B-154065, JULY 28, 1964, 44 COMP. GEN. 32

B-154065, JULY 28, 1964, 44 COMP. GEN. 32

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - ON BOARD VESSELS - AVAILABILITY OF QUARTERS AND MESSING FACILITIES AN ENLISTED MAN WHO WHILE STATIONED IN JAPAN PERFORMS TEMPORARY DUTY ON BOARD A NAVY VESSEL THAT MAINTAINED BERTHING AND MESSING FACILITIES ORIENTAL IN NATURE FOR THE NATIONAL CIVILIAN MARINERS THAT MANNED THE VESSEL WHICH DID NOT MEET THE STANDARDS OF THE UNITED STATES NAVY MAY, NEVERTHELESS, NOT BE PAID A PER DIEM ALLOWANCE COMMENSURATE WITH THE AMOUNT HE EXPENDED FOR THE FOOD HE PURCHASED FOR THE DURATION OF THE TRIP PRIOR TO EMBARKING, PARAGRAPH 4250-8 OF THE JOINT TRAVEL REGULATIONS PROVIDING THAT PER DIEM IS NOT PAYABLE FOR ANY PERIOD OF TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WHEN BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE, AND THE MESSING FACILITIES AVAILABLE TO THE MEMBER DURING HIS TEMPORARY TOUR OF DUTY CONSTITUTING A "GOVERNMENT MESS" WITHIN THE CONTEMPLATION OF PARAGRAPH 1150-4, DEFINING THE TERM TO INCLUDE ANY GENERAL OR SERVICE ORGANIZATIONAL MESS, THE MEMBER IS NOT ENTITLED TO THE PAYMENT OF THE PER DIEM CLAIMED.

TO S. F. LEADER, DEPARTMENT OF THE NAVY, JULY 28, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 18, 1964, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF A PER DIEM ALLOWANCE TO PHILIP R. TROST, AMS3, 544 97 63, USN, UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 64-12.

BY ORDER NO. T-500-64 DATED NOVEMBER 8, 1963, MR. TROST WAS AUTHORIZED TO PROCEED TO SAGITA, JAPAN, FOR A PERIOD OF ABOUT 5 DAYS' TEMPORARY DUTY TO ACCOMPANY AN A3B AIRCRAFT, BUNO 138909, ON SURFACE SHIPMENT TO REPAIR FACILITIES. HE TRAVELED TO SAGITA ABOARD THE USNS LST 550 OWNED BY THE UNITED STATES BUT MANNED BY JAPANESE NATIONAL CIVILIAN MARINERS, IT BEING REPORTED THAT BY U.S. NAVY STANDARDS ADEQUATE BERTHING AND MESSING FACILITIES WERE NOT AVAILABLE TO HIM ON THE SHIP. IT IS STATED THAT MR. TROST OCCUPIED A SMALL UNHEATED COMPARTMENT ABOVE THE BRIDGE EQUIPPED WITH ONE CANVAS BUNK, USING BLANKETS BORROWED PRIOR TO HIS DEPARTURE SINCE SHEETS AND BLANKETS WERE NOT AVAILABLE ABOARD THE SHIP; AND, SINCE WESTERN CUISINE WAS NOT AVAILABLE, HE HAD PURCHASED CANNED AND DRIED FOODSTUFFS TO LAST THE TRIP TO SAGITA. YOUR QUESTION IS WHETHER TROST MAY BE PAID AN ALLOWANCE COMMENSURATE WITH THE AMOUNT EXPENDED FOR FOOD WHILE ON BOARD THE VESSEL.

PARAGRAPH 4250 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL PER DIEM ALLOWANCES AT THE RATES UNIFORMLY ESTABLISHED BY THE SECRETARIES OF THE UNIFORMED SERVICES FOR PERIODS OF TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS OUTSIDE THE CONTINENTAL UNITED STATES EXCEPT IN CERTAIN SPECIFIED CIRCUMSTANCES. PARAGRAPH 4250-8 OF THE REGULATIONS PROVIDES THAT PER DIEM IS NOT PAYABLE FOR ANY PERIOD OF TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WHEN BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. PARAGRAPH 1150-5 PROVIDES THAT THE TERM "GOVERNMENT QUARTERS," UNLESS OTHERWISE QUALIFIED, MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT AND PARAGRAPH 1150-4 DEFINES THE TERM "GOVERNMENT MESS," UNLESS OTHERWISE QUALIFIED, TO INCLUDE ANY GENERAL OR SERVICE ORGANIZATIONAL MESS. THE PURPOSE OF THE EXCEPTION IS TO DENY PER DIEM WHEN TEMPORARY DUTY IS PERFORMED ON GOVERNMENT VESSELS WHEN SUBSISTENCE FACILITIES ARE AVAILABLE THERE, THE USE OF WHICH WOULD NOT INVOLVE THE ABOVE-NORMAL SUBSISTENCE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED. 38 COMP. GEN. 626.

THE REGULATIONS, HOWEVER, CONTAIN NO PROVISION WHICH WOULD PERMIT PAYMENT OF THE PER DIEM ALLOWANCE ON THE BASIS THAT CONDITIONS OR CIRCUMSTANCES ABOARD SHIP MADE QUARTERS AND SUBSISTENCE NOT ACCEPTABLE BY U.S. NAVY STANDARDS. REGARDLESS OF THE FACT THAT THE MESSING FACILITIES ABOARD THE USNS LST 550 WERE ORIENTAL IN NATURE AND THE FOOD SERVED WAS NOT THE KIND TO WHICH MR. TROST WAS ACCUSTOMED, PAYMENT OF A PER DIEM ALLOWANCE FOR THE PERIOD OF HIS CLAIM IS PROHIBITED BY THE CITED REGULATIONS SINCE MESSING FACILITIES ACTUALLY WERE AVAILABLE.

ACCORDINGLY, IT IS CONCLUDED THAT THE MESSING FACILITIES ABOARD THE USNS LST 550 DURING THE PERIOD MR. TROST PERFORMED TEMPORARY DUTY ON IT CONSTITUTED A GOVERNMENT MESS WITHIN THE CONTEMPLATION OF PARAGRAPH 1150-4 OF THE JOINT TRAVEL REGULATIONS AND THAT PAYMENT OF THE PER DIEM CLAIMED IS NOT AUTHORIZED. MR. TROST'S ORIGINAL ORDERS ARE RETURNED HEREWITH.