B-122179, AUGUST 22, 1957, 37 COMP. GEN. 126

B-122179, AUGUST 22, 1957, 37 COMP. GEN. 126

MILITARY PERSONNEL - PER DIEM - FIELD DUTY - AMENDATORY ORDERS AMENDATORY ORDERS WHICH PURPORT TO RETROACTIVELY ELIMINATE THE PROHIBITION AGAINST PER DIEM TO NAVY OFFICERS AND ENLISTED MEN ORDERED TO TEMPORARY FIELD DUTY IN " OPERATION DEEPFREEZE" ON THE ANTARCTIC CONTINENT MAY NOT BE RECOGNIZED TO PERMIT PAYMENT OF PER DIEM IN THE ABSENCE OF A SHOWING THAT THE ASSIGNMENT IS NOT WITHIN THE MEANING OF "OTHER SIMILAR ACTIVITIES" IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS WHICH PRECLUDES PAYMENT OF PER DIEM FOR FIELD EXERCISES, MANEUVERS AND OTHER SIMILAR ACTIVITIES. MODIFIED BY 37 COMP. GEN. 683.

TO THE SECRETARY OF THE NAVY, AUGUST 22, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 27, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REQUESTING DECISION AS TO THE VALIDITY OF THE CLAIM OF COMMANDER HENRY P. JORDA, USN, FOR PER DIEM WHILE PERFORMING TEMPORARY DUTY ON THE ANTARCTIC CONTINENT, AND WHETHER OTHER CLAIMS BASED ON IDENTICAL ORDERS MAY BE PAID BY NAVY DISBURSING OFFICERS, IF OTHERWISE PROPER, WITHOUT SUBMISSION TO THE GENERAL ACCOUNTING OFFICE.

COMAIRLANT SPEEDLETTER OF SEPTEMBER 5, 1956, QUOTED IN ORDERS OF SEPTEMBER 7, 1956, AUTHORIZED THE ISSUANCE OF TEMPORARY ADDITIONAL DUTY ORDERS DIRECTING A NUMBER OF OFFICERS AND ENLISTED MEN TO PROCEED TO THE ANTARCTIC CONTINENT FOR PERIODS OF TEMPORARY DUTY OF VARYING DURATION IN CONNECTION WITH OPERATION DEEPFREEZE, UPON COMPLETION OF WHICH THEY WERE TO RETURN TO THEIR STATIONS IN THE UNITED STATES, AND IT WAS DIRECTED THAT THE FOLLOWING SENTENCE BE INCLUDED IN SUCH ORDERS: " ANY PERIOD SPENT ON THE ANTARCTIC CONTINENT IS CONSIDERED TO BE FIELD DUTY X THEREFORE NOT ENTITLED TO PER DIEM.' MEMORANDUM ENDORSEMENT OF NOVEMBER 5, 1956, DIRECTED THE DELETION OF THE ABOVE QUOTED SENTENCE FROM SUCH ORDERS. APPEARS THAT THE OFFICER PERFORMED TEMPORARY DUTY ON THE ANTARCTIC CONTINENT DURING THE PERIOD OCTOBER 18 TO DECEMBER 8, 1956. PER DIEM HAS BEEN PAID CLAIMANT PROSPECTIVELY PURSUANT TO THE NOVEMBER 5, 1956, MODIFICATION OF ORDERS. HIS PRESENT CLAIM IS FOR THE PERIOD OCTOBER 18 TO NOVEMBER 4, 1956.

IT IS REPORTED THAT THE ANTARCTIC BASES ARE MILITARY INSTALLATIONS OF A PERMANENT NATURE WITH PERSONNEL ASSIGNED THERETO IN A PERMANENT DUTY STATUS AND THAT OTHER ISSUING AUTHORITIES, INCLUDING THE BUREAU OF NAVAL PERSONNEL, WHICH ISSUED ORDERS FOR THE PERFORMANCE OF TEMPORARY DUTY ON THE ANTARCTIC CONTINENT--- OTHER THAN THE COMMANDER AIR FORCE, U.S. ATLANTIC FLEET--- DID NOT REGARD SUCH TEMPORARY DUTY AS FIELD DUTY. HIS LETTER THE ASSISTANT SECRETARY POINTS OUT THAT THE TERM FIELD DUTY IS NOT MENTIONED IN THE JOINT TRAVEL REGULATIONS WHILE AT THE SAME TIME HE STATES THAT EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, DEFINES FIELD DUTY AS INCLUDING SERVICE WITH TROOPS ON MANEUVERS, WAR GAMES, FIELD EXERCISES, OR SIMILAR TYPES OF OPERATIONS, WHICH ARE PRECISELY THE ACTIVITIES COVERED IN PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS. HE GOES ON TO SAY THAT THE DUTY PERFORMED IN ANTARCTICA IS NOT CONSIDERED SIMILAR TO THE TYPE OF DUTY MENTIONED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS--- FIELD EXERCISES, MANEUVERS, AND OTHER SIMILAR ACTIVITIES--- FOR WHICH PER DIEM IS NOT PAYABLE.

WHILE THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), UNDER WHICH REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS FOR TRAVEL PERFORMED "AWAY FROM THEIR DESIGNATED POSTS OF DUTY" ARE PROMULGATED, ARE BROAD IN SCOPE, IT IS NOT BELIEVED THAT THE CONGRESS INTENDED THAT PER DIEM BE PAID TO MEMBERS UNDER CONDITIONS WHERE SUCH PAYMENTS WOULD NOT BE IN LIEU OF REIMBURSEMENT FOR EXPENSE INCURRED ON ACCOUNT OF THE DUTY ENJOINED BUT WOULD ENRICH THEM AT THE EXPENSE OF THE GOVERNMENT. IN CASES WHERE BOTH QUARTERS AND MESSING FACILITIES ARE AVAILABLE TO MEMBERS ON TEMPORARY DUTY, THE PRESENT REGULATIONS PROVIDE FOR A MONEY PAYMENT OF A PART OF THE PER DIEM WITH TWO EXCEPTIONS. THE FIRST OF THESE EXCEPTIONS, WHICH IS FOUND IN FOOTNOTE Z TO PARAGRAPH 4205, VESTS IN THE SECRETARY OF THE DEPARTMENT CONCERNED AUTHORITY TO PRESCRIBE NO PER DIEM OR PER DIEM IN LESSER AMOUNTS THAN THOSE APPEARING IN THE REGULATIONS, BUT ONLY WHEN THE CIRCUMSTANCES OF THE TRAVEL OR DUTY TO BE PERFORMED ARE PECULIAR TO THAT DEPARTMENT. THE SECOND EXCEPTION IS SOMEWHAT BROADER AND APPEARS IN PARAGRAPHS 4201-6 AND 4250-3. IT PROVIDES THAT PER DIEM IS NOT PAYABLE WHILE MEMBERS ARE PARTICIPATING IN FIELD EXERCISES AND THE LIKE BUT IS CIRCUMSCRIBED BY A SUBPROVISION THAT THIS PROHIBITION SHALL NOT APPLY WHERE SUCH TEMPORARY DUTY IS PERFORMED ON AN INSTALLATION OF THE UNIFORMED SERVICES. THIS LATTER EXCEPTION IS INCLUDED IN THE REGULATIONS ON THE BASIS THAT THE DUTY INVOLVED WHEN ASSIGNED AS INDICATED IS SUCH THAT NO EXPENSE FOR WHICH PER DIEM SHOULD BE PAID WOULD BE INCURRED.

AT LEAST AS RECENTLY AS DECEMBER 5, 1956, THE COURT OF CLAIMS POINTED OUT THAT A PER DIEM ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN HOTELS AND RESTAURANTS, AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF ABODE. THAT IS, IT IS SUPPOSED TO COVER THE "EXTRA" EXPENSES "INCIDENT TO TRAVELING.' BORNHOFT V. UNITED STATES, C.1CLS. NO. 468-55, DECIDED DECEMBER 5, 1956. THERE IS NO AUTHORITY FOR PAYMENT OF A TRAVEL PER DIEM ALLOWANCE BECAUSE THE TEMPORARY DUTY PERFORMED MAY INVOLVE HAZARD AND HARDSHIP. WHILE THE CITED CASE INVOLVED A CIVILIAN EMPLOYEE OF THE GOVERNMENT IT APPLIES WITH EQUAL FORCE TO SERVICE PERSONNEL "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY" IN A TEMPORARY DUTY STATUS.

AS THE REGULATIONS MENTIONED ABOVE INDICATE, THERE ARE SITUATIONS IN WHICH MEMBERS PERFORM TEMPORARY DUTY UNDER CIRCUMSTANCES WHERE BOTH QUARTERS AND MEALS ARE FURNISHED AND EXPENSES INCURRED FOR INCIDENTALS ARE LITTLE, IF ANY, MORE THAN WOULD NECESSARILY HAVE BEEN INCURRED DURING THE SAME PERIOD AT THE PERMANENT STATION. THERE CAN BE NO DOUBT THAT A REGULATION TO RESTRICT PAYMENT OF PER DIEM IN SUCH CASES IS WITHIN THE INTENT OF THE LAW AND IF THE REGULATIONS ARE NOT BROAD ENOUGH TO EFFECTIVELY DENY PER DIEM IN SITUATIONS SUCH AS HERE INVOLVED, WHERE APPARENTLY NO EXTRA EXPENSE INCIDENT TO TEMPORARY DUTY IS INCURRED, WE ARE DOUBTFUL THAT THE REGULATIONS GOVERNING THE PAYMENT OF PER DIEM ARE CONSISTENT WITH THE INTENT OF THE CONGRESS.

WITH RESPECT TO DUTY OTHERWISE WITHIN PARAGRAPHS 4201-6 AND 4250-3 PERFORMED "ON AN TALLATION," THE DEPARTMENT OF THE AIR FORCE STATED ON ITS OWN BEHALF IN A LETTER TO US OF FEBRUARY 24, 1956, THAT IT CONSIDERED THAT PER DIEM SHOULD BE PAID FOR SUCH DUTY BECAUSE THE AIR FORCE COUNTERPART OF MANEUVERS NORMALLY IS CONDUCTED AT "FIXED INSTALLATIONS" WHERE THE PERSONNEL ENGAGED IN SUCH OPERATIONS INCUR THE SAME EXPENSES AS PERSONNEL PERFORMING OTHER TYPES OF TEMPORARY DUTY THERE. PRESUMABLY THE "FIXED INSTALLATIONS" REFERRED TO ARE LOCATED IN SETTLED AREAS AND THE SITUATION IS SUCH THAT MEMBERS ARE REQUIRED TO LOOK, AT LEAST IN PART, TO COMMERCIAL ENTERPRISES IN THE AREA TO MEET THEIR NEEDS. ON THIS BASIS, IT SEEMS DOUBTFUL THAT " DEEPFREEZE," LOCATED AT A PLACE WHERE NO COMMERCIAL FACILITIES HAVE BEEN ESTABLISHED AND WHERE THE CONDITIONS ARE SUCH AS WOULD APPEAR TO NEGATIVE ANY NECESSITY FOR INCURRING ANY ADDITIONAL EXPENSES, IS IN FACT AN INSTALLATION WITHIN THE MEANING OF THE REGULATIONS IRRESPECTIVE OF WHETHER IT BE REGARDED AS A MILITARY INSTALLATION OR AS AN ENCAMPMENT OF AN INDEFINITE DURATION.

IN VIEW OF THE ABOVE, IT SEEMS CLEAR THAT THE ORDER ISSUING AUTHORITY IN ISSUING THE ORDERS OF SEPTEMBER 7, 1956, AFTER AN EVALUATION OF THE FACTUAL SITUATION INVOLVED IN THE ASSIGNMENT, INTENDED THAT NO PER DIEM WOULD BE PAID FOR THE TEMPORARY DUTY INVOLVED. THE CONTENTION THAT THESE ORDERS NOW SHOULD BE AMENDED TO RETROACTIVELY EXCLUDE THE PROVISION AGAINST PAYMENT OF PER DIEM APPEARS TO BE PREDICATED, NOT SO MUCH UPON THE BASIS THAT IT WAS NOT INTENDED IN THE FIRST INSTANCE, BUT BECAUSE OTHER SERVICES DID NOT DENY PER DIEM TO THEIR PERSONNEL SIMILARLY ASSIGNED.

WHETHER A PARTICULAR ASSIGNMENT IS AN ASSIGNMENT WITHIN THE SCOPE OF PARAGRAPHS 4201-6 OR 4250-3 IS A QUESTION OF FACT. THE FACTS SURROUNDING THE ASSIGNMENT ARE EVALUATED, USUALLY BY THE ADMINISTRATIVE OFFICE IN THE FIRST INSTANCE, AND BASED UPON THAT EVALUATION A DETERMINATION IS MADE. IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR DUTY ASSIGNMENT. FROM INFORMATION AVAILABLE TO THE PUBLIC GENERALLY, IT APPEARS THAT " DEEPFREEZE" ASSIGNMENTS FALL WITHIN THE PURPOSE OF PARAGRAPH 4250-3 AND THE USE OF THE WORDS "OTHER SIMILAR ACTIVITIES" IN THAT PARAGRAPH WOULD WARRANT A CONCLUSION THAT SUCH ASSIGNMENTS ARE WITHIN THE WORDS OF THAT PARAGRAPH. IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH ASSIGNMENTS DO NOT INVOLVE "OTHER SIMILAR ACTIVITIES * * * WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED," WE WOULD NOT BE JUSTIFIED IN RECOGNIZING THE ORDERS OF NOVEMBER 5, 1956, AS PROPERLY AMENDING THE ORDERS OF SEPTEMBER 7, 1956. ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED AND SIMILAR CLAIMS MENTIONED IN THE LETTER OF JUNE 27, 1957, WOULD INVOLVE TOO MUCH DOUBT FOR PAYMENT ADMINISTRATIVELY.