B-143205, SEP. 7, 1960

B-143205, SEP. 7, 1960

TO MR. WILLIAM H. SINGER:

REFERENCE IS MADE TO YOUR POSTAL CARD POSTMARKED AUGUST 15, 1960, CONCERNING YOUR CLAIM FOR PER DIEM FOR THE PERIODS MARCH 4 TO MAY 31, 1957, AND SEPTEMBER 1, 1957, TO NOVEMBER 30, 1958, INCIDENT TO YOUR SERVICE AT CAMP ROBERTS, CALIFORNIA, AS AN OFFICER OF THE ARMY OF THE UNITED STATES, WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF JUNE 1, 1960. BY LETTER OF JULY 26, 1960, WE ADVISED SENATOR MONRONEY OF THE REASONS FOR THE DISALLOWANCE OF YOUR CLAIM. YOUR CURRENT COMMUNICATION YOU REITERATE YOUR REQUEST FOR PAYMENT AND STATE THAT A CLAIM SIMILAR TO YOURS WAS PAID BY THE DEPARTMENT OF THE ARMY.

IN THE PRESENTATION OF YOUR CLAIM, YOU STATED THAT YOUR UNIT, BATTERY C, 46TH FIELD ARTILLERY BATTALION, 5TH INFANTRY DIVISION, WAS TRANSFERRED FROM FORT ORD, CALIFORNIA, TO CAMP ROBERTS, CALIFORNIA, IN FEBRUARY 1957, BUT THAT THERE WERE NO MOVEMENT ORDERS. YOUR ITINERARY SHOWS THAT YOU PROCEEDED FROM FORT ORD TO CAMP ROBERTS ON MARCH 3, 1957. BY ORDERS DATED JUNE 13, 1957, YOU WERE RELEASED FROM ASSIGNMENT TO BATTERY C OF THE 46TH FIELD ARTILLERY BATTALION, FORT ORD, AND REASSIGNED TO BATTERY C, FIRST HOWITZER BATTALION (105MM), 19TH ARTILLERY, FORT ORD. MOVEMENT OF THE LATTER UNIT, WITH OTHER UNITS OF THE 10TH REGIMENTAL COMBAT TEAM, FROM FORT ORD TO CAMP ROBERTS WAS DIRECTED BY MOVEMENT ORDER NO. 16, HEADQUARTERS, FORT ORD, DATED MAY 31, 1957. THAT ORDER, IN ORIGINAL FORM, WAS NOT FURNISHED. ORDERS OF JUNE 28, 1957, DESIGNATED AS AMENDMENT NO. 1 TO MOVEMENT ORDER NO. 16, AMENDED THAT PART READING "FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENTS TEST AND EXPERIMENTATION CENTER" TO READ "FOR THE PURPOSE OF RELOCATING TROOPS TO ACCOMMODATE THE EXPANDING REPLACEMENT TRAINING AT FORT ORD.' AMENDMENT NO. 2 TO MOVEMENT ORDER NO. 16, DATED JULY 30, 1957, FURTHER AMENDED THE ORIGINAL ORDER TO PROVIDE FOR PAYMENT OF PER DIEM, EFFECTIVE JUNE 1, 1957, EXCEPT FOR PERIODS DURING WHICH PERSONNEL WERE PARTICIPATING IN FIELD EXERCISES OR TESTS OR DURING WHICH INDIVIDUALS RETURNED TO THE HOME STATION FOR ANY REASON. YOU WERE PAID PER DIEM FOR THE PERIOD JUNE 1 TO AUGUST 31, 1957, PRESUMABLY UNDER THAT AUTHORITY.

MOVEMENT ORDER NO. 2 OF HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY AND FORT ORD, DATED APRIL 22, 1958, CONFIRMED VERBAL ORDERS OF SEPTEMBER 1, 1957, DIRECTING THE MOVEMENT OF THE UNITS INVOLVED IN THE ABOVE-CITED MOVEMENT ORDER NO. 16 FROM FORT ORD TO CAMP ROBERTS, EFFECTIVE SEPTEMBER 1, 1957, FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENT EXPERIMENTATION CENTER ACTIVITIES. SUCH MOVEMENT WAS DESIGNATED A TEMPORARY CHANGE OF STATION, AND WAS STATED TO BE INITIALLY FOR A PERIOD OF 19 WEEKS BUT LATER EXTENDED BY THE UNITED STATES CONTINENTAL ARMY COMMAND PENDING COMPLETION OF DEPARTMENT OF ARMY STUDIES PERTAINING TO EVALUATION AND PERMANENT LOCATION OF THE COMBAT DEVELOPMENT EXPERIMENTATION CENTER. THAT ORDER PROVIDED THAT "ALL TRAVEL AND TEMPORARY DUTY PERFORMED BY THE ORDER CONSTITUTES A TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS.' IT IS ASSUMED, ON THE BASIS OF EVIDENCE OF RECORD HERE, THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO YOU AT CAMP ROBERTS DURING THE PERIODS IN QUESTION.

UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, MEMBERS OF THE UNIFORMED SERVICES MAY BE PAID PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS OF TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS FURTHER PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. EXCEPTION TO THAT LIMITATION IS MADE FOR PERIODS INVOLVING TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES IF PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF THE SERVICE CONCERNED. CAMP ROBERTS, HOWEVER, WAS CLASSIFIED BY THE DEPARTMENT OF THE ARMY AS AN INACTIVE INSTALLATION AND SO HAS NOT BEEN CONSIDERED AN INSTALLATION OF THE UNIFORMED SERVICES WITHIN THE CONTEMPLATION OF THAT EXCEPTION FOR THE PERIODS INVOLVED PRIOR TO JUNE 15, 1958, THE EFFECTIVE DATE OF ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, UNDER WHICH THE DEFINITION OF THE TERM "INSTALLATION OF THE UNIFORMED SERVICES" WAS EXTENDED TO INCLUDE CAMPS OF THE STATUS OF CAMP ROBERTS.

SINCE PER DIEM MAY NOT ACCRUE OTHER THAN FOR TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS, THERE COULD BE NO BASIS TO CONSIDER YOU ENTITLED TO THAT ALLOWANCE FOR ANY PERIOD WHILE AT CAMP ROBERTS PRIOR TO THE ISSUANCE OF WRITTEN ORDERS DIRECTING TEMPORARY DUTY THERE EVEN IF IT OTHERWISE MIGHT BE SHOWN THAT YOU WERE TEMPORARILY LOCATED THERE AWAY FROM YOUR DESIGNATED POST OF DUTY. CONSEQUENTLY, INASMUCH AS NO WRITTEN ORDERS ISSUED PRIOR TO MAY 31, 1957, DIRECTING THAT YOU PERFORM TEMPORARY DUTY AT CAMP ROBERTS HAVE BEEN FURNISHED, THERE IS NO PROPER BASIS TO ALLOW YOUR CLAIM FOR THE PERIOD MARCH 4 TO MAY 31, 1957, EVEN THOUGH YOUR DUTY STATUS DURING THAT PERIOD OTHERWISE MIGHT BE SHOWN TO BE OF THE NATURE FOR WHICH PER DIEM ORDINARILY WOULD HAVE BEEN AUTHORIZED.

PRIOR TO ITS CORRECTION BY THE ORDERS OF JUNE 28 AND JULY 30, 1957, MOVEMENT ORDER NO. 16 OF MAY 31, 1957, DIRECTED THAT THE UNITS INVOLVED, INCLUDING THAT TO WHICH YOU WERE ASSIGNED BY THE ORDERS OF JUNE 13, 1957, BE MOVED FROM FORT ORD TO CAMP ROBERTS FOR THE PURPOSE OF SUPPORTING COMBAT DEVELOPMENTS TEST AND EXPERIMENTATION CENTER ACTIVITIES WHICH PURPOSE, IT WILL BE NOTED, IS SIMILAR TO THE PURPOSE STATED IN MOVEMENT ORDER NO. 2 CONFIRMING VERBAL ORDERS OF SEPTEMBER 1, 1957. PRESUMABLY THE CHARACTER OF THE DUTIES PERFORMED BY THOSE UNITS FROM MAY 31 TO AUGUST 31, 1957, WAS SUBSTANTIALLY THE SAME AS THOSE PERFORMED BOTH BEFORE AND AFTER THAT PERIOD. MOVEMENT ORDER NO. 2 STATES THAT ALL TRAVEL AND TEMPORARY DUTY PERFORMED THEREUNDER IS OF THE TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS. THAT DETERMINATION IS CONSISTENT WITH OUR VIEW THAT UNDER REGULATIONS IN EFFECT PRIOR TO JUNE 15, 1958, MEMBERS CHARGED WITH DUTIES OF PROVIDING SUPPORT FOR THOSE MEMBERS ENGAGED IN FIELD DUTY TYPE ACTIVITIES ARE ALSO PARTICIPANTS IN SUCH ACTIVITIES WITHIN THE CONTEMPLATION OF PARAGRAPH 4201.6 AND SUBJECT TO ITS LIMITATION. COMP. GEN. 225. THEREFORE, TO THE EXTENT THAT THE DUTY PERFORMED BY YOU PRIOR TO JUNE 15, 1958, UNDER MOVEMENT ORDER NO. 16 OF MAY 31, 1957, AND MOVEMENT ORDER NO. 2 OF APRIL 22, 1958, MAY BE CONSIDERED TO HAVE BEEN TEMPORARY DUTY AWAY FROM YOUR DESIGNATED POST OF DUTY, IT MUST BE CONSIDERED FIELD DUTY WITHIN THE CONTEMPLATION OF PARAGRAPH 4201.6. CONSEQUENTLY, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF PER DIEM FOR THE PERIOD SEPTEMBER 1, 1957, TO JUNE 14, 1958, AND IT IS DOUBTFUL, FOR THE SAME REASON, THAT AUTHORITY EXISTED FOR THE PAYMENT TO YOU OF THE PER DIEM THAT YOU RECEIVED FOR THE PERIOD JUNE 1 TO AUGUST 31, 1957.

WHILE PARAGRAPH 4 OF ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, AND EFFECTIVE JUNE 15, 1958, PROVIDES FOR THE PAYMENT OF A PER DIEM ALLOWANCE TO ACTIVE ARMY PERSONNEL ON TEMPORARY DUTY IN CONNECTION WITH TRAINING ENCAMPMENTS, WHICH CAMP ROBERTS APPEARS TO HAVE BEEN, BUT WHO ARE NOT THEMSELVES MEMBERS OF THE GROUPS BEING TRAINED, MOVEMENT ORDER NO. 2 INDICATED A DIRECTION OF TEMPORARY DUTY FOR A PERIOD PENDING COMPLETION OF STUDIES PERTAINING TO THE PERMANENT NATURE OF THE ACTIVITY TO WHICH YOU WERE ASSIGNED AT CAMP ROBERTS. NO EVIDENCE OF THE FINDINGS OF THESE STUDIES OR OF FURTHER ORDERS EXTENDING THE TEMPORARY DUTY PERIOD INVOLVED IN THE EVENT IT WAS DETERMINED THAT THE DUTY WAS TEMPORARY IN NATURE HAVE BEEN FURNISHED. IN THE ABSENCE OF INFORMATION TO SHOW THAT YOUR DUTY ASSIGNMENT WAS TEMPORARY WITHIN THE CONTEMPLATION OF THE REGULATIONS SUBSEQUENT TO JUNE 15, 1958, NO PROPER BASIS EXISTS FOR THE DETERMINATION OF YOUR RIGHT TO PER DIEM FOR THAT PORTION OF YOUR CLAIM FROM JUNE 15 TO NOVEMBER 30, 1958.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF JUNE 1, 1960, IS SUSTAINED.

WITH REFERENCE TO YOUR STATEMENT THAT A CLAIM SIMILAR TO YOURS WAS PAID BY THE DEPARTMENT OF THE ARMY (APPARENTLY FOR THE SAME PERIODS INVOLVED IN YOUR CLAIM), IT MAY BE STATED THAT IT WAS DETERMINED THAT A NUMBER OF ERRONEOUS PER DIEM PAYMENTS WERE MADE TO PERSONNEL TEMPORARILY STATIONED AT CAMP ROBERTS DURING THOSE PERIODS. APPROPRIATE ACTION HAS BEEN TAKEN TO RECOVER THOSE ERRONEOUS PAYMENTS.