B-134659, FEB. 12, 1958

B-134659, FEB. 12, 1958

TO MR. SONNY A. CAPUTO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 13, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM APRIL 21 TO SEPTEMBER 26, 1956, INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT THULE, GREENLAND, AS AN OFFICER ATTACHED TO THE 1ST ENGINEER ARCTIC TASK FORCE UNDER ORDERS OF HEADQUARTERS, THE ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA, DATED JANUARY 30, 1956.

UNDER THE ORDERS OF JANUARY 30, 1956, THE 1ST ENGINEER ARCTIC TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND THENCE TO THULE ON TEMPORARY CHANGE OF STATION FOR A PERIOD OF APPROXIMATELY NINE MONTHS, UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH ORDERS CONTAINED THE PROVISIONS "TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT THORIZED.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON APRIL 15 AND ARRIVED AT THULE ON APRIL 22. THE RETURN OF THE TASK FORCE TO FORT BELVOIR WAS DIRECTED BY ORDERS OF HEADQUARTERS, 1ST ENGINEER ARCTIC TASK FORCE, DATED SEPTEMBER 9, 1956. THESE ORDERS ALSO STATED THAT THE TRAVEL AND TEMPORARY DUTY PERFORMED "IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS.' YOU LEFT THULE UNDER THE ORDERS ON SEPTEMBER 25 AND ARRIVED AT FORT BELVOIR ON SEPTEMBER 26, 1956. CHANGE 6, DATED JULY 24, 1957, TO THE BASIC ORDERS OF JANUARY 30, 1956, PURPORTS TO AMEND THAT PART OF SUCH BASIC ORDERS PROVIDING "PER DIEM IS NOT AUTHORIZED" TO READ "PER DIEM IS AUTHORIZED.'

REGULATIONS GOVERNING ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201-6 OF THE REGULATIONS. IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF THOSE PROVISIONS IS ONE OF FACT, DETERMINED USUALLY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT BECAUSE OF THE PROXIMITY OF THE ADMINISTRATIVE PERSONNEL TO THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST, AND THAT IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR DUTY ASSIGNMENT. TO BE EFFECTIVE, SUCH SECOND DETERMINATION OF NECESSITY MUST HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.

THE PURPORTED AMENDMENT OF JULY 24, 1957, TO THE ORDERS OF JANUARY 30, 1956, DOES NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THE FIELD DUTY RESTRICTIONS OF THOSE ORDERS WHICH CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY ASSIGNED WERE OF THE TYPE CONTEMPLATED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS. IT MUST BE CONCLUDED, THEREFORE, THAT NO PROPER BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 13, 1957, IS SUSTAINED.