B-159690, SEP. 13, 1966

B-159690, SEP. 13, 1966

TO CAPTAIN HOY R. MILLER:

FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION OF JULY 7, 1966, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 5, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT CHENEVIERES, FRANCE, DURING THE PERIOD APRIL 19, 1962, TO AUGUST 14, 1962.

BY LETTER ORDERS 572 DATED APRIL 16, 1962, YOU AND OTHER MEMBERS OF THE LIAISON AND MAINTENANCE DETACHMENT, 2D INCREMENT, 3D HOWITZER BATTALION, 16TH ARTILLERY, FORT BRAGG, NORTH CAROLINA, WERE ORDERED AS AN ORGANIZATIONAL UNIT ON TEMPORARY DUTY FOR APPROXIMATELY 180 DAYS WITH THE UNITED STATES ARMY, EUROPE. THE RECORD SHOWS THAT YOU WERE PAID PER DIEM FOR TEMPORARY DUTY AT CHENEVIERES, FRANCE, AT THE RATE OF $4 FOR THE PERIOD APRIL 24, 1962, TO JUNE 30, 1962, AND AT RATE OF $13 LESS $6.50 PER DAY FOR QUARTERS AND $41.86 FOR 23 MEALS AT $1.82 EACH FURNISHED YOU DURING THE PERIOD JULY 1, 1962, TO AUGUST 11, 1962. A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS DATED AUGUST 22, 1962, WAS ISSUED TO YOU FOR THE PERIOD JULY 1, 1962, TO AUGUST 11, 1962, AFTER YOU HAD COMPLETED THE TEMPORARY DUTY AND RETURNED TO FORT BRAGG. HOWEVER, YOU CERTIFIED ON TRAVEL VOUCHER SIGNED BY YOU ON SEPTEMBER 5, 1962, THAT GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS WERE UTILIZEDBY YOU DURING THE PERIOD APRIL 19, 1962, TO AUGUST 14, 1962. THE TERM "GOVERNMENT QUARTERS" IS DEFINED IN PARAGRAPH M1150-5TO MEAN ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, OR FURNISHED BY A FOREIGN GOVERNMENT, REGARDLESS OF WHETHER OR NOT A SERVICE CHARGE IS PAID BY OFFICER PERSONNEL.

THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION IS GOVERNED BY REGULATIONS ISSUED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 404, TITLE 37 OF THE UNITED STATES CODE. PARAGRAPH M4256 (CHANGE 100, JANUARY 1, 1961) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY AND IN EFFECT UNTIL JUNE 30, 1962, PROVIDED THE RATES OF TRAVEL PER DIEM ALLOWANCES APPLICABLE FOR TRAVEL OUTSIDE THE UNITED STATES. SUBPARAGRAPH 1G PROVIDED:

"SPECIAL CONDITIONS PERTAINING TO OFFICER MEMBERS OF GROUPS DEPLOYED AS UNITS. OFFICER MEMBERS OF GROUPS (E.G., PLATOONS, AIRCRAFT SQUADRONS, MOBILE SHIP REPAIR UNITS, CARGO HANDLING BATTALIONS, CONSTRUCTION BATTALIONS, ETC.) DEPLOYED AS UNITS AT INSTALLATIONS OF THE UNIFORMED SERVICES FOR TEMPORARY DUTY UNDER CONDITIONS WHERE BOTH GOVERNMENT QUARTERS WITH NO SERVICE CHARGE AND GOVERNMENT MESS (3 MEALS A DAY) ARE AVAILABLE WILL BE ENTITLED TO THE LESSER OF THE FOLLOWING PER DIEM ALLOWANCES:

"1. THE PER DIEM AUTHORIZED IN PAR. M4205-5 ITEM G OF THE TABLE, WITH NO DEDUCTION FOR QUARTERS OR SUBSISTENCE, OR

"2. THE PER DIEM PRESCRIBED FOR NORMAL TEMPORARY DUTY AT THAT PLACE WITH APPROPRIATE DEDUCTIONS REQUIRED BY PAR. M4254.'

THE PER DIEM RATE AUTHORIZED IN PARAGRAPH M4205-5G OF THE JOINT TRAVEL REGULATIONS FOR OFFICERS WAS $4, AND THE PER DIEM RATE FOR NORMAL TEMPORARY DUTY AT CHENEVIERES, FRANCE, WAS $13, LESS A DEDUCTION OF 40 PERCENT WHERE QUARTERS ARE AVAILABLE OR UTILIZED AS REQUIRED BY PARAGRAPH M4254 OF THE REGULATIONS, OR $7.80. THUS, AS AN OFFICER MEMBER OF YOUR BATTALION DEPLOYED AS A UNIT AT AN INSTALLATION OF THE UNIFORMED SERVICES FOR TEMPORARY DUTY, APPARENTLY UNDER CONDITIONS WHERE BOTH GOVERNMENT QUARTERS WITH NO SERVICE CHARGE AND GOVERNMENT MESS WERE AVAILABLE, IT APPEARS YOU WERE PROPERLY PAID THE PER DIEM RATE OF $4 THROUGH JUNE 30, 1962.

PARAGRAPH M4250-13 OF THE JOINT TRAVEL REGULATIONS (CHANGE 116, JULY 1, 1962, IN EFFECT DURING THE PERIOD OF YOUR CLAIM AFTER JUNE 30, 1962), PROVIDED THAT PER DIEM WAS NOT PAYABLE FOR PERIODS OF TEMPORARY DUTY PERFORMED BY A MEMBER WITH HIS UNIT, OR A DETACHMENT THEREOF, WHEN THAT UNIT OR DETACHMENT WAS TEMPORARILY ORDERED BY NAME (OR NUMBER) AWAY FROM ITS PERMANENT DUTY STATION AND WHEN GOVERNMENT QUARTERS WERE AVAILABLE WITHOUT CHARGE AND GOVERNMENT MESS WAS AVAILABLE, WHETHER OR NOT SUCH FACILITIES WERE UTILIZED. PARAGRAPH M4254 OF THE REGULATIONS, OTHERWISE APPLICABLE, PROVIDED THAT A DEDUCTION OF 50 PERCENT OF THE TRAVEL PER DIEM ALLOWANCE RATE APPLICABLE FOR THE DAY WOULD BE MADE IN THE ABSENCE OF A STATEMENT BY THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) THAT QUARTERS WERE NOT AVAILABLE. WHILE SUCH A STATEMENT WAS FURNISHED IN YOUR CASE FOR THE PERIOD JULY 1, 1962, TO AUGUST 11, 1962, YOU CERTIFIED ON YOUR TRAVEL VOUCHER THAT YOU UTILIZED GOVERNMENT QUARTERS DURING THE PERIOD APRIL 19, 1962, TO AUGUST 14, 1962.

SINCE NO CHARGE IS SHOWN TO HAVE BEEN MADE FOR THE QUARTERS YOU OCCUPIED DURING THE PERIOD OF YOUR TEMPORARY DUTY, IT WOULD APPEAR THAT YOU COULD BE CONSIDERED AS ENTITLED TO PER DIEM EVEN AT THE REDUCED RATE PRESCRIBED BY PARAGRAPH M4254 FOR THE PERIOD AFTER JULY 1, 1962, ONLY IF GOVERNMENT MESS WAS NOT AVAILABLE FOR YOUR USE IN VIEW OF THE CITED PROVISIONS OF PARAGRAPH M4250-13. IN ANY EVENT, YOU COULD NOT IN THE CIRCUMSTANCES BE CONSIDERED AS ENTITLED FOR THE PERIOD JULY 1 TO AUGUST 11, 1962, TO ANY MORE THAN PER DIEM AT THE $13 RATE LESS $6.50 FOR QUARTERS FURNISHED TO YOU WITHOUT CHARGE AND LESS DEDUCTIONS FOR MEALS FURNISHED, AS YOU WERE PAID.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

AN EXAMINATION OF THE COPIES OF THE TRAVEL VOUCHERS FOR LIEUTENANT MERLE L. MULVANEY ENCLOSED WITH YOUR COMMUNICATION OF JULY 7, 1966, SHOWS THAT HE WAS ALSO PAID PER DIEM AT THE RATE OF $13 LESS $6.50 FOR QUARTERS FURNISHED (WITH DEDUCTIONS FOR MEALS FURNISHED) FOR THE PERIOD SUBSEQUENT TO JUNE 30, 1962. LIEUTENANT MULVANEY'S TRAVEL VOUCHERS ARE SUBSTANTIATED BY INDIVIDUAL TRAVEL ORDERS RATHER THAN UNIT DEPLOYMENT ORDERS, AND UNDER THE PROVISIONS OF PARAGRAPH M4254 OF THE JOINT TRAVEL REGULATIONS, CITED ABOVE, HE WAS ENTITLED FOR THE PERIOD OF TEMPORARY DUTY BEFORE JULY 1, 1962, TO THE NORMAL TRAVEL ALLOWANCE OF $13 LESS A DEDUCTION OF 40 PERCENT FOR AVAILABLE GOVERNMENT QUARTERS. CONSEQUENTLY, THE INDICATED PER DIEM PAYMENT MADE TO HIM PROVIDES NO PROPER PRECEDENT OR AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.