B-133763, NOV. 13, 1957

B-133763, NOV. 13, 1957

TO MR. GARY P. SMITH:

YOUR LETTER OF SEPTEMBER 1, 1957, REQUESTS REVIEW OF SETTLEMENT DATED AUGUST 22, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD NOVEMBER 26 TO 29, 1956, INCIDENT TO ORDERS DATED NOVEMBER 24, 1956, AS AMENDED BY ORDERS DATED DECEMBER 29, 1956.

THE ORDERS OF NOVEMBER 24, 1956, PROVIDED THAT YOU SHOULD PROCEED WITH OTHER PERSONNEL ON OR ABOUT NOVEMBER 26, 1956, FROM YOUR DUTY STATION WITH 750TH FIELD ARTILLERY BATTALION, APO 177, U.S. ARMY, TO 74TH FIELD ARTILLERY BATTALION, APO 751, CRAILSHEIM, GERMANY, ON TEMPORARY DUTY FOR APPROXIMATELY FOUR DAYS FOR THE PURPOSE OF PARTICIPATING IN THE 18TH FIELD ARTILLERY GROUP BASKETBALL TOURNAMENT AS NONPARTICIPATING COACH AND, UPON COMPLETION, RETURN TO PROPER ORGANIZATION AND STATION. THE ORDERS OF DECEMBER 29, 1956, AMENDED THE ORDERS OF NOVEMBER 24 TO READ "PER DIEM ALWS AUTH" INSTEAD OF "NO PER DIEM ALWS AUTH.'

IT IS INDICATED THAT YOU DEPARTED FROM ANSBACH, GERMANY, AT 8 A.M. ON NOVEMBER 26, 1956, AND ARRIVED AT CRAILSHEIM, GERMANY, AT 10 A.M. ON THE SAME DAY, AND THAT YOU LEFT THE LATTER PLACE AT 10 A.M. ON NOVEMBER 29, 1956, AND RETURNED TO ANSBACH TWO HOURS LATER. YOUR CLAIM FOR PER DIEM FOR THE PERIOD INVOLVED WAS DISALLOWED ON THE BASIS THAT THE DUTY PERFORMED WAS NOT CONSIDERED TO BE PUBLIC BUSINESS.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE PHRASE ,PUBLIC BUSINESS" AS SO USED RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR FUNCTIONS. PARTICIPATION IN BASKETBALL TOURNAMENTS, WHILE RECOGNIZED AS A PART OF THE ATHLETIC OR RECREATIONAL PROGRAM OF THE ARMY GENERALLY, DOES NOT APPEAR TO BE AN ACTIVITY OR FUNCTION OF A FIELD ARTILLERY BATTALION SUCH AS THAT TO WHICH YOU ARE ATTACHED AND SUCH PARTICIPATION--- EVEN AS NONPARTICIPATING COACH- -- MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS UNDER THE CITED REGULATIONS. SEE IN THAT CONNECTION PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT "EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.'

IN YOUR LETTER YOU CONTEND THAT THE DUTY YOU PERFORMED INCIDENT TO YOUR ORDERS OF NOVEMBER 24, 1956, SHOULD BE CONSIDERED PUBLIC BUSINESS BECAUSE THE PURPOSE OF THE ORDERS WAS TO PROVIDE RECREATION FOR THE MEMBERS OF THE UNIT AND BECAUSE YOU HAD NO ALTERNATIVE OTHER THAN TO CARRY OUT YOUR ORDERS. ALSO, YOU SAY OTHER OFFICERS WHO WERE WITH YOU TURNED IN THEIR CLAIMS AND WERE PAID OUT OF A SEVENTH ARMY FUND SET ASIDE FOR THAT PURPOSE.

THE REGULATIONS GOVERNING THE ARMY SPORTS PROGRAM ARE CONTAINED IN ARMY REGULATIONS 28-52 DATED JANUARY 3, 1956. PARAGRAPH 2 OF THE REGULATIONS PROVIDES THAT THE MISSION OF THE ARMY SPORTS PROGRAM IS TO PROVIDE OPPORTUNITIES AND ENCOURAGE ARMY PERSONNEL, BOTH MALE AND FEMALE, TO PARTICIPATE IN SPORTS DURING OFF-DUTY HOURS. SINCE A MEMBER'S PARTICIPATION IN THE ARMY SPORTS PROGRAM UNDER THE REGULATIONS IS VOLUNTARY ON THE PART OF THE MEMBER, IT APPEARS THAT YOU WERE AUTHORIZED TO PARTICIPATE IN THE BASKETBALL TOURNAMENT BY THE ORDERS OF NOVEMBER 24, 1956, ONLY BECAUSE YOU INDICATED TO YOUR COMMANDING OFFICER THAT YOU WISHED TO DO SO.

PARAGRAPH 6E (7), ARMY REGULATIONS 230-5, PROVIDES THAT NONAPPROPRIATED FUNDS WILL NOT BE USED TO DEFRAY EXPENSES INCIDENT TO OFFICIAL TRAVEL OF MILITARY PERSONNEL WHEN SUCH TRAVEL IS ESSENTIAL TO PROVIDE NECESSARY COMMAND SUPERVISION. PARAGRAPH 6, ARMY REGULATIONS 28-52, PROVIDES THAT APPLICABLE APPROPRIATED FUNDS, TO THE EXTENT AVAILABLE WILL BE USED FOR COMMAND SUPERVISION OF THE ARMY SPORTS PROGRAM AND THAT NONAPPROPRIATED FUNDS--- WITHIN THE LIMITATIONS THERE PROVIDED--- MAY BE USED FOR THE PAYMENT OF TRAVEL EXPENSES OF MILITARY PERSONNEL FOR PARTICIPATION IN ACTIVITIES OF THE SPORTS PROGRAM WHEN GOVERNMENT TRANSPORTATION OR APPROPRIATED FUNDS ARE NOT AVAILABLE. SUCH REGULATIONS APPEAR TO CONTEMPLATE THE USE OF APPROPRIATED FUNDS FOR ONLY SUCH TRAVEL AS PROPERLY MAY BE REGARDED AS "OFFICIAL TRAVEL," LIMITED IN THIS CONNECTION TO SUCH TRAVEL AS MAY BE NECESSARY IN THE EXERCISE OF COMMAND SUPERVISION OF THE SPORTS PROGRAM. YOUR DUTIES AS NONPARTICIPATING COACH OF A BASKETBALL TEAM DO NOT APPEAR TO FALL IN THAT CATEGORY AND IN SUCH CIRCUMSTANCES THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

CONCERNING YOUR INQUIRY AS TO YOUR RIGHT TO APPEAL THE DISALLOWANCE OF YOUR CLAIM, YOU ARE ADVISED THAT OUR DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY BE MADE THE BASIS OF A SUIT IN THE UNITED STATES COURT OF CLAIMS. YOU ARE ADVISED FURTHER THAT OUR DECISION RELATES ONLY TO THE AVAILABILITY OF APPROPRIATED FUNDS FOR THE PAYMENT OF YOUR CLAIM. PRESUMABLY, THE SEVENTH ARMY FUND YOU REFERRED TO IN YOUR LETTER WHICH, YOU SAY, WAS USED TO PAY OTHER OFFICERS WHO WERE WITH YOU, WAS MADE UP OF NONAPPROPRIATED FUNDS. INQUIRY MAY BE MADE TO THE DEPARTMENT OF THE ARMY AS TO WHETHER SUCH FUNDS ARE AVAILABLE FOR THE PAYMENT OF YOUR CLAIM.