B-158298, JAN. 26, 1966

B-158298, JAN. 26, 1966

TO MR. NICHOLAS O. PERATSAKIS:

WE REFER TO YOUR LETTER OF DECEMBER 28, 1965, BY WHICH YOU REQUESTED A REVIEW OF THE SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE, DATED DECEMBER 3, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE FOR TWO PERIODS OF TRAINING DUTY AWAY FROM YOUR PERMANENT DUTY STATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, NEW YORK CONTRACT MANAGEMENT DISTRICT, LOCKHEED CONTRACT MANAGEMENT OFFICE, JOHN F. KENNEDY INTERNATIONAL AIRPORT, JAMAICA, NEW YORK.

BY TRAVEL ORDER NO. T-372, HEADQUARTERS, NEW YORK CONTRACT MANAGEMENT DISTRICT, MAY 20, 1963, YOU WERE AUTHORIZED TO TRAVEL TO WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND RETURN FOR THE PURPOSE OF ATTENDING A TRAINING COURSE FOR APPROXIMATELY 30 DAYS DURING JUNE OF THAT YEAR. THAT TRAVEL AUTHORIZATION PROVIDED THAT "PER DIEM OF $16.00 IS AUTHORIZED EXCEPT AS CHANGED BY THE APPLICABLE PROVISIONS OF SECTION 4, CHAPTER 9, AFM 40-10," AND CONTAINED THE FOLLOWING SPECIFIC PROVISION WITH REGARD TO PER DIEM PAYMENTS FOR TRAVEL AUTHORIZED THEREIN:

"CIVILIAN STUDENTS ARE AUTHORIZED PER DIEM NOT TO EXCEED $9.00 PER DAY WHILE IN STUDENT STATUS, $9.00 PER DAY WHILE IN TRAVEL STATUS AND $16.00 PER DAY WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. PER DIEM IS $7.00 EXCEPT AS PROVIDED BY AFM 40-10. GOVERNMENT-QUARTERS AND OFFICERS OPEN MESS ARE AVAILABLE. FIELD RATION MESS IS NOT AVAILABLE.'

YOU WERE AGAIN AUTHORIZED TO TRAVEL FROM YOUR DUTY STATION TO WRIGHT- PATTERSON AIR FORCE BASE FOR TRAINING PURPOSES BY TRAVEL ORDER NO. T-227, HEADQUARTERS, NEW YORK CONTRACT MANAGEMENT DISTRICT, MARCH 26, 1964. SPECIAL PROVISION REGARDING PER DIEM WAS ALSO CONTAINED IN THAT ORDER AS FOLLOWS:

"PER DIEM OF $16.00 IS AUTHORIZED ACCEPT (SIC) AS CHANGED BY THE APPLICABLE PROVISIONS OF SECTION 4, CHAPTER 9, AFM 40-10 AND SUBJECT TO PARAGRAPH 14C (3), CHAPTER 9, AFM 40-10 REQUIRING THE USE OF GOVERNMENT- OWNED QUARTERS AND THE APPLICABLE PER DIEM RATE WHILE ATTENDING THE TRAINING COURSE. * * *

"CIVILIAN STUDENTS ARE AUTHORIZED PER DIEM NOT TO EXCEED $7.00 PER DAY WHILE IN STUDENT STATUS, $9.00 PER DAY WHILE IN TRAVEL STATUS AND $16.00 PER DAY WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE.

"THE PER DIEM RATE WILL BE REDUCED WHERE OFFICERS CLUB OR OFFICERS OPEN MESS IS AVAILABLE OR REDUCED $4 WHERE FIELD RATION MESS ONLY IS AVAILABLE.'

PURSUANT TO THOSE TRAVEL AUTHORIZATIONS YOU WERE ON TEMPORARY DUTY AT WRIGHT-PATTERSON AIR FORCE BASE ATTENDING TRAINING COURSES FROM JUNE 2 TO 28, 1963, AND FROM APRIL 5 TO MAY 8, 1964, A TOTAL OF 60 DAYS. YOU WERE PAID PER DIEM AT THE RATE OF $7 FOR THOSE 60 DAYS AND CLAIM AN ADDITIONAL $2 PER DAY ON THE BASIS OF THE STATEMENTS OF NONAVAILABILITY OF GOVERNMENT MESS FACILITIES WHICH YOU WERE FURNISHED FOR THE PERIODS IN QUESTION.

PARAGRAPH 22A OF SECTION 4, CHAPTER 9, AFM 40-10, EFFECTIVE FROM MARCH 1, 1963, THROUGH THE TWO PERIODS YOU WERE ON TEMPORARY DUTY UNDER THE ABOVE TRAVEL ORDERS PROVIDED:

"A. GOVERNMENT QUARTERS AND SPECIFIC MEAL FACILITIES AVAILABLE. FOR EMPLOYEES ATTENDING TRAINING COURSES WHERE GOVERNMENT QUARTERS AND OFFICERS' CLUB, OFFICERS OPEN MESS, OR FIELD RATION MESS ARE AVAILABLE AT THE INSTALLATION WHERE A TRAINING COURSE IS HELD THE PER DIEM RATE PRESCRIBED IN PARAGRAPHS 19D AND 20G WILL BE SUBJECT TO REDUCTIONS AS FOLLOWS:

"/1) IF AN EMPLOYEE DOES NOT USE, TAKES ONLY ONE MEAL A DAY AT EITHER TYPE OF MEAL FACILITY, OR TAKES AT LEAST TWO MEALS A DAY AT AN OFFICERS' CLUB OR OFFICERS' OPEN MESS, THE PER DIEM RATE IS REDUCED $2, BUT THE REDUCED PER DIEM RATE WILL NOT BE LESS THAN $6.

"/2) IF AN OFFICERS' CLUB OR OFFICERS' OPEN MESS IS NOT AVAILABLE AND ONLY A FIELD RATION MESS IS AVAILABLE, OR AN EMPLOYEE TAKES AT LEAST TWO MEALS A DAY AT A FIELD RATION MESS, THE PER DIEM RATE IS REDUCED $4, BUT THE REDUCED PER DIEM RATE WILL NOT BE LESS THAN $3.50.'

PARAGRAPHS 19D AND 19F OF THAT CHAPTER AND REGULATION PROVIDED IN PERTINENT PART:

"D. GOVERNMENT QUARTERS USED. A $9 PER DIEM RATE IS AUTHORIZED WHEN GOVERNMENT QUARTERS ARE USED WITH OR WITHOUT CHARGE TO THE TRAVELER. * * * IF THERE IS NO CHARGE FOR THE QUARTERS, $1 FOR EACH DAY QUARTERS ARE USED WILL BE DEDUCTED FROM THE TOTAL PER DIEM AMOUNT OTHERWISE PAYABLE. IF A CHARGE IS PAID BY THE TRAVELER, REIMBURSEMENT IS ALLOWED FOR THE AMOUNT PAID IN EXCESS OF $1.00 PER DAY, IF CLAIMED.

"F. MEALS TAKEN AT OFFICERS OR GOVERNMENT MESS FACILITIES. IF OFFICERS CLUB OR OFFICERS OPEN MESS FACILITIES ARE USED FOR TWO OR MORE MEALS A DAY, THE APPLICABLE PER DIEM RATE WILL BE REDUCED $2.00 FOR EACH DAY AND THE APPLICABLE PER DIEM RATE WILL BE REDUCED $4.00 FOR EACH DAY TWO OR MORE MEALS A DAY ARE TAKEN IN A FIELD RATION (GOVERNMENT) MESS. A PER DIEM RATE, AFTER THOSE REDUCTIONS, WILL NOT BE LESS THAN $6.00 IF MEALS ARE TAKEN AT AN OFFICERS CLUB OR OFFICERS OPEN MESS FACILITY OR LESS THAN $3.50 IF MEALS ARE TAKEN AT A FIELD RATION MESS FACILITY. NO REDUCTION WILL BE MADE IF ONLY ONE MEAL A DAY IS TAKEN.'

PARAGRAPH 19D PRESCRIBED A $9 PER DIEM RATE FOR TEMPORARY DUTY WHEN GOVERNMENT QUARTERS WERE USED IF A CHARGE OF NOT IN EXCESS OF $1 PER DAY WAS MADE FOR SUCH USE. PARAGRAPH 19F PROVIDED FOR REDUCTION IN SUCH RATE IF OFFICERS' OR GOVERNMENT MESS FACILITIES WERE USES--- A $2 REDUCTION PER DAY IF OFFICERS' CLUB OR OFFICERS OPEN MESS FACILITIES WERE USED AND A $4 REDUCTION PER DAY IF GOVERNMENT MESS (FIELD RATION MESS) WAS USED FOR TWO OR MORE MEALS A DAY. PARAGRAPH 22A FURTHER PROVIDED THAT EMPLOYEES ON TEMPORARY DUTY ATTENDING TRAINING COURSES WOULD HAVE THEIR PER DIEM REDUCED BY $2 PER DAY IF OFFICERS' CLUB OR OFFICERS' OPEN MESS FACILITIES WERE AVAILABLE AT THE PLACE OF TRAINING DUTY REGARDLESS OF WHETHER SUCH FACILITIES WERE USED OR NOT. A REDUCTION OF $4 PER DAY WAS PRESCRIBED IF ONLY GOVERNMENT MESS FACILITIES WERE AVAILABLE OR IF SUCH FACILITIES WERE IN FACT USED FOR AT LEAST TWO MEALS A DAY. IT IS APPARENT THAT THE PROVISIONS OF YOUR TRAVEL ORDERS QUOTED ABOVE ARE MERELY RESTATEMENTS OF THE REGULATIONS IN QUESTION.

IN VIEW OF THE QUOTED REGULATIONS THE CERTIFICATES OF NONAVAILABILITY OF GOVERNMENT MESS WHICH YOU OBTAINED MUST BE REGARDED AS EVIDENCE THAT FIELD RATION MESS WAS NOT AVAILABLE TO YOU AT WRIGHT PATTERSON AIR FORCE BASE, AND NOT OF THE NONAVAILABILITY OF OFFICERS' CLUB OR OFFICERS' OPEN MESS. IN THAT CONNECTION WE HAVE BEEN ADVISED THAT MEALS WERE AVAILABLE TO YOU AT THE WRIGHT-PATTERSON AIR FORCE BASE OFFICERS' CLUB AND THAT YOU WOULD NOT HAVE BEEN REQUIRED TO PAY A MEMBERSHIP FEE IN ORDER TO EAT MEALS AT THAT CLUB.

FOR THE REASONS STATED WE MUST CONCLUDE THAT THE $7 PER DIEM RATE WAS APPLICABLE WHILE YOU WERE ON TRAINING DUTY AT WRIGHT-PATTERSON AIR FORCE BASE IN JUNE 1963 AND APRIL AND MAY 1964, AND THAT YOU ARE NOT ENTITLED TO THE ADDITIONAL PER DIEM YOU CLAIM. ACCORDINGLY, THE SETTLEMENT OF THE CLAIMS DIVISION OF DECEMBER 3, 1965, IS SUSTAINED.