B-84729, MAY 3, 1949, 28 COMP. GEN. 631

B-84729, MAY 3, 1949, 28 COMP. GEN. 631

SUBSISTENCE - PER DIEMS - NAVAL RESERVE OFFICER TRAVELING DURING PERIODS OF COMBAT DUTY WHERE A NAVAL RESERVE OFFICER WAS ENGAGED IN OPERATIONS CONSISTING OF COMBAT DUTY OR DUTY OF A COMBAT NATURE DURING PART OF HIS TEMPORARY DUTY UNDER ORDERS DIRECTING HIM TO PROCEED TO DESIGNATED PORTS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, SUCH DUTY MAY NOT BE REGARDED AS ,TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY" WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO AS TO ENTITLE THE OFFICER TO PER DIEM FOR OTHER THAN THE PERIODS OF ACTUAL TRAVEL BY MEANS OTHER THAN GOVERNMENT VESSEL, EVEN THOUGH MOVEMENT FROM PLACE TO PLACE WAS REQUIRED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE HONORABLE PAT SUTTON, HOUSE OF REPRESENTATIVES, MAY 3, 1949:

THERE HAS BEEN RECEIVED YOUR INQUIRY OF APRIL 27, 1949, WITH FURTHER REFERENCE TO THE MATTER INVOLVED IN YOUR LETTER OF MARCH 7, 1949, REQUESTING A REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MARCH 2, 1949, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIODS AUGUST 1 TO SEPTEMBER 7, 1944, AND SEPTEMBER 9, 1944, TO JULY 9, 1945, INCIDENT TO THE PERFORMANCE OF TRAVEL AS AN ENSIGN, UNITED STATES NAVAL RESERVE.

IT APPEARS THAT BY ORDERS OF JULY 26, 1944, AND SEPTEMBER 9, 1944, FROM THE COMMANDER, SERVICE FORCE, SEVENTH FLEET, YOU WERE DIRECTED TO PROCEED BY THE MEANS OF TRANSPORTATION TO VERBALLY DESIGNATED PORTS IN THE SOUTHWEST PACIFIC AREA ON TEMPORARY ADDITIONAL DUTY--- THE LATTER ORDERS STATING THAT SUCH DUTY WAS IN CONNECTION WITH ALLIED AND ENEMY ORDNANCE DISPOSAL AND INTELLIGENCE MATTERS--- AND UPON COMPLETION THEREOF TO RETURN AND RESUME YOUR REGULAR DUTIES. EACH OF SAID ORDERS APPEARS TO HAVE BEEN APPROVED BY THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF FEBRUARY 11, 1946. THE RECORD SHOWS THAT YOU TRAVELED FROM BRISBANE, AUSTRALIA, TO DIFFERENT PLACES IN THE SOUTHWEST PACIFIC AREA, AND RETURNED, DURING THE PERIOD AUGUST 1 TO SEPTEMBER 7, 1944; AND THAT YOU AGAIN LEFT BRISBANE ON SEPTEMBER 9, 1944, AND REJOINED YOUR ORGANIZATION AT MANILA, PHILIPPINE ISLANDS, ON JULY 9, 1945, AFTER PERFORMING DUTY AT HOLLANDIA AND DIFFERENT PLACES IN THE PHILIPPINE ISLANDS.

PARAGRAPH 4 (A), ARTICLE 2501, AND PARAGRAPH 1 (C), ARTICLE 2511, OF THE U.S. NAVY TRAVEL INSTRUCTIONS PROVIDED AS FOLLOWS:

(A) ACTUAL AND NECESSARY EXPENSES OR PER DIEM ALLOWANCES, AS AUTHORIZED IN ORDERS, ARE ALLOWED. FOR ALL TRAVEL OUTSIDE CONTINENTAL UNITED STATES, PER DIEM IS ALLOWED EVEN THOUGH NOT SPECIFIED IN ORDERS, EXCEPT WHEN AN OFFICER IS ENTITLED TO RECEIVE A HIGHER PER DIEM UNDER REGULATIONS OF THE SECRETARY OF THE NAVY COVERING FOREIGN PER DIEM (SEE ART. 2500-2, AND A. EMO., OR BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER 234-43). NO PER DIEM IS ALLOWED WHILE TRAVELING ABOARD A VESSEL.

(C) NO CLAIM WILL BE ALLOWED FOR EXPENSES WHICH CONSIDERING THE CIRCUMSTANCES APPEAR UNREASONABLE OR UNNECESSARY OR EXCEED THE MAXIMUM ALLOWANCES LISTED IN SUBPAR. (E) (3).

UNDER THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AND A PROVISION CONTAINED IN THE NAVAL APPROPRIATION ACT, 1945, 58 STAT. 309, THE PRESCRIBING OF PER DIEM ALLOWANCES TO OFFICERS WHILE "TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR ACT OF 1923, AS AMENDED. THE TERM "PERMANENT POSITIONS," FOR PERIODIC OF THE ADMINISTRATIVE DEPARTMENT CONCERNED AND UNLESS PAYMENT OF SUCH ALLOWANCE HAS BEEN ADMINISTRATIVELY AUTHORIZED, NO RIGHT THERETO CAN ACCRUE TO AN OFFICER. WHILE THE FOREGOING REGULATIONS APPEAR TO CONTEMPLATE THE PAYMENT OF A PER DIEM ALLOWANCE INCIDENT TO ALL TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND THE ORDERS OF JULY 26 AND SEPTEMBER 9 DIRECTED TRAVEL OUTSIDE THE UNITED STATES, IT DOES NOT APPEAR THAT THE NAVY DEPARTMENT INTENDED THAT SUCH AN ALLOWANCE SHOULD BE PAID FOR PERIODS OTHER THAN THE ACTUAL TRAVEL TIME DIRECTED IN SAID ORDERS. LETTER OF APRIL 11, 1949, TO THIS OFFICE, FROM THE CHIEF OF NAVAL PERSONNEL, IT IS REPORTED AS FOLLOWS:

RECORDS IN THE BUREAU OF NAVAL PERSONNEL REVEAL THAT UNDER DATE OF 5 JUNE 1944 THIS BUREAU ISSUED ORDERS TO ENSIGN JAMES P. SUTTON, D-V (G), USNR, TO PROCEED AND REPORT TO THE COMMANDER SEVENTH FLEET FOR DUTY IN MOBILE EXPLOSIVE INVESTIGATION UNIT NUMBER ONE. HE REPORTED FOR THIS DUTY ON 18 JULY 1944.

DURING THE PERIOD IN QUESTION THIS OFFICER WAS AWARDED THE ARMY SILVER STAR FOR GALLANTRY IN ACTION AT LEYTE, PHILIPPINE ISLANDS, FROM 20 OCTOBER TO 16 NOVEMBER 1944, HAVING LANDED WITH THE LEADING ASSAULT WAVE OF AN INFANTRY REGIMENT ON 20 OCTOBER. HE ALSO RECEIVED THE ARMY DISTINGUISHED SERVICE CROSS FOR EXTRAORDINARY HEROISM IN ACTION ON LUZON, PHILIPPINE ISLANDS, ON 3 FEBRUARY AND 8 FEBRUARY 1945. HE WAS ATTACHED AS "MINE- SAPPER" TO A CAVALRY DIVISION ADVANCING TOWARD MANILA. THESE FACTS INDICATE THAT DURING PART OF THIS TIME ENSIGN SUTTON WAS IN OPERATIONS AND WOULD NOT, THEREFORE, BE ENTITLED TO PER DIEM.

IT IS IMPOSSIBLE AT THIS LATE DATE TO OBTAIN INFORMATION FROM THE ISSUING COMMAND AS TO THE INTENT OF THE ORDERS DATED 26 JULY AND 9 SEPTEMBER 1944, BUT IN SIMILAR CASES, REIMBURSEMENT OF PER DIEM HAS BEEN LIMITED TO ACTUAL TRAVEL TIME. IT IS RECOMMENDED THEREFORE, THAT PAYMENT ON THIS PER DIEM CLAIM BE LIMITED TO PERIODS WHILE ACTUALLY TRAVELING.

SOMEWHAT SIMILAR REPORTS HAVE BEEN RECEIVED IN CONNECTION WITH OTHER CLAIMS FOR PER DIEM IN THE SAME GENERAL AREA AND DURING THE PERIOD HERE INVOLVED AND THIS OFFICE HAS REGARDED SUCH REPORTS AS PRECLUDING AN ALLOWANCE OF PER DIEM UNDER SUCH CIRCUMSTANCES. B-78467, DECEMBER 14, 1948, B-72630, NOVEMBER 2, 1948; B-68217, JANUARY 8, 1948. ALSO THE SAID REPORT FROM THE NAVY DEPARTMENT SHOWS THAT YOU WERE "IN OPERATIONS" FOR A PART OF THE PERIOD OF YOUR CLAIM. FROM THE FACTS DISCLOSED IN THAT REPORT IT APPEARS PROBABLE THAT YOU WERE IN SUCH STATUS FOR A MAJOR PORTION IF NOT THE ENTIRE PERIOD COVERED BY YOUR CLAIM. THIS OFFICE HAS NO INFORMATION FROM WHICH IT MAY BE DETERMINED WHICH DAYS, IF ANY, INCLUDED IN YOUR CLAIM YOU WERE NOT "IN OPERATIONS" AND IN SUCH A CASE IT MUST RELY UPON THE ADMINISTRATIVE REPORT AND RECOMMENDATION. AN OFFICER ENGAGED IN COMBAT DUTY OR DUTY OF A COMBAT NATURE IS NOT TRAVELING WITHIN THE MEANING OF THE FOREGOING PROVISIONS OF LAW AND REGULATIONS, EVEN THOUGH MOVEMENT FROM PLACE TO PLACE IS REQUIRED. WHILE SO ENGAGED HE IS REGARDED AS BEING AT HIS DESIGNATED POST OF DUTY. SEE DECISION OF NOVEMBER 13, 1947, B- 69495.

IN THIS CONNECTION IT IS DEEMED PROPER TO POINT OUT THAT THE GENERAL PURPOSE OF THE ABOVE CITED PROVISIONS OF LAW IS TO REIMBURSE OFFICERS FOR THE ADDITIONAL EXPENSES OF SUBSISTENCE WHICH ORDINARILY HAVE TO BE MET BY THEM WHILE TEMPORARILY REQUIRED TO MAINTAIN THEMSELVES AWAY FROM THEIR POSTS OF DUTY. WHERE AN OFFICER IS TO PERFORM DUTY UNDER CIRCUMSTANCES WHICH WILL NOT REQUIRE HIM TO BEAR MORE THAN THE NORMAL EXPENSES OF SUBSISTENCE, THE SITUATION GENERALLY IS NOT THAT CONTEMPLATED BY THE STATUTE AND REGULATIONS AS BEING APPROPRIATE FOR THE PRESCRIBING AND PAYMENT OF PER DIEM. YOU STATE THAT GOVERNMENT QUARTERS WERE FURNISHED AT ALL PLACES AND, NO DOUBT, MESSING FACILITIES WERE AVAILABLE TO YOU ON THE SAME BASIS AS ALL OTHER NAVAL OFFICER PERSONNEL ON DUTY AT THE PLACES INVOLVED. HENCE, IT WOULD SEEM TO FOLLOW THAT THERE WOULD HAVE BEEN NO OCCASION OR INTENT TO PRESCRIBE SUCH AN ALLOWANCE UNDER YOUR ORDERS, EXCEPT FOR PERIODS WHILE ACTUALLY TRAVELING, AS APPARENTLY CONCLUDED BY THE CHIEF OF NAVAL PERSONNEL.

UNDER THE CIRCUMSTANCES DISCLOSED, THERE APPEARS NO PROPER BASIS ON THE PRESENT RECORD FOR ALLOWING PER DIEM FOR OTHER THAN THE PERIODS OF ACTUAL TRAVEL BY MEANS OTHER THAN GOVERNMENT VESSEL, AS SHOWN BY THE ITINERARIES OF TRAVEL SUBMITTED WITH YOUR CLAIM, AND A SETTLEMENT ON THAT BASIS WILL ISSUE IN DUE COURSE.