B-143018, DEC. 20, 1960

B-143018, DEC. 20, 1960

TO SECOND LIEUTENANT JAMES L. WOODWARD:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1960, REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION TO YOU DATED OCTOBER 13, 1960, B-143018, WHICH SUSTAINED THE ACTION TAKEN IN OUR SETTLEMENT OF APRIL 28, 1960, IN DISALLOWING YOUR CLAIM FOR PER DIEM INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT RANGER MOUNTAIN TRAINING CAMP. DAHLONEGA, GEORGIA, DURING THE PERIOD AUGUST 3 TO SEPTEMBER 21, 1959.

MILEAGE WAS AUTHORIZED IN THE DECISION OF OCTOBER 13, 1960, FROM DAHLONEGA TO FORT BENNING, GEORGIA. HOWEVER, YOU WERE ADVISED THAT PARAGRAPH 7C (1) OF ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, IMPLEMENTING PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS, PROVIDES FOR PAYMENT OF A PER DIEM ALLOWANCE FOR TEMPORARY DUTY PERFORMED AT THE SITE OF THE OPERATION ON AN INSTALLATION OF THE UNIFORMED SERVICES IN CONNECTION WITH MANEUVERS, EXERCISES, SIMULATED WAR GAMES AND OTHER SIMILAR ACTIVITIES DURING PERIODS FROM THE DAY FOLLOWING ARRIVAL AT THE SITE THROUGH THE DAY PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION, AND FROM AND INCLUDING THE CLOSING DATE OF THE ACTUAL OPERATION, THROUGH THE DAY PRECEDING DEPARTURE FROM THE SITE. PER DIEM IS NOT AUTHORIZED FROM THE BEGINNING DATE OF THE ACTUAL OPERATION THROUGH THE DATE PRECEDING ITS TERMINATION. AS STATED IN OUR DECISION, THE ARMY HAS REPORTED THAT THE TRAINING MISSION TO WHICH YOU WERE ASSIGNED OPENED AUGUST 3, 1959, AND CLOSED OCTOBER 17, 1959, AND THAT IT WAS DETERMINED THAT THE DUTY YOU PERFORMED AT DAHLONEGA WAS OF THE TYPE FOR WHICH PAYMENT OF PER DIEM IS RESTRICTED BY PARAGRAPH 7C (1) OF ARMY REGULATIONS 35-3080.

YOU CONTEND THAT PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 7C (1) OF ARMY REGULATIONS 35-3080 DO NOT APPLY BECAUSE YOU WERE NOT PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS, RESERVE OFFICERS TRAINING CORPS STUDENTS OR OTHER SIMILAR ACTIVITIES, BUT THAT YOU WERE ON ACTIVE DUTY WITH THE UNITED STATES ARMY AT THE TIME THE TEMPORARY DUTY OCCURRED. YOU POINT OUT THAT PARAGRAPH 2 OF ORDERS ISSUED BY HEADQUARTERS, UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA, DATED JULY 31, 1959, CLEARLY STATED THAT THE TEMPORARY DUTY WAS A TRAINING MISSION--- THE PURPOSE BEING TO CONSTRUCT A SEWAGE LAGOON--- AND YOU CONTEND THAT PARAGRAPH 7C (2) OF ARMY REGULATIONS 35-3080, PERTAINING TO TRAINING ENCAMPMENTS, APPLIES.

PARAGRAPH 4 OF ARMY REGULATIONS 35-3080 STATES IT TO BE THE POLICY UNDER THOSE REGULATIONS TO AUTHORIZE PER DIEM AS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING OF THE OPERATION AND DURING THE CLOSE-OUT PHASE OF THE OPERATION. PER DIEM IS NOT PAYABLE DURING THE ACTUAL PERIOD OF THE MANEUVER OR EXERCISE ON THE PREMISE THAT THE OPERATION IS DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS. THE PARAGRAPH FURTHER STATES THAT PER DIEM IS PAYABLE TO ACTIVE ARMY PERSONNEL ON TEMPORARY DUTY IN CONNECTION WITH TRAINING ENCAMPMENTS DURING THE ENTIRE PERIOD OF TEMPORARY DUTY AT THE RATES PRESCRIBED IN PARAGRAPH 7 ON THE BASIS THAT SUCH PERSONNEL ARE NOT MEMBERS OF THE GROUPS BEING TRAINED.

IN VIEW OF THE ABOVE STATEMENT OF POLICY, IT APPEARS THAT PARAGRAPH 7C (2) CONTEMPLATES THE PAYMENT OF PER DIEM AT THE RATES THERE PRESCRIBED TO ACTIVE ARMY PERSONNEL WHO ARE ON TEMPORARY DUTY IN CONNECTION WITH TRAINING ENCAMPMENTS SUCH AS THOSE HELD FOR RESERVE OFFICERS TRAINING CORPS STUDENTS OR TRAINING ENCAMPMENTS FOR RESERVE OFFICERS. PER DIEM IS NOT PAYABLE UNDER THAT SUBPARAGRAPH TO THE GROUPS BEING TRAINED, BUT IS AUTHORIZED TO BE PAID ONLY TO THE ACTIVE ARMY PERSONNEL ON TEMPORARY DUTY IN CONNECTION WITH SUCH TRAINING ENCAMPMENTS, BUT WHO ARE NOT MEMBERS OF THE GROUPS BEING TRAINED.

THE QUESTION OF WHETHER AN ASSIGNMENT FALLS WITHIN THE SCOPE OF PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 7C (1) OR PARAGRAPH 7C (2) OF ARMY REGULATIONS 35-3080 IS ONE OF FACT FOR DETERMINATION PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT. AFTER CONSIDERATION OF THE CIRCUMSTANCES UNDER WHICH YOUR TEMPORARY DUTY WAS DIRECTED TO BE PERFORMED, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE TYPE OF DUTY YOU PERFORMED WAS WITHIN THE PURVIEW OF THAT CONTEMPLATED BY PARAGRAPH 7C (1) OF ARMY REGULATIONS 35-3080. NOTHING IN THE RECORD BEFORE US INDICATES THAT YOU WERE ON ACTIVE DUTY IN CONNECTION WITH TRAINING ENCAMPMENT ACTIVITIES WITHIN THE CONTEMPLATION OF PARAGRAPH 7C (2). RATHER, IT APPEARS THAT THE TRAINING MISSION WAS A FIELD EXERCISE WITHIN THE CONTEMPLATION OF PARAGRAPH 7C (1), AND THAT THE EXERCISE WAS IN ACTUAL OPERATION DURING THE ENTIRE PERIOD OF YOUR TEMPORARY DUTY AT THE SITE OF SUCH EXERCISE. IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY, NO PROPER BASIS EXISTS FOR THE PAYMENT OF PER DIEM TO YOU DURING THE PERIOD INVOLVED.

ACCORDINGLY, THAT PART OF OUR DECISION OF OCTOBER 13, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER ..END :