B-127531, JUN. 28, 1956

B-127531, JUN. 28, 1956

TO MR. RUSSELL T. LIDY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF FEBRUARY 20, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED AS AN ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES, WHILE ATTACHED TO AN ENGINEER AVIATION UNIT (SPECIAL CATEGORY ARMY WITH AIR FORCE UNIT) DURING THE PERIOD MAY 1 TO OCTOBER 6, 1952.

YOUR TRAVEL AND TEMPORARY DUTY DURING THE INDICATED PERIOD WERE PERFORMED UNDER SPECIAL ORDERS NO. 57 OF HEADQUARTERS, 372D ENGINEER AVIATION BATTALION, EGLIN AIR FORCE BASE, FLORIDA, DATED APRIL 28, 1952, AS AMENDED. THOSE ORDERS WERE ISSUED TO IMPLEMENT ORDERS OF HEADQUARTERS, AVIATION ENGINEER FORCES, WOLTERS AIR FORCE BASE, TEXAS, DATED MARCH 7, 1952, WHICH DIRECTED NECESSARY ACTION TO MOVE THE 372D ENGINEER AVIATION BATTALION FROM ITS STATION AT EGLIN FIELD TO LADD AIR FORCE BASE, ALASKA, FOR THE PERFORMANCE OF TEMPORARY DUTY OF APPROXIMATELY 120 DAYS (PRESUMABLY FOR THE PURPOSE OF PROVIDING OPERATIONAL TRAINING EXERCISES INVOLVING ACTUAL CONSTRUCTION OR REHABILITATION OF AIRFIELDS AND OTHER PHASES OF UNIT OPERATION AS PROVIDED IN AIR FORCE REGULATIONS 50-20, APRIL 25, 1950, AND 306-3, NOVEMBER 8, 1951), AND RETURN TO EGLIN FIELD.

THE RECORD DISCLOSES THAT YOU PROCEEDED BY GOVERNMENT AIRCRAFT FROM EGLIN AIR FORCE BASE TO LADD AIR FORCE BASE ON MAY 1 AND 2, AND THAT UPON THE COMPLETION OF THE TEMPORARY DUTY YOU RETURNED TO EGLIN AIR FORCE BASE BY THE SAME MODE OF TRANSPORTATION ON OCTOBER 5 AND 6, 1952. GOVERNMENT QUARTERS AND MEALS WERE FURNISHED TO YOU AT THE TEMPORARY STATION AND WHILE PERFORMING THE TRAVEL INVOLVED. YOUR CLAIM IS STATED TO COVER THE PERIOD MAY 25 TO OCTOBER 6, 1952. IT APPEARS THAT YOU PREVIOUSLY WERE PAID PER DIEM FOR THE PERIOD MAY 1 TO 24, 1952.

PARAGRAPH 4250-4 OF THE JOINT TRAVEL REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES, PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED. SIMILAR PROVISIONS COVERING FIELD DUTY IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201-7 OF THE REGULATIONS. SINCE THE TEMPORARY DUTY ASSIGNED FOR PERFORMANCE BY THE 372D ENGINEER AVIATION BATTALION AT LADD AIR FORCE BASE UNDER THE ORDERS OF APRIL 28, 1952, APPEARS TO HAVE BEEN THAT OF UNDERGOING FIELD EXERCISES TO PROVIDE ACTUAL OPERATIONAL TRAINING IN CONSTRUCTION OR REHABILITATION OF AIRFIELDS, IT CLEARLY APPEARS TO BE FIELD DUTY OF THE NATURE CONTEMPLATED IN THE CITED REGULATIONS. SEE IN THAT CONNECTION, PARAGRAPH 2B, DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35-3080-5, DATED AUGUST 26, 1952, WHICH INTERPRETS THE CITED REGULATIONS AS REQUIRING THAT WHEN GOVERNMENT QUARTERS AND RATIONS ARE FURNISHED OR MADE AVAILABLE A MEMBER MAY NOT BE PAID PER DIEM FOR ANY PERIOD OF TRAVEL AND TEMPORARY DUTY WHILE TRAVELING TO, FROM, OR WHILE AT PLACES IN CONNECTION WITH THE ESTABLISHMENT OR OPERATION OF MANEUVERS, EXERCISES, TESTS, TRAINING, OR CAMP SITES, OR FOR ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION ACTIVITIES, ETC.

IT MUST BE CONCLUDED, THEREFORE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED. ALSO, IT DOES NOT APPEAR THAT PROPER LEGAL BASIS EXISTED FOR THE PAYMENT OF PER DIEM FOR THE PERIOD MAY 21 TO 24, 1952, WHICH YOU RECEIVED, IN VIEW OF THE RESTRICTIVE NATURE OF THE CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 20, 1956, IS SUSTAINED.