B-129722, DEC. 7, 1956

B-129722, DEC. 7, 1956

TO CAPTAIN PETER F. C. ARMSTRONG, USMC:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1956, FORWARDED HERE BY HEADQUARTERS U.S. MARINE CORPS WITH LETTER DATED OCTOBER 17, 1956, RELATIVE TO YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP PENDLETON, CALIFORNIA, DURING THE PERIOD FROM SEPTEMBER 30 TO NOVEMBER 19, 1952.

IN OUR SETTLEMENT OF JUNE 5, 1956, YOU WERE ALLOWED PER DIEM FOR THE PERIODS SEPTEMBER 30 TO NOVEMBER 7 AND NOVEMBER 15 TO 19, 1952, IN CONNECTION WITH THE TEMPORARY DUTY PERFORMED AT CAMP PENDLETON. THE ALLOWANCE FOR THE PERIOD SEPTEMBER 30 TO NOVEMBER 2 WAS MADE AT THE RATE OF $1 PER DAY ON THE BASIS THAT YOU THEN WERE UNDERGOING A COURSE OF INSTRUCTION UNDER CIRCUMSTANCES WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE, A SITUATION UNDER WHICH THE PAYMENT OF PER DIEM WAS LIMITED TO $1 PER DAY BY PARAGRAPH 4205-5E OF THE JOINT TRAVEL REGULATIONS. IT IS YOUR CONTENTION, HOWEVER, THAT YOU WERE NOT PERSONALLY UNDERGOING INSTRUCTION DURING THAT PERIOD, YOUR DUTIES BEING THE TRAINING OF RECENT GRADUATES OF THE RECRUIT DEPOT AT SAN DIEGO, CALIFORNIA, AND CONSEQUENTLY THAT YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $5 PER DAY AS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS FOR NORMAL TEMPORARY DUTY SITUATIONS.

UNDER ORDERS OF HEADQUARTERS, SECOND MARINE DIVISION, FMF, CAMP LEJEUNE, NORTH CAROLINA, DATED AUGUST 28, 1952, YOU WERE TRANSFERRED TO THE MARINE BARRACKS, CAMP PENDLETON, FOR DUTY AND FURTHER TRANSFER BEYOND THE SEAS DURING NOVEMBER 1952 FOR DUTY AS A REPLACEMENT. YOU REPORTED AT CAMP PENDLETON ON SEPTEMBER 29, 1952, AND BY ENDORSEMENT OF THE COMMANDING GENERAL OF THE MARINE BARRACKS, DATED SEPTEMBER 30, YOU WERE DIRECTED TO REPORT TO THE FIRST INFANTRY TRAINING REGIMENT, TRAINING AND REPLACEMENT COMMAND,"FOR DUTY UNDER INSTRUCTION" PRIOR TO ASSIGNMENT TO A REPLACEMENT BATTALION. ENDORSEMENT OF THE COMMANDING OFFICER AT THAT ACTIVITY, ALSO DATED SEPTEMBER 30, DIRECTED THAT YOU REPORT TO THE FIRST BATTALION OF THE REGIMENT "FOR DUTY UNDER INSTRUCTIONS.' YOU REPORTED THERE ON SEPTEMBER 30 AND BY ENDORSEMENT OF THE COMMANDING OFFICER, FIRST BATTALION, OF THAT DATE, YOU WERE ASSIGNED "FOR DUTY AS COMPANY OFFICER (TRAINEE) "A" COMPANY.' YOU WERE TRANSFERRED TO THE STAGING REGIMENT, TRAINING AND REPLACEMENT COMMAND, ON NOVEMBER 3, 1952, AND TO THE SECOND REPLACEMENT BATTALION ON THE SAME DAY. IT APPEARS THAT YOU PERFORMED TEMPORARY ADDITIONAL DUTY AT THE COLD WEATHER BATTALION, BRIDGEPORT, CALIFORNIA, DURING THE PERIOD NOVEMBER 8 TO 14, 1952, AND THAT YOU COMPLETED TEMPORARY DUTY AT CAMP PENDLETON AND DEPARTED FROM THAT STATION ON NOVEMBER 19, 1952.

THE QUOTED PROVISIONS OF THE ENDORSEMENTS TO YOUR ORDERS INDICATE THAT YOUR TEMPORARY DUTY ASSIGNMENT DURING THE PERIOD FROM SEPTEMBER 30 TO NOVEMBER 3 WAS MADE FOR THE SPECIFIC PURPOSE OF PROVIDING INSTRUCTION AND TRAINING TO YOU IN THE PERFORMANCE OF YOUR DUTIES AS AN OFFICER. WHILE THE DUTIES OF THE ASSIGNMENT APPARENTLY INCLUDED AND POSSIBLY CONSISTED PRIMARILY OF YOUR PARTICIPATING IN A SUPERVISORY CAPACITY IN THE TRAINING OF RECRUITS, THAT CIRCUMSTANCE MAY NOT BE CONSIDERED TO PROVIDE A BASIS FOR A CONCLUSION THAT YOU WERE NOT UNDERGOING TRAINING AND INSTRUCTION WITHIN THE CONTEMPLATION OF THE PROVISIONS OF PARAGRAPH 4205-5E OF THE JOINT TRAVEL REGULATIONS. THOSE PROVISIONS DO NOT NECESSARILY CONTEMPLATE INSTRUCTIONS UNDER FORMAL CLASSROOM CONDITIONS.

IN VIEW OF THE PROVISIONS OF THE ENDORSEMENTS TO YOUR ORDERS WHICH DIRECTED THAT YOU REPORT FOR DUTY UNDER INSTRUCTION AND AS A TRAINEE OFFICER, AND OF THE LIMITATION CONTAINED IN THE CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS, IT IS CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF THE ADDITIONAL PER DIEM CLAIMED. ACCORDINGLY, THE SETTLEMENT OF JUNE 5, 1956, IS SUSTAINED.