B-137232, OCT 2, 1958

B-137232, OCT 2, 1958

PRECIS-UNAVAILABLE

MAJOR CHARLES J. BENNETT, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 29, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TRAVEL FROM JEFFERSON BARRACKS, MISSOURI, TO CAMP STONEMAN, CALIFORNIA, EN ROUTE TO HICKAM FIELD, TERRITORY OF HAWAII, DURING THE PERIOD NOVEMBER 1, TO DECEMBER 30, 1943, WHILE YOU WERE SERVING AS SECOND LIEUTENANT, UNITED STATES ARMY.

THE RECORD SHOWS THAT YOU WERE INCLUDED IN A GROUP OF 42 OFFICERS AND 336 ENLISTED MEN WHO, BY SPECIAL ORDERS NO. 301 DATED OCTOBER 28, 1943, AS AMENDED, AND SPECIAL ORDERS NO. 305 DATED NOVEMBER 1, 1943, WERE ASSIGNED TO SHIPMENT AB-708-B AND TRANSFERRED FROM JEFFERSON BARRACKS, MISSOURI, TO CAMP STONEMAN, CALIFORNIA, FOR FURTHER MOVEMENT TO AN OVERSEAS DESTINATION. THE ORDERS PROVIDED THAT THE MOVEMENT TO CAMP STONEMAN, CALIFORNIA, WOULD BE BY RAIL AND THAT NECESSARY FIELD RANGES, PROPERLY INSTALLED IN KITCHEN CARS, AND COOKING AND SERVING UTENSILS WOULD BE FURNISHED. THE LATTER ORDERS FURTHER PROVIDED THAT IN LIEU OF SUBSISTENCE A PER DIEM OF $7 WAS AUTHORIZED FOR THE OFFICERS FOR TRAVEL ON OFFICIAL BUSINESS WHILE WITHIN THE CONTINENTAL UNITED STATES IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS. IN YOUR PRESENT LETTER YOU EXPRESS THE BELIEF THAT THE ORDERS CONSTITUTE AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE PERIOD OF TIME FROM DEPARTURE FROM JEFFERSON BARRACKS TO DEPARTURE FROM THE CONTINENTAL LIMITS OF THE UNITED STATES.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDED THAT OFFICERS WHEN TRAVELING UNDER COMPETENT ORDERS, WITHOUT TROOPS, WOULD RECEIVE A MILEAGE ALLOWANCE. ALSO, IT VESTED IN THE HANDS OF THE EXECUTIVE DEPARTMENTS CONCERNED AUTHORITY TO PRESCRIBE PER DIEM RATES OF ALLOWANCE IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IT FURTHER PROVIDED THAT THE HEAD OF THE DEPARTMENT CONCERNED COULD DETERMINE WHAT WOULD CONSTITUTE TRAVEL WITHOUT TROOPS WITHIN THE MEANING OF LAWS GOVERNING PAYMENT OF MILEAGE OR OTHER TRAVEL ALLOWANCES. PURSUANT TO THAT STATUTORY AUTHORITY, PARAGRAPH 4, ARMY REGULATIONS 35-4820, DATED SEPTEMBER 19, 1942, DEFINED TRAVEL WITH TROOPS AS COVERING ALL CASES OF TRAVEL UNDER ORDERS DIRECTING OFFICERS TO ACCOMPANY TROOPS. NEITHER THE LAW NOR REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDED FOR THE PAYMENT OF A PER DIEM ALLOWANCE TO OFFICERS TRAVELING WITH TROOPS. THE ORDERS HERE INVOLVED CONTEMPLATED A MOVEMENT OF TROOPS FROM THE TIME OF DEPARTURE FROM JEFFERSON BARRACKS UNTIL ARRIVAL AT HICKAM FIELD, INCLUDING ANY PERIOD OF DELAY AT CAMP STONEMAN WHILE BEING PROCESSED FOR OVERSEAS SHIPMENT, AWAITING TRANSPORTATION, ETC. WHILE YOUR ORDERS INCLUDED A PROVISION AUTHORIZING A PER DIEM OF $7 WHILE TRAVELING ON OFFICIAL BUSINESS IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS, IT DOES NOT APPEAR THAT ANY TRAVEL ENTITLING YOU TO PER DIEM, THAT IS, TRAVEL WITHOUT TROOPS, WAS PERFORMED BY YOU INCIDENT TO THESE ORDERS.

SINCE IT SEEMS CLEAR THAT ALL TRAVEL WAS PERFORMED AS PART OF A TROOP MOVEMENT, THERE IS NO AUTHORITY FOR THE PAYMENT OF A PER DIEM ALLOWANCE. FOR THAT REASON, THE SETTLEMENT OF JULY 29, 1958, IS SUSTAINED.