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WIESEN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. YOU STATE THAT YOU WERE ORDERED TO TEMPORARY DUTY WITH THE 1ST ENGINEER ARCTIC TASK FORCE AT FORT BELVOIR. THAT YOU WERE ON TEMPORARY DUTY FROM THE SIGNAL CORPS DURING THE ENTIRE PERIOD WHILE SERVING WITH THAT ORGANIZATION. THE 1ST ENGINEER ARCTIC TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO MCGUIRE AIR FORCE BASE. THENCE TO THULE ON TEMPORARY CHANGE OF STATION FOR A PERIOD OF APPROXIMATELY NINE MONTHS (THE INCREMENT TO WHICH YOU WERE ASSIGNED BEING DIRECTED TO PROCEED FROM FORT BELVOIR ON OR ABOUT MAY 25. 1956) UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS.

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B-135067, MAR. 5, 1958

TO MR. DAVID L. WIESEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1958, IN WHICH YOU REQUEST A REVIEW OF OUR SETTLEMENT OF JANUARY 15, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY PERFORMED AT THULE, GREENLAND, DURING THE PERIOD MAY 30 TO SEPTEMBER 20, 1956, AS AN OFFICER ATTACHED TO THE 1ST ENGINEER ARCTIC TASK FORCE.

YOU STATE THAT YOU WERE ORDERED TO TEMPORARY DUTY WITH THE 1ST ENGINEER ARCTIC TASK FORCE AT FORT BELVOIR, VIRGINIA, BY L0 98 OF HEADQUARTERS, 69TH SIGNAL BATTALION, FORT MEADE, MARYLAND, DATED MAY 17, 1956, AND THAT YOU WERE ON TEMPORARY DUTY FROM THE SIGNAL CORPS DURING THE ENTIRE PERIOD WHILE SERVING WITH THAT ORGANIZATION. UNDER ORDERS OF HEADQUARTERS, THE ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA, DATED JANUARY 30, 1956, THE 1ST ENGINEER ARCTIC TASK FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND THENCE TO THULE ON TEMPORARY CHANGE OF STATION FOR A PERIOD OF APPROXIMATELY NINE MONTHS (THE INCREMENT TO WHICH YOU WERE ASSIGNED BEING DIRECTED TO PROCEED FROM FORT BELVOIR ON OR ABOUT MAY 25, 1956) UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH ORDERS CONTAINED THE PROVISION ,TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT AUTHORIZED.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON MAY 25 AND ARRIVED AT THULE ON MAY 29, 1956. THE RETURN OF THE TASK FORCE TO FORT BELVOIR WAS DIRECTED BY ORDERS OF HEADQUARTERS, 1ST ENGINEER ARCTIC TASK FORCE, DATED SEPTEMBER 9, 1956. THOSE ORDERS ALSO STATED THAT THE TRAVEL AND TEMPORARY DUTY PERFORMED "IS FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS.' YOU LEFT THULE ON SEPTEMBER 21 AND RETURNED TO FORT BELVOIR ON SEPTEMBER 22, 1956. CHANGE 6 OF JULY 24, 1957, TO THE BASIC ORDERS OF JANUARY 30, 1956, PURPORTS TO AMEND THAT PART OF SUCH BASIC ORDERS PROVIDING "PER DIEM IS NOT AUTHORIZED" TO READ "PER DIEM IS AUTHORIZED.'

REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "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.' SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201-6 OF THE REGULATIONS. SINCE YOUR DUTY ASSIGNMENT WHILE SERVING WITH THE 1ST ENGINEER ARCTIC TASK FORCE WAS PERFORMED PURSUANT TO ORDERS DESIGNATING SUCH DUTY ASSIGNMENT AS FIELD DUTY AS CONTEMPLATED BY THOSE REGULATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PER DIEM IRRESPECTIVE OF WHETHER OR NOT YOUR ACTIVITIES WITH THE TASK FORCE WERE COVERED BY SIGNAL CORPS TEMPORARY DUTY ORDERS AS YOU CONTEND.

IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF THE REGULATIONS CITED ABOVE IS ONE OF FACT, DETERMINED USUALLY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT BECAUSE OF THE PROXIMITY OF THE ADMINISTRATIVE PERSONNEL TO THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST, AND THAT IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR DUTY ASSIGNMENT. TO BE EFFECTIVE, SUCH SECOND DETERMINATION MUST OF NECESSITY HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.

THE PURPORTED AMENDMENT OF JULY 24, 1957, TO THE ORDERS OF JANUARY 30, 1956, DID NOT DELETE THE FIELD DUTY DESIGNATION CONTAINED IN THE LATTER ORDERS AND NO INFORMATION HAS BEEN FURNISHED AS TO THE BASIS FOR THE CHANGED CONCLUSION THAT PER DIEM WAS PAYABLE. IN SUCH CIRCUMSTANCES THE AMENDATORY ORDERS DO NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THE FIELD DUTY RESTRICTIONS OF THE BASIC ORDERS WHICH CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY ASSIGNED WERE OF THE TYPE CONTEMPLATED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL REGULATIONS. IT MUST BE CONCLUDED, THEREFORE, THAT NO PROPER BASIS EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED. IF, AS YOU SUGGEST, OTHER SIGNAL CORPS OFFICERS HAVE RECEIVED PER DIEM PAYMENTS UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, SUCH PAYMENTS WERE IMPROPER AND MAY NOT SERVE AS AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 15, 1958, IS SUSTAINED.

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