B-124804, NOV. 18, 1955

B-124804, NOV. 18, 1955

TO CAPTAIN WILLIAM H. FLACK, USAFR:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1955, REQUESTING REVIEW OF SETTLEMENT OF AUGUST 19, 1952, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY DURING THE PERIOD MARCH 13 TO NOVEMBER 15, 1944.

UNDER ORDERS OF HEADQUARTERS, ARMY AIR FORCES WESTERN TECHNICAL TRAINING COMMAND, DENVER, COLORADO, DATED JANUARY 10, 1944, A GROUP OF EIGHT ENLISTED MEN, WITH YOU AS COMMISSIONED OFFICER IN CHARGE, DESIGNATED AS P- 47 MOBILE TRAINING UNIT NO. 85, WERE DIRECTED TO PROCEED FROM FARMINGDALE, NEW YORK, WHERE THEN ON TEMPORARY DUTY, TO SEYMOUR JOHNSON FIELD, GOLDSBORO, NORTH CAROLINA, FOR TEMPORARY DUTY ON TECHNICAL TRAINING MATTERS. A FLAT PER DIEM OF $7 WHILE TRAVELING AND OF $3.50 WHILE ON TEMPORARY DUTY WERE AUTHORIZED FOR PAYMENT TO YOU UNDER THE ORDERS. PARAGRAPH 11, SPECIAL ORDERS NO. 73, HEADQUARTERS, SEYMOUR JOHNSON FIELD, DATED MARCH 13, 1944, ASSIGNED YOU AND THE ENLISTED MEN OF THE MOBILE TRAINING UNIT AS AN ELEMENT OF SHIPMENT 0941 AND DIRECTED THAT YOU PROCEED TO CAMP KILMER, NEW JERSEY, AND REPORT THERE FOR FURTHER ORDERS. THE ORDERS STATED THAT THE MOVEMENT WAS A TEMPORARY CHANGE OF STATION AND THAT THE VARIOUS UNITS INVOLVED WERE BEING SENT ON TEMPORARY DUTY FOR A PERIOD NOT TO EXCEED SIX MONTHS, UPON THE COMPLETION OF WHICH THEY WOULD BE RETURNED TO THE CONTINENTAL UNITED STATES. THOSE ORDERS CONTAINED NO PER DIEM AUTHORIZATION FOR OFFICER PERSONNEL. MOVEMENT ORDERS DATED MARCH 19, 1944, DIRECTED EMBARKATION BY GOVERNMENT VESSEL FOR AN OVERSEAS STATION.

SUCH ORDERS, AND ORDERS OF MARCH 27, 1944, DIRECTING THE PERFORMANCE OF DUTY AT VARIOUS POINTS IN EUROPE BY YOUR TRAINING UNIT, LIKEWISE CONTAINED NO PER DIEM AUTHORIZATION. UNDER ORDERS OF HEADQUARTERS, 70TH REPLACEMENT DEPOT (AAF), APO 635, DATED OCTOBER 17, 1944, YOUR UNIT WAS DIRECTED TO PROCEED AND REPORT FOR FIRST AVAILABLE WATER TRANSPORTATION TO A PORT OF DEBARKATION IN THE UNITED STATES WHERE, UPON ARRIVAL, THE UNIT WAS TO BE DIRECTED TO REPORT AT THE WESTERN TECHNICAL TRAINING UNIT, DENVER, COLORADO. PER DIEM WAS AUTHORIZED IN THOSE ORDERS "WHILE TRAVELING IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.' THE CLAIM WHICH YOU SUBMITTED IN 1951 WAS STATED TO COVER THE PERIOD FROM MARCH 13, WHEN YOU DEPARTED FROM SEYMOUR JOHNSON FIELD, TO NOVEMBER 15, THE DATE OF YOUR DEPARTURE FROM FORT HAMILTON, NEW YORK, THE PORT OF DEBARKATION. APPEARS THAT YOUR UNIT HAD ARRIVED AT FORT HAMILTON ON NOVEMBER 10 AND THAT YOU ARRIVED AT YOUR STATION AT DENVER ON DECEMBER 7, 1944, AFTER AVAILING YOURSELF OF A DELAY OF 21 DAYS EN ROUTE. IT APPEARS FROM YOUR LETTER OF JUNE 13, 1955, THAT CLAIM IS NOT MADE FOR THE PERIOD THROUGH DECEMBER 7, 1944.

WITHIN CERTAIN STATUTORY LIMITATIONS THE RIGHT OF OFFICERS OF THE ARMED FORCES TO PER DIEM DURING THE PERIOD INVOLVED WAS A MATTER GOVERNED BY ADMINISTRATIVE REGULATIONS. WAR DEPARTMENT CIRCULAR NO. 60, DATED FEBRUARY 10, 1944, GOVERNING PER DIEM PAYMENTS FOR TRAVEL AND TEMPORARY DUTY PERFORMED WITHIN THE CONTINENTAL UNITED STATES UNDER ORDERS ISSUED ON AND AFTER MARCH 1, 1944, AUTHORIZED PER DIEM FOR TRAVEL OTHER THAN TRAVEL WITH TROOPS BUT PROVIDED THAT NO PER DIEM SHOULD BE PAID TO AN OFFICER FOR PERIODS OF TEMPORARY DUTY PERFORMED AS AN ATTACHED MEMBER OF A TROOP UNIT. IT APPEARS THAT YOUR TRAVEL FROM SEYMOUR JOHNSON FIELD TO CAMP KILMER WAS NOT IN A TRAVEL WITH TROOPS STATUS AS DEFINED IN CIRCULAR NO. 60 AND, THEREFORE, THAT YOU WERE IN A PER DIEM STATUS FOR THE PERIOD REQUIRED FOR THAT TRAVEL. HOWEVER, DURING THE PERIOD AT CAMP KILMER YOU WERE IN A TEMPORARY DUTY STATUS WHILE AWAITING FURTHER ORDERS AND WHILE AWAITING TRANSPORTATION, AND CONSEQUENTLY, BEING AN ATTACHED MEMBER OF A TROOP UNIT, YOU WERE NOT IN A PER DIEM STATUS UNDER THE REGULATIONS.

THERE IS NO AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE PERIODS WHILE YOU WERE ABOARD GOVERNMENT VESSELS PROCEEDING TO AND RETURNING FROM EUROPE, SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, PROVIDING THAT MILITARY PERSONNEL PERFORMING TRAVEL ON GOVERNMENT OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED. IN THAT REGARD, SEE PARAGRAPH 9A, ARMY REGULATIONS 35 4820.

PRIOR TO THE ISSUANCE OF WAR DEPARTMENT CIRCULAR NO. 356, DATED SEPTEMBER 2, 1944, NO AUTHORITY EXISTED FOR THE PAYMENT OF PER DIEM INCIDENT TO THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY OUTSIDE THE UNITED STATES UNLESS SUCH ALLOWANCE WAS EXPRESSLY AUTHORIZED IN TRAVEL ORDERS, AND THE AUTHORITY IN THAT CIRCULAR FOR THE PAYMENT OF THE ALLOWANCE UNDER CERTAIN CIRCUMSTANCES WITHOUT EXPRESS AUTHORIZATION IN THE ORDERS APPLIED ONLY TO TRAVEL AND TEMPORARY DUTY PERFORMED UNDER ORDERS ISSUED ON AND AFTER OCTOBER 1, 1944. THE PER DIEM AUTHORIZATION IN THE ORDERS OF JANUARY 10, 1944, COULD HAVE NO APPLICATION OTHER THAN AS TO THE TRAVEL AND DUTY THEY DIRECTED. CONSEQUENTLY, SINCE NO EXPRESS AUTHORIZATION FOR THE PAYMENT OF PER DIEM WAS CONTAINED IN THE ORDERS ISSUED SUBSEQUENT TO THAT DATE AND PRIOR TO THOSE OF OCTOBER 6, THERE IS NO AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE TRAVEL AND TEMPORARY DUTY THEY DIRECTED. PARAGRAPH 1D (3), SECTION II OF CIRCULAR NO. 356, PROVIDES, MOREOVER, THAT PER DIEM SHOULD NOT BE PAID INCIDENT TO TEMPORARY DUTY PERFORMED OUTSIDE THE UNITED STATES BY AN OFFICER AS AN ASSIGNED OR ATTACHED MEMBER OF A MILITARY ORGANIZATION, WHICH APPEARS TO HAVE BEEN YOUR SITUATION WITH REFERENCE TO THE UNIT UNDER YOUR DIRECTION DURING THE PERIOD WHILE YOU WERE IN EUROPE. A SIMILAR PROVISION WAS CONTAINED IN WAR DEPARTMENT MEMORANDUM 35-2-42, SEPTEMBER 30, 1942, IN EFFECT PRIOR TO CIRCULAR NO. 356. BEING SO ATTACHED, THERE APPEARS TO BE NO PROPER BASIS TO CONCLUDE THAT YOU ARE ENTITLED TO PER DIEM DURING THE PERIOD WHILE OVERSEAS, EITHER UNDER THE ORDERS ISSUED PRIOR TO OCTOBER 1, 1944, OR UNDER THOSE ISSUED AFTER THAT DATE.

PARAGRAPH 6, WAS DEPARTMENT CIRCULAR NO. 260, JUNE 26, 1944, EFFECTIVE AS TO ORDERS ISSUED AFTER JULY 15, 1944, DIRECTING TRAVEL AND TEMPORARY DUTY WITHIN THE UNITED STATES PROVIDES--- AS DID THE PRECEDING CIRCULAR NO. 60- -- THAT NO PER DIEM SHOULD BE PAID TO OFFICERS INCIDENT TO TEMPORARY DUTY PERFORMED AS AN ATTACHED MEMBER OF A TROOP UNIT. SINCE YOU APPARENTLY REMAINED ATTACHED TO MOBILE TRAINING UNIT NO. 85, FROM NOVEMBER 10, THE DATE OF YOUR ARRIVAL AT FORT HAMILTON, UNTIL NOVEMBER 15, THE DATE OF YOUR DEPARTURE FROM THAT STATION, NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PER DIEM FOR THAT PERIOD. THE PERIOD FROM NOVEMBER 16 TO DECEMBER 7, 1944, WHICH YOU APPARENTLY NOW CONSIDER A PART OF YOUR CLAIM, REPRESENTED DELAY EN ROUTE WHILE YOU WERE IN A LEAVE STATUS AND FOR WHICH THE PAYMENT OF PER DIEM IS NOT AUTHORIZED.

ACCORDINGLY, IN SETTLEMENT TO ISSUE YOU WILL BE ALLOWED PER DIEM FOR THE PERIOD REQUIRED FOR YOUR TRAVEL FROM SEYMOUR JOHNSON FIELD, NORTH CAROLINA, TO CAMP KILMER, NEW JERSEY, PERFORMED UNDER THE ORDERS OF MARCH 13, 1944. WITH THAT EXCEPTION, THE SETTLEMENT OF AUGUST 19, 1952, IS SUSTAINED.