B-142707, MAY 17, 1960

B-142707, MAY 17, 1960

TO ACTING GUNNERY SERGEANT HENRY R. JOLLY, 649824:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1960, REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT DATED DECEMBER 28, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIODS FEBRUARY 5, 1959, TO MARCH 25, 1959, AND MAY 10, 1959, TO SEPTEMBER 22, 1959, INCIDENT TO YOUR SERVICE IN THE UNITED STATES MARINE CORPS.

BY ORDERS DATED FEBRUARY 4, 1959, HEADQUARTERS, FIRST MARINE BRIGADE, FLEET MARINE FORCE, YOU WERE DIRECTED TO PROCEED AND REPORT FEBRUARY 6, 1959, TO THE COMMANDING OFFICER, MARINE BARRACKS, U.S. NAVAL BASE, PEARL HARBOR, HAWAII, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE HAWAIIAN MARINE RIFLE AND PISTOL TEAM FOR A PERIOD IN EXCESS OF 30 DAYS. THE ORDERS SPECIFIED THAT THERE WAS TO BE NO EXPENSE TO THE GOVERNMENT IN THEIR EXECUTION OTHER THAN THE GOVERNMENT TRANSPORTATION INDICATED. THE SECOND ENDORSEMENT DATED MARCH 26, 1959, TO YOUR ORDERS ASSIGNED YOU TO SUB UNIT NO. 1 FOR DUTY IN CONNECTION WITH THE PACIFIC DIVISION RIFLE AND PISTOL MATCHES. UPON COMPLETION OF SUCH DUTY YOU WERE TO RESUME YOUR TEMPORARY DUTY WITH THE HAWAIIAN MARINE RIFLE AND PISTOL TEAM UNLESS SELECTED FOR FURTHER COMPETITION. IT WAS ALSO SPECIFIED THAT THERE WAS TO BE NO EXPENSE TO THE GOVERNMENT IN THE EXECUTION OF THE ORDERS. THIRD ENDORSEMENT DATED MARCH 27, 1959, STATED THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE FOR YOUR USE AT YOUR TEMPORARY STATION. FOURTH ENDORSEMENT DATED APRIL 22, 1959, TO YOUR ORDERS CITED AN APPROPRIATION FOR THE ESTIMATED EXPENSES OF PER DIEM ($60) AND DELETED THE PROVISION IN THE BASIC ORDERS AND THE SECOND ENDORSEMENT THAT THERE WAS TO BE NO EXPENSE TO THE GOVERNMENT IN THE EXECUTION OF THE ORDERS. EIGHTH ENDORSEMENT DATED JULY 2, 1959, ADDED THE PROVISION TO THE FIFTH ENDORSEMENT (TERMINATING YOUR DUTY WITH THE PACIFIC DIVISION RIFLE AND PISTOL MATCHES AND AGAIN DIRECTING YOU TO REPORT TO THE COMMANDING GENERAL, MARINE BARRACKS AT PEARL HARBOR FOR TEMPORARY ADDITIONAL DUTY) THAT NO EXPENSE TO THE GOVERNMENT WAS AUTHORIZED IN THE EXECUTION OF THE ORDERS. TENTH ENDORSEMENT DATED AUGUST 14, 1959, MODIFIED YOUR ORDERS AND SUBSEQUENT ENDORSEMENTS BY STATING THAT THEY INVOLVED PARTICIPATION IN FIELD DUTY AS DEFINED IN THE SECNAV INSTRUCTION 7220.24A WITH THE EXCEPTION OF THE TIME YOU WERE A COMPETITOR IN THE PACIFIC DIVISION RIFLE AND PISTOL MATCHES.

PER DIEM IN THE AMOUNT OF $67.50 FOR THE PERIOD MARCH 26, 1959, TO MAY 9, 1959, WAS ALLOWED IN OUR SETTLEMENT OF DECEMBER 28, 1959, FOR DUTY IN CONNECTION WITH THE PACIFIC DIVISION RIFLE AND PISTOL MATCHES.

PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR PERIODS WHILE PARTICIPATING IN FIELD EXERCISES OUTSIDE THE CONTINENTAL UNITED STATES WHERE RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, EXCEPT WHERE PARTICIPATION IN SUCH DUTY INVOLVES 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 QUALIFICATION, REQUALIFICATION, OR FAMILIARIZATION FIRING ON RANGES, AND OTHER SIMILAR ACTIVITIES, FOR MEMBERS OF THE NAVY AND MARINE CORPS 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 * * * 4256, 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 OFFICER 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.'

THE QUESTION OF WHETHER AN ASSIGNMENT FALLS WITHIN THE SCOPE OF PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS IS ONE OF FACT, USUALLY FOR DETERMINATION ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT. AN ADMINISTRATIVE DETERMINATION MADE BEFORE, DURING OR AFTER THE PERIOD INVOLVED IS FOR CONSIDERATION IN DECIDING SUCH QUESTION. IF THAT DETERMINATION IS MADE AND LATER IS CHANGED, THE AMENDATORY ORDERS EFFECTING SUCH CHANGE MAY BE RECOGNIZED ONLY WHERE THERE HAS BEEN A FULL ADMINISTRATIVE DISCLOSURE OF FACTS SUFFICIENT TO JUSTIFY ISSUANCE OF THE AMENDATORY ORDERS. SUCH RECORD MUST CLEARLY ESTABLISH THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORIGINAL ORDERS. 24 COMP. GEN. 439.

THE RESTRICTION STATED IN YOUR BASIC ORDERS OF FEBRUARY 4, 1959, THAT THERE WAS TO BE NO EXPENSE TO THE GOVERNMENT IN THEIR EXECUTION OTHER THAN THE GOVERNMENT TRANSPORTATION INDICATED, CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT THE TEMPORARY DUTY ASSIGNED WAS FIELD DUTY SINCE PER DIEM WOULD HAVE BEEN PAYABLE IF FIELD DUTY WAS NOT INVOLVED. THE REFERENCE IN THE TENTH ENDORSEMENT TO YOUR ORDERS, TO FIELD DUTY AS DEFINED IN SECNAV INSTRUCTION 7220.24A, MERELY CLARIFIED SUCH ORDERS AND ADDED THE REFERENCE WHICH SHOULD HAVE BEEN SHOWN ORIGINALLY TO SUPPORT THE PROVISION THAT THERE WAS TO BE NO EXPENSE TO THE GOVERNMENT IN THEIR EXECUTION OTHER THAN THE EXPENSE FOR GOVERNMENT TRANSPORTATION. THE FOURTH ENDORSEMENT TO YOUR ORDERS--- DELETING THE REFERENCE TO NO EXPENSE TO THE GOVERNMENT CONTAINED IN YOUR BASIC ORDERS--- MUST BE CONSIDERED ON THE BASIS OF WHETHER THERE WAS A REEVALUATION OF FACTS SUCH AS WOULD AUTHORIZE THE PAYMENT OF PER DIEM. THERE APPEARS TO HAVE BEEN NO NEW INFORMATION FURNISHED IN THE ORDERS OR OTHERWISE WHICH WOULD PERMIT A SECOND DETERMINATION TO AUTHORIZE PER DIEM FOR THE PERIODS OF YOUR CLAIM.

YOUR RIGHT TO PER DIEM DURING THE PERIOD MARCH 26 TO MAY 9, 1959, IS NOT ENTIRELY CLEAR. HOWEVER, SINCE SECNAV INSTRUCTION 7220.24A DOES NOT INCLUDE ACTUAL PARTICIPATION IN RIFLE AND PISTOL MATCHES WITHIN THE DEFINITION OF "FIELD DUTY" AND THE TENTH ENDORSEMENT CONTAINS AN ADMINISTRATIVE DETERMINATION THAT AS A COMPETITOR IN THE PACIFIC DIVISION RIFLE AND PISTOL MATCHES YOU WERE NOT IN A FIELD DUTY STATUS DURING THAT PERIOD, NO QUESTION WILL BE RAISED CONCERNING SUCH ENTITLEMENT. UPON THE COMPLETION OF SUCH MATCHES YOU RETURNED TO THE FIELD DUTY STATUS YOU WERE IN PRIOR TO MARCH 26, 1959, AND THE EIGHTH ENDORSEMENT OF JULY 2, 1959, PROPERLY AMENDED THE FIFTH ENDORSEMENT TO INCLUDE THE PROVISION AGAINST EXPENSE TO THE GOVERNMENT WHICH WAS A PART OF YOUR BASIC ORDERS.

THERE BEING NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF DECEMBER 28, 1959, IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.