B-145745, JUN. 19, 1961

B-145745, JUN. 19, 1961

TO LIEUTENANT COLONEL PAUL P. BYRNE, 051433, TC:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 19, 1961, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT DATED APRIL 17, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 22 TO AUGUST 1, 1957. YOU ALSO REQUEST THE RETURN OF A PERSONAL CANCELED CHECK DATED JULY 31, 1957, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM.

BY LETTER ORDERS NO. 5-135, HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, DATED MAY 13, 1957, YOU WERE PLACED ON TEMPORARY DUTY AT ROTC SUMMER CAMP, FORT EUSTIS, VIRGINIA, FOR APPROXIMATELY 60 DAYS. THE ORDERS PROVIDED THAT ALL TEMPORARY DUTY PERFORMED DURING THE SUMMER CAMP PERIOD (SHOWN IN THE ORDERS TO EXTEND FROM JUNE 22 TO AUGUST 2, 1957) CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND THAT IF APPLICABLE THE CERTIFICATE REQUIRED BY SUBPARAGRAPH 5C (2), AR 35 3080, SHOULD BE FURNISHED. YOUR CLAIM WAS DISALLOWED BECAUSE NO CERTIFICATE WAS ISSUED WITHIN THE PURVIEW OF THE ABOVE PROVISIONS IN YOUR ORDERS. IN YOUR CURRENT LETTER YOU SAY THAT PAYMENTS HAVE BEEN MADE IN SOME CASES OF TEMPORARY DUTY SUCH AS INVOLVED IN YOUR CLAIM IN THE SECOND ARMY AREA WITHOUT THE ISSUANCE OF THE REQUIRED CERTIFICATE, AND YOU APPARENTLY URGE RECONSIDERATION OF YOUR CLAIM ON THIS BASIS.

ARMY REGULATIONS 35-3080, DATED MAY 15, 1956, IMPLEMENTS PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS, AND CONTAINS CERTAIN PROCEDURES RELATIVE TO PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES. PARAGRAPH 4 OF THE REGULATIONS PROVIDES THAT A MEMBER IS NOT ENTITLED TO PER DIEM ALLOWANCE WHEN GOVERNMENT SUBSISTENCE OF ANY TYPE AND GOVERNMENT QUARTERS OF ANY TYPE ARE FURNISHED OR MADE AVAILABLE, WHETHER OR NOT UTILIZED, FOR PERIODS OF TRAVEL AND TEMPORARY DUTY WHEN PERFORMED IN CONNECTION WITH TRAINING ENCAMPMENT FOR RESERVE OFFICERS TRAINING CORPS STUDENTS. PARAGRAPH 5C (1) OF THE REGULATIONS, HOWEVER, PROVIDES THAT A MEMBER PERFORMING TEMPORARY DUTY OF THE FIELD DUTY TYPE CONTEMPLATED BY PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS AT AN INSTALLATION OF THE UNIFORMED SERVICES IS ENTITLED TO A PER DIEM ALLOWANCE WHEN AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR ROTC STUDENTS OR RESERVE COMPONENTS, OR IF THE EXERCISE OR ACTIVITY IS CONDUCTED TO PERMIT ALL PARTICIPANTS TO UTILIZE QUARTERS NORMALLY AVAILABLE ON THE INSTALLATION TO PERSONNEL ON TEMPORARY DUTY AS DISTINGUISHED FROM QUARTERS SPECIFICALLY ESTABLISHED OR DESIGNATED FOR USE IN CONNECTION WITH THE EXERCISE OR ACTIVITY. PARAGRAPH 5C (2) PROVIDES THAT VOUCHERS CLAIMING PER DIEM ALLOWANCES PRESCRIBED IN THIS PARAGRAPH WILL BE SUBSTANTIATED BY A CERTIFICATE EXECUTED BY COMPETENT AUTHORITY (COMMANDING OFFICER OF THE INSTALLATION, MANEUVER, OR EXERCISE DIRECTOR, OR COMMANDING OFFICER OF THE EXERCISE OR ACTIVITY AT THE INSTALLATION INVOLVED).

THE ONLY CERTIFICATE ATTESTING TO ANY AUTHORIZATION FOR YOU TO BE QUARTERED SEPARATELY AT THE ROTC SUMMER CAMP AT FORT EUSTIS FROM JUNE 22 TO AUGUST 1, 1957, IS DATED JULY 28, 1960, AND IS SIGNED BY A LIEUTENANT COLONEL W. K. DOUGAN, TC, BILLETING OFFICER, AT FORT EUSTIS, VIRGINIA. THIS SAME BILLETING OFFICER, HOWEVER, HAS IN RESPONSE TO A REQUEST FROM THE FINANCE AND ACCOUNTING OFFICER AT FORT SAM HOUSTON, TEXAS, FOR CLARIFICATION OF THE BASIS FOR THE CERTIFICATION OF JULY 28, 1960, STATED BY ENDORSEMENT DATED NOVEMBER 8, 1960, THAT THE OFFICIAL RECORDS OF THE BILLETING OFFICE, FORT EUSTIS, VIRGINIA, FOR THE CALENDAR YEAR 1957 WERE DESTROYED AND THAT THE BILLETING OFFICER INCUMBENT DURING THE PERIOD CITED WAS RETIRED FROM THE ARMY ON JANUARY 31, 1960. AS ADMINISTRATIVELY REPORTED THIS SHOWS THAT THE CERTIFICATE OF JULY 28, 1960, WAS NOT BASED ON THE PERSONAL KNOWLEDGE OF THE CERTIFYING OFFICER AND DOES NOT REFLECT THE OFFICIAL RECORDS OF THE BILLETING OFFICE FOR THE PERIOD INVOLVED IN YOUR CLAIM.

THE CITED REGULATIONS PLACED THE RESPONSIBILITY UPON THE INSTALLATION COMMANDER TO ISSUE A CERTIFICATE BASED ON HIS PERSONAL KNOWLEDGE THAT JUSTIFICATION EXISTED TO SUPPORT A CLAIM FOR PER DIEM AND THE ORDERS OF MAY 13, 1957, EXPRESSLY REFERRED TO THE NEED FOR SUCH A CERTIFICATION FOR THAT PURPOSE. IN THE ABSENCE OF THAT CERTIFICATION OR OF OTHER EVIDENCE TO ESTABLISH CONCLUSIVELY THAT YOU WERE AFFIRMATIVELY AUTHORIZED TO BE QUARTERED SEPARATELY FROM OTHER MEMBERS PARTICIPATING IN THE SUMMER ENCAMPMENT TO WHICH YOU WERE ASSIGNED, OUR OFFICE IS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. SEE 37 COMP. GEN. 639.

THE CERTIFICATE OF JULY 28, 1960, DOES NOT MEET THE REQUIREMENTS OF THE REGULATIONS, AND WHILE THERE IS EVIDENCE THAT YOU OCCUPIED BOQ FACILITIES, THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT YOU WERE AFFIRMATIVELY AUTHORIZED TO BE QUARTERED APART FROM OTHERS PARTICIPATING IN THE SAME ACTIVITY OR THAT THE FACILITIES USED WERE NOT ESTABLISHED OR DESIGNATED FOR USE IN CONNECTION WITH THAT ACTIVITY. IF, AS YOU SAY, MEMBERS WHO PERFORMED SIMILAR DUTY IN THE SECOND ARMY AREA WERE PAID PER DIEM WHILE ON TEMPORARY DUTY, IT MUST HAVE BEEN UNDER CIRCUMSTANCES DIFFERENT FROM THOSE UNDER WHICH YOU PERFORMED YOUR TRAINING DUTY AND THE PAYMENT OF PER DIEM WOULD NECESSARILY HAVE TO BE SUPPORTED BY THE CERTIFICATE MENTIONED ABOVE OR OTHER COMPARABLE EVIDENCE OR THE PAYMENTS WOULD HAVE BEEN ERRONEOUS. OF COURSE, IF THOSE MEN ERRONEOUSLY RECEIVED PER DIEM FOR THEIR DUTY SUCH PAYMENTS WOULD NOT FURNISH A LEGAL BASIS TO PAY YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF APRIL 17, 1961, WAS CORRECT AND IS SUSTAINED. YOUR PERSONAL CANCELED CHECK DATED JULY 31, 1957, IS RETURNED HEREWITH AS YOU REQUESTED.