B-141040, NOV. 17, 1959

B-141040, NOV. 17, 1959

TO CAPTAIN JACK W. THOMAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1959, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 24, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM AND TRAVEL EXPENSES FOR TEMPORARY DUTY AT SCHWABISCH HALL, GERMANY, DURING PARTS OF THE PERIOD MAY 27 TO JUNE 14, 1958.

BY VERBAL ORDERS OF APRIL 14, 1958, CONFIRMED BY LETTER ORDER 6/12, DATED JUNE 5, 1958, YOU WERE DIRECTED TO PROCEED ON OR ABOUT MAY 1, 1958, FROM ERLANGEN, GERMANY, TO LEIPHEIM, ULM, SCHWABISCH HALL, ERLANGEN AND GRAFENWOHR, GERMANY, FOR TEMPORARY DUTY FOR APPROXIMATELY 45 DAYS FOR THE PURPOSE OF UMPIRING PILOT TESTS, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR ORGANIZATION. WHILE THE CONFIRMING ORDERS NAMED A NUMBER OF OFFICERS AND AN ENLISTED MAN, IT APPEARS THAT INDIVIDUAL TRAVEL WAS AUTHORIZED. YOUR ITINERARY SHOWS YOU TRAVELED FROM ERLENGEN TO SCHWABISCH HALL ON MAY 27, 1958, BY PRIVATELY OWNED VEHICLE AND RETURNED ON JUNE 14, 1958, BY THE SAME MEANS. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE, CITING PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATIONS, RELATING TO FIELD EXERCISES, ETC. IN YOUR PRESENT LETTER YOU STATE THAT YOUR CLAIM DOES NOT COVER ANY TIME SPENT IN THE FIELD UNDER FIELD CONDITIONS--- ALLEGED TO CONSIST OF FOUR SEPARATE PERIODS OF 14 HOURS EACH --- THAT IT COVERS ONLY THE REMAINING TIME SPENT IN GARRISON ON THE CRITIQUE AND PREPARATION PHASES; AND THAT WHILE IN BARRACKS YOU PAID THE USUAL FEES FOR QUARTERS. ALSO, YOU CONTEND THAT THE PURPOSE OF YOUR STAY AT SCHWABISCH HALL WAS NOT TO UMPIRE PILOT TESTS BUT TO UMPIRE STANDARD ARMY TRAINING TEST (ATT) FOR INFANTRY PLATOONS. IN THE EVENT THE DISALLOWANCES OF YOUR CLAIM IS SUSTAINED, YOU REQUEST THE RETURN OF THE BASIC CORRESPONDENCE IN YOUR FILE IN ORDER THAT YOU MAY PROCESS YOUR CLAIM THROUGH "ALTERNATE CHANNELS.'

REGULATIONS GOVERNING THE RIGHT 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 PER DIEM ALLOWANCES ARE NOT PAYABLE TO MEMBERS FOR PERIODS OF TEMPORARY DUTY WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS UMPIRE), WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. THAT PARAGRAPH FURTHER PROVIDES THAT SUCH LIMITATION AGAINST PAYMENT OF PER DIEM DOES NOT APPLY TO MEMBERS DURING THE PERIOD THEY ARE ACTUALLY ENGAGED IN THE ADVANCE PLANNING AND CRITIQUE PHASES OF THE OPERATION. INSTRUCTIONS FOR THE APPLICATION OF THOSE PROVISIONS IN EFFECT WHEN YOU WERE ORDERED TO THE DUTY AT SCHWABISCH HALL ARE CONTAINED IN ARMY REGULATIONS 35-3080, DATED MAY 15, 1956. PARAGRAPH 6B OF THOSE REGULATIONS RELATING TO DUTY AS AN UMPIRE, PROVIDES THAT TRAVEL OF AN INDIVIDUAL WHO WILL BE REQUIRED TO PERFORM DUTY IN THE ADVANCE PLANNING OR CRITIQUE PHASES WILL STATE:

"TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY PAR. 4201.6 (0R 4250.3), JOINT TRAVEL REGULATIONS, EXCEPT FOR PERIOD OF CRITIQUE PHASE (OR ADVANCE PLANNING).'

THUS, THE REGULATIONS CONTEMPLATE THE PAYMENT OF PER DIEM INCIDENT TO PARTICIPATION IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF AN EXERCISE ONLY TO PERSONNEL ORDERED AS INDIVIDUALS TO THOSE SPECIFIC DUTIES. RIGHT TO PER DIEM, THEREFORE, CANNOT BE CONSIDERED TO HAVE ACCRUED TO PERSONNEL WHO WERE ORDERED TO PARTICIPATE IN A FIELD EXERCISE, ON THE BASIS OF A STATEMENT OF PERFORMANCE OF ADVANCE PLANNING OR CRITIQUE DUTIES, UNLESS INDIVIDUALLY ORDERED AND SPECIFICALLY DIRECTED TO PARTICIPATE IN THE ADVANCE PLANNING OR CRITIQUE PHASES.

WHILE THE CONFIRMATORY ORDERS OF JUNE 5, 1958, DID NOT SPECIFICALLY STATE THAT THE DUTY DIRECTED THEREIN WAS OF THE TYPE CONTEMPLATED BY PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS, YOU WERE REQUIRED TO ACT AS AN UMPIRE AND THE CITED FIELD EXERCISE REGULATIONS EXPRESSLY REFER TO DUTY AS AN UMPIRE. YOU ADMIT THAT YOU PERFORMED FIELD DUTY DURING PARTS OF THE PERIOD INVOLVED AND THE RECORD CLEARLY INDICATES THAT THE DUTY OF THAT TYPE WAS CONTEMPLATED UNDER THOSE ORDERS. SINCE SUCH ORDERS DID NOT DIRECT YOU TO PARTICIPATE IN THE ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION, NO RIGHT TO PER DIEM ACCRUED TO YOU IN CONNECTION WITH YOUR DUTIES AS AN UMPIRE IF BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE.

CONCERNING THE STATEMENT IN YOUR LETTER OF AUGUST 12, 1959, WITH RESPECT TO PAYMENT OF FEES FOR BACHELOR OFFICER QUARTERS AND THAT "THE ONLY MESSING FACILITIES PROVIDED WERE THOSE OF THE OFFICERS AND CIVILIANS OPEN MESS, WHERE AGAIN I UTILIZE MY OWN FUNDS," IT IS NOTED THAT WHEN YOU ORIGINALLY SUBMITTED YOUR CLAIM, YOU CERTIFIED ON AE FORM 2457 THAT BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESS AS DEFINED IN PARAGRAPHS 1150-4 AND 5, JOINT TRAVEL REGULATIONS, WERE UTILIZED DURING THE ENTIRE PERIOD FROM MAY 27 TO JUNE 14, 1958. PAYMENT OF A SERVICE CHARGE FOR OCCUPANCY OF GOVERNMENT QUARTERS IS REGARDED AS PROPER UNDER SUCH REGULATIONS AND YOU ARE ADVISED THAT A CHARGE IS REQUIRED TO BE MADE FOR ALL MEALS FURNISHED BY THE GOVERNMENT TO OFFICERS, A BASIC ALLOWANCE FOR SUBSISTENCE BEING PAYABLE TO THEM AT ALL TIMES.

IN THE CIRCUMSTANCES, THERE IS NO AUTHORITY FOR THE PAYMENT OF ANY PART OF YOUR CLAIM EXCEPT FOR THE DAYS OF TRAVEL TO AND FROM THE PLACE OF TEMPORARY DUTY. YOU ARE ENTITLED TO A FULL PER DIEM FOR EACH OF THOSE DAYS, LESS THE QUARTER'S DEDUCTION OF 40 PERCENT AS PROVIDED IN PARAGRAPH 4254 OF THE JOINT TRAVEL REGULATIONS, AND FIVE CENTS PER MILE FOR THE DISTANCE FROM ERLANGEN TO SCHWABISCH HALL, AND RETURN. A SETTLEMENT ALLOWING THE AMOUNT FOUND DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.

WITH RESPECT TO YOUR REQUEST THAT THE BASIC PAPERS RELATING TO YOUR CLAIM BE RETURNED TO YOU IN ORDER THAT YOU MAY PROSECUTE THE CLAIM THROUGH "ALTERNATE CHANNELS," YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ON CLAIMS PRESENTED HERE ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE IN THIS CONNECTION, 31 U.S.C. 71, 74. SINCE THE PAPERS RELATING TO YOUR CLAIM CONSTITUTE THE RECORD ON WHICH OUR ACTION WAS BASED, IT WILL BE NECESSARY TO RETAIN SUCH PAPERS HERE, EXCEPT FOR YOUR ORDERS WHICH ARE RETURNED HEREWITH.