B-120392, JULY 14, 1954, 34 COMP. GEN. 23

B-120392, JULY 14, 1954, 34 COMP. GEN. 23

SUBSISTENCE - PER DIEM - MILITARY, NAVAL, ETC., PERSONNEL - TRAVEL STATUS - TRAVEL INCIDENT TO MEMBER'S OF UNIFORMED SERVICES PRIMARY DUTY UNDER THE JOINT TRAVEL REGULATIONS A MEMBER MAY NOT BE REGARDED AS BEING IN A TRAVEL STATUS WHEN TRAVEL IS NOT FOR THE PURPOSE OF MOVING FROM PLACE TO PLACE, BUT IS INCIDENT TO THE MEMBER'S PRIMARY DUTY, SO THAT MEMBER WHOSE PRIMARY DUTY WAS TO ACT AS TRAIN COMMANDER NECESSITATING TRAVEL IS NOT ENTITLED TO PER DIEM FOR PERIODS OF SUCH TRAVEL.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL E. S. GARLAND, DEPARTMENT OF THE ARMY, JULY 14, 1954:

BY FIFTH ENDORSEMENT OF JUNE 10, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF MARCH 5, 1954, FOR ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON FIVE SUBMITTED VOUCHERS, COVERING PER DIEM FOR CAPTAIN KENNETH G. COLEMAN, SERGEANT JOHN J. SCHMAHL, SERGEANT LEROY H. WEEKS, PRIVATE DON B. GOYER, AND CAPTAIN HUGH O. COLLINS.

THE ORDERS IN EACH CASE WERE ISSUED BY HEADQUARTERS, NORTHERN AREA COMMAND, APO 757, U.S. ARMY, AND EXCEPT FOR THE ORDERS TO PRIVATE GOYER THEY DIRECTED TRAVEL FROM " FRANKFURT/M" TO ONE OR TWO OTHER CITIES IN GERMANY ON TEMPORARY DUTY OF TWO TO FIVE DAYS, TO ACT AS TRAIN COMMANDER AND TO INSPECT U.S. MILITARY OR LEASED RAIL EQUIPMENT, UPON COMPLETION OF WHICH THEY WERE TO RETURN TO THEIR PROPER STATION. THE ORDERS TO PRIVATE GOYER DIRECTED TRAVEL TO NURNBERG, GERMANY, TO PERFORM DUTIES AS TRAIN COMMANDER FROM THE LATTER PLACE TO BREMERHAVEN, GERMANY, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. WITH THE EXCEPTION OF TRAVEL PERFORMED IN JUNE 1953 BY CAPTAIN COLEMAN, ALL OTHER TRAVEL WAS IN JANUARY 1954. IT IS STATED THAT THE PRIMARY DUTIES OF SUCH PERSONNEL DURING THE PERIODS OF ACTUAL TRAVEL WAS THAT OF TRAIN COMMANDER, EXCEPT THE TRAVEL OF PRIVATE GOYER FROM FRANKFURT TO NURNBERG AND FROM BREMERHAVEN TO FRANKFURT. IT IS STATED THAT MILITARY OR LEASED RAIL EQUIPMENT REFERRED TO IN FOUR OF SUCH ORDERS WAS EQUIPMENT AT THE TERMINAL POINTS OF TRAVEL AWAY FROM FRANKFURT.

PARAGRAPH 6451, JOINT TRAVEL REGULATIONS, PROVIDES:

EXPENSES INCURRED DURING PERIODS OF TRAVEL WHICH ARE INCIDENTAL TO OTHER DUTY (SUCH AS TRAVELING ABOARD A VESSEL IN PERFORMANCE OF TEMPORARY DUTY ON SUCH VESSEL) ARE NOT PAYABLE BY THE GOVERNMENT.

WHILE PARAGRAPHS 3050-1 AND 2, JOINT TRAVEL REGULATIONS, STATE THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES WHILE IN A "TRAVEL STATUS," DEFINED THEREIN AS INCLUDING TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY "WITHOUT REGARD TO WHETHER DUTY IS REQUIRED TO BE PERFORMED WHILE TRAVELING," IT APPEARS THAT IN VIEW OF THE MORE SPECIFIC PROVISIONS OF PARAGRAPH 6451, A MEMBER MAY NOT BE REGARDED AS BEING IN A TRAVEL STATUS WHERE THE TRAVEL IS NOT FOR THE PURPOSE OF MOVING HIS PLACE TO PLACE, BUT IS INCIDENT TO THE MEMBER'S PRIMARY DUTY. SINCE THE PRIMARY DUTY OF CAPTAINS COLEMAN AND COLLINS AND SERGEANT WEEKS AND SCHMAHL WAS THAT OF ACTING AS TRAIN COMMANDER, THEY WERE NOT IN A TRAVEL STATUS WHILE SO SERVING. HOWEVER, IT APPEARS THAT THEY PERFORMED TEMPORARY DUTY AT THE TERMINAL POINTS OF TRAVEL AWAY FROM FRANKFURT AND THEY ARE ENTITLED TO PER DIEM FOR EACH OF THE DAYS ON WHICH SUCH TEMPORARY DUTY WAS PERFORMED, LESS APPROPRIATE DEDUCTIONS FOR QUARTERS AND MEALS AVAILABLE OR FURNISHED. SEE PARAGRAPH 4253-1, JOINT TRAVEL REGULATIONS.

CONCERNING THE CLAIM OF PRIVATE GOYER, ELIMINATION OF THE PERIOD OF TRAVEL AS TRAIN COMMANDER FROM NURNBERG TO BREMERHAVEN ON JANUARY 22 AND 23 DOES NOT AFFECT HIS CLAIM SINCE HE WAS IN A TRAVEL STATUS FOR THE ENTIRE PERIOD OF ABSENCE FROM HIS PERMANENT STATION BECAUSE OF REQUIRED TRAVEL TO NURNBERG TO PERFORM DUTIES OF TRAIN COMMANDER FROM THAT PLACE TO BREMERHAVEN, AND REQUIRED TRAVEL FROM BREMERHAVEN TO PROPER STATION UPON COMPLETION OF SUCH DUTIES.

IF THE VOUCHERS, RETURNED HEREWITH, OTHER THAN THAT IN THE CASE OF PRIVATE GOYER WHICH APPEARS TO BE CORRECT AS NOW STATED, ARE AMENDED IN ACCORDANCE WITH THE FOREGOING, PAYMENT THEREON IS AUTHORIZED.