B-168115, FEB. 18, 1970

B-168115, FEB. 18, 1970

MILITARY--PER DIEM--VIETNAM COMBAT DUTY DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR PER DIEM FOR MILITARY DUTY PERFORMED IN VIETNAM. ENLISTED MEMBER WHO, WITH BRIGADE, WAS ORDERED TO A TEMPORARY DUTY STATION IN VIETNAM WHICH WAS SUBSEQUENTLY CHANGED TO A PERMANENT DUTY STATION MAY NOT BE CONSIDERED IN A TRAVEL OR OFFICIAL BUSINESS STATUS WHILE PERFORMING DUTIES OF A COMBAT NATURE AND, THEREFORE PER DIEM MAY NOT BE ALLOWED. 28 COMP. GEN. 631 (1949).

TO MR. RODERIC B. RAWLINS:

REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD FEBRUARY 21 TO JULY 11, 1968, INCIDENT TO MILITARY DUTY PERFORMED BY YOU IN VIETNAM AS A SPECIALIST-5 (E-5), U.S. ARMY.

THE RECORD SHOWS THAT BY PARAGRAPH 10 OF SPECIAL ORDERS NO. 19, HEADQUARTERS, 301ST ARMY SECURITY AGENCY BATTALION (CORPS), FORT BRAGG, NORTH CAROLINA, DATED FEBRUARY 16, 1968, YOU AND 76 OTHER MEMBERS OF DETACHMENT A, 358TH ARMY SECURITY AGENCY COMPANY, WERE ATTACHED TO THE 3RD BRIGADE, 82ND AIRBORNE DIVISION, FORT BRAGG, NORTH CAROLINA, EFFECTIVE UPON DEPARTURE FROM THE HOME STATION. PREVIOUSLY, ON FEBRUARY 13, 1968, MOVEMENT ORDERS HAD BEEN ISSUED DIRECTING A TEMPORARY CHANGE OF STATION FOR LISTED UNITS OF THE 3RD BRIGADE AND THE MOVEMENT OF THE PERSONNEL AND EQUIPMENT BY AIR TO AN OVERSEAS STATION (VIETNAM). PURSUANT TO THOSE ORDERS YOU DEPARTED FROM FORT BRAGG ON FEBRUARY 21, 1968, AND ARRIVED AT PHU BAI, VIETNAM, ON FEBRUARY 23, 1968, FOR DUTY.

BY DEPARTMENT OF THE ARMY MESSAGE 859464, DATED APRIL 11, 1968, THE 3RD BRIGADE WAS RELIEVED FROM ITS TEMPORARY CHANGE-OF-STATION STATUS AND ASSIGNED IN A PERMANENT CHANGE-OF-STATION STATUS TO UNITED STATES ARMY, PACIFIC. ON JULY 11, 1968, ORDERS WERE ISSUED REASSIGNING YOU TO A UNIT IN SAIGON, VIETNAM, FOR FURTHER ASSIGNMENT TO THE U.S. ARMY TRANSFER STATION, OAKLAND ARMY TERMINAL, CALIFORNIA, FOR RELIEF FROM ACTIVE DUTY. IN ACCORDANCE WITH THE LATTER ORDERS, YOU DEPARTED FROM PHU BAI ON JULY 11, 1968, AND ARRIVED AT OAKLAND ARMY TERMINAL ON JULY 14, 1968. ON THE FOLLOWING DAY YOU WERE PAID PER DIEM IN THE NET AMOUNT OF $7.17 FOR THE PERIOD COMMENCING FROM 3 P.M; JULY 11, 1968, WHEN YOU DEPARTED FROM PHU BAI FOR SAIGON, UNTIL 11 A.M; JULY 14, 1968, WHEN YOU DEPARTED FROM VIETNAM ON A FLIGHT TO THE UNITED STATES.

A CLAIM WAS FILED BY YOU ON AUGUST 30, 1968, FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE ENTIRE PERIOD YOU WERE AWAY FROM THE UNITED STATES, FEBRUARY 21 TO JULY 14, 1968. THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED THAT CLAIM TO THIS OFFICE FOR APPROPRIATE ACTION, INDICATING THAT THERE HAD BEEN NO OBLIGATION OF FUNDS FOR THE PAYMENT OF PER DIEM INCIDENT TO SUCH DUTY.

THE PERTINENT STATUTE, 37 U.S.C. 404, AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO A MEMBER OF THE UNIFORMED SERVICES ONLY FOR PERIODS "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY" REGARDLESS OF THE LENGTH OF TIME HE IS AWAY FROM THAT POST. REGULATIONS IMPLEMENTING THIS PROVISION OF LAW ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

THE SUBSTANTIALLY SIMILAR PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, FROM WHICH SECTION 404 OF THE PRESENT ACT STEMS, WERE CONSIDERED IN THE CASE OF A NAVAL RESERVE OFFICER WHO WAS ENGAGED IN OPERATIONS CONSISTING OF DUTY OF A COMBAT NATURE DURING PART OF HIS TEMPORARY DUTY UNDER ORDERS DIRECTING HIM TO PROCEED TO DESIGNATED PORTS IN THE SOUTHWEST PACIFIC DURING WORLD WAR II. WE HELD IN A DECISION DATED MAY 3, 1949, 28 COMP. GEN. 631, COPY ENCLOSED, THAT SUCH DUTY MAY NOT BE REGARDED AS "TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY" WITHIN THE MEANING OF THE ABOVE-MENTIONED SECTION 12, SO AS TO ENTITLE THE OFFICER TO PER DIEM FOR OTHER THAN THE PERIODS OF ACTUAL TRAVEL BY MEANS OTHER THAN GOVERNMENT VESSEL EVEN THOUGH MOVEMENT FROM PLACE TO PLACE WAS REQUIRED. THE RATIONALE OF THAT DECISION IS THAT THE OFFICER WHILE SO ENGAGED IN SUCH DUTIES IS REGARDED AS BEING AT HIS DESIGNATED POST PERFORMING HIS BASIC DUTY.

THE RECORD BEFORE US DOES NOT DISCLOSE THE PURPOSE OF THE MOVEMENT OF THE 3RD BRIGADE, 82ND AIRBORNE DIVISION, FROM FORT BRAGG TO VIETNAM. IN VIEW, HOWEVER, OF THE CONDITIONS PREVAILING IN VIETNAM AT THAT TIME (PARTICULARLY THE TET OFFENSIVE), IT IS ASSUMED THAT THE DEPLOYMENT OF THE BRIGADE TO WHICH YOU WERE ATTACHED WAS FOR DUTY OF A COMBAT NATURE AND PRESUMABLY IT WAS FOR THAT REASON, IN CONSONANCE WITH 28 COMP. GEN. 631, THAT THERE WAS NO ADMINISTRATIVE OBLIGATION OF FUNDS FOR PAYMENT OF PER DIEM IN THESE CIRCUMSTANCES. THEREFORE, IT IS CONCLUDED THAT ON THE PRESENT RECORD THE PAYMENT OF PER DIEM FOR THE PERIOD INVOLVED IN YOUR CLAIM IS NOT AUTHORIZED.

EVEN IF THE PAYMENT OF PER DIEM WERE OTHERWISE PROPER UNDER THE ORDERS OF FEBRUARY 13, 1968, TRANSFERRING YOU TO VIETNAM, PAYMENT WOULD NOT BE AUTHORIZED FOR THE PERIOD AFTER APRIL 11, 1968, IN VIEW OF THE FACT THAT THE TRANSFER OF THE 3RD BRIGADE WAS CHANGED TO A PERMANENT CHANGE-OF- STATION STATUS ON THAT DATE.