B-140675, DEC. 15, 1959

B-140675, DEC. 15, 1959

TO LIEUTENANT COLONEL GILES D. GORDON, C1548420:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 18, 1959, IN THE NATURE OF A REQUEST FOR RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT OF JULY 23, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM BELIEVED TO BE DUE FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD APRIL 7 TO JUNE 25, 1958.

BY PARAGRAPH 1, SPECIAL ORDERS 16, ISSUED APRIL 3, 1958, AT USA ORDNANCE ARSENAL, BENICIA, CALIFORNIA, YOU WERE PLACED ON TEMPORARY DUTY FOR APPROXIMATELY 86 DAYS FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION AT FORT LEE, VIRGINIA. YOU WERE PAID PER DIEM AT THE RATE OF $4 A DAY FOR THE DUTY PERFORMED AT FORT LEE EXCEPT FOR THE LAST DAY, JUNE 26, 1958, FOR WHICH YOU WERE PAID $6 ON THE BASIS OF A REVISION OF QUARTERMASTER TRAINING COMMAND CIRCULAR 26, DATED MAY 23, 1957, EFFECTIVE JUNE 26, 1958, BASED ON A DETERMINATION ON THAT DATE BY THE COMMANDING GENERAL, QUARTERMASTER TRAINING COMMAND AND FORT LEE, THAT THE UTILIZATION OF EXISTING GOVERNMENT MESSING FACILITIES WAS IMPRACTICAL FOR UNITED STATES ARMY LOGISTICS MANAGEMENT CENTER AND QUARTERMASTER SCHOOL MILITARY STUDENTS NOT QUARTERED WITHIN THE PRESCRIBED BOUNDARIES OF THE QUARTERMASTER SCHOOL AREA. IN CLAIMING ADDITIONAL PER DIEM OF $2 A DAY, A TOTAL OF $152, FOR THE TEMPORARY DUTY PERFORMED AT FORT LEE PRIOR TO JUNE 26, 1958, YOU CONTEND, IN SUBSTANCE, THAT THE LETTER OF MAY 20, 1958, FROM THE COMMANDANT OF THE SCHOOL TO THE COMMANDING GENERAL WHICH RESULTED IN THE DETERMINATION OF JUNE 26, 1958, WITH RESPECT TO THE PRACTICABILITY OF UTILIZING AVAILABLE MESSING FACILITIES WHERE MILITARY STUDENTS NOT QUARTERED IN THE QUARTERMASTER SCHOOL AREA WERE CONCERNED, WAS A STATEMENT MEETING THE REQUIREMENTS OF PARAGRAPH 4451-1.2 OF THE JOINT TRAVEL REGULATIONS WHICH SHOULD BE ACCEPTED AS ENTITLING YOU TO PER DIEM AT THE $6 RATE FROM THE DAY YOU FIRST REPORTED AT FORT LEE.

PARAGRAPH 4451-1, CHANGE 65, JANUARY 1, 1958, OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME THE TEMPORARY DUTY WAS PERFORMED PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"1. POLICY. IT IS THE POLICY OF THE UNIFORMED SERVICES THAT AVAILABLE GOVERNMENT QUARTERS AND MESS BE UTILIZED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE, EXCEPT UNDER THE FOLLOWING CONDITIONS:

"2. WHEN THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AT THE TEMPORARY DUTY OR DELAY POINT FURNISHES A CERTIFICATE OR STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE.'

THE RECORDS SHOW THAT ON MAY 20, 1958, THE ASSISTANT DEPUTY COMMANDANT FOR THE COMMANDANT OF HEADQUARTERS, UNITED STATES ARMY LOGISTICS MANAGEMENT CENTER, FORT LEE, VIRGINIA, SUBMITTED A LETTER TO THE COMMANDING GENERAL OF FORT LEE INFORMING HIM OF THE IMPRACTICABILITY OF MILITARY STUDENTS USING THE NEAREST GOVERNMENT MESSING FACILITY BECAUSE OF DISTANCE, TIME LIMITATIONS AND LACK OF TRANSPORTATION. PARAGRAPH 4 OF THAT COMMUNICATION STATED THAT:

"4. IN VIEW OF THE ABOVE IT IS REQUESTED THAT:

"A. THE PRESENT POLICY ON THE AVAILABILITY OF GOVERNMENT MESSING FACILITIES BE RECONSIDERED.

"B. CERTIFICATES OF NON-AVAILABILITY OF GOVERNMENT MESSING FACILITIES BE ISSUED TO USALMC OFFICER STUDENTS UNDER THE PROVISIONS OF JTR 4451.12.'

BY FIRST ENDORSEMENT DATED JUNE 26, 1958, THE ASSISTANT ADJUTANT GENERAL FOR THE COMMANDER, FORT LEE, INFORMED THE COMMANDANT THAT:

"1. IN ACCORDANCE WITH PARAGRAPH 4451-1.2, PART J. JOINT TRAVEL REGULATIONS THE COMMANDING GENERAL, QUARTERMASTER TRAINING COMMAND AND FORT LEE HAS DETERMINED THAT THE UTILIZATION OF EXISTING GOVERNMENT MESSING FACILITIES IS IMPRACTICAL FOR USALMC AND QUARTERMASTER SCHOOL MILITARY STUDENTS WHO ARE NOT QUARTERED IN THE QM SCHOOL AREA. * * *

"2. EFFECTIVE THIS DATE THE PER DIEM RATE FOR MILITARY AND CIVILIAN STUDENTS NOT RESIDING IN THE QM SCHOOL AREA AND NOT SUBSISTING IN A FIELD RATION MESS WILL BE $6.00 PER DAY. THIS RATE OF $6.00 IS NOT RETROACTIVE.

"3. AUTHORITY TO ISSUE CERTIFICATES OF NONAVAILABILITY OF MESSING FACILITIES TO STUDENTS WHO DO NOT RESIDE IN THE QM SCHOOL AREA AND WHO DO NOT SUBSIST IN A FIELD RATION MESS IS HEREBY DELEGATED BY THE COMMANDING GENERAL TO YOUR COMMAND. * * *"

THE FILE ON YOUR CASE, AS YOU KNOW, DOES NOT CONTAIN A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE TO THE EFFECT THAT MESSING FACILITIES WERE NOT AVAILABLE TO YOU DURING THE PERIOD INVOLVED. IN THE ORIGINAL SUBMISSION OF OUR CLAIM TO THE U.S. ARMY FINANCE CENTER, YOU STATE THAT "THE COMMANDANT WILL NOT ISSUE A STATEMENT COVERING THE WHOLE PERIOD OF THE SCHOOL AND USES THE 26 JUNE DATE AS A BASIS.' YOU CONTEND, HOWEVER, THAT THE COMMANDANT OF THE SCHOOL IN HIS LETTER OF MAY 20, 1958, STATED THAT THE FIELD MESS WAS NOT AVAILABLE TO STUDENTS FROM A PRACTICAL STANDPOINT AND THAT THIS MET THE CRITERIA SET FORTH IN PARAGRAPH 4451-1.2, JOINT TRAVEL REGULATIONS. YOU ALSO CONTEND THAT AFTER DECLARING IT WAS IMPRACTICAL TO UTILIZE THE FACILITIES, A CERTIFICATE TO THAT EFFECT FOR THE ENTIRE PERIOD OF YOUR TEMPORARY DUTY SHOULD HAVE BEEN ISSUED AND THAT THE FAILURE, OR RELUCTANCE, OF THE COMMANDANT AND COMMANDING GENERAL TO DO SO SHOULD NOT BE FINAL. YOU INDICATE THAT YOU FEEL THAT OUR RE EXAMINATION OF THE FILE SHOULD DETERMINE WHETHER IT WAS IMPRACTICAL TO UTILIZE THE GOVERNMENT FACILITIES AND WHEN WE DETERMINE THAT IT WAS IMPRACTICAL YOUR CLAIM SHOULD BE PAID.

THE CONDITION UPON WHICH YOUR CLAIM IS PREDICATED UNDER SUBPARAGRAPH 1, ITEM 2, OF PARAGRAPH 4451 IS THAT THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE AT THE TEMPORARY DUTY STATION MUST FURNISH A CERTIFICATE OR STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES IS IMPRACTICABLE. IT IS CLEAR FROM THE RECORD THAT THE "COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE)" DID NOT, PRIOR TO THE PERIOD IN QUESTION, ISSUE A CERTIFICATE OR STATEMENT TO THE EFFECT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE. THE LETTER OF MAY 20, 1958, FROM THE COMMANDANT OF THE SCHOOL TO THE COMMANDING GENERAL CANNOT BE CONSIDERED TO HAVE SATISFIED THIS CONDITION SINCE IT DOES NOT APPEAR THAT THE COMMANDANT WAS THE ,COMMANDING OFFICER" REFERRED TO IN SUBPARAGRAPH 1; NOR DOES IT APPEAR THAT HE WAS THE COMMANDING OFFICER'S DESIGNATED REPRESENTATIVE FOR THE PURPOSE OF ISSUING THE CERTIFICATE OR STATEMENT. IN THIS CONNECTION IT IS PERTINENT TO NOTE THAT THE LANGUAGE USED IN THE LETTER OF MAY 20, 1958, SUPPORTS THIS VIEW. THE COMMANDING GENERAL WAS REQUESTED TO RECONSIDER THE "PRESENT POLICY ON THE AVAILABILITY OF GOVERNMENT MESSING FACILITIES," AND HE WAS REQUESTED TO ISSUE CERTIFICATES OF NON-AVAILABILITY OF GOVERNMENT MESSING FACILITIES. THIS LANGUAGE CLEARLY LOOKS TO A FUTURE DETERMINATION ON THE COMMANDING OFFICER'S PART AND DOES NOT APPEAR, IN ANY CASE, TO BE A PRESENT DETERMINATION OF IMPRACTICABILITY. ON JUNE 26, 1958, THE PROPER DETERMINATION WAS MADE AND IT IS NOTEWORTHY THAT ON THAT DATE THE COMMANDANT WAS GIVEN AUTHORITY TO ISSUE CERTIFICATES OF NON-AVAILABILITY OF MESSING FACILITIES TO STUDENTS. THE GRANT OF AUTHORITY ON JUNE 26, 1958, TO ISSUE SUCH A CERTIFICATE, IS FURTHER SUPPORT FOR THE VIEW THAT THE COMMANDANT OF THE SCHOOL WAS NOT AT THAT TIME A "DESIGNATED REPRESENTATIVE" FOR THE PURPOSE OF ISSUING THE CERTIFICATE OR STATEMENT REQUIRED UNDER PARAGRAPH 4451-1.2.

THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, IN QUESTION, CLEARLY PROVIDE THAT THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE SHALL MAKE THE DETERMINATION ON NON-AVAILABILITY OF GOVERNMENT MESSING FACILITIES OR ON THE IMPRACTICABILITY OF THE UTILIZATION OF EXISTING GOVERNMENT MESSING FACILITIES. THE PURPOSE OF PLACING THIS RESPONSIBILITY ON SUCH OFFICER IS OBVIOUS. THE PURPOSE OF SUCH A PROVISION IS TO PROVIDE A CONTEMPORANEOUS DETERMINATION BY AN OFFICIAL WHOSE KNOWLEDGE OF SURROUNDING FACTS, AND WHOSE PHYSICAL PRESENCE AT THE STATION, PARTICULARLY QUALIFY HIM FOR MAKING THE REQUIRED DETERMINATION. THIS OFFICE WOULD NOT BE WARRANTED IN QUESTIONING A DETERMINATION MADE BY AN OFFICIAL UPON WHOM SUCH A RESPONSIBILITY IS PLACED.