Per Diem Payments for Reserve Member on Extended Active Duty

B-188882, AUG 23, 1977

WHERE A MEMBER OF A RESERVE COMPONENT WAS CALLED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 20 WEEKS, AND HIS PERIOD OF DUTY WAS EXTENDED SEVERAL TIMES FOR PERIODS OF LESS THAN 20 WEEKS EACH, THE PERIOD ON ACTIVE DUTY TOTALING FAR IN EXCESS OF 20 WEEKS, AND THE RECORD DOES NOT INDICATE THAT THESE EXTENSIONS WERE DUE TO UNFORESEEN CIRCUMSTANCES, THE MEMBER'S CLAIM FOR PER DIEM CANNOT BE PAID.

MASTER SERGEANT JOHN J. CONNAUGHTON, JR., USAFR:

THIS ACTION IS IN RESPONSE TO A REQUEST DATED MARCH 23, 1977, FROM THE CHIEF OF THE ACCOUNTING AND FINANCE DIVISION, HEADQUARTERS, ELECTRONIC SYSTEMS DIVISION (AFSC), HANSCOM AIR FORCE BASE, MASSACHUSETTS, FOR A DECISION AS TO THE PROPRIETY OF PAYING A CLAIM SUBMITTED BY MASTER SERGEANT JOHN J. CONNAUGHTON, JR., USAFR, XXX-XX-XXXX, FOR PER DIEM. THE REQUEST WAS ASSIGNED CONTROL NO. 77-14 AND FORWARDED TO THIS OFFICE BY PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ENDORSEMENT DATED APRIL 19, 1977.

SERGEANT CONNAUGHTON, A RESIDENT OF ALLSTON, MASSACHUSETTS, AND THEN A MEMBER OF THE AIR NATIONAL GUARD, WAS ORDERED TO ACTIVE DUTY FOR 88 DAYS PLUS TRAVEL TIME, THE PERIOD OF JULY 2, 1975, TO SEPTEMBER 27, 1975, BY SPECIAL ORDER AN-169, DATED JULY 1, 1975, AT HEADQUARTERS, AIR FORCE COMMUNICATIONS SERVICE, RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI. THE REQUEST FOR ASSISTANCE WHICH LED TO SERGEANT CONNAUGHTON'S ORDERS, THE LETTER FROM THAT HEADQUARTERS, CSB REFERENCE OF JUNE 27, 1975, STATES IN PART THAT THAT OFFICE WAS EXPERIENCING A HEAVY OVERLOAD OF SPECIAL PROJECTS WITH RESPECT TO RESERVE FORCES PROGRAMS. IT ALSO STATES THAT ADDITIONAL CLERICAL HELP WAS REQUIRED IN PREPARATION FOR THE "AFCS ARF POLICY COUNCIL SCHEDULED FOR SEPTEMBER 1975." IT DOES NOT INDICATE ANY INTENT THAT THE PERSONS CALLED TO ACTIVE DUTY TO FULFILL THIS REQUEST WOULD BE KEPT ON DUTY AFTER THE EXPIRATION OF THIS PERIOD.

SPECIAL ORDER AN-275, DATED SEPTEMBER 15, 1975, EXTENDED SERGEANT CONNAUGHTON'S TOUR OF DUTY TO DECEMBER 26, 1975. THE REASON THIS EXTENSION WAS REQUESTED, AS STATED IN A CSB LETTER OF SEPTEMBER 4, 1975, IS THAT THE OFFICE TO WHICH SERGEANT CONNAUGHTON WAS ASSIGNED WAS " * * * STILL EXPERIENCING A HEAVY OVERLOAD OF SPECIAL PROJECTS * * * . " SERGEANT CONNAUGHTON'S DATE OF RELEASE FROM ACTIVE DUTY WAS CHANGED TO DECEMBER 15, 1975, BY VERBAL ORDERS CONFIRMED BY SPECIAL ORDER AN 384, DATED DECEMBER 16, 1975, BECAUSE HE WAS DISCHARGED FROM THE AIR NATIONAL GUARD ON DECEMBER 15, 1975, AND TRANSFERRED TO THE AIR FORCE RESERVE EFFECTIVE DECEMBER 16, 1975. HE REMAINED AT RICHARDS-GEBAUR AT THE TIME HE CHANGED FROM AIR NATIONAL GUARD TO AIR FORCE RESERVE STATUS, PERFORMING THE SAME DUTIES.

UPON HIS TRANSFER TO THE RESERVE, SERGEANT CONNAUGHTON RECEIVED RESERVE ORDER RO-65, DATED DECEMBER 16, 1975, CALLING HIM TO ACTIVE DUTY AS A RESERVIST FOR THE PERIOD OF DECEMBER 16, 1975, TO APRIL 1, 1976. REMAINED AT RICHARDS-GEBAUR PERFORMING THE SAME DUTY HE HAD PERFORMED AS A MEMBER OF THE AIR NATIONAL GUARD. THE REASON FOR HIS ASSIGNMENT, AS STATED IN A LETTER OF NOVEMBER 7, 1975, WAS, APPARENTLY, THAT HIS OFFICE WAS " * * * STILL EXPERIENCING A HEAVY OVERLOAD OF SPECIAL PROJECTS AND GENERAL OFFICE CORRESPONDENCE * * * . "

RESERVE ORDER JA-1963, DATED MARCH 5, 1976, CALLED SERGEANT CONNAUGHTON TO ACTIVE DUTY FOR THE PERIOD OF APRIL 5, 1976, TO JUNE 25, 1976. ORDER RO JA-4755, DATED MAY 4, 1976, EXTENDED SERGEANT CONNAUGHTON'S TOUR TO JUNE 30, 1976, AND RESERVE ORDER JA-7773, DATED JUNE 25, 1976, CALLED SERGEANT CONNAUGHTON TO ACTIVE DUTY FOR THE PERIOD OF JULY 1, 1976, TO SEPTEMBER 30, 1976. THE REASONS FOR THESE EXTENSIONS DO NOT APPEAR IN THE RECORD. THROUGHOUT THIS PERIOD, HOWEVER, SERGEANT CONNAUGHTON REMAINED AT RICHARDS-GEBAUR AND PERFORMED THE SAME DUTIES AS BEFORE.

THE FINANCE OFFICER WHO REQUESTED THIS DECISION HAS EXPRESSED THE OPINION THAT " * * * THE ALLOCATION OF MAN DAYS MAY HAVE BEEN THE DRIVING FORCE BEHIND THE ISSUANCE OF MULTIPLE ORDERS FOR LESS THAN 20 WEEKS RATHER THAN THE ANTICIPATED PERIOD FOR WHICH CLERICAL HELP WAS REQUIRED." HE POINTS OUT THAT THE REQUESTS FOR SERGEANT CONNAUGHTON'S ORDERS CONTAIN NO REFERENCE TO UNFORESEEN CIRCUMSTANCES AND USING THE SAME JUSTIFICATION, IMPLY AN ONGOING REQUIREMENT FOR CLERICAL SUPPORT.

SERGEANT CONNAUGHTON HAS BEEN PAID PER DIEM FOR THE PERIODS OF JULY 2, 1975, THROUGH MARCH 31, 1976, AND APRIL 5, THROUGH AUGUST 31, 1976, A TOTAL OF 414 DAYS. HE WAS ALSO PAID TRANSPORTATION EXPENSES FOR HIS ROUND -TRIP TRAVEL TO RICHARDS-GEBAUR. HE CLAIMS HE IS ALSO ENTITLED TO PER DIEM FOR JULY 1, 1975, AND THE PERIOD OF SEPTEMBER 1, THROUGH OCTOBER 1, 1976. THE TOTAL PERIOD INVOLVED IS 453 DAYS, ABOUT 65 WEEKS.

THE FINANCE OFFICER NOTES THAT IN 48 COMP.GEN. 655(1969) WE HELD THAT SERVICE UNDER TWO SETS OF CONSECUTIVE ORDERS SHOULD BE CONSIDERED AS ONE CONTINUOUS PERIOD OF SERVICE. HE QUESTIONS WHETHER THE SERVICE IN THIS CASE SHOULD BE CONSIDERED ONE PERIOD AND, IF SO, WHETHER THE PROHIBITION AGAINST PAYMENT OF PER DIEM IN EXCESS OF 20 WEEKS WOULD BE APPLICABLE.

UNDER 37 U.S.C. 404(A)(4)(1970), A MEMBER OF A UNIFORMED SERVICE (INCLUDING A MEMBER OF THE AIR NATIONAL GUARD), IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN AWAY FROM HOME TO PERFORM DUTY.

THE REGULATIONS PROMULGATED PURSUANT TO THIS PROVISION THAT GOVERN THE PAYMENT OF PER DIEM TO A RESERVIST ORDERED TO ACTIVE DUTY IN CIRCUMSTANCES SUCH AS THOSE OF THE INSTANT CASE, ARE FOUND IN PARAGRAPH M6000 OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR). SUBPARAGRAPH 1C OF THAT PARAGRAPH PROVIDES THAT WHEN THE PERIOD OF ACTIVE DUTY CONTEMPLATED BY THE ORDERS AT ONE LOCATION IS FOR LESS THAN 20 WEEKS, WITH CERTAIN EXCEPTIONS INAPPLICABLE TO THE INSTANT CASE, PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCES ARE PAYABLE TO THE RESERVIST IN QUESTION IN ACCORDANCE WITH THE APPLICABLE PARTS OF CHAPTER 4, 1 JTR. WHEN SUCH A PERIOD OF ACTIVE DUTY MUST BE EXTENDED BY ANOTHER PERIOD OF LESS THAN 20 WEEKS DUE TO "UNFORESEEN CIRCUMSTANCES", THESE ALLOWANCES CONTINUE TO BE PAYABLE THROUGHOUT THE PERIOD OF THE EXTENSION. HOWEVER, NO PER DIEM IS PAYABLE FROM THE DATE THE RESERVIST RECEIVES THE EXTENSION ORDER IF THE EXTENSION IS NOT DUE TO UNFORESEEN CIRCUMSTANCES AND THE TOTAL PERIOD ON ACTIVE DUTY IS 20 WEEKS OR MORE.

ON THE PRESENT RECORD, WE DO NOT THINK THAT THIS CLAIM SHOULD BE ALLOWED. THERE IS NOTHING IN THE RECORD THAT CLEARLY INDICATES THE REASONS FOR THE VARIOUS EXTENSIONS OF SERGEANT CONNAUGHTON'S PERIOD OF ACTIVE DUTY. UNTIL SUCH ARE KNOWN, NO DETERMINATION AS TO WHETHER OR NOT THEY CONSTITUTE UNFORESEEN CIRCUMSTANCES, AND THEREFORE AS TO WHETHER OR NOT SERGEANT CONNAUGHTON IS ENTITLED TO PER DIEM FOR THIS PERIOD, CAN BE MADE. IN VIEW OF THIS, WE FURTHER BELIEVE THAT THE PAYMENTS OF PER DIEM ALREADY MADE TO SERGEANT CONNAUGHTON SHOULD BE REVIEWED BY APPROPRIATE OFFICIALS TO DETERMINE WHAT, IF ANY, UNFORESEEN CIRCUMSTANCES WERE INVOLVED. COMPARE B-170707, JUNE 24, 1971.

ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED MAY NOT BE ALLOWED BASED ON THE PRESENT RECORD, AND THE VOUCHER WILL BE RETAINED HERE.