B-136646, SEP 12, 1958

B-136646, SEP 12, 1958

PRECIS-UNAVAILABLE

MAJOR DEPPAL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 4, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS JANUARY 4 TO FEBRUARY 20, 1955, AND FEBRUARY 28 TO MARCH 13, 1955, INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP RALE, COLORADO, UNDER LETTER ORDERS 12-234 OF HEADQUARTERS, FORT CARSON, COLORADO, DATED DECEMBER 22, 1954, AS AMENDED BY ORDERS OF THE SAME COMMAND DATED DECEMBER 3, 1957.

UNDER THE ORDERS OF DECEMBER 22, 1954, YOU AND OTHER DESIGNATED PERSONNEL WERE DIRECTED TO PROCEED FROM FORT CARSON ON OR ABOUT JANUARY 3, 1955, TO CAMP HALE FOR THE PURPOSE OF CONDUCTING EXERCISE HAIL STORM, FOR WHICH PURPOSE YOU WERE PLACED ON TEMPORARY DUTY FOR AN INDEFINITE PERIOD. UPON THE COMPLETION OF THE TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER ORGANIZATION AND STATION. PARAGRAPH 3 OF THE ORDERS STATED THAT THE TRAVEL DIRECTED WAS GROUP TRAVEL AND THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201-6, JTR'S." YOU PROCEEDED FROM FORT CARSON TO CAMP HALE UNDER THOSE ORDERS ON JANUARY 3 AND UPON THE COMPLETION OF THE TEMPORARY DUTY DIRECTED YOU LEFT CAMP HALE ON MARCH 14 AND RETURNED TO FORT CARSON ON MARCH 15, 1955. YOU CERTIFIED THAT GOVERNMENT QUARTERS WERE FURNISHED TO YOU DURING THE PERIOD INVOLVED, BUT THAT GOVERNMENT MESS WAS NOT UTILIZED. IT IS PRESUMED, HOWEVER, IN VIEW OF THE NATURE OF THE DUTY ASSIGNMENT, THAT A GOVERNMENT MESS WAS AVAILABLE TO YOU HAD YOU CHOSEN TO USE IT. LETTER ORDERS 12-2 OF HEADQUARTERS, FORT CARSON, DATED DECEMBER 3, 1957, AMENDED SO MUCH OF PARAGRAPH 3 OF THE ORDERS OF DECEMBER 22, 1954, AS PERTAINED TO OFFICERS ON TEMPORARY DUTY AT CAMP HALE FOR THE PURPOSE OF CONDUCTING EXERCISE HAIL STORM STATING THAT ALL TRAVEL AND TEMPORARY DUTY CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS TO EXCEPT FROM THAT STATEMENT PERIODS COVERING THE ADVANCE PLANNING (NOVEMBER 1, 1954, TO FEBRUARY 20, 1955) AND CRITIQUE (FEBRUARY 28, 1955) PHASES OF THE EXERCISES. ALSO, IT WAS STATED THAT THERE WAS A CLOSE-OUT PERIOD EXTENDING FROM MARCH 1 THROUGH APRIL 15, 1955.

REGULATIONS GOVERNING THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4201-6 OF THESE REGULATIONS PROVIDED, AT THE TIME THE ORDERS OF DECEMBER 22, 1954, WERE ISSUED, THAT PER DIEM ALLOWANCE WERE NOT PAYABLE TO MEMBERS FOR PERIODS OF TRAVEL OR TEMPORARY DUTY WHILE PERFORMING FIELD DUTY, INCLUDING MANOUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND SIMILAR ACTIVITES, WHERE BOTH RATIONS IN KIND AND QUARTERS WERE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES WERE UTILIZED, EXCEPT THAT THE LIMITATION DID NOT APPLY TO MEMBERS "DURING THE PERIOD THEY ARE ACTUALLY ENGAGED IN THE ADVANCE PLANNING AND CRITIQUE PHASES OF THE OPERATION." INSTRUCTIONS CONCERNING THE APPLICATION OF THOSE PROVISIONS TO ARMY PERSONNEL FOR THE PERIOD IN QUESTION WERE 1954. PARAGRAPH 3 OF THOSE REGULATIONS PROVIDED THAT A MEMBER IS ENTITLED TO PER DIEM FOR PERIODS OF TRAVEL AND TEMPORARY DUTY "WHEN PERFORMED AS AN INDIVIDUAL IN CONNECTION WITH DUTY FOR THE ADVANCE STAFF PLANNING OR CRITIQUE PHASES OF THE OPERATION," AND PARAGRAPH 4 PROVIDED THAT IN CASES WHERE PER DIEM WAS NOT AUTHORIZED UNDER THE DUTY CIRCUMSTANCES INVOLVED THE ORDERS SHOULD CONTAIN A STATEMENT SUCH AS THAT APPEARING IN PARAGRAPH 3 OF THE ORDERS OF DECEMBER 22, 1954, THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS. SUCH REGULATIONS CONTEMPLATED THE PAYMENT OF PER DIEM INCIDENT TO PARTICIPATION IN ADVANCE PLANNING OR CRITIQUE PHASES OF AN EXERCISE ONLY TO PERSONNEL ORDERED AS INDIVIDUALS TO THOSE SPECIFIC DUTIES. A RIGHT TO PER DIEM, THEREFORE, COULD NOT BE CONSIDERED TO HAVE ARISEN IN PERSONNEL WHO HAD BEEN ORDERED TO PARTICIPATE IN A FIELD EXERCISE ON THE BASIS OF A STATEMENT THAT AN ADVANCE PLANNING OR CRITIQUE PHASE WAS IN PROGRESS UNLESS ORDERED INDIVIDUALLY TO PARTICIPATE IN THE ADVANCE PLANNING OR CRITIQUE DUTIES. NO PROVISION IS FOUND FOR PAYMENT OF PER DIEM DURING A "CLOSE CUT" PERIOD OF THE MANEUVER.

THE ORDERS OF DECEMBER 22, 1954, DIRECTED YOU, WITH OTHER DESIGNATED PERSONNEL, TO PERFORM TRAVEL AND TEMPORARY DUTY FOR THE PURPOSE OF CONDUCTING EXERCISES AND THE PROVISION IN THE ORDERS STATING THAT ALL TRAVEL AND TEMPORARY DUTY WERE OF THE TYPE CONTEMPLATED IN PARAGRAPH 4201- 6 CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT SUCH DUTY WAS FIELD DUTY OF THE NATURE FOR WHICH PER DIEM IS DENIED UNDER THE REGULATIONS. HAD IT BEEN CONTEMPLATED AT THAT TIME THAT YOU WERE TO PARTICIPATE IN THE ADVANCE PLANNING OR CRITIQUE DUTIES, THE CITED REGULATIONS REQUIRED THAT YOU BE ORDERED TO PARTICIPATE AS AN INDIVIDUAL IN THAT CAPACITY. THE AMENDING ORDERS OF DECEMBER 3, 1957, CONTAIN NO INDICATION THAT THE PRIOR ORDERS WERE IN ERROR IN THAT RESPECT, OR THAT YOU WERE DIRECTED AND REQUIRED BY THE ORDERS, AS AMENDED, TO SO PARTICIPATE. UNDER SUCH CIRCUMSTANCES, NO PROPER BASIS EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JUNE 4, 1958, IS SUSTAINED. INVOLVED IN THE SETTLEMENT OF THIS MATTER.