B-127141, OCT. 12, 1956

B-127141, OCT. 12, 1956

TO MR. JAMES N. KERRIGAN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 20, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT EDWARDS AIR FORCE BASE, CALIFORNIA, DURING THE PERIOD FROM FEBRUARY 26 TO JUNE 29, 1953.

UNDER ORDERS ISSUED BY HEADQUARTERS, 820TH ENGINEER AVIATION BATTALION, BEALE AIR FORCE BASE, CALIFORNIA, DATED FEBRUARY 17, 1953, YOU AND OTHER DESIGNATED MEMBERS OF THE 820TH ENGINEER AVIATION BATTALION WERE PLACED ON TEMPORARY DUTY OF NOT TO EXCEED 120 DAYS AT THE EDWARDS AIR FORCE BASE AND DIRECTED TO PROCEED THERE ON OR ABOUT FEBRUARY 25, 1953. SUCH ASSIGNMENT WAS MADE IN CONNECTION WITH THE MOVEMENT OF THAT BATTALION TO THE EDWARDS AIR FORCE BASE TO ACCOMPLISH A CONSTRUCTION PROJECT. ORDERS OF HEADQUARTERS, 304TH ENGINEER GROUP, BEALE AIR FORCE BASE, DATED JUNE 4, 1953, IN EFFECT EXTENDED THE TEMPORARY DUTY PERIOD AUTHORIZED BY 23 DAYS. THE PERSONNEL INVOLVED APPEAR TO HAVE BEEN SPECIAL CATEGORY ARMY PERSONNEL ON DUTY WITH THE AIR FORCE. YOU PROCEEDED FROM BEALE AIR FORCE BASE TO EDWARDS AIR FORCE BASE ON FEBRUARY 25 AND, WITH THE EXCEPTION OF THE DAYS OF JUNE 4 AND JUNE 5 WHEN YOU WERE TRAVELING, YOU REMAINED THERE UNTIL YOUR RETURN TO BEALE AIR FORCE BASE ON JUNE 29, 1953. GOVERNMENT QUARTERS AND MESSING FACILITIES APPEAR TO HAVE BEEN AVAILABLE AT THE TEMPORARY STATION.

REGULATIONS GOVERNING THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MILITARY PERSONNEL ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4201 OF THOSE REGULATIONS SETS FORTH VARIOUS CONDITIONS AND CIRCUMSTANCES UNDER WHICH TEMPORARY DUTY PER DIEM ALLOWANCES ARE NOT PAYABLE. SUBPARAGRAPH 4201-7 PROHIBITS THE PAYMENT OF THE ALLOWANCE---

"FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS, AND DUTY AS OBSERVER, UMPIRE, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. * * *"

DEPARTMENT OF THE ARMY SPECIAL REGULATIONS NO. 35-3080-5, DATED AUGUST 26, 1952, IN EFFECT DURING THE PERIOD IN QUESTION, WERE ISSUED FOR USE AS GUIDANCE IN THE PROPER INTERPRETATION OF THE INTENT AND MEANING OF THE QUOTED PROVISIONS OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 2B OF SUCH REGULATIONS OF AUGUST 26, IN FURTHER ELABORATION OF THE TYPES OF DUTY CONTEMPLATED BY THE QUOTED PART OF THE JOINT TRAVEL REGULATIONS, INCLUDED "ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION ACTIVITIES, CARGO LOADING AND UNLOADING, TRANSPORTING AMMUNITION, ETC.' IN VIEW OF SUCH PROVISIONS IT NECESSARILY FOLLOWS THAT YOUR DUTY AT EDWARDS AIR FORCE BASE, PERFORMED IN CONNECTION WITH CONSTRUCTION ACTIVITIES, MUST BE CONSIDERED FIELD DUTY, AS CONTEMPLATED IN PARAGRAPH 4201 OF THE JOINT TRAVEL REGULATIONS, FOR WHICH THE PAYMENT OF PER DIEM IS NOT AUTHORIZED. IT IS CONCLUDED, THEREFORE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1956, IS SUSTAINED.

YOU REFER TO PER DIEM PAYMENTS THAT WERE MADE TO MARTIN W. MILOT, JOHN D. MOORE, AND JAMES FRANCOIS, INCIDENT TO THEIR SERVICE AS OFFICERS UNDER CIRCUMSTANCES SIMILAR TO YOURS AND REQUEST AN EXPLANATION OF THE APPARENT DISCRIMINATION IN THE MATTER. THE RECORDS SHOW THAT SUCH PAYMENTS WERE MADE TO MARTIN W. MILOT AND JAMES FRANCOIS UNDER AUTHORITY OF SETTLEMENTS OF THIS OFFICE. IF PAYMENT WAS ALSO RECEIVED BY JOHN D. MOORE, IT PRESUMABLY WAS AUTHORIZED AND PAID BY THE ADMINISTRATIVE OFFICE INVOLVED. ON THE BASIS OF THE COMPLETE SHOWING NOW MADE, SUCH PAYMENTS CLEARLY WERE ERRONEOUSLY MADE AND UNAUTHORIZED BY THE CONTROLLING REGULATIONS, AS INDICATED ABOVE, AND SO MAY NOT SERVE AS AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. APPROPRIATE INSTRUCTIONS HAVE BEEN ISSUED TO INSTITUTE COLLECTION PROCEEDINGS FOR THE RECOVERY, FROM THE RECIPIENTS, OF THE AMOUNTS REPRESENTED BY SUCH ERRONEOUS PAYMENTS.