, EXPLORATION, CONSTRUCTION AND MAINTENANCE, PER DIEM PAYMENTS MAY BE MADE. 37 COMP. GEN. 126, MODIFIED. TEMPORARY DUTY ORDERS WHICH DESIGNATE A PARTICULAR TYPE OF DUTY AS MANEUVER-FIELD EXERCISE OR OTHER SIMILAR ACTIVITY WITHIN THE PURVIEW OF PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS WHICH PRECLUDE PAYMENT OF PER DIEM WILL BE GIVEN EFFECT IN THE AUDIT OF ACCOUNTS AND SETTLEMENTS OF CLAIMS ON THE BASIS OF SUCH DESIGNATION FOR THE REASON THAT THE ORDER ISSUING AUTHORITY SHOULD BE WELL ACQUAINTED WITH THE CONDITIONS UNDER WHICH THE DUTY WILL BE PERFORMED.

TO THE SECRETARY OF THE NAVY, APRIL 17, 1958:

REFERENCE IS MADE TO LETTER OF MARCH 6, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY ( MATERIAL), REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED AUGUST 22, 1957, 37 COMP. GEN. 126, REMOVAL OF ALL AUDIT EXCEPTIONS BASED ON THAT DECISION, AND APPROVAL OF ALL OTHERWISE PROPER PAYMENTS OF PER DIEM ALLOWANCES FOR TEMPORARY DUTY ON THE ANTARCTIC CONTINENT FOR THE ENTIRE PERIOD OF SUCH DUTY PERFORMED UNDER THE ORDERS ENCLOSED, AS MODIFIED, AND OTHER SIMILAR ORDERS.

THE ORDERS HERE INVOLVED ARE SIMILAR TO THOSE CONSIDERED IN OUR DECISION OF AUGUST 22, 1957, IN THAT THE ORIGINAL ORDERS INCLUDED A PROVISION THAT THE ORDERED TEMPORARY DUTY WAS CONSIDERED TO BE FIELD DUTY AND THAT PROVISION LATER WAS DELETED BY MEMORANDUM ENDORSEMENT DATED NOVEMBER 5, 1956, FROM COMAIRLANT, THE AUTHORITY WHICH DIRECTED THE ISSUANCE OF THE ORIGINAL ORDERS. IT WAS ASSUMED BY US THAT THE ORIGINAL DETERMINATION BY THE COMMANDER AIR FORCE, U.S. ATLANTIC FLEET, THAT DUTY ON THE ANTARCTIC CONTINENT WAS FIELD DUTY, WAS BASED ON THE CONSIDERATION OF THE ACTUAL FACTS INVOLVED. THE MEMORANDUM ENDORSEMENT OF NOVEMBER 5, 1956, CONTAINED NO INFORMATION WHICH INDICATED THAT SUCH DETERMINATION WAS INCORRECT AND THE ENDORSEMENT APPEARED TO BE BASED ON CONSIDERATIONS OTHER THAN THE ACTUAL FACTS INVOLVED. ON THE SHOWING MADE, IT WAS FELT THAT THE MATTER WAS TOO DOUBTFUL TO WARRANT THE CONCLUSION THAT THE MEMORANDUM ENDORSEMENT CONSTITUTED A PROPER AMENDMENT TO THE ORIGINAL ORDERS AND YOU WERE ADVISED THAT PAYMENT ON THE SUBMITTED VOUCHER, WHICH INVOLVED THE PERIOD PRIOR TO NOVEMBER 5, 1956, WAS NOT AUTHORIZED. THE COPY OF THE AUDIT EXCEPTION ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER OF MARCH 6, 1958, INVOLVED THE PERIOD NOVEMBER 5, 1956, TO JANUARY 20, 1957.

IN LETTER OF JUNE 27, 1957--- CONSIDERED IN OUR DECISION OF AUGUST 22, 1957--- THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) EXPRESSED THE VIEW THAT THE DUTY PERFORMED IN ANTARCTICA WAS NOT SIMILAR TO THE TYPE OF DUTY MENTIONED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS. IT IS NOW STRONGLY ASSERTED THAT YOU DO NOT CONSIDER OPERATION DEEPFREEZE AS COMING WITHIN THE PURVIEW OF SUCH REGULATIONS, IT BEING STATED THAT THE DUTY IS PERFORMED AT MILITARY INSTALLATIONS OF A PERMANENT NATURE AND THAT SINCE OPERATION DEEPFREEZE IS A PROJECT OF A CONTEMPLATED DURATION OF SEVERAL YEARS IN CONNECTION WITH THE INTERNATIONAL GEOPHYSICAL YEAR AND INCLUDES ASSIGNMENTS RELATING TO RESEARCH, EXPLORATION, CONSTRUCTION AND MAINTENANCE, IT CANNOT BE CONCEIVED AS CONSTITUTING THE MANEUVER-FIELD EXERCISE OR OTHER "SIMILAR ACTIVITIES" TYPE OF DUTY CONTEMPLATED BY PARAGRAPH 4250 3 OF THE JOINT TRAVEL REGULATIONS. IT IS STATED FURTHER THAT THE FIELD DUTY DESIGNATION IN THE ORDERS INVOLVED WAS AN ERROR ON THE PART OF THE COMMANDER AIR FORCE, U.S. ATLANTIC FLEET, APPARENTLY BEING BASED ON MISINFORMATION CONCERNING THE CONDITIONS OF THE INSTALLATION AND NATURE OF THE ASSIGNMENTS ON THE ANTARCTIC CONTINENT, AND THAT THE MODIFICATION WAS ISSUED ON REEVALUATION OF THE ACTUAL FACTS INVOLVED.

IT HAS BEEN OUR POLICY TO GIVE EFFECT TO PROVISIONS IN ORDERS DESIGNATING A PARTICULAR DUTY AS OF A TYPE COVERED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS BECAUSE OF THE PROBABILITY THAT THE ORDER ISSUING AUTHORITY IS WELL ACQUAINTED WITH THE CONDITIONS UNDER WHICH IT IS EXPECTED THAT THE DUTY WILL BE PERFORMED, AND WE WILL CONTINUE TO AUDIT PAYMENTS AND CONSIDER CLAIMS ON THAT BASIS. SINCE IT NOW APPEARS, HOWEVER, THAT THE ORIGINAL ORDERS IN THESE CASES WERE IN ERROR AND THAT THE REFERENCE IN SUCH ORDERS TO FIELD DUTY WAS DELETED FOR THAT REASON, OTHERWISE PROPER PAYMENTS OF PER DIEM MAY BE MADE ADMINISTRATIVELY FOR PERIODS PRIOR TO THE ISSUANCE OF THE AMENDATORY ORDERS AND EXCEPTIONS ISSUED AGAINST PAYMENTS MADE ON AND AFTER THE EFFECTIVE DATE OF SUCH AMENDATORY ORDERS WILL BE REMOVED. 24 COMP. GEN. 439. THE DECISION OF AUGUST 22, 1957, IS MODIFIED ACCORDINGLY.