B-143110, JUN. 27, 1960

B-143110, JUN. 27, 1960

TO MAJOR ROBERT L. EVELSIZOR:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 20, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 31, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIODS JUNE 10 TO NOVEMBER 3, 1953, AND NOVEMBER 5 TO 23, 1953, INCIDENT TO THE PERFORMANCE OF DUTY AT EDWARDS AIR FORCE BASE, CALIFORNIA.

BY SPECIAL ORDERS NO. 79 DATED JUNE 8, 1953, ISSUED BY BEALE AIR FORCE BASE, CALIFORNIA, YOU AND CERTAIN ENLISTED MEMBERS OF THE 297TH ENGINEER AVIATION BATTALION WERE PLACED ON TEMPORARY DUTY AT EDWARDS AIR FORCE BASE FOR APPROXIMATELY 21 DAYS FOR THE PURPOSE OF MAKING NECESSARY PREPARATIONS FOR THE ARRIVAL OF THE PARENT UNIT AT EDWARDS AIR FORCE BASE WHICH YOU AND YOUR MEN WERE TO JOIN UPON ITS ARRIVAL. YOU WERE ATTACHED TO THE 820TH ENGINEER AVIATION BATTALION FOR RATIONS, QUARTERS AND ADMINISTRATION. UPON COMPLETION OF YOUR TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER STATION. IT APPEARS THAT YOU PERFORMED THE DUTY AT EDWARDS AIR FORCE BASE ENJOINED BY THESE ORDERS AND THEREAFTER WITH YOUR REGULAR UNIT DURING THE PERIOD JUNE 9 THROUGH NOVEMBER 23, 1953.

INFORMATION AVAILABLE TO US (AIR FORCE REGULATIONS 50-20 AND 306-3), DISCLOSES THAT ENGINEER AVIATION UNITS ARE SPECIAL CATEGORY ARMY WITH AIR FORCE (SCARWAF) UNITS, AND, AS SUCH, ARE MANNED AND TRAINED BY THE DEPARTMENT OF THE ARMY FOR ASSIGNMENT TO AND OPERATIONAL EMPLOYMENT BY THE DEPARTMENT OF THE AIR FORCE. PERIODIC REFRESHER TRAINING INCLUDES FIELD OPERATIONS WHICH INVOLVE ACTUAL CONSTRUCTION OR REHABILITATION AND ALL PHASES OF UNIT OPERATION. DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35- 3080-5, DATED AUGUST 26, 1952, IN DEFINING FIELD DUTY, SPECIFICALLY PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES IS NOT ENTITLED TO PER DIEM FOR ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION ACTIVITIES. THIS IS SUPPORTED BY PARAGRAPH 4201-7, JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, WHICH PROVIDES THAT PER DIEM IS NOT PAYABLE FOR FIELD DUTY WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. SINCE THE DUTY PERFORMED BY YOU APPEARS TO BE THE SAME AS DESCRIBED IN THE REGULATIONS CITED ABOVE, THERE APPEARS TO BE NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

CONCERNING YOUR STATEMENT THAT OUR OFFICE HAS PAID SIMILAR CLAIMS FROM OTHER INDIVIDUALS OF YOUR ORGANIZATION UNDER PRECISELY THE SAME CIRCUMSTANCES, YOU ARE ADVISED THAT IF THE PAYMENTS WERE MADE TO THOSE INDIVIDUALS UNDER CIRCUMSTANCES IDENTICAL TO THOSE HERE INVOLVED, THEY APPEAR TO BE ERRONEOUS AND FURNISH NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 31, 1959, WAS CORRECT AND IS SUSTAINED.