B-150559, APR. 12, 1963

B-150559, APR. 12, 1963

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 19, 1962, FROM HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE ADJUTANT GENERAL, FILE REFERENCE AGPN-F, TO THE COMMANDING GENERAL, FINANCE CENTER, UNITED STATES ARMY, FORT BENJAMIN HARRISON, INDIANA. THE LETTER HAS COME TO OUR ATTENTION IN THE AUDIT OF THE ACCOUNT OF MAJOR W. E. DEABLER, SYMBOL NO. 06523, INVOLVING PAYMENTS OF PER DIEM AND MILEAGE TO ARMY PERSONNEL WHO, IN CONNECTION WITH THE AMERICAN YOUTH ACTIVITIES PROGRAM, USAREUR CIRCULAR NO. 28-70, PERFORMED WATER SAFETY DUTIES AT THE AMERICAN ROUGH ACTIVITIES SUMMER CAMP, CAMP CAZAUX, NEAR BISCAROSSE PLAGE, FRANCE. INSOFAR AS THE RECORD SHOWS NO OTHER DUTY WAS REQUIRED OF THE INDIVIDUALS CONCERNED.

EXAMPLES OF SUCH PAYMENTS ARE PROVIDED BY VOUCHER NO. 400394, JULY 1960 ACCOUNTS, COVERING PAYMENT OF $141.89 TO SPECIALIST 4TH CLASS JACOB L. DUIMSTRAS, RA 51 412 195; VOUCHER NO. 400429, JULY 1960 ACCOUNTS, COVERING PAYMENT OF $118.85 TO PRIVATE JAMES E. HOWERTON, US 52 485 688; VOUCHER NO. 401178, AUGUST 1960 ACCOUNTS, COVERING PAYMENT OF $117 TO SPECIALIST 5TH CLASS ROBERT C. DOWTY, RA 18 400 843; AND VOUCHER NO. 401272, AUGUST 1960 ACCOUNTS, COVERING PAYMENT OF $97.85 TO PRIVATE 1ST CLASS JAMES S. MERCER, RA 14 661 921. BY ORDERS OF HEADQUARTERS, THEATER ARMY SUPPORT COMMAND, EUROPE, DATED MAY 19, 1960, THESE MEMBERS AND OTHERS WERE DIRECTED TO PROCEED ON OR ABOUT JUNE 1, 1960, TO THE AMERICAN YOUTH ACTIVITIES SUMMER CAMP, CAMP CAZAUX, NEAR BISCAROSSE PLAGE, FRANCE, ON TEMPORARY DUTY FOR APPROXIMATELY 90 DAYS FOR THE PURPOSE OF PERFORMING WATER SAFETY DUTIES, AND THEN RETURN TO THEIR ORIGINAL STATIONS. AMENDMENT DATED MAY 27, 1960, TO THE ORDERS AUTHORIZED TRAVEL BY PRIVATELY OWNED AUTOMOBILE. BY ORDERS DATED AUGUST 15, 1960, CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF JUNE 1, 1960, SPECIALIST DOWTY WAS AUTHORIZED TO PERFORM THE TRAVEL BY SURFACE COMMON CARRIER.

IN THE LETTER OF SEPTEMBER 19, 1962, THE ADJUTANT GENERAL EXPRESSES THE ADMINISTRATIVE VIEW THAT THE PERFORMANCE OF WATER SAFETY DUTIES AT AN AMERICAN YOUTH ACTIVITIES SUMMER CAMP IS CONSIDERED TO BE "PUBLIC BUSINESS" FOR THE REASONS THAT THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE, IS RESPONSIBLE FOR THE ADMINISTRATION OF SAFETY PROGRAMS WITHIN HIS COMMAND, AND THE COMMANDERS UNDER THE WATER SAFETY PROGRAM HAVE AMONG THEIR RESPONSIBILITIES, THE PROVISION OF LIFEGUARDS AND OTHER WATER SUPERVISION. SINCE THE AMERICAN YOUTH ACTIVITIES IN OVERSEAS AREAS ARE CONSIDERED TO BE UNDER THE CONTROL OF THE COMMANDER CONCERNED, HE SAYS IT IS INCUMBENT UPON THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE, TO PROVIDE WATER SAFETY PERSONNEL AT AMERICAN YOUTH ACTIVITIES SUMMER CAMPS FOR NECESSARY COMMAND SUPERVISION. THE ADJUTANT GENERAL ALSO EXPRESSES THE ADMINISTRATIVE VIEW THAT THE MILITARY PERSONNEL CONCERNED IN PERFORMING WATER SAFETY DUTIES WERE TRAVELING ON OFFICIAL ORDERS DIRECTING PERFORMANCE OF TEMPORARY DUTY AWAY FROM THEIR ASSIGNED ORGANIZATION; THAT THEY WERE SERVING THE REQUIREMENTS OF THE COMMAND ORGANIZATION (UNITED STATES ARMY, EUROPE) TO WHICH THEY WERE ASSIGNED AND ESSENTIAL TO PROVIDE NECESSARY COMMAND SUPERVISION OF THE WATER SAFETY PROGRAM; AND THAT THEY WERE PERFORMING "PUBLIC BUSINESS" IN THAT THE SAFEGUARDING OF DEPENDENTS IN OVERSEAS COMMANDS IS A REQUIREMENT UNDER THE ARMY SAFETY PROGRAM.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' THE TERM "PUBLIC BUSINESS, RELATES TO THE OFFICIAL ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVEL IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873. PARAGRAPH 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS (SUCH AS TRAVEL IN CONNECTION WITH NONOFFICIAL RECREATIONAL PROGRAMS) ARE NOT PAYABLE BY THE GOVERNMENT.

THE POLICY AND PROCEDURES GOVERNING THE AMERICAN YOUTH ACTIVITIES PROGRAM UNDER THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE, ARE CONTAINED IN USAREUR CIRCULAR NO. 28-70 DATED OCTOBER 19, 1959. PARAGRAPH 4 OF THE CIRCULAR PROVIDES THAT THE MISSION OF THE AMERICAN YOUTH ACTIVITIES PROGRAM IS TO ASSIST AND PROMOTE WORTHWHILE ACTIVITIES FOR YOUTHS WHO ARE DEPENDENTS OF UNITED STATES CITIZENS, AND TO EMPHASIZE THOSE ASPECTS OF YOUTH ACTIVITIES WHICH AFFORD AMERICAN YOUTHS, PARTICULARLY THOSE BETWEEN THE AGES OF 7 AND 18, THE BEST OPPORTUNITY TO OBSERVE AND PRACTICE SOUND CONCEPTS OF CITIZENSHIP. PARAGRAPH 3 OF THE CIRCULAR PROVIDES THAT THE AYA FUND IS A WELFARE TYPE, NONAPPROPRIATED FUND, AND PARAGRAPH 8 PROVIDES THAT AN AYA ASSOCIATION WILL BE ESTABLISHED AS THE GOVERNING BODY RESPONSIBLE FOR THE ADMINISTRATION AND OVERALL OPERATION OF THE PROGRAM. AMONG THE FUNCTIONS OF THE ASSOCIATION SPECIFIED IN PARAGRAPH 8 ARE DEVELOPING AN ADEQUATE LOCAL FUNDING PROGRAM AND APPOINTING COMMITTEES FROM ITS OWN MEMBERSHIP OR THE COMMUNITY MEMBERSHIP AT LARGE FOR THE CONDUCT OF BUSINESS, FUND-RAISING PROGRAMS AND SOCIAL EVENTS. PARAGRAPH 7, RELATING TO SUPERVISORY PERSONNEL, PROVIDES THAT COMMANDERS WHO FURNISH SPACE FOR AYA CENTERS UNDER THE PROVISIONS OF AR 210-55 WILL INSURE THAT ONE WELL-QUALIFIED ADULT PERSON IS PRESENT IN EACH AYA CENTER, CAMP, OR OTHER AYA SPONSORED ACTIVITY WHEN AMERICAN YOUTHS ARE PARTICIPATING IN SUCH AN ACTIVITY. ALSO IT IS PROVIDED THAT THE AYA OFFICER WILL BE RESPONSIBLE FOR THE OVER-ALL SUPERVISION AND DIRECTION OF THE AYA PROGRAM.

PARAGRAPH 6C (8) OF ARMY REGULATIONS 230-5, CHANGE 4, PROVIDES THAT NONAPPROPRIATED WELFARE FUNDS MAY BE EXPENDED TO PROCURE RECREATIONAL TYPE SERVICES TO BE USED CONCURRENTLY BY MILITARY PERSONNEL AND THEIR DEPENDENTS, AND TO BE USED SPECIFICALLY BY MILITARY PERSONNEL MINOR DEPENDENTS. THUS, IT APPEARS THAT THE AMERICAN YOUTH ACTIVITIES PROGRAM IS A NONAPPROPRIATED FUND ACTIVITY. WE HAVE CONSISTENTLY HELD THAT, IN GENERAL, PAYMENT FROM APPROPRIATED FUNDS OF TRAVEL EXPENSES AND PER DIEM TO MEMBERS TRAVELING IN CONNECTION WITH THEIR PARTICIPATION, OTHER THAN AS COMMAND SUPERVISORS, IN SPORTS EVENTS AS A PART OF ATHLETIC AND RECREATIONAL PROGRAMS OF THE ARMED FORCES IS NOT AUTHORIZED SINCE SUCH TRAVEL MAY NOT BE CONSIDERED AS CONSTITUTING THE PERFORMANCE OF PUBLIC BUSINESS AS CONTEMPLATED BY THE APPLICABLE PROVISIONS OF THE STATUTE AND REGULATIONS. SEE B-138197, FEBRUARY 6, 1959; B-133593, OCTOBER 21, 1957; 38 COMP. GEN. 873; B-141942, FEBRUARY 29, 1960; AND B-149319 (42 COMP. GEN. - (,NOVEMBER 8, 1962. SINCE SUCH TRAVEL FOR PARTICIPATION IN RECREATIONAL PROGRAMS FOR MEMBERS OF THE ARMED FORCES IS NOT REGARDED AS TRAVEL ON OFFICIAL BUSINESS, NEITHER WOULD SUCH TRAVEL FOR PARTICIPATION IN A RECREATIONAL PROGRAM FOR THE DEPENDENTS OF MEMBERS CONSTITUTE TRAVEL ON PUBLIC BUSINESS. AND, IT WOULD SEEM CLEAR THAT LIFEGUARD DUTY MERELY CONSTITUTED ONE OF THE DUTIES INVOLVED IN THE ACTUAL OPERATION OF THE CAMP AND MAY NOT BE VIEWED AS COMMAND SUPERVISION OF THE ACTIVITY. ALSO, SO FAR AS THE RECORDS SHOW, THE TRAVEL AND TEMPORARY DUTY WERE NOT RELATED TO ANY OFFICIAL ACTIVITY OR FUNCTION OF THE SERVICES TO WHICH THE MEMBERS WERE ATTACHED. RATHER, IT APPEARS TO HAVE BEEN DUTY OF A TYPE CONTEMPLATED IN PARAGRAPH 6454, JOINT TRAVEL REGULATIONS, AS NOT INVOLVING PUBLIC BUSINESS. COMPARE B-147040, OCTOBER 10, 1961, COPY ENCLOSED.

CONSEQUENTLY IT IS OUR VIEW THAT THE FACT THAT THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE, IS RESPONSIBLE FOR THE SAFETY PROGRAM WITHIN HIS COMMAND, DOES NOT PROVIDE AUTHORITY TO PAY TRAVEL ALLOWANCES TO MEMBERS WHO PERFORM WATER SAFETY DUTIES AT AN AMERICAN YOUTH ACTIVITIES SUMMER CAMP THAT HAVE NO RELATION TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE MEMBERS ARE ATTACHED. THE DESIGNATION OF TEMPORARY DUTY AND AUTHORIZATION OF TRAVEL ALLOWANCE ON THEIR ORDERS FOR SUCH DUTIES CANNOT BE CONSIDERED AUTHORITY WHICH IS NOT OTHERWISE PROVIDED BY THE LAW AND REGULATIONS. ACCORDINGLY, CREDIT WILL BE WITHHELD IN THE APPROPRIATE DISBURSING OFFICERS' ACCOUNTS FOR ANY AMOUNTS PAID FROM APPROPRIATED FUNDS AS PER DIEM AND MILEAGE IN THE CITED, AND ..END :