B-143643, OCT. 3, 1960

B-143643, OCT. 3, 1960

TO CHIEF WARRANT OFFICER JAMES I. MCGEHEE, W2 206 528:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1960, REQUESTING REVIEW OF SETTLEMENT DATED MAY 18, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT STRAUBING, GERMANY, DURING PARTS OF THE PERIOD SEPTEMBER 1, 1958, TO FEBRUARY 20, 1959, AS A MEMBER OF THE UNITED STATES ARMY.

ORDERS DATED OCTOBER 9 AND 18, 1958, JANUARY 19, 1959, AND FEBRUARY 25, 1959, ISSUED BY HEADQUARTERS, 8TH TRANSPORTATION HELICOPTER BATTALION ARMY, APO 29, UNITED STATES FORCES, CONFIRMED VERBAL ORDERS OF YOUR COMMANDING OFFICER DIRECTING YOU AND OTHER OFFICERS AND ENLISTED MEN AT VARIOUS TIMES AND FOR VARIOUS PERIODS TO PROCEED FROM OBER SCHLEISSHEIM, GERMANY, TO STRAUBING, GERMANY, FOR TEMPORARY DUTY FOR THE PURPOSE OF PARTICIPATING IN BORDER OPERATIONS. NONE OF THE ORDERS CONTAINED ANY PROVISION FOR PAYMENT OF PER DIEM. HOWEVER, PURSUANT TO THESE ORDERS, BASED ON ALLEGATIONS THAT DURING SUCH TEMPORARY DUTY QUARTERS AND MESSING FACILITIES WERE NOT MADE AVAILABLE IN STRAUBING, YOU CLAIMED PER DIEM FOR THE FOLLOWING PERIODS:

TABLE

FROM TO 1000 HRS. SEPTEMBER 1, 1958 0840 HRS. SEPTEMBER 2, 1958 1300 HRS. SEPTEMBER 5, 1958 1540 HRS. SEPTEMBER 12, 1958 1000 HRS. OCTOBER 27, 1958 1540 HRS. NOVEMBER 1, 1958 0900 HRS. DECEMBER 5, 1958

1440 HRS. DECEMBER 21, 1958 1400 HRS. FEBRUARY 16, 1959 1440 HRS. FEBRUARY 20, 1959

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE DEPARTMENT OF THE ARMY HAD DETERMINED THAT BORDER OPERATIONS, AS REFERRED TO IN THE ORDERS, WAS CONSIDERED A FIELD TEST OF OPERATIONAL CONCEPT, FOR WHICH NO PER DIEM IS AUTHORIZED. IN YOUR REQUEST FOR REVIEW, YOU REITERATE THAT NO FACILITIES WERE MADE AVAILABLE AND YOU FORWARDED A COPY OF A VOUCHER ON WHICH YOU ALLEGE YOU WERE PAID $43 PER DIEM FOR THE SAME TYPE OF TEMPORARY DUTY AT THE SAME INSTALLATION WHERE YOU UTILIZED THE SAME BACHELOR OFFICERS' QUARTERS AND OFFICERS' CLUB FOR QUARTERS AND MEALS DURING THE PERIOD JUNE 16 TO 20, 1960.

REGULATIONS GOVERNING THE RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED BY SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), 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 TRAVEL OR TEMPORARY DUTY PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES "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 (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' THE RESTRICTION DOES NOT APPLY 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 SERVICE CONCERNED. SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE SET FORTH IN PARAGRAPH 4201-6 OF THE REGULATIONS.

ARMY REGULATIONS 35-3080, DATED JUNE 9, 1958, ESTABLISH ARMY POLICY FOR THE PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN FIELD DUTY AS DESCRIBED, CONDUCTED ON INSTALLATIONS WITHIN THE UNITED STATES. PARAGRAPH 3 OF THE REGULATIONS PROVIDES THAT IN OVERSEA COMMENDS, THEY WILL BE USED AS A GUIDE, BUT THE POLICY PRESCRIBED MAY BE MODIFIED AS CONSIDERED APPROPRIATE BY THE MAJOR OVERSEAS COMMANDER CONCERNED, BASED UPON PREVAILING CONDITIONS AND PROVIDED THAT THE MODIFICATION IS IN CONFORMANCE WITH THE PROVISIONS OF 4250-3 AND 4256-1B OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4 OF THE ARMY REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM ALLOWANCES AT RATES AND UNDER CONDITIONS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH FIELD DUTY ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION AND DURING THE CLOSE OUT PHASE OF THE OPERATION. PER DIEM ALLOWANCES ARE NOT PAYABLE DURING THE ACTUAL PERIOD OF MANEUVER OR EXERCISE ON THE PROMISE THAT SUCH OPERATIONS ARE DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS. PARAGRAPH 7 PROVIDES FOR PER DIEM ALLOWANCES FOR AUTHORIZED INDIVIDUAL OR NONGROUP TRAVEL TO AND FROM THE SITES OF THE OPERATION AND FOR CERTAIN TEMPORARY DUTY AT PLACES OTHER THAN THE SITE OF THE OPERATION AND TEMPORARY DUTY AT THE SITE OF OPERATION.

THE TYPE OF DUTY ENJOINED IN A PARTICULAR ASSIGNMENT IS DETERMINED PRIMARILY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE CIRCUMSTANCES SURROUNDING THE ASSIGNMENT. AN ADMINISTRATIVE DETERMINATION MADE BEFORE, DURING OR AFTER THE PERIOD INVOLVED IS CONTROLLING UNLESS EVIDENCE IS PRESENTED SUFFICIENT TO ESTABLISH THAT SUCH DETERMINATION WAS CLEARLY ERRONEOUS. IT IS INDICATED THAT A MAJOR OVERSEA COMMANDER (7TH ARMY COMMANDER), BASED UPON PREVAILING CONDITIONS, DETERMINED THAT THE DUTY TO WHICH YOU WERE ORDERED WAS OF THE TYPE CONTEMPLATED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS. THE TRAVEL WAS APPARENTLY TO BE PERFORMED IN OPERATIONAL MILITARY AIRCRAFT AND NO PROVISION WAS MADE FOR PAYMENT OF PER DIEM NOR WAS ANY APPROPRIATION AUTHORIZED TO BE CHARGED. WHILE THE ORDERS WERE NOT DESIGNATED AS "GROUP TRAVEL ORDERS" ALL EXCEPT ONE INVOLVED THREE OR MORE INDIVIDUALS AND APPARENTLY DURING THE ENTIRE PERIOD OF YOUR CLAIM YOU WERE A MEMBER OF A TEAM OR GROUP PARTICIPATING IN BORDER OPERATIONS WHICH YOUR COMMANDER DETERMINED WAS FIELD DUTY FOR WHICH NO PER DIEM IS PAYABLE. IN THE ABSENCE OF SUFFICIENT INFORMATION OR FACTS WHICH WOULD ESTABLISH THAT THE DETERMINATION WAS CLEARLY ERRONEOUS, THERE IS NO BASIS ON THE PRESENT RECORD FOR THE PAYMENT OF PER DIEM DURING THE PERIODS OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MAY 18, 1960, MUST BE SUSTAINED.

WITH REFERENCE TO THE COPY OF VOUCHER NO. 400055, ON WHICH YOU WERE PAID $43 FOR PER DIEM FOR TEMPORARY DUTY AT STRAUBING, GERMANY, WHICH YOU ALLEGE WAS THE SAME KIND OF DUTY UNDER THE SAME CIRCUMSTANCES, YOU ARE ADVISED THAT IN THE ABSENCE OF THE ORDERS DIRECTING THE TRAVEL AND AN ADMINISTRATIVE DETERMINATION THAT THE CIRCUMSTANCES WERE IN ALL RESPECTS SIMILAR TO THE TRAVEL IN QUESTION, SUCH PAYMENT MAY NOT BE REGARDED AS STRENGTHENING YOUR CLAIM. IF, AS YOU SUGGEST, THERE HAVE BEEN INSTANCES WHERE PER DIEM HAS BEEN PAID UNDER LIKE CIRCUMSTANCES, SUCH PAYMENTS MAY NOT SERVE AS A PRECEDENT FOR ALLOWING PER DIEM IN YOUR CASE.

IT IS NOTED THAT A 4TH INDORSEMENT TO THE FINANCE CENTER, UNITED STATES ARMY, YOU STATED THAT QUARTERS AND MESSING FACILITIES WERE NOT MADE AVAILABLE DURING THE DUTY INVOLVED. IN YOUR LETTER OF JULY 11, 1960, HOWEVER, YOU STATE WITH RESPECT TO THE TEMPORARY DUTY FOR WHICH YOU WERE PAID $43, THAT SUCH DUTY INVOLVED THE SAME STATION AS YOUR PRESENT CLAIM AND THAT YOU OCCUPIED THE SAME BACHELOR OFFICER QUARTERS AND UTILIZED THE SAME OFFICERS' CLUB FOR SUBSISTENCE. THE PAYMENT OF A SERVICE CHARGE FOR THE OCCUPANCY OF SUCH QUARTERS IS REGARDED AS PROPER UNDER SUCH CIRCUMSTANCES AND A CHARGE IS REQUIRED TO BE MADE FOR ALL MEALS FURNISHED BY THE GOVERNMENT TO OFFICERS (INCLUDING WARRANT OFFICERS), A BASIC ALLOWANCE FOR SUBSISTENCE BEING PAYABLE TO THEM AT ALL TIMES. HENCE, THE PAYMENT OF SUCH CHARGES WOULD CONSTITUTE NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

YOU REQUEST THAT IF IT IS DETERMINED THAT NO PER DIEM IS AUTHORIZED ALL LETTER ORDERS AND TRAVEL CLAIMS (AE FORM 2457) BE RETURNED TO 1414 RIDGEWOOD AVENUE, ORLANDO, FLORIDA. SINCE THESE PAPERS RELATING TO YOUR CLAIM CONSTITUTE THE RECORD ON WHICH YOUR CLAIM WAS BASED, AND ON WHICH OUR ACTION WAS TAKEN, IT WILL BE NECESSARY TO RETAIN SUCH PAPERS HERE TO COMPLETE THE OFFICIAL RECORD.