B-131254, MAY 3, 1957

B-131254, MAY 3, 1957

TO CAPTAIN J. N. BOHANNON, JR.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1957, WITH ENCLOSURES, REQUESTING ADVANCE DECISION AS TO WHETHER PER DIEM IN THE AMOUNT OF $696 MAY BE PAID TO FIRST LIEUTENANT ROBERT B. MAYES, SR., UNDER THE CIRCUMSTANCES SHOWN. YOUR LETTER WAS FORWARDED TO US BY THIRD INDORSEMENT DATED MARCH 26, 1957.

BY MOVEMENT ORDER NO. 4, DATED MARCH 27, 1956, FORT RILEY, KANSAS, CERTAIN UNITS LISTED THEREIN WERE DIRECTED TO PROCEED FROM FORT RILEY, KANSAS, TO CAMP MCCOY, WISCONSIN, FOR THE PURPOSE OF SUPPORTING SUMMER TRAINING OF RESERVE COMPONENT UNITS. THE ORDER SPECIFICALLY PROVIDES (PARAGRAPH 4B) THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED THEREUNDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED UNDER PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND THAT PER DIEM IS PAYABLE ONLY WHEN SUBSISTENCE AND QUARTERS AS DEFINED IN AR 35-3080 ARE NOT FURNISHED OR MADE AVAILABLE. ANNEX A TO THAT ORDER PERMITTED LIEUTENANT MAYES AMONG OTHERS TO TRAVEL SEPARATELY. GENERAL ORDER NO. 28, DATED AUGUST 31, 1956, CAMP MCCOY, IN CONFIRMATION OF THE COMMANDING OFFICER'S VERBAL ORDER OF JUNE 3, 1956, PROVIDES THAT ALL QUARTERS AT THAT STATION, WITH THE EXCEPTION OF FAMILY TYPE QUARTERS, ARE DESIGNATED FIELD DUTY QUARTERS DURING THE PERIOD JUNE 3 THROUGH SEPTEMBER 2, 1956, AND THAT EFFECTIVE SEPT. 3, 1956, ALL QUARTERS AT THAT STATION (WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT) ARE DESIGNATED AS TEMPORARY DUTY QUARTERS. THE LATTER ORDERS APPEAR TO BE IN CONFORMITY WITH A LETTER ISSUED BY HEADQUARTERS FIFTH ARMY ON AUGUST 31, 1956, ANNOUNCING THE POLICY OF THAT COMMAND ON DESIGNATION OF QUARTERS UTILIZED BY ARMY PERSONNEL PERFORMING TEMPORARY DUTY AT INSTALLATIONS IN CONNECTION WITH TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS. THE SAID LETTER FURTHER STATES THAT PER DIEM ALLOWANCES WERE NOT AUTHORIZED DURING THE OPERATING PERIOD OF TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS, BUT THAT ALL ACTIVE ARMY PERSONNEL PERFORMING TEMPORARY DUTY WOULD BE ENTITLED TO PER DIEM ALLOWANCES DURING THE OPENING AND CLOSE-OUT PERIODS OF THE ENCAMPMENTS.

LIEUTENANT MAYES DEPARTED FORT RILEY APRIL 3, 1956, AND RETURNED ON NOVEMBER 2, 1956. HIS CLAIM FOR PER DIEM COVERS THE PERIOD APRIL 6 THROUGH JUNE 3, 1956, AND FROM SEPTEMBER 3 THROUGH OCTOBER 30, 1956, WHILE ON TEMPORARY DUTY AT CAMP MCCOY. A CERTIFICATE HAS BEEN FURNISHED SHOWING THAT THE CLOSE-OUT PHASE IN CONNECTION WITH THE SUMMER TRAINING OF RESERVE COMPONENTS AT CAMP MCCOY DURING THE PERIOD SEPTEMBER 3 TO OCTOBER 31, 1956, WAS CONDUCTED TO PERMIT ALL PARTICIPANTS TO UTILIZE QUARTERS NORMALLY AVAILABLE TO PERSONNEL ON TEMPORARY DUTY AS DISTINGUISHED FROM QUARTERS SPECIFICALLY ESTABLISHED OR DESIGNATED FOR USE IN CONNECTION WITH THE EXERCISE OR ACTIVITY.

SINCE MOVEMENT ORDER NO. 4 PROVIDES THAT "ALL" TRAVEL AND TEMPORARY DUTY UNDER THOSE ORDERS IS OF THE TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND INASMUCH AS LIEUTENANT MAYES WAS TRAVELING AND PERFORMING TEMPORARY DUTY WITH HIS UNIT, YOU QUESTION WHETHER THAT ORDER WAS AMENDED BY GENERAL ORDER NO. 28 SO AS TO AUTHORIZE THE PAYMENT OF PER DIEM AFTER SEPTEMBER 2, 1956, AND IF SO, WHETHER PER DIEM ALSO IS AUTHORIZED PRIOR TO JUNE 3, 1956.

PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER DIEM TO MEMBERS WHILE PARTICIPATING IN CERTAIN ACTIVITIES INCLUDING TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR ROTC STUDENTS, WHEN BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE, EXCEPT WHEN PARTICIPATION IN SUCH DUTY INVOLVES TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY CONCERNED. EXCEPT AS PROVIDED IN PARAGRAPH 5, PARAGRAPH 4B, ARMY REGULATIONS 35-3080, DATED MAY 15, 1956, PROVIDES THAT A MEMBER OF A MILITARY GROUP, UNIT OR ORGANIZATION (INCLUDING ADVANCE AND REAR ECHELONS) IS NOT ENTITLED TO A PER DIEM ALLOWANCE WHEN GOVERNMENT SUBSISTENCE AND GOVERNMENT QUARTERS OF ANY TYPE ARE FURNISHED OR MADE AVAILABLE, WHETHER OR NOT UTILIZED, FOR PERIODS OF TEMPORARY DUTY PERFORMED WHILE AT PLACES IN CONNECTION WITH THE ESTABLISHMENT OR OPERATION OF A TRAINING ENCAMPMENT FOR ROTC STUDENTS AND OTHER SIMILAR ACTIVITIES,"INCLUDING THE CLOSING OUT PHASES OF SUCH DUTY.' PARAGRAPH 5C (1) (B) OF THE SAME REGULATIONS PROVIDES THAT A MEMBER PERFORMING TEMPORARY DUTY AT A TRAINING ENCAMPMENT FOR ROTC STUDENTS AND OTHER SIMILAR ACTIVITIES AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO PER DIEM WHEN THE EXERCISE OR ACTIVITY IS CONDUCTED TO PERMIT ALL PARTICIPANTS TO UTILIZE QUARTERS NORMALLY AVAILABLE ON THE INSTALLATION TO PERSONNEL ON TEMPORARY DUTY AS DISTINGUISHED FROM QUARTERS SPECIFICALLY ESTABLISHED OR DESIGNATED FOR USE IN CONNECTION WITH THE EXERCISE OR ACTIVITY. IT FURTHER PROVIDES THAT FOR TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS, THE INSTALLATION COMMANDER OR OTHER APPROPRIATE AUTHORITY WILL DESIGNATE THE QUARTERS TO BE USED IN CONNECTION WITH SUCH ENCAMPMENTS.

IN THE PRESENT CASE, GENERAL ORDER NO. 28 WAS EFFECTIVE, PROSPECTIVELY, FROM JUNE 3, 1956. SINCE UNDER THAT ORDER THE QUARTERS WERE DESIGNATED AS TEMPORARY DUTY QUARTERS EFFECTIVE SEPTEMBER 3, 1956, AS PROVIDED FOR IN THE REGULATIONS, PER DIEM IS AUTHORIZED FOR TEMPORARY DUTY PERFORMED ON AND AFTER THAT DATE. HOWEVER, IT SEEMS CLEAR THAT, SINCE THE SELFSAME QUARTERS ARE INVOLVED IN ANY EVENT, AND ENTITLEMENT TO PER DIEM WHILE OCCUPYING SUCH QUARTERS IS DEPENDENT UPON AN EXPRESS DESIGNATION AS TO THEIR NATURE BY THE INSTALLATION COMMANDER, NO PER DIEM IS PAYABLE FOR ANY PERIOD PRIOR TO SEPTEMBER 3, 1956.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED TO THE EXTENT INDICATED ABOVE.