B-143445, SEP. 1, 1960

B-143445, SEP. 1, 1960

TO CHIEF WARRANT OFFICER JAMES R. SKIPPER, U.S. ARMY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 20, 1960, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR VARIOUS PERIODS FROM AUGUST 27 TO DECEMBER 22, 1958, WHILE PERFORMING TEMPORARY DUTY FOR THE PURPOSE OF PARTICIPATING IN BORDER OPERATIONS WITHIN GERMANY.

CONFIRMATORY ORDERS DATED SEPTEMBER 8, SEPTEMBER 30, OCTOBER 7, NOVEMBER 10, DECEMBER 16, 1958, AND JANUARY 24, 1959, ISSUED BY HEADQUARTERS, 8TH TRANSPORTATION HELICOPTER BATTALION ARMY, APO 29, UNITED STATES FORCES, SHOW THAT BY VERBAL ORDERS YOU WERE DIRECTED TO PROCEED FOR AN APPROXIMATE NUMBER OF DAYS UNDER EACH ORDER FROM OBER SCHLEISSHEIM, GERMANY, TO BAYREUTH, GERMANY, FOR THE PURPOSE OF PARTICIPATING IN BORDER OPERATIONS. EACH ORDER PROVIDED THAT UPON COMPLETION OF TEMPORARY DUTY YOU WERE TO RETURN TO PROPER ORGANIZATION AND STATION. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 28, 1960, FOR THE REASON THAT BORDER OPERATIONS WERE ADMINISTRATIVELY REPORTED TO BE FIELD DUTY. IN YOUR LETTER YOU SAY YOU DISAGREE WITH THE ADMINISTRATIVE REPORT THAT THE BORDER OPERATIONS WERE FIELD DUTY BECAUSE NO QUARTERS OR RATIONS WERE AVAILABLE OR FURNISHED. YOU SAY YOU USED MESSING AND QUARTERS FACILITIES PROVIDED BY THE MAIN OFFICERS OPEN MESS AT BAYREUTH, GERMANY, FOR WHICH YOU PAID THE NORMAL CLUB PRICES.

A MEMBER'S RIGHT TO PER DIEM FOR TEMPORARY DUTY OR TRAVEL AWAY FROM HIS DESIGNATED POST OF DUTY IS FIXED BY THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THE REGULATIONS BARS PAYMENT OF PER DIEM FOR FIELD DUTY OUTSIDE THE UNITED STATES, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND OTHER SIMILAR ACTIVITIES WHERE BOTH RATIONS AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.

ARMY REGULATIONS 35-3080 DATED JUNE 9, 1958, ESTABLISH ARMY POLICY CONCERNING PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE PARTICIPATING IN FIELD DUTY ACTIVITIES CONDUCTED ON INSTALLATIONS WITHIN THE UNITED STATES. PARAGRAPH 3 PROVIDES THAT IN OVERSEA COMMANDS, THE REGULATIONS WILL BE USED AS A GUIDE, BUT THE POLICY PRESCRIBED MAY BE MODIFIED AS CONSIDERED APPROPRIATE BY THE MAJOR OVERSEA COMMANDER CONCERNED BASED UPON PREVAILING CONDITIONS AND PROVIDED THAT THE MODIFICATION IS IN CONSONANCE WITH THE PROVISIONS OF PARAGRAPHS 4250-3 AND 4256-1B OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4 OF THE ARMY REGULATION AUTHORIZES PAYMENT OF PER DIEM ALLOWANCES AT RATES AND UNDER CONDITIONS PRESCRIBED IN PARAGRAPH 7 FOR TRAVEL AND TEMPORARY DUTY PERFORMED ON MILITARY INSTALLATIONS IN CONNECTION WITH FIELD DUTY ACTIVITIES DURING PERIODS PRECEDING THE BEGINNING DATE OF THE ACTUAL OPERATION AND DURING THE CLOSE-OUT PHASE OF THE OPERATION. PER DIEM ALLOWANCES ARE NOT PAYABLE DURING THE ACTUAL PERIOD OF THE MANEUVER OR EXERCISE ON THE PREMISE THAT SUCH OPERATIONS ARE DESIGNED TO BE ACCOMPLISHED UNDER FIELD CONDITIONS.

SINCE IT APPEARS FROM THE RECORD THAT YOU WERE ACTUALLY PARTICIPATING IN BORDER OPERATIONS DURING THE ENTIRE PERIOD OF YOUR TEMPORARY DUTY, AND SINCE YOUR OVERSEAS COMMANDER REPORTED THAT SUCH DUTY WAS CONSIDERED TO BE FIELD DUTY, THE RECORD BEFORE US PRESENTS NO LEGAL BASIS TO ALLOW YOUR CLAIM.