B-171241, FEB 18, 1971

B-171241, FEB 18, 1971

MILITARY PERSONNEL - PER DIEM - TEMPORARY DUTY - ADDITIONAL FIELD TRAINING DECISION HOLDING THAT SECOND LIEUTENANT EDUARDO RIVERA IS ENTITLED TO PAYMENT OF PER DIEM WHILE PARTICIPATING IN SOUTH COVER III EXERCISE AT HOWARD AIR FORCE BASE, CANAL ZONE INVOLVING ADDITIONAL FIELD TRAINING AND TEMPORARY DUTY OF OFFICERS AND AIRMEN OF THE PUERTO RICO AIR NATIONAL GUARD PROVIDED THAT MEMBERS OF A REGULAR COMPONENT WOULD HAVE BEEN ENTITLED TO PER DIEM FOR PERFORMING TEMPORARY DUTY UNDER THE SAME CIRCUMSTANCES. THE LEGISLATIVE HISTORY OF 37 U.S.C. 404(A)4 SHOWS THE INTENTION TO EXCLUDE PER DIEM AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS ARE AVAILABLE ONLY FOR ANNUAL TRAINING DUTY PERFORMED UNDER 32 U.S.C. 502(A) WHICH IS THE MINIMUM DUTY ORDINARILY REQUIRED OF A NATIONAL GUARDSMAN. THEREFORE, ADDITIONAL TRAINING DUTY PERFORMED UNDER 32 U.S.C. 502(F) AND 503(A) IS NOT SO RESTRICTED AND AS DECIDED IN B-152420, MAY BE AUTHORIZED TO MEMBERS OF RESERVE COMPONENTS ON ACTIVE DUTY FOR LESS THAN 20 WEEKS WHERE MEMBERS OF REGULAR COMPONENTS PERFORMING SIMILAR DUTY IN A TEMPORARY STATUS WOULD BE ENTITLED TO PER DIEM.

TO CAPTAIN W. V. PIERSON:

WE REFER FURTHER TO YOUR LETTER DATED AUGUST 3, 1970, WITH ATTACHMENTS, FORWARDED HERE BY LETTER OF NOVEMBER 6, 1970, FROM THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NO. 70-52), IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A CLAIM BY SECOND LIEUTENANT EDUARDO RIVERA, PRANG, FOR PER DIEM WHILE PARTICIPATING IN SOUTH COVER III EXERCISE AT HOWARD AIR FORCE BASE, CANAL ZONE.

AIR NATIONAL GUARD ORDER T-90, MARCH 26, 1970, HEADQUARTERS, PUERTO RICO NATIONAL GUARD, ISSUED UNDER THE PROVISIONS OF 32 U.S.C. 503, ORDERED 45 OFFICERS AND AIRMEN OF THE PUERTO RICO AIR NATIONAL GUARD, INCLUDING LIEUTENANT RIVERA, TO ACTIVE DUTY FOR TRAINING, WITH THEIR CONSENT, TO PARTICIPATE IN SOUTH COVER III EXERCISE AT HOWARD AIR FORCE BASE, CANAL ZONE. THE ORDER DESIGNATED THE ASSIGNMENT AS ADDITIONAL FIELD TRAINING AND TEMPORARY DUTY WHICH WAS TO COMMENCE EITHER ON MARCH 30 OR 31, 1970. ALL PERSONNEL WERE TO BE RELIEVED FROM ACTIVE DUTY FOR TRAINING ON APRIL 4, 1970, OR UPON COMPLETION OF THE MISSION, UNLESS SOONER RELIEVED BY COMPETENT AUTHORITY, AND TO RETURN TO THEIR HOMES OF RECORD.

WE ARE INFORMED THAT LIEUTENANT RIVERA WAS ON ACTIVE DUTY FOR TRAINING FROM MARCH 30 THROUGH APRIL 4, 1970; HE HAS SUBMITTED CLAIM FOR PER DIEM INCLUDING THE PERIOD HE WAS ON DUTY AT HOWARD AIR FORCE BASE, CANAL ZONE, DURING WHICH TIME GOVERNMENT MEALS AND QUARTERS WERE AVAILABLE. ADDITIONALLY, YOU REPORT THE RECEIPT OF 19 SIMILAR CLAIMS FROM OTHER MEMBERS OF THE PUERTO RICO AIR NATIONAL GUARD.

ENCLOSED WITH YOUR SUBMISSION IS LETTER OF APRIL 23, 1970, TO THE CHIEF, NATIONAL GUARD BUREAU, FROM THE BASE COMMANDER, MUNIZ AIR NATIONAL GUARD BASE, PUERTO RICO, IN WHICH IT IS INDICATED THAT OFFICERS AND AIRMEN OF THE 156 TACTICAL FIGHTER GROUP (PRANG) WERE ORDERED TO ACTIVE DUTY FOR TRAINING IN SUPPORT OF A RADAR INTERCEPT TRAINING EXERCISE WHICH HAD BEEN REQUESTED BY THE UNITED STATES AIR FORCES SOUTHERN COMMAND AND THAT FUNDING WAS CONTAINED IN AN ALLOCATION FOR ADDITIONAL FIELD TRAINING.

IT IS INDICATED THAT PER DIEM CLAIMS WERE DENIED BASED ON THE RATIONALE THAT THE INDIVIDUALS WERE IN FACT PERFORMING ANNUAL FIELD TRAINING BY VIRTUE OF THE NATURE OF THE APPROPRIATION INVOLVED. THE BASE COMMANDER CONTENDED THAT PERSONNEL PARTICIPATING IN THE HOWARD AIR FORCE BASE EXERCISE WERE NOT ON ANNUAL FIELD TRAINING, AS HE SAID THEY ALL WOULD BE REQUIRED TO PERFORM ANNUAL FIELD TRAINING FROM MAY 31 THROUGH JUNE 13, 1970, AND THAT THE NATURE OF THE FUNDING DID NOT INDICATE AN INTENTION TO WITHHOLD PER DIEM. IN REPLY, THE CHIEF, NATIONAL GUARD BUREAU, EXPRESSED CONCURRENCE WITH THE BASE COMMANDER'S CONTENTIONS AND INDICATED THAT THE VOUCHERS SHOULD BE PROCESSED FOR PAYMENT.

YOU INDICATE THAT THE QUESTION AT ISSUE IS WHETHER PER DIEM IS PROPERLY PAYABLE FOR THE PERIOD INVOLVED WHILE PARTICIPATING IN SOUTH COVER III EXERCISE AS AN ADDITIONAL ANNUAL FIELD TRAINING. YOU SAY FURTHER THAT LIEUTENANT RIVERA'S CLAIM FOR PER DIEM WAS DENIED ON THE BASIS OF PARAGRAPH M6001C (M6001-1(C)1) OF THE JOINT TRAVEL REGULATIONS, AS BOTH GOVERNMENT QUARTERS AND MESS WERE AVAILABLE FOR THE PERIOD IN QUESTION. IN ADDITION, YOU REFER TO PARAGRAPH M4250 OF THE REGULATIONS AS AFFORDING AN ADDITIONAL BASIS FOR DENIAL OF PAYMENT OF PER DIEM IN THE CIRCUMSTANCES SET FORTH.

SECTION 404(A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO, TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE

"WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE."

IN DECISION B-152420, MARCH 30, 1970 (49 COMP. GEN. ), WE EXPRESSED THE OPINION THAT PAYMENT OF PER DIEM COULD BE AUTHORIZED TO MEMBERS OF RESERVE COMPONENTS ON ACTIVE DUTY FOR LESS THAN 20 WEEKS WHERE MEMBERS OF REGULAR COMPONENTS PERFORMING SIMILAR DUTY IN A TEMPORARY DUTY STATUS WOULD BE ENTITLED TO PER DIEM, WITH THE EXCEPTION OF TWO WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESSING ARE AVAILABLE.

IN ADDITION, WE SAID THAT WE WOULD NOT OBJECT TO PER DIEM PAYMENTS MADE FOR ANY PERIOD ON OR AFTER JANUARY 1, 1968, AND PRIOR TO THE EFFECTIVE DATE OF NEW REGULATIONS ISSUED TO GIVE EFFECT TO THIS DECISION, IF SUCH PAYMENTS WERE IN ACCORDANCE WITH PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS ORIGINALLY ISSUED (APRIL 1, 1968) TO IMPLEMENT SECTION 3 OF PUBLIC LAW 90-168, AND WERE OTHERWISE CORRECT.

IN ACCORD WITH THIS DECISION, PARAGRAPH M6001-3 OF THE JOINT TRAVEL REGULATIONS, CHANGE 212, SEPTEMBER 1, 1970, PROVIDES THAT EXCEPT FOR ANNUAL ACTIVE DUTY FOR TRAINING AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE, MEMBERS OF THE RESERVE COMPONENTS ON ACTIVE DUTY WITH PAY ON OR AFTER JANUARY 1, 1968, UNDER ORDERS CONTEMPLATING AN ASSIGNMENT OF LESS THAN 20 WEEKS ARE ENTITLED TO PER DIEM ALLOWANCES AS AUTHORIZED BY SUBPARAGRAPH 1(C)1, NOTWITHSTANDING THE AVAILABILITY OF GOVERNMENT QUARTERS AND GOVERNMENT MESS AT THE ACTIVE DUTY STATION.

AT THE TIME OF YOUR LETTER OF AUGUST 3, 1970, THERE WAS IN EFFECT PARAGRAPH M6001-1(C)1, CHANGE 209, OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDED THAT WHEN THE PERIOD OF ACTIVE DUTY BY A MEMBER OF A RESERVE COMPONENT IS FOR LESS THAN 20 WEEKS AND BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE AT THE PERMANENT DUTY STATION, NO PER DIEM WILL BE PAYABLE. THAT PARAGRAPH ALSO WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY CHANGE 212 TO PROVIDE WITH RESPECT TO PER DIEM FOR ACTIVE DUTY OF LESS THAN 20 WEEKS AT THE PERMANENT DUTY STATION BY A MEMBER OF A RESERVE COMPONENT THAT, EXCEPT FOR ANNUAL ACTIVE DUTY TRAINING AT A MILITARY INSTALLATION WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE, PER DIEM ALLOWANCES ARE PAYABLE AT THE SAME RATES AND SUBJECT TO THE SAME DEDUCTIONS AS ARE PROVIDED FOR TEMPORARY DUTY IN CHAPTER 4, PARTS E AND F, AS APPLICABLE.

THE EXCLUSION FROM ELIGIBILITY FOR PER DIEM INCIDENT TO ANNUAL ACTIVE DUTY FOR TRAINING AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE IS FOUNDED UPON THE STATEMENT AT PAGE 57, HOUSE OF REPRESENTATIVES REPORT NO. 13, 90TH CONGRESS, FIRST SESSION, DATED FEBRUARY 13, 1967, COMMITTEE ON ARMED SERVICES, ON H.R. 2 WHICH STATES:

"IT IS NOT, HOWEVER, CONSIDERED APPROPRIATE THAT MEMBERS OF THE NATIONAL GUARD OR OF ANY OTHER RESERVE COMPONENT SHOULD RECEIVE PER DIEM FOR ATTENDANCE AT WEEKLY DRILLS OR DUTY IN LIEU OF WEEKLY DRILLS OR FOR PERFORMANCE OF THEIR 2 WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESSING ARE, IN FACT, AVAILABLE."

SECTION 502(A) OF TITLE 32, U.S.C. PROVIDES THAT UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE AIR FORCE, AS THE CASE MAY BE, EACH COMPANY, BATTERY, SQUADRON, AND DETACHMENT OF THE NATIONAL GUARD, UNLESS EXCUSED BY THE SECRETARY CONCERNED, SHALL (1) ASSEMBLE FOR DRILL AND INSTRUCTION, INCLUDING INDOOR TARGET PRACTICE AT LEAST 48 TIMES EACH YEAR; AND (2) PARTICIPATE IN TRAINING AT ENCAMPMENTS, MANEUVERS, OUTDOOR TARGET PRACTICE, OR OTHER EXERCISES, AT LEAST 15 DAYS EACH YEAR. SECTION 502(F) PROVIDES IN PERTINENT PART THAT A MEMBER OF THE NATIONAL GUARD MAY (1), WITHOUT HIS CONSENT OR (2) WITH HIS CONSENT, BE ORDERED TO PERFORM TRAINING OR OTHER DUTY IN ADDITION TO THAT PRESCRIBED IN SUBSECTION (A).

SECTION 503(A) STATES THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE SECRETARY OF THE ARMY AND THE SECRETARY OF THE AIR FORCE, AS THE CASE MAY BE, MAY PROVIDE FOR THE PARTICIPATION OF THE NATIONAL GUARD IN ENCAMPMENTS, MANEUVERS, OUTDOOR TARGET PRACTICE, OR OTHER EXERCISES FOR FIELD OR COAST-DEFENSE INSTRUCTION, INDEPENDENTLY OF OR IN CONJUNCTION WITH THE ARMY OR THE AIR FORCE, OR BOTH.

WE ARE OF THE OPINION THAT THE LEGISLATIVE HISTORY OF 37 U.S.C. 404(A)(4) SHOWS THE INTENTION TO EXCLUDE PER DIEM AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS ARE AVAILABLE, ONLY FOR THE ANNUAL TRAINING DUTY PERFORMED UNDER 32 U.S.C. 502(A), WHICH IS THE MINIMUM DUTY ORDINARILY REQUIRED OF A NATIONAL GUARDSMAN OR MEMBER OF AN ACTIVE RESERVE COMPONENT. IN OUR VIEW, SUCH RESTRICTION DOES NOT APPLY TO ADDITIONAL TRAINING DUTY PERFORMED UNDER SECTIONS 502(F) AND 503(A) OF TITLE 32, UNITED STATES CODE.

AIR NATIONAL GUARD REGULATION NO. 50-03, JULY 1, 1965, INDICATES THAT TACTICAL FIGHTER UNITS (WINGS, GROUPS AND ASSIGNED SQUADRONS) ARE REQUIRED TO SERVE THEIR 15 DAYS OF ANNUAL TRAINING UNDER THE "FIFTEEN DAY FIELD TRAINING" PLAN. "FIFTEEN DAY FIELD TRAINING" IS DEFINED AS THE CONDUCT OF FIELD TRAINING BY THE ENTIRE UNIT FOR 15 CONSECUTIVE DAYS.

VOLUNTARY PARTICIPATION OF ONLY SOME OF THE 156 TACTICAL FIGHTER GROUP'S MEMBERS IN AN EXERCISE LASTING SUBSTANTIALLY LESS THAN 15 CONSECUTIVE DAYS, AND ORDERED UNDER SECTION 503, CLEARLY WAS NOT INTENDED AS A PART OF THE "FIFTEEN DAY FIELD TRAINING" AS DEFINED IN AIR NATIONAL GUARD REGULATION NO. 50-03, AND WHICH IS OBLIGATORY FOR THE UNIT TO SATISFY THE YEARLY FIELD TRAINING REQUIREMENT OF 32 U.S.C. 502(A). THE RECORD BEFORE US INDICATES THAT THE GROUP WOULD BE REQUIRED TO UNDERGO ANNUAL FIELD TRAINING FOR THE PERIOD FROM MAY 31 THROUGH JUNE 13, 1970, AT AIR NATIONAL GUARD PERMANENT TRAINING SITE, SAVANNAH, GEORGIA.

WE ARE IN ACCORD WITH THE VIEW OF THE NATIONAL GUARD BUREAU THAT UTILIZATION OF AN APPROPRIATION NORMALLY USED FOR ANNUAL FIELD TRAINING, IN THIS INSTANCE, HAD NO RELATIONSHIP TO THE NATURE OF THE DUTY PERFORMED. IN LIGHT OF THE CIRCUMSTANCES, PARTICIPATION IN SOUTH COVER III EXERCISE IS NOT CONSIDERED AS ANNUAL FIELD TRAINING FOR WHICH THE PAYMENT OF PER DIEM IS BARRED BY PARAGRAPH M6001-3 OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M4250 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL PER DIEM ALLOWANCES FOR PERIODS OF TRAVEL AND/OR TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS OUTSIDE CONTINENTAL UNITED STATES EXCEPT:

"3. WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. *** THIS LIMITATION DOES NOT APPLY (1) WHEN PARTICIPATION IN THE TYPES OF DUTY SPECIFIED HEREIN INVOLVES TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED *** ."

PARAGRAPH 20431 OF AIR FORCE MANUAL 177-103, IN EFFECT DURING THE PERIOD IN QUESTION, PROVIDES IN PERTINENT PART THAT THE SECRETARY OF THE AIR FORCE HAS DETERMINED THAT AIR FORCE MEMBERS ENGAGED IN TYPES OF DUTY DESCRIBED IN PARAGRAPH M4250-3 OF THE JOINT TRAVEL REGULATIONS, ARE ENTITLED TO PER DIEM WHEN DUTY IS PERFORMED ON A MILITARY INSTALLATION, AND SLEEPING ACCOMMODATIONS AND SUBSISTENCE ARE NOT PROVIDED UNDER FIELD CONDITIONS. PARAGRAPH 20433 INDICATES THAT SLEEPING ACCOMMODATIONS UNDER FIELD CONDITIONS CONSIST OF TENTAGE, DUGOUTS, LEAN-TOS, OR STRUCTURES NOT SUITABLE FOR REGULAR OCCUPANCY, AND SUBSISTENCE UNDER FIELD CONDITIONS CONSISTS OF RATIONS PREPARED IN A FIELD KITCHEN OR MESS, OR COLD PREPARED RATIONS COMMON TO THE OPERATION, AND MADE AVAILABLE TO PARTICIPANTS.

THE RECORD BEFORE US DOES NOT DISCLOSE THE CONDITIONS UNDER WHICH THE DUTY INVOLVED WAS PERFORMED AT HOWARD AIR FORCE BASE. THE LEGISLATIVE INTENT, HOWEVER, IN ADDING SECTION 404(A)(4) OF TITLE 37, U.S. CODE, WAS TO PROVIDE THE SAME ENTITLEMENT TO ALL MILITARY PERSONNEL IN THE MATTER OF PER DIEM ELIGIBILITY WHEN THE CIRCUMSTANCES ARE ESSENTIALLY THE SAME.

THEREFORE, IF MEMBERS OF A REGULAR COMPONENT WOULD HAVE BEEN ENTITLED TO PER DIEM FOR PERFORMING TEMPORARY DUTY UNDER THE SAME CIRCUMSTANCES, WE ARE OF THE OPINION THAT PARAGRAPH M4250-3 WOULD NOT BAR THE PAYMENT OF PER DIEM TO LIEUTENANT RIVERA. ACCORDINGLY, THE CLAIM OF LIEUTENANT RIVERA IS RETURNED AND PAYMENT IS AUTHORIZED IF IT BE DETERMINED THAT HE IS ENTITLED TO PER DIEM ON THE BASIS SET FORTH ABOVE. ALSO, SIMILAR ACTION MAY BE TAKEN ON THE VOUCHERS PRESENTED BY THE OTHER MEMBERS WHO HAVE SUBMITTED SIMILAR CLAIMS.