B-152373, AUGUST 25, 1967, 47 COMP. GEN. 131

B-152373, AUGUST 25, 1967, 47 COMP. GEN. 131

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENT - DUTY STATION VICINITY AN OFFICER OF THE UNIFORMED SERVICES WHO INCIDENT TO ORDERS DIRECTING ATTENDANCE AT A COURSE OF INSTRUCTIONS CLAIMS PER DIEM ON THE BASIS OF DEPARTURE FROM TACHIKAWA AIR BASE--- HER PERMANENT DUTY STATION--- AT 5 A.M. BY GOVERNMENT CONVEYANCE FOR CLASSES AT KISHINE BARRACKS, YOKOHAMA, JAPAN, AND RETURN TO DUTY STATION AT 7:15 P.M. THE SAME DAY, MAY NOT BE PAID PER DIEM, THE NOVEMBER 8, 1954 DETERMINATION BY HEADQUARTERS, FAR EAST AIR FORCES THAT PER DIEM IS NOT PAYABLE TO ITS PERSONNEL FOR TRAVEL AND TEMPORARY DUTY PERFORMED WITHIN AN AREA THAT INCLUDES THE TWO INVOLVED LOCATIONS NEVER HAVING BEEN RESCINDED, AND NOTWITHSTANDING CONDITIONS OF TRAVEL AND TEMPORARY DUTY IN THE TOKYO AREA MAY HAVE CHANGED, AND PER DIEM MAY BE PAID AT A PERMANENT DUTY OVERSEAS STATION UNDER 37 U.S.C. 405 WHEN AUTHORIZED BY REGULATION, THE 1954 RESTRICTION ON THE BASIS LITTLE OR NO ADDITIONAL SUBSISTENCE EXPENSE IS INCURRED FOR TRAVEL WITHIN THE VICINITY OF A DUTY STATION DOES NOT PERMIT PAYMENT OF THE PER DIEM CLAIMED.

TO M. IVERSON, DEPARTMENT OF THE AIR FORCE, AUGUST 25, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1966, AND ENCLOSURES, FILE REFERENCE KBCPT-F, FORWARDED HERE BY ENDORSEMENT DATED MARCH 15, 1967, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON TRANSMITTAL LETTER DATED FEBRUARY 16, 1967, OF DEPARTMENT OF THE AIR FORCE, HEADQUARTERS UNITED STATES AIR FORCE, WASHINGTON, D.C., IN WHICH YOU REQUEST OUR DECISION CONCERNING THE PROPRIETY OF PAYMENT OF PER DIEM TO CAPTAIN ELLEN M. KRUGER, AL2234286, DURING THE PERIOD SHE ATTENDED A COURSE OF INSTRUCTION AT KISHINE BARRACKS, YOKOHAMA, JAPAN, AUGUST 16 TO SEPTEMBER 3, 1965. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL 67-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. TA-195, DATED AUGUST 23, 1965, OF DEPARTMENT OF THE AIR FORCE, AIR PROCUREMENT REGION, FAR EAST (AFLC), APO SAN FRANCISCO 96323, CONFIRMING VERBAL ORDERS OF THE COMMANDER, ISSUED AUGUST 15, 1965, CAPTAIN KRUGER WAS DIRECTED TO PROCEED BY COMMERCIAL AIRCRAFT, RAIL OR BUS FROM HER PERMANENT DUTY STATION, TACHIKAWA AIRBASE, JAPAN, TO KISHINE BARRACKS, YOKOHAMA, JAPAN, TO ATTEND A COURSE OF INSTRUCTION FOR APPROXIMATELY 14 DAYS AND TO REPORT NOT LATER THAN 0800 HOURS, AUGUST 16, 1965.

SHORTLY AFTER COMPLETION OF THE COURSE OF INSTRUCTION, CAPTAIN KRUGER PRESENTED A CLAIM FOR PER DIEM FOR THE PERIOD INVOLVED. IN THE ITINERARY LISTED ON THE CLAIM VOUCHER, IT IS SHOWN THAT SHE DEPARTED FROM TACHIKAWA AIR BASE AT 5:00 A.M., AUGUST 16, 1965, AND ARRIVED AT KISHINE BARRACKS AT 6:45 A.M. THE SAME DAY, AND THAT SHE DEPARTED THEREFROM AT 5:00 P.M., SEPTEMBER 3, 1965, AND ARRIVED AT TACHIKAWA AIR BASE AT 7:15 P.M. THAT DAY, TRAVEL TO AND FROM KISHINE BARRACKS HAVING BEEN PERFORMED BY GOVERNMENT CONVEYANCE.

YOUR OFFICE DENIED THE CLAIM ON THE BASIS OF OUR DECISION OF JANUARY 8, 1957, B-130035. IN THAT DECISION, WE HELD THAT AN AIR FORCE MEMBER WAS NOT ENTITLED TO PER DIEM FOR THE PERIOD HE WAS AWAY FROM HIS PERMANENT DUTY STATION, JOHNSON AIR BASE, JAPAN, AND PERFORMING TEMPORARY DUTY AT TOKYO, JAPAN (A DISTANCE OF APPROXIMATELY 23 MILES), IN VIEW OF A DETERMINATION MADE BY HEADQUARTERS, FAR EAST AIR FORCES, AS QUOTED IN LETTER OF FIFTH AIR FORCE, DATED NOVEMBER 8, 1954, THAT PER DIEM WAS NOT PAYABLE TO FAR EAST AIR FORCE PERSONNEL FOR TRAVEL AND TEMPORARY DUTY PERFORMED WHOLLY WITHIN AN AREA BOUNDED BY AND INCLUDING SHIROI AIR BASE, JOHNSON AIR BASE, YOKOTA AIR BASE, TACHIKAWA AIR BASE, CAMP ZAMA, AND YOKOHAMA, JAPAN.

IN A LETTER DATED OCTOBER 1U, 1965, CAPTAIN KRUGER REQUESTED THAT YOUR OFFICE RECONSIDER THE CLAIM. IN SUPPORT OF THAT REQUEST SHE STATED THAT THERE IS NO DIRECT PUBLIC TRANSPORTATION BETWEEN KISHINE BARRACKS AND TACHIKAWA AIR BASE AND ALSO FURNISHED INFORMATION SHOWING THE TRAVEL TIME BY PUBLIC AND GOVERNMENT TRANSPORTATION BETWEEN THOSE PLACES AND THE TIME NECESSARY FOR DAILY CLASS ATTENDANCE AT KISHINE BARRACKS AND REQUIRED AFTER CLASS STUDY. IN ADDITION, SHE CONTENDED THAT THE BASIS FOR THE 1954 DETERMINATION IS NOT REALISTIC UNDER THE CIRCUMSTANCES INVOLVED IN HER CASE INASMUCH AS DRIVING CONDITIONS AROUND THE TOKYO AREA CANNOT BE COMPARED TO THOSE OF 1954--THE NUMBER OF CARS AND TRUCKS ON THE JAPANESE HIGHWAYS HAVING "MULTIPLIED THOUSANDFOLD," AND THE DRIVING TIME FROM ONE POINT TO ANOTHER IN THE TOKYO AREA HAVING "MORE THAN DOUBLED"--AND, THEREFORE, SUGGESTED THAT THE FAR EAST AIR FORCES REVIEW THEIR DETERMINATION.

AMONG THE ENCLOSURES WHICH ACCOMPANIED YOUR LETTER IS A COPY OF LETTER DATED OCTOBER 16, 1959, FROM HEADQUARTERS FIFTH AIR FORCE QUOTING THE FOLLOWING MESSAGE FROM HEADQUARTERS PACIFIC AIR FORCES, AS FOLLOWS:

"UNCLAS FROM PFAAF'S 619. SUBJECT: TRAVEL PER DIEM ALLOWANCE RATES APPLICABLE TO JAPAN, EFFECTIVE 16 AUGUST 1959. AIR FORCE ACCOUNTING AND FINANCE CENTER HAS ADVISED BY LETTER 6 OCTOBER 1959 THAT THE PER DIEM RATE FOR TOKYO, JAPAN IS NOT APPLICABLE TO NEARBY PLACES SUCH AS FUCHU AS, TACHIKAWA AB, JOHNSON AB AND YOKOTA AB, JAPAN. THE $14.00 TRAVEL PER DIEM RATE APPLIES ONLY TO THOSE SPECIFIC CITIES IDENTIFIED IN CHANGE 85, APPENDIX B, JOINT TRAVEL REGULATIONS. THE $12.00 RATE APPLIES TO ALL OTHER LOCALITIES INCLUDING THE AIR FORCE BASES LISTED ABOVE.'

ALSO AMONG THE ENCLOSURES IS A COPY OF A LETTER DATED JANUARY 13, 1966, FROM HEADQUARTERS FIFTH AIR FORCE, WHICH, IN PERTINENT PART, READS AS FOLLOWS:

"1. IN RESPONSE TO OUR REQUEST HEADQUARTERS US FORCES JAPAN (USLAC F) HAS FURNISHED AN OFFICIAL DETERMINATION ON THE AREA TO BE CONSIDERED THE CORPORATE LIMITS OF TOKYO.

"2. TOKYO IS NO LONGER AN INCORPORATED CITY WITHIN JAPAN AND, THEREFORE, LEGALLY HAS NO CORPORATE CITY LIMITS. PRIOR TO 1943, TOKYO CITY WAS COMPOSED OF 15 WARDS. PURSUANT TO LAW NO. 89, DATED 1 JULY 1943, TOKYO CITY AS A POLITICAL SUBDIVISION OF JAPAN WAS REORGANIZED AND CHANGED TO TOKYO-TO, CONSISTING OF 23 SPECIAL WARDS, 14 CITIES AND 3 COUNTIES. THE 23 SPECIAL WARDS WERE FORMED SUBSTANTIALLY FROM THE 15 WARDS THAT EXISTED PRIOR TO 1943 AND CONSTITUTE THE METROPOLITAN AREA WHICH IS COMMONLY REFERRED TO AS THE CITY OF TOKYO.

"3. THE CONFINES OF THE CITY OF TOKYO, FOR ADMINISTRATIVE PURPOSES INCLUDING TRAVEL AND PER DIEM FOR UNITED STATES FORCES JAPAN ARE DEFINED AS THAT PORTION OF TOKYO-TO (TOKYO PREFECTURE) WHICH IS COMPRISED OF THE 23 SPECIAL WARDS OR -KU-S' AS FOLLOWS: * * *"THE DATE OF THE DETERMINATION BY HEADQUARTERS UNITED STATES FORCES JAPAN IS SHOWN BY OTHER PAPERS IN THE FILE AS JANUARY 12, 1966.

YOU EXPRESS AGREEMENT WITH CAPTAIN KRUGER'S VIEWS AS TO THE PRESENT APPLICATION OF THE 1954 DETERMINATION OF THE FAR EAST AIR FORCES FOR THE REASONS THAT CONDITIONS PERTAINING TO TRAVEL AND TEMPORARY DUTY IN THE TOKYO AREA HAVE CHANGED SINCE 1954, THAT THE 1954 DETERMINATION WAS NEVER RECONFIRMED, AND THAT THE DETERMINATION QUOTED IN LETTER DATED OCTOBER 16, 1959, ABOVE, WOULD APPEAR TO REVOKE THE 1954 DETERMINATION IF NOT OTHERWISE RESCINDED. YOU VIEW THE DETERMINATION OF JANUARY 12, 1966, QUOTED IN ABOVE LETTER OF JANUARY 13, 1966, AS MERELY ESTABLISHING THE LEGAL CONFINES OF THE CITY OF TOKYO FOR PURPOSES OF TRAVEL AND PER DIEM PAYMENT.

TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SECTIONS 404 AND 405 OF TITLE 37, UNITED STATES CODE (DERIVED FROM SECTIONS 303 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813) ARE PROVIDED FOR THE PURPOSE OF REIMBURSING MILITARY PERSONNEL FOR ADDITIONAL SUBSISTENCE EXPENSES INCURRED INCIDENT TO REQUIRED ABSENCE FROM THEIR DUTY STATIONS ON OFFICIAL BUSINESS. WHILE A PER DIEM MAY BE AUTHORIZED AT A PERMANENT STATION UNDER THE PROVISIONS OF 37 U.S.C. 405, APPLICABLE IN OVERSEAS AREAS, THE TRAVEL ALLOWANCES PRESCRIBED UNDER THAT SECTION ARE PAYABLE ONLY AS AUTHORIZED BY THE GOVERNING REGULATIONS.

PARAGRAPH M4250-6 OF THE JOINT TRAVEL REGULATIONS EXPRESSLY PROHIBITS THE PAYMENT OF TRAVEL PER DIEM FOR TRAVEL OR TEMPORARY DUTY WITHIN THE LIMITS OF THE PERMANENT DUTY STATION OUTSIDE CONTINENTAL UNITED STATES. ALSO, IT HAS BEEN CONSIDERED THAT THE CITED STATUTORY PROVISIONS WERE NOT INTENDED AS AUTHORITY FOR THE PAYMENT OF THE TRAVEL ALLOWANCES TO COVER NORMAL TRANSPORTATION AND SUBSISTENCE EXPENSES INCURRED IN PERFORMING DUTIES WHILE ABSENT FROM THE DUTY STATION IN NEARBY AREAS OR FOR SHORT PERIODS INVOLVING NO MATERIAL INCREASE IN LIVING COSTS. IN THIS REGARD, 37 U.S.C. 405 EXPRESSLY REQUIRES THAT ALL ELEMENTS OF COST OF LIVING BE CONSIDERED IN PRESCRIBING PER DIEM UNDER ITS PROVISIONS. CONSISTENT WITH THE REIMBURSEMENT PURPOSES OF THE STATUTES, ADMINISTRATIVE REGULATIONS FOR MANY YEARS HAVE CONTAINED RESTRICTIONS AGAINST THE PAYMENT OF PER DIEM FOR TRAVEL AND TEMPORARY DUTY IN CASES WHERE NORMALLY LITTLE OR NO ADDITIONAL SUBSISTENCE EXPENSE WILL BE INCURRED, AND UNTIL JUNE 1, 1963, PARAGRAPH M6450 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT "EXPENSES INCURRED AT DUTY STATION INCIDENT TO TRAVEL TO AND FROM HOME AND PLACE OF DUTY OR TO SHORT TRIPS WITHIN THE IMMEDIATE VICINITY OF THE DUTY STATION ARE NOT PAYABLE.'

PARAGRAPH M6450 WAS CITED AS THE BASIS FOR THE DETERMINATION OF HEADQUARTERS, FAR EAST AIR FORCES, REFERRED TO IN THE DECISION OF JANUARY 8, 1957, WHICH RESTRICTED THE PAYMENT OF PER DIEM TO PERSONNEL PERFORMING TRAVEL AND TEMPORARY DUTY WHOLLY WITHIN THE DEFINED TOKYO AREA. CONSIDERED THAT SUCH DETERMINATION REPRESENTED THE JUDGMENT OF AREA OFFICIALS, BEST QUALIFIED TO JUDGE LOCAL CONDITIONS THERE, THAT ANY TRAVEL OR TEMPORARY DUTY REQUIRED OF PERSONNEL STATIONED WITHIN THE AREA FOR PERFORMANCE ANYWHERE WITHIN THAT AREA SHOULD BE CAPABLE OF PERFORMANCE WITHOUT UNDUE INCREASE IN THEIR NORMAL LIVING EXPENSES, A CIRCUMSTANCE, WHERE EXISTING, WARRANTING THE DENIAL OF PER DIEM OR OTHER TRAVEL ALLOWANCE PAYMENTS UNDER THE COST-OF-LIVING REQUIREMENTS OF 37 U.S.C. 405 AND ITS ANTECEDENT PROVISIONS.

IN CONCLUDING THAT PER DIEM WAS NOT PAYABLE IN THE CASE INVOLVED IN THE DECISION OF JANUARY 8, 1957, IT WAS POINTED OUT THAT RESTRICTIVE DETERMINATIONS SIMILAR TO THAT MADE IN 1954 WERE ISSUED BY HEADQUARTERS, FAR EAST AIR FORCES, IN 1955 AND 1956. YOU HAVE NOT SAID THAT SUCH LIMITATIONS WERE EVER EXPRESSLY RESCINDED AND WE HAVE BEEN UNABLE TO LOCATE ANY MESSAGE OR DIRECTIVE WHICH MAY BE VIEWED AS HAVING THAT EFFECT. YOU SUGGEST, HOWEVER, THAT SUCH EFFECT WAS ACCOMPLISHED BY THE ESTABLISHMENT OF DIFFERING PER DIEM RATES WITHIN THE AREA INVOLVED AS INDICATED IN THE MESSAGE FROM HEADQUARTERS PACIFIC AIR FORCES, QUOTED ABOVE.

THE FACT THAT DIFFERING PER DIEM RATES MAY BE PAYABLE IN A PARTICULAR AREA TO INDIVIDUALS FOR WHOM PER DIEM IS AUTHORIZED DOES NOT IN OUR OPINION PROVIDE A BASIS FOR PAYING PER DIEM IN CASES WHERE THE PAYMENT OF PER DIEM IS EXPRESSLY PROHIBITED BY APPLICABLE REGULATIONS. UNDER THE APPLICABLE REGULATIONS PER DIEM SIMPLY IS NOT PAYABLE IN CAPTAIN KRUGER'S CASE.

WE RECOGNIZE THAT CIRCUMSTANCES MIGHT EXIST IN AN INDIVIDUAL CASE WHERE BY REASON OF THE NATURE OF A DUTY ASSIGNMENT A MEMBER WOULD BE REQUIRED TO INCUR UNUSUAL SUBSISTENCE EXPENSES CONSIDERABLY IN EXCESS OF THOSE NORMALLY MET AT HIS DUTY STATION EVEN THOUGH IN THE PERFORMANCE OF TEMPORARY DUTY IN THE IMMEDIATE VICINITY OF HIS DUTY STATION. THE REGULATIONS, HOWEVER, MUST BE UNIFORMLY APPLIED AND EVEN IN SUCH A CASE WE MAY NOT APPROVE THE PAYMENT OF PER DIEM TO ANY MEMBER STATIONED IN THE TOKYO AREA INCLUDED IN THE 1954 DETERMINATION WHILE THAT DETERMINATION REMAINS IN EFFECT.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH WILL BE RETAINED HERE.