B-151621, JUL. 23, 1963

B-151621, JUL. 23, 1963

TO CHIEF WARRANT OFFICER HARRY A. ROSS, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1963, APPEALING OUR SETTLEMENT OF APRIL 24, 1963, WHICH ALLOWED YOU THE SUM OF $17.20 AS REFUND OF BOQ FEES, AND DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS FROM DECEMBER 31, 1961, TO MARCH 31, 1962, AND FROM JULY 6 TO OCTOBER 1, 1962.

BY PARAGRAPH 3, SPECIAL ORDERS NO. 103, HEADQUARTERS, 3D ARMORED DIVISION ARTILLERY, U.S. FORCES, APO 165, DATED DECEMBER 2, 1961, YOU AND 13 ENLISTED MEMBERS OF THE HEADQUARTERS AND HEADQUARTERS BATTERY, 3D ARMORED DIVISION ARTILLERY, HANAU, GERMANY, WERE FURTHER ATTACHED TO HEADQUARTERS COMPANY, 14TH AVIATION COMPANY, 14TH ARMORED CAVALRY REGIMENT, FULDA, GERMANY, FOR THE PERIOD FROM DECEMBER 31, 1961, TO MARCH 31, 1962, FOR RATIONS, QUARTERS AND REIMBURSABLE POL SUPPORT. THIS ORDER WAS AMENDED BY LETTER ORDER 3-35T, HEADQUARTERS 3D ARMORED DIVISION, U.S. FORCES, APO 39, DATED MARCH 9, 1963, TO DELETE THE PHRASE PROVIDING FOR ATTACHMENT TO THE 14TH AVIATION COMPANY AND TO ADD TEMPORARY DUTY AND THE FUND CITATION, TOGETHER WITH A NOTATION THAT UNDER THE PROVISIONS OF PARAGRAPH 4451-2 OF THE JOINT TRAVEL REGULATIONS, A CERTIFICATE OF NON-AVAILABILITY OF GOVERNMENT MESS, OFFICERS' OPEN MESS AND/OR GOVERNMENT QUARTERS MUST BE PROCURED FROM THE COMMANDERS AT THE POINT OF TEMPORARY DUTY, IF APPLICABLE, CITING AS AUTHORITY LETTER OF HEADQUARTERS ARTERS, 7TH ARMY, SUBJECT: REQUEST FOR ORDERS DATED FEBRUARY 20, 1963. PARAGRAPH 5, SPECIAL ORDERS NO. 78, HEADQUARTERS 3D ARMORED DIVISION ARTILLERY, DATED JUNE 18, 1962, DIRECTED YOU AND TEN ENLISTED MEMBERS OF THE HEADQUARTERS BATTERY,

3D ARMORED DIVISION ARTILLERY, TO PROCEED TO HEADQUARTERS COMPANY, 14TH AVIATION COMPANY, 14TH ARMORED CALVARY REGIMENT, FULDA, GERMANY, FOR TEMPORARY DUTY AND TO RETURN TO PROPER STATION UPON COMPLETION OF THE TEMPORARY DUTY. THE PERIOD OF TEMPORARY DUTY WAS STATED TO BE FROM JUNE 30 THROUGH SEPTEMBER 30, 1962, AND YOU WERE ASSIGNED AT THAT STATION ON TEMPORARY DUTY FOR RATIONS, QUARTERS AND REIMBURSABLE POL SUPPORT. SPECIAL ORDERS NO. 106, FROM THE SAME HEADQUARTERS, DATED JULY 25, 1962, THE ORDERS OF JUNE 18, 1962, WERE AMENDED TO DELETE THE PROVISION PLACING THE UNIT ON TEMPORARY DUTY AND TO ADD THE PHRASE "ATTACHMENT DIRECTED AS INDICATED.' THUS, EXCEPT FOR DIFFERENT PERIODS OF DUTY, THE ORDERS OF DECEMBER 2, 1961, AND THE ORDERS OF JUNE 18, 1962, AS AMENDED, ARE SUBSTANTIALLY THE SAME.

THE RECORD SHOWS THAT IN PROCESSING YOUR CLAIMS, A REQUEST WAS MADE TO THE COMMANDING GENERAL 3D ARMORED DIVISION (SPEARHEAD) APO 39, U.S. FORCES, BY LETTER OF OCTOBER 8, 1962, THAT THE ABOVE ORDERS BE REVOKED AND NEW ORDERS BE ISSUED FOR THE REASON THAT YOUR HEADQUARTERS WAS NOT AUTHORIZED TO ISSUE TEMPORARY DUTY ORDERS. SUBSEQUENT INDORSEMENTS INDICATE THAT SPECIAL ORDERS NO. 103 WAS A VALID ATTACHMENT ORDER UNDER WHICH NO PER DIEM WAS PAYABLE, BUT IF IT WAS THE INTENT OF THE ISSUING AUTHORITY THAT THE MEMBERS BE PLACED ON TEMPORARY DUTY, TEMPORARY DUTY ORDERS SHOULD BE ISSUED BY THE PROPER AUTHORITY. ALSO, IT WAS ADMINISTRATIVELY REPORTED THAT YOUR CLAIM FOR PER DIEM FOR THE PERIOD JULY 6 TO OCTOBER 1, 1962, WAS QUESTIONABLE BECAUSE THE TEMPORARY DUTY WAS PERFORMED UNDER CONDITIONS SET OUT IN PARAGRAPH 4250-13, JOINT TRAVEL REGULATIONS, WHICH RELATE TO UNIT TEMPORARY DUTY AT A STATION AND PROVIDE THAT PER DIEM IS NOT PAYABLE WHERE GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. ALTHOUGH YOU CLAIM THAT GOVERNMENT QUARTERS AT NO COST AND GOVERNMENT MESSING FACILITIES WERE NOT MADE AVAILABLE TO YOU, IT WAS STATED THAT YOU WERE ONLY CHARGED A SERVICE CHARGE FOR THE USE OF GOVERNMENT QUARTERS AND WOULD NOT HAVE BEEN SO CHARGED IF YOU HAD STATED YOU WERE IN A UNIT TEMPORARY DUTY STATUS. ALSO, THAT MESSING FACILITIES WERE AVAILABLE INASMUCH AS A CERTIFICATE OF NON-AVAILABILITY WAS NOT SIGNED BY THE PROPER OFFICIAL AT THE POST WHERE YOU PERFORMED THE TEMPORARY DUTY. IT WAS SUBSEQUENTLY STATED BY YOUR DIVISION HEADQUARTERS THAT UPON RECEIPT OF A FUND CITATION, CORRECTIVE ORDERS FOR THE PERIOD FROM DECEMBER 31, 1961, TO MARCH 31, 1962, WOULD BE ISSUED, BUT THAT WITH RESPECT TO THE PERIOD OF TEMPORARY DUTY FROM JULY 6 TO OCTOBER 1, 1962, SUCH DUTY SHOULD HAVE BEEN COVERED BY UNIT TEMPORARY DUTY ORDERS ISSUED IN ACCORDANCE WITH USAREUR CIRCULAR 35,3080, DATED APRIL 21, 1962, AND THE CLAIM FOR THAT PERIOD IS NOT PAYABLE. THEREAFTER, ON MARCH 9, 1963, THE ABOVE-MENTIONED LETTER ORDER 3-35T, AMENDING PARAGRAPH 3, SPECIAL ORDERS NO. 103, DATED DECEMBER 2, 1961, WAS ISSUED. IT IS ADMINISTRATIVELY REPORTED THAT DURING THE PERIODS COVERED BY THE CLAIMS, YOU WERE A MEMBER OF THE 3D ARMORED DIVISION ARTILLERY METEOROLOGICAL SECTION, WHICH SECTION WAS ORDERED TO PERFORM TEMPORARY DUTY AWAY FROM ITS PERMANENT STATION.

BY SETTLEMENT DATED APRIL 24, 1963, YOU WERE ALLOWED THE SUM OF $17.20 AS A REFUND OF THE SERVICE CHARGE FOR QUARTERS OCCUPIED FROM JULY 6 TO OCTOBER 1, 1962. THE PER DIEM WAS NOT ALLOWED FOR THE REASONS STATED IN THE SETTLEMENT. IN YOUR LETTER OF MAY 10, 1963, YOU STATE THAT YOU CANNOT SEE WHY YOUR CLAIM FOR PER DIEM FOR THE PERIOD DECEMBER 31, 1961, TO MARCH 31, 1962, WAS DISALLOWED BECAUSE YOU PERFORMED THE DUTY UNDER ORDERS IN GOOD FAITH AND ALTHOUGH THE ORDERS DID NOT DIRECT YOU TO PERFORM ANY TRAVEL OR TEMPORARY DUTY, YOU DO NOT SEE HOW YOU COULD HAVE PERFORMED THAT DUTY WITHOUT BEING AWAY FROM YOUR HOME STATION. YOU STATE FURTHER THAT YOU WERE NOT RESPONSIBLE FOR THE DELAY OF MORE THAN ONE YEAR FROM THE DATE OF THE ORIGINAL ORDERS TO THE ISSUANCE OF THE AMENDATORY ORDERS. FINALLY, YOU STATE THAT YOU ANTICIPATE A TEMPORARY DUTY ASSIGNMENT IN THE NEAR FUTURE AND IN VIEW OF THE CHANGE IN THE JOINT TRAVEL REGULATIONS WHICH DELETED UNIT TEMPORARY DUTY AND THE PRESENT HEADQUARTERS 7TH ARMY REGULATIONS ON FIELD DUTY, YOU REQUEST A RULING AS TO WHETHER UNDER THE JOINT TRAVEL REGULATIONS TEMPORARY DUTY PERFORMED BY A SECTION OR A UNIT IN AN OPERATIONAL STATUS NOT LIVING IN FIELD CONDITIONS IS CONSIDERED FIELD DUTY SO AS TO PROHIBIT THE PAYMENT OF PER DIEM TO ITS MEMBERS.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, ONLY WHILE ACTUALLY IN A "TRAVEL STATUS.' 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. PARAGRAPH 1150-10 OF THE REGULATIONS DEFINES A PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY, OR TEMPORARY ADDITIONAL DUTY, AND PARAGRAPH 3003-2 DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. PARAGRAPH 4250-13 OF THE REGULATIONS IN EFFECT COMMENCING JULY 1, 1962, PROVIDES THAT A MEMBER IS ENTITLED TO TRAVEL PER DIEM ALLOWANCES FOR PERIODS OF TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS OUTSIDE CONTINENTAL UNITED STATES, EXCEPT FOR PERIODS OF TEMPORARY DUTY PERFORMED BY A MEMBER WITH HIS UNIT, OR A DETACHMENT THEREOF, WHEN THAT UNIT OR DETACHMENT IS TEMPORARILY ORDERED AWAY FROM ITS PERMANENT DUTY STATION AND WHEN GOVERNMENT QUARTERS ARE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS IS AVAILABLE, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.

WITH RESPECT TO YOUR CLAIM FOR PER DIEM COVERING THE PERIOD FROM DECEMBER 31, 1961, TO MARCH 31, 1962, IT HAS BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE INCOMPLETE OR AMBIGUOUS OR WHERE A PROVISION WHICH WAS ORIGINALLY INTENDED TO BE INCLUDED IN AN ORDER BUT WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING SUCH ORDER, THE ORDER MAY BE CORRECTED OR COMPLETED TO SHOW THE ORIGINAL INTENT. SEE 24 COMP. GEN. 439. THE ORDERS OF DECEMBER 2, 1961, MERELY DIRECTED YOUR ATTACHMENT (TOGETHER WITH OTHER MEMBERS OF YOUR UNIT) TO HEADQUARTERS COMPANY, 14TH AVIATION COMPANY, 14TH ARMORED CAVALRY REGIMENT FOR THE PURPOSE OF RATIONS, QUARTERS AND POL SUPPORT, NO PROVISION BEING MADE FOR TRAVEL AND TEMPORARY DUTY, NOTWITHSTANDING IT REQUIRED TWO HOURS' TRAVEL TIME BY GOVERNMENT VEHICLE BETWEEN HANAU AND FULDA, GERMANY, AS SHOWN ON YOUR TRAVEL VOUCHER. THIS WAS NOT A TEMPORARY DUTY ASSIGNMENT AS THAT TERM IS DEFINED IN PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS. RATHER, SUCH ORDERS WERE CLEAR AND UNAMBIGUOUS AND PROVIDED A VALID ATTACHMENT ORDER WITHIN THE AUTHORITY OF YOUR ORGANIZATION TO ISSUE AND UNDER WHICH NO PER DIEM WAS PAYABLE. ACCORDINGLY, ON THE PRESENT RECORD, EVEN THOUGH IT WAS SUGGESTED THAT TEMPORARY DUTY MAY HAVE BEEN INTENDED FOR YOUR UNIT UNDER THE ORDERS OF DECEMBER 2, 1961, IT SEEMS CLEAR THAT SUCH PROVISION WAS NOT CONSIDERED AT THE TIME THE ORDERS WERE ISSUED AND THEREFORE WAS NOT OMITTED THROUGH ERROR OR INADVERTENCE AT THAT TIME. THEREFORE, THE LETTER ORDER OF MARCH 9, 1963, WHICH PURPORTS TO AMEND RETROACTIVELY THE ORDERS OF DECEMBER 2, 1961, MAY NOT BE VIEWED AS EFFECTIVE TO PROVIDE AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE PERIOD FROM DECEMBER 31, 1961, TO MARCH 31, 1962.

REGARDING YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM JULY 6 TO OCTOBER 1, 1962, IT WAS ADMINISTRATIVELY REPORTED THAT SINCE THE ORDERS OF JUNE 18, 1962, DIRECTED YOU AND OTHER MEMBERS OF YOUR SECTION TO TEMPORARY DUTY AS A UNIT, SUCH ORDERS SHOULD HAVE BEEN ISSUED AS UNIT TEMPORARY DUTY ORDERS IN ACCORDANCE WITH U.S. ARMY EUROPE CIRCULAR 35-3080, DATED APRIL 21, 1962, WHICH CONTAIN SUBSTANTIALLY THE SAME PROVISIONS AS PARAGRAPH 4250-13 OF THE JOINT TRAVEL REGULATIONS. SINCE PARAGRAPH 4250-13 OF THE REGULATIONS IN EFFECT DURING THE PERIOD HERE INVOLVED PRECLUDES PAYMENT OF PER DIEM IN CASES SUCH AS YOURS WHERE GOVERNMENT MESSING FACILITIES WERE AVAILABLE, EVEN THOUGH THEY WERE NOT UTILIZED, AND YOU OCCUPIED GOVERNMENT QUARTERS WITHOUT CHARGE EXCEPT FOR A SMALL SERVICE CHARGE WHICH WAS REFUNDED TO YOU, YOU ARE NOT ENTITLED TO PER DIEM FOR THAT PERIOD. ACCORDINGLY, THE SETTLEMENT OF APRIL 24, 1963, WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR A RULING ON YOUR QUESTION REGARDING THE STATUS OF YOUR FUTURE TEMPORARY DUTY ASSIGNMENT, YOU ARE ADVISED THAT OUR OFFICE MAY NOT RENDER A DECISION INVOLVING THE INTERPRETATION OF REGULATIONS FOR A CLAIMANT UNDER CIRCUMSTANCES SUCH AS ARE INVOLVED HERE. BY CHANGE 126, EFFECTIVE JUNE 1, 1963, THE JOINT TRAVEL REGULATIONS GOVERNING UNIT TEMPORARY DUTY WERE CHANGED FROM PARAGRAPH 4250-13 TO PARAGRAPH 4205-5, ITEM E. SEE ALSO, PARAGRAPH 4256-2 OF THE REGULATIONS AS SET OUT BY CHANGE 126. IF THE FINANCE AND ACCOUNTING OFFICER HAS ANY QUESTION CONCERNING THE MATTER, HE MAY SUBMIT THE MATTER HERE FOR AN ADVANCE DECISION.