B-141244, JAN. 7, 1960

B-141244, JAN. 7, 1960

TO CAPTAIN WILLIAM M. OLIVER, USMC:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1959, AND ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JULY 31, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING A PART OF THE MONTH OF AUGUST 1958, WHILE YOU WERE ON TEMPORARY DUTY AT CAMP LEJEUNE, NORTH CAROLINA, AS A MEMBER OF THE INSPECTOR-INSTRUCTOR STAFF IN CONNECTION WITH THE ANNUAL FIELD TRAINING OF THE 1ST 105MM HOWITZER BATTERY, USMCR. YOUR CLAIM IS STATED TO COVER THE PERIOD FROM AUGUST 8 TO 26, 1958. SINCE, HOWEVER, YOU DID NOT REPORT AT CAMP LEJEUNE UNTIL AUGUST 14, AND HAVE BEEN PAID PER DIEM FOR AUGUST 15, 16 AND 17, 1958, IT APPEARS THAT YOUR CLAIM COVERS THE PERIOD AUGUST 18 TO 26, 1958.

BY ORDERS DATED JULY 15, 1958, OF HEADQUARTERS, SIXTH MARINE CORPS RESERVE AND RECRUITMENT DISTRICT, YOU WERE DIRECTED TO PROCEED ON OR ABOUT AUGUST 13, 1958, TO CAMP LEJEUNE ON TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF ABOUT 15 DAYS IN CONNECTION WITH ANNUAL FIELD TRAINING OF THE ABOVE- MENTIONED RESERVE UNIT. THESE ORDERS DECLARED THAT THEY INVOLVED FIELD TRAINING AS DEFINED IN SECNAV INSTRUCTION 7220.24 AND DIRECTED YOU TO OBTAIN AN ENDORSEMENT FROM THE UNIT TO WHICH YOU REPORTED TO THE EFFECT THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE OR WERE NOT AVAILABLE OR FURNISHED DURING THE ORDERED TEMPORARY DUTY. A THIRD ENDORSEMENT TO YOUR ORDERS DATED AUGUST 29, 1958, STATED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AND THAT FIELD DUTY AS DEFINED IN SECNAV INSTRUCTION 7220.24A COMMENCED ON AUGUST 18 AND TERMINATED AUGUST 29, 1958. BY MEMORANDUM ENDORSEMENT DATED MAY 12, 1959, YOUR ORDERS WERE MODIFIED TO SHOW THAT THEY INVOLVED FIELD DUTY AS DEFINED IN SECNAV INSTRUCTION 7220.24A. A COMMUNICATION DATED MAY 26, 1959, OF HEADQUARTERS, MARINE CORPS BASE, CAMP LEJEUNE MODIFIED THE THIRD ENDORSEMENT TO YOUR ORDERS TO SHOW THAT YOU WERE ON FIELD DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES, AS DEFINED IN SECNAV INSTRUCTION 7220.24A DURING THE PERIOD AUGUST 27 TO 28, 1958. THIS MODIFICATION CONSTITUTES THE BASIS FOR YOUR CLAIM.

PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR PERIODS WHILE PARTICIPATING IN TRAINING ENCAMPMENTS AND SIMILAR ACTIVITIES FOR THE RESERVE COMPONENTS, INCLUDING DUTY AS OBSERVER OR UMPIRE, WHERE RATIONS AND QUARTERS ARE AVAILABLE, EXCEPT WHERE PARTICIPATION IN SUCH DUTY INVOLVED TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED.

THE SECRETARIAL REGULATIONS GOVERNING PAYMENT OF PER DIEM TO NAVY AND MARINE CORPS MEMBERS PARTICIPATING IN FIELD DUTY WHILE ON TEMPORARY DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES AFTER JULY 31, 1958, ARE CONTAINED IN SECNAV INSTRUCTION 7220.24A. THIS REGULATION DEFINES THE TERM "FIELD DUTY" AS INCLUDING ANNUAL FIELD TRAINING FOR MEMBERS OF THE RESERVE COMPONENTS AND PROVIDES IN PERTINENT PART AS FOLLOWS:

"5. ENTITLEMENT TO PER DIEM. MEMBERS PERFORMING FIELD DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES, COMMENCING AT 0001 HOURS ON THE DAY AFTER THE DAY OF ARRIVAL AND TERMINATING AT 2400 HOURS ON THE DAY PRIOR TO THE DAY OF DEPARTURE, WILL NOT BE ENTITLED TO PER DIEM WHEN BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE. * * * HOWEVER, WHEN GOVERNMENT QUARTERS OR MEALS ARE NOT AVAILABLE THE PROVISIONS OF PARAGRAPHS 4205-5C * * * JOINT TRAVEL REGULATIONS, APPLY.

"6. STATEMENT TO BE INCLUDED IN TRAVEL ORDERS. ORDERS DIRECTING FIELD DUTY WILL STATE THAT ,THESE ORDERS INVOLVE PARTICIPATION IN FIELD DUTY AS DEFINED IN SECNAVINST 7220.24A.' IF THE FIELD DUTY HAS BEEN PERFORMED ON AN INSTALLATION OF THE UNIFORMED SERVICES AND GOVERNMENT QUARTERS AND/OR GOVERNMENT MESSING FACILITIES WERE AVAILABLE, THE ORDERS WILL BE ENDORSED BY COMPETENT AUTHORITY (COMMANDING OFFICERS OF INSTALLATION, MANEUVER, EXERCISE, ETC.) TO STATE:

"A. THAT THE DUTY WAS PERFORMED ON AN INSTALLATION OF THE UNIFORMED SERVICES; AND

"B. THAT GOVERNMENT QUARTERS AND/OR GOVERNMENT MESS WERE/WERE NOT AVAILABLE, ALSO THE TIME AND DATE OF COMMENCEMENT AND TERMINATION OF THE FIELD DUTY INVOLVED.'

SUCH REGULATIONS PLAINLY DECLARE THAT THE ANNUAL FIELD TRAINING OF A MARINE CORPS RESERVE UNIT IS FIELD DUTY AND PROVIDE THAT MEMBERS OF THE MARINE CORPS WHO, WHILE ON TEMPORARY DUTY AT AN INSTALLATION OF THE MARINE CORPS, PARTICIPATE IN THAT DUTY COMMENCING ON THE DAY AFTER THE DAY OF ARRIVAL AND TERMINATING ON THE DAY BEFORE THE DAY OF DEPARTURE, ARE NOT ENTITLED TO PER DIEM WHEN GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. THE THIRD ENDORSEMENT TO YOUR ORDERS DATED AUGUST 29, 1958, BRINGS YOU SQUARELY WITHIN THAT PROHIBITION AGAINST PAYMENT OF PER DIEM FOR THE PERIOD OF YOUR TEMPORARY DUTY AT CAMP LEJEUNE.

BY COMMUNICATION DATED APRIL 8, 1959, THE COMMANDANT OF THE MARINE CORPS ADVISED THE DIRECTOR, SIXTH MARINE CORPS RESERVE AND RECRUITMENT DISTRICT, THAT IN ACCORDANCE WITH SECNAV INSTRUCTION 7220.24A, IT WAS NOT CONSIDERED THAT INSPECTOR-INSTRUCTOR STAFF PERSONNEL WERE ASSIGNED TO FIELD DUTY FOR THE FULL PERIOD WHEN ACCOMPANYING UNITS TO ANNUAL FIELD TRAINING. THE DIRECTOR WAS INSTRUCTED TO ADVISE THE RESPECTIVE TRAINING COMMANDS THAT IT WAS INTENDED THAT SUCH PERSONNEL WOULD PARTICIPATE IN FIELD TRAINING FOR A PERIOD OF 1 OR 2 DAYS ONLY AND TO REQUEST THE COMMANDS TO MODIFY THEIR ENDORSEMENTS ACCORDINGLY IN CASES OF ATTENDANCE AT FIELD TRAINING SUBSEQUENT TO AUGUST 1, 1959. THE THIRD ENDORSEMENT TO YOUR ORDERS WAS MODIFIED TO MAKE IT AGREE WITH THAT COMMUNICATION.

THE COMMUNICATION OF APRIL 8, 1959, AND PARAGRAPH 2058-A, RESERVETRAINING STANDING OPERATING PROCEDURES, U.S. MARINE CORPS, INDICATE THAT THE MARINE CORPS VIEW AS TO THE FIELD-DUTY STATUS OF INSPECTOR-INSTRUCTOR STAFF PERSONNEL DURING ANNUAL FIELD TRAINING IS BASED UPON THE FACT THAT SUCH PERSONNEL ARE NOT MEMBERS OF A RESERVE COMPONENT ON ANNUAL FIELD TRAINING ARE GOVERNED BY PARAGRAPH 6001 OF THE JOINT TRAVEL REGULATIONS, IT SEEMS APPARENT THAT SECNAV INSTRUCTION 7220.24A HAS NO APPLICATION TO THE RESERVISTS BEING TRAINED IN ANY EVENT AND IS INTENDED TO APPLY TO OTHER MEMBERS OF THE MARINE CORPS PARTICIPATING IN THE ANNUAL FIELD TRAINING. IT IS NOT PERCEIVED HOW THE FACT THAT INSPECTOR-INSTRUCTOR PERSONNEL ARE NOT MEMBERS OF A RESERVE COMPONENT COULD HAVE ANY BEARING ON THEIR RIGHT TO PER DIEM, SINCE SUCH RIGHT IS BASED ON EXPENSES INCURRED RATHER THAN THE STATUS IN WHICH TEMPORARY DUTY IS PERFORMED. PRESUMABLY, THE EXPENSES OF RESERVISTS AND OF MEMBERS OF THE REGULAR MARINE CORPS WHO UTILIZE GOVERNMENT QUARTERS AND MESSES, ARE THE SAME. IN VIEW OF THE PROVISIONS OF PARAGRAPH 2208-4, 5, RESERVE TRAINING STANDING OPERATING PROCEDURES, IT APPEARS THAT INSPECTOR-INSTRUCTOR STAFF PERSONNEL ARE EXPECTED TO AND DO PARTICIPATE IN SOME MANNER IN THE ANNUAL FIELD TRAINING PROGRAM OF THE UNIT INVOLVED OVER THE FULL PERIOD OF SUCH TRAINING. ACCORDINGLY,WE MAY NOT ACCEPT THE COMMUNICATION OF APRIL 8, 1959, OR PARAGRAPH 2058-4 OF THE RESERVE TRAINING STANDING OPERATING PROCEDURES AS AUTHORIZING THE PAYMENT OF PER DIEM TO INSPECTOR INSTRUCTOR STAFF PERSONNEL, WHO PLAINLY ARE WITHIN THE PURVIEW OF SECNAV INSTRUCTION 7220.24A DURING PERIODS OF DUTY IN CONNECTION WITH THE ANNUAL FIELD TRAINING OF A RESERVE UNIT.

IN CONNECTION WITH THE FOREGOING, IT MAY BE NOTED THAT THE PRACTICAL EFFECT OF THE COMMANDANT'S COMMUNICATION AND PARAGRAPH 2058-4 OF THE RESERVE TRAINING STANDING OPERATING PROCEDURES IS TO LARGELY EXEMPT INSPECTOR-INSTRUCTOR STAFF PERSONNEL FROM THE APPLICATION OF SECNAV INSTRUCTION 7220.24A DURING PERIODS OF DUTY IN CONNECTION WITH THE ANNUAL FIELD TRAINING OF RESERVE COMPONENTS AT INSTALLATIONS OF THE MARINE CORPS, WITHOUT REGARD TO THE DUTY ACTUALLY PERFORMED OR EXPENSES INCURRED. ARE NOT AWARE OF ANY AUTHORITY IN THE COMMANDANT TO EFFECT SUCH AN EXEMPTION. IN VIEW OF THE PROVISIONS OF PARAGRAPH 4201-6 OF THE JOINT TRAVEL REGULATIONS AND SECTION 534 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 4 OF THE ACT OF SEPTEMBER 2, 1957, 71 STAT. 597, IT WOULD APPEAR THAT AN OTHERWISE PROPER EXEMPTION FROM SUCH INSTRUCTIONS COULD ONLY BE EFFECTED BY AN APPROVED REGULATION OF THE SECRETARY OF THE NAVY.

UPON REVIEW WE FIND NO PROPER BASIS FOR PAYMENT TO YOU OF PER DIEM DURING THE PERIOD INVOLVED AND, ACCORDINGLY, THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.