B-41649, JULY 19, 1944, 24 COMP. GEN. 37

SUBSISTENCE - PER DIEMS - ARMY ENLISTED MEN - TEMPORARY DUTY AT STATION TO WHICH TRAVEL PERFORMED BY AIR WHERE THE PRIMARY PURPOSE OF ORDERS UNDER WHICH AN ARMY ENLISTED MAN PERFORMED TRAVEL BY AIR TO A TEMPORARY DUTY STATION WAS AN ASSIGNMENT TO TEMPORARY DUTY AT A DESIGNATED PLACE RATHER THAN A JOURNEY BY AIR, AND THE TEMPORARY DUTY HAD NO DIRECT RELATION TO, OR CONNECTION WITH, THE TRAVEL BY AIR, THE ENLISTED MAN MAY NOT BE CONSIDERED AS HAVING BEEN IN AN AIR TRAVEL STATUS WHILE ON DUTY AT THE TEMPORARY STATION FOR PURPOSES OF PAYMENT OF PER DIEM ALLOWANCE AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 FOR TRAVEL BY AIR.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. W. I. MOORE, U.S. ARMY, JULY 19, 1944:

THERE HAS BEEN RECEIVED AN ENDORSEMENT OF W. M. HOLLOWELL, CAPTAIN, F.D., AGENT FINANCE OFFICER, HILL FIELD, UTAH, DATED APRIL 20, 1944, FORWARDING A VOUCHER AND SUPPORTING PAPERS CONSTITUTING THE CLAIM OF WILLIAM H. TURNER, MASTER SERGEANT, FOR PER DIEM ALLOWANCE INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTIES DURING THE PERIOD JANUARY 10 TO 15, 1944, AND REQUESTING DECISION, PRESUMABLY AT YOUR DIRECTION, WHETHER PAYMENT PROPERLY MAY BE MADE THEREON UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

PARAGRAPH 2 OF SPECIAL ORDERS NO. 9, HEADQUARTERS, OGDEN AIR SERVICE COMMAND, HILL FIELD, OGDEN, UTAH, DATED JANUARY 10, 1944, DIRECTED THE PERFORMANCE OF TRAVEL AND OF TEMPORARY DUTIES AS OLLOWS:

M) SGT WILLIAM H. TURNER 6733448, AD, 482ND BASE HQ AND AB SQ, THIS STA, WP 822ND SPEC DEPOT, LOS ANGELES, CALIFORNIA O/A 10 JAN 1944 BY RAIL, GOVT OWNED VEHICLE, AND/OR MIL AP ON T/D FOR APPROX 10 DAYS TO EXPEDITE AGP REQUESTS AND TO CONFER REGARDING PRIORITY BREAKDOWN OF CONSIGNMENT MATERIAL, AND UPON COMPLETION OF THIS T/D WILL RET TO PROPER STA. IN LIEU OF SUBS, A FLAT PER DIEM OF $7.00 IS ATZD BY MIL AP AND WHILE ON T/D IN AIR TRAVEL STATUS. THE FINANCE DEPT WILL PAY MONETARY ALWS FOR 10 DAYS IN ADV AT THE RATE OF $3.00 PER DAY IN LIEU OF RATIONS, AND $2.00 PER DAY IN LIEU OF QRS ATZD, NOT TO EXCEED 10 DAYS AT ANY ONE POINT. AUTH: WD BUL 19 SEC 2, DTD 21 OCT 1943. TC WILL FURN NEC RAIL T.1TDN. TBM. 2-4006 P 443- 02 A 212/40705. AUTH: LTR, CG:FIELD SERVICES, ASC DTD 27 JUNE 1942 AND ASC REG. 75-1 DTD 9 DEC 1943.

PARAGRAPH 8, SPECIAL ORDERS NO. 24, SAME STATION, DATED JANUARY 26, 1944, PROVIDED THAT: TO M) SGT WILLIAM H. TURNER, 6733448, AC 482ND BASE HQ AND AB SQ, TO M/SGT WILLIAM H. TURNER, 6733448, AC 482ND BASE HQ AND AB SQ, AS READS,"THE FINANCE DEPT WILL PAY MONETARY ALWS FOR 10 DAYS IN ADV AT THE RATE OF $3.00 PER DAY IN LIEU OF RATIONS AND $2.00 PER DAY IN LIEU OF QRS ATZD, NOT TO EXCEED 10 DAYS AT ANY ONE POINT," IS AMENDED TO READ,"THE FINANCE DEPT WILL PAY MONETARY ALWS FOR 10 DAYS IN ADV AT THE RATE OF $3.00 PER DAY IN LIEU OF RATIONS AND $2.00 PER DAY IN LIEU OF QRS ATXD, NOT TO EXCEED 10 DAYS AT ANY ONE POINT FOR TRAVEL BY RAIL AND OR GOVT OWNED VEHICLE.'

THE SUBMITTED VOUCHER INDICATES THAT SERGEANT TURNER DEPARTED FROM HILL FIELD AT 10 A.M. ON JANUARY 10, 1944, PROCEEDING VIA MILITARY AIRCRAFT, AND ARRIVED AT LOS ANGELES AT 3:40 P.M. OF THE SAME DAY FROM WHICH TIME HE PERFORMED THE TEMPORARY DUTIES DIRECTED UNTIL 5:30 P.M. OF JANUARY 15, 1944, WHEN HE DEPARTED FROM LOS ANGELES BY RAILROAD ARRIVING AT HILL FIELD ON JANUARY 16, 1944. IT IS CONTENDED THAT SERGEANT TURNER WAS IN AN AIR TRAVEL STATUS FROM THE TIME HE DEPARTED FROM HILL FIELD UNTIL THE TIME OF COMPLETION OF THE ASSIGNED TEMPORARY DUTIES AT LOS ANGELES AND DEPARTURE THEREFROM BY RAIL AND THAT HE WAS, THEREFORE, ENTITLED TO PER DIEM ALLOWANCE DURING THAT PERIOD AT THE $7 RATE PRESCRIBED IN THE ORDERS.

AUTHORITY FOR THE PRESCRIBING OF PER DIEM ALLOWANCES INCIDENT TO TRAVEL PERFORMED BY AIR IS CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS FOLLOWS:

* * * THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, AVIATION CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTIONS 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.

PARAGRAPH 5 OF ARMY REGULATIONS 35-4820, AS IT APPEARS IN CHANGES NO. 1 THERETO, DATED JUNE 19, 1943, AND IN EFFECT AT THE TIME OF THE TRAVEL HERE INVOLVED, DEFINES TRAVEL BY AIR AS FOLLOWS:

THE TERM "TRAVEL BY AIR" IS DEFINED AS A JOURNEY BY GOVERNMENT OR OTHER AIRCRAFT MADE PURSUANT TO ORDERS OF COMPETENT AUTHORITY WHICH REQUIRES ONE OR MORE LANDINGS AWAY FROM THE STARTING POINT. IT LIKEWISE INCLUDES ALL NECESSARY DELAYS EN ROUTE DUE TO UNFAVORABLE WEATHER CONDITIONS, NECESSARY REPAIRS TO AERIAL EQUIPMENT, REFUELING, SUBSISTENCE, LODGING, AND TIME NECESSARILY INVOLVED IN STOPS FOR TEMPORARY DUTY.

WHILE SECTION 12 OF THE ACT OF JUNE 16, 1942, PROVIDES FOR A PER DIEM ALLOWANCE TO ENLISTED PERSONNEL TRAVELING BY AIR, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, SUCH PROVISION OF THE ACT HAS NOT BEEN CONSTRUED AS AUTHORIZING PAYMENT OF PER DIEM TO ENLISTED PERSONNEL FOR PERIODS OF TEMPORARY DUTY WHERE THE ORDERS AUTHORIZE OR DIRECT THE MAN TO TRAVEL BY AIR TO AND FROM THE PLACE OF TEMPORARY DUTY, THE TEMPORARY DUTY REQUIRED TO BE PERFORMED HAVING NO DIRECT RELATION TO, OR CONNECTION WITH, THE TRAVEL BY AIR.

THE USUAL FORM OF REIMBURSEMENT TO ENLISTED PERSONNEL TRAVELING ON DUTY AWAY FROM THEIR DESIGNATED STATIONS IS A MONETARY ALLOWANCE IN LIEU OF RATIONS AND QUARTERS AS PRESCRIBED BY EXECUTIVE ORDER PURSUANT TO LAW. SEE ARMY REGULATIONS 35-4520. AN ENLISTED MAN MAY NOT BE CONSIDERED AS IN AN AIR TRAVEL STATUS ENTITLING HIM TO PER DIEM MERELY ON A SHOWING THAT HE TRAVELED BY AIR TO AND FROM THE PLACE OF TEMPORARY DUTY UNDER ORDERS AUTHORIZING OR DIRECTING TRAVEL BY AIR, THE PRIMARY PURPOSE OF THE ORDERS BEING, AS SHOWN BY THE TERMS THEREOF, AN ASSIGNMENT TO TEMPORARY DUTY AT A DESIGNATED PLACE, RATHER THAN A JOURNEY BY AIR INCLUDING NECESSARY DELAYS INCIDENT TO THAT MODE OF TRANSPORTATION.

THE LAW MAKES NO PROVISION FOR PAYMENT OF PER DIEM TO ENLISTED MEN EXCEPT FOR TRAVEL BY AIR AND TRAVEL ON DUTY IN CONNECTION WITH THE NATIONAL GUARD. 10 COMP. GEN. 547. WHILE THE ACT OF APRIL 28, 1942, 56 STAT. 226, AND SUBSEQUENT ANNUAL APPROPRIATE ACTS, AUTHORIZE THE SECRETARY OF WAR TO PRESCRIBE PER DIEM RATES OF ALLOWANCE FOR OFFICERS AND WARRANT OFFICERS TRAVELING ON OFFICIAL BUSINESS AWAY FROM THEIR DESIGNATED STATIONS, WHETHER OR NOT THE ORDERS REQUIRE REPEATED TRAVEL, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM SUCH STATIONS, NO SUCH PROVISION HAS BEEN MADE WITH RESPECT TO ENLISTED MEN, THEIR RIGHTS REMAINING UNCHANGED INSOFAR AS PER DIEM ALLOWANCE IS CONCERNED.

THE ORDERS UNDER WHICH SERGEANT TURNER PERFORMED THE TRAVEL AND TEMPORARY DUTY IN QUESTION AUTHORIZED HIM TO PROCEED TO LOS ANGELES, CALIFORNIA, BY RAIL, GOVERNMENT-OWNED VEHICLE, AND/OR MILITARY AIRPLANE ON TEMPORARY DUTY FOR APPROXIMATELY 10 DAYS. CLEARLY SUCH ORDERS MAY NOT BE CONSIDERED AS PLACING THE MAN IN AN AIR TRAVEL STATUS WHILE ON TEMPORARY DUTY AT LOS ANGELES, FOR PURPOSES OF PAYMENT OF PER DIEM. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.