B-136634, JUL. 23, 1958

B-136634, JUL. 23, 1958

TO MAJOR WILLIAM P. HEATON, GS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 13, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS FEBRUARY 27 TO MARCH 26, 1957, AND APRIL 16 TO 26, 1957.

BY LETTER ORDERS 1-91, DATED JANUARY 16, 1957, FORT CAMPBELL, KENTUCKY, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JANUARY 21, 1957, TO FORT HOOD, TEXAS, FOR TEMPORARY DUTY OF APPROXIMATELY 99 DAYS IN CONNECTION WITH EXERCISE KING COLE, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION. PARAGRAPH 3, SPECIAL ORDERS NO. 11, DATED FEBRUARY 14, 1957, HEADQUARTERS EXERCISE KING COLE, PLACED YOU ON FURTHER TEMPORARY DUTY AT NORTH FORT POLK, LOUISIANA, FOR APPROXIMATELY TWO MONTHS BEGINNING ON OR ABOUT FEBRUARY 27, 1957, IT BEING PROVIDED THAT DUTY UNDER THOSE ORDERS CONSTITUTED DUTY OF THE TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, EXCEPT FOR THE ADVANCE PLANNING PHASE (JULY 2, 1956, THROUGH MARCH 26, 1957) AND THE CRITIQUE PHASE (APRIL 16, 1957). THE ORDERS OF JANUARY 16, 1957, WERE AMENDED BY PARAGRAPH 3, LETTER ORDERS 2- 143, DATED FEBRUARY 27, 1957, FORT CAMPBELL, KENTUCKY, TO PROVIDE THAT "OFF WILL BE CONSIDERED ON FIELD DUTY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR FOR THE PERFORMANCE OF DY IN CONNECTION WITH ESTABLISHMENT AND OPR OF EXERCISE KING COLE.' THE ORDERS OF FEBRUARY 14, 1957, WERE AMENDED BY PARAGRAPH 1, SPECIAL ORDERS NO. 35, DATED APRIL 6, 1957, HEADQUARTERS EXERCISE KING COLE, TO READ: "TDY PERFORMED UNDER THIS ORDER AT FT POLK, LA SUBSEQUENT TO 26 FEB 57 IS CONSIDERED TO BE FIELD DY OF A TYPE CONTEMPLATED IN PARA 4201.6 JTR.' THE LATTER AMENDMENT WAS ISSUED PURSUANT TO A DIRECTIVE DATED FEBRUARY 21, 1957, PUBLISHED IN WEEKLY MEMORANDUM NO. 9, HEADQUARTERS FOURTH UNITED STATES ARMY, MARCH 1, 1957, WHICH ESTABLISHED THE PER DIEM POLICY FOR EXERCISE KING COLE BY PROVIDING THAT ALL PERSONNEL ARRIVING IN THE EXERCISE AREA SUBSEQUENT TO FEBRUARY 26, 1957, WOULD BE CONSIDERED ON FIELD DUTY. IT HAS BEEN HELD THAT SUCH POLICY HAD THE EFFECT OF ADVANCING THE COMMENCEMENT DATE OF THE FIELD DUTY PHASE OF THE EXERCISE TO FEBRUARY 27, 1957. SEE DECISION OF FEBRUARY 28, 1958, B-134860. YOUR CLAIM WAS DENIED BY THE DEPARTMENT OF THE ARMY AND BY OUR SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THE TEMPORARY DUTY SUBSEQUENT TO FEBRUARY 26, 1957, WAS FIELD DUTY, IT APPEARING THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE AND USED BY YOU. IN YOUR PRESENT LETTER YOU CONTEND THAT YOU PARTICIPATED IN THE ADVANCE PLANNING PHASE AND CRITIQUE PHASE OF THE MANEUVER. ALSO, YOU STATE THAT YOU HAVE CONTACTED OTHER OFFICERS WHO WERE AT THE EXERCISE UNDER THE SAME CONDITIONS AS YOU; THAT THEY WERE PAID ADVANCE PER DIEM; AND THAT NO REFUND WAS REQUESTED FROM THEM.

THE PAYMENT OF TRAVEL ALLOWANCES IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253. PARAGRAPH 4201.6 OF THOSE REGULATIONS PROVIDES THAT PER DIEM IS NOT PAYABLE WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED, EXCEPT WHEN THE MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION. SINCE THE FIELD DUTY PHASE OF THE EXERCISE WAS ADVANCED TO FEBRUARY 27, 1957, THE ADVANCE PLANNING PHASE TERMINATED THE PREVIOUS DAY AND NO RIGHT TO PER DIEM ACCRUED TO YOU THEREAFTER DURING THE OPERATION PHASE OF THE EXERCISE. IF OTHER OFFICERS WERE PAID PER DIEM UNDER THE SAME CIRCUMSTANCES AND WERE PERMITTED TO RETAIN THE PAYMENTS, SUCH FACT WOULD AFFORD NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IT IS, HOWEVER, A MATTER WHICH WILL BE CONSIDERED IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICER CONCERNED.

WHILE THE ORDERS OF FEBRUARY 14, 1957, INDICATED THAT EXERCISE KING COLE WOULD TERMINATE ON APRIL 15, 1957, IT IS UNDERSTOOD THAT IT ACTUALLY CONTINUED UNTIL MIDNIGHT APRIL 18, 1957. YOU NOW HAVE SUBMITTED A COPY OF PARAGRAPH 6, SPECIAL ORDERS NO. 39, DATED APRIL 17, 1957, WHICH RELEASED YOU FROM YOUR CURRENT TEMPORARY DUTY ASSIGNMENT ON APRIL 19, 1957 (END OF EXERCISE CLOSE-OUT PHASE), AND PLACED YOU ON FURTHER TEMPORARY DUTY FOR APPROXIMATELY 15 DAYS AT NORTH FORT POLK EFFECTIVE THAT DATE IN CONNECTION WITH "OFL LOG AND ADMIN MATTERS III CORPS AND HEKC.' WHILE IT IS NOT CLEAR WHETHER THE DUTY PERFORMED UNDER THOSE ORDERS WAS IN CONNECTION WITH THE CRITIQUE PHASE OF THE EXERCISE OR WAS ORDINARY TEMPORARY DUTY, YOU ARE ENTITLED TO PER DIEM IN EITHER EVENT AND SETTLEMENT FOR THE AMOUNT DUE WILL ISSUE IN DUE COURSE FOR THE PERIOD APRIL 19 TO 25, 1957. IT APPEARS THAT YOU HAVE BEEN PAID PER DIEM FOR APRIL 26, 1957, SINCE YOU STATE THAT YOU WERE PAID 1 1/2 DAYS PER DIEM FOR TRAVEL FROM FORT POLK TO FORT CAMPBELL, KENTUCKY. TRAVEL TIME WAS SHOWN AS 2:45 P.M., APRIL 26 TO 10 A.M., THE FOLLOWING DAY.