B-155932, MAR. 17, 1965

B-155932, MAR. 17, 1965

TO CWO ROBERT E. JOHNSON, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM DURING THE PERIOD DECEMBER 18, 1962, TO JANUARY 15, 1964, WHILE PERFORMING DUTY AT CAPE CANAVERAL (NOW CAPE KENNEDY), FLORIDA.

BY ORDERS DATED NOVEMBER 5, 1962, YOU WERE DIRECTED TO PROCEED FROM FORT EUSTIS, VIRGINIA, TO PATRICK AIR FORCE BASE (CAPE CANAVERAL), FLORIDA, FOR APPROXIMATELY 30 DAYS AND RETURN. BY AMENDATORY ORDERS OF DECEMBER 3, 1962, THE PERIOD OF DUTY WAS EXTENDED TO 60 DAYS, AND BY ORDERS OF DECEMBER 26, 1962, THE ORDERS WERE AMENDED TO READ; "EFFECTIVE 17 DEC 62, TDY DUTY STATION AT NO COST TO THE GOVERNMENT.' THESE ORDERS CONFIRMED PRIOR VERBAL ORDERS TO THE SAME EFFECT. BY ORDERS OF JANUARY 14, 1963, THE DUTY WAS EXTENDED FROM 60 TO 90 DAYS, AND BY ORDERS OF JANUARY 22, 1963, THE ORDERS WERE AMENDED TO AUTHORIZE REPEATED TRAVEL TO JACKSONVILLE, FLORIDA, AND RETURN TO CAPE CANAVERAL, FLORIDA, AS REQUIRED WHILE ON OFFICIAL BUSINESS, VIA PRIVATELY OWNED VEHICLE. BY ORDERS OF FEBRUARY 7, 1963, THE DUTY WAS EXTENDED TO 120 DAYS, AND TO 180 DAYS BY ORDERS OF MARCH 11, 1963. YOU RETURNED TO FORT EUSTIS ON APRIL 29, 1963.

BY ORDERS DATED MAY 1, 1963, YOU WERE AGAIN DIRECTED TO PROCEED FROM FORT EUSTIS, VIRGINIA, TO PATRICK AIR FORCE BASE (CAPE CANAVERAL), FLORIDA, FOR TEMPORARY DUTY OF APPROXIMATELY 60 DAYS AND RETURN, WITH AUTHORITY TO MAKE SUCH CHANGES IN ITINERARY AND TO PROCEED TO OTHER PLACES NECESSARY FOR ACCOMPLISHMENT OF THE MISSION. THE ORDERS PROVIDE "TDY DUTY STATION AT NO COST TO THE GOVERNMENT.' BY ORDERS OF JULY 15, 1963, THE DUTY WAS EXTENDED FROM 60 TO 120 DAYS AND BY ORDERS OF SEPTEMBER 11, 1963, THE DUTY WAS FURTHER EXTENDED TO 180 DAYS. YOU RETURNED TO FORT EUSTIS ON OCTOBER 20, 1963. BY ORDERS OF OCTOBER 21, 1963, YOU WERE DIRECTED TO PROCEED ON OR ABOUT OCTOBER 22 FROM FORT EUSTIS TO WASHINGTON, D.C., THENCE TO CAPE CANAVERAL, FLORIDA, FOR APPROXIMATELY 60 DAYS AND RETURN TO FORT EUSTIS, VIRGINIA. THE ORDERS AUTHORIZED PER DIEM WHILE IN A TRAVEL STATUS AND AT WASHINGTON, D.C. NO PER DIEM WAS AUTHORIZED AT CAPE CANAVERAL, FLORIDA. BY ORDERS OF DECEMBER 31, 1963, THE DUTY WAS EXTENDED FROM 60 TO 90 DAYS, ORDERS FOR YOUR RELEASE FROM ACTIVE DUTY EFFECTIVE JANUARY 31, 1964, AND PLACEMENT ON THE RETIRED LIST THE FOLLOWING DAY HAVING BEEN ISSUED ON DECEMBER 23, 1963.

THE RECORD SHOWS THAT ON MAY 6, 1963, YOUR COMMANDING OFFICER REQUESTED THAT YOU BE GIVEN A PERMANENT CHANGE OF STATION FROM FORT EUSTIS, VIRGINIA, TO CAPE CANAVERAL, FLORIDA, AND THAT SUCH REQUEST WAS NOT APPROVED BECAUSE OF YOUR INTENTION TO RETIRE THE FOLLOWING JANUARY. APPEARS, HOWEVER, THAT YOU MOVED YOUR FAMILY AND HOUSEHOLD EFFECTS FROM FORT EUSTIS TO CAPE CANAVERAL, AND YOU SAY YOU HAVE NOT BEEN REIMBURSED FOR THE MOVE OR PAID A DISLOCATION ALLOWANCE BECAUSE YOU WERE ASSIGNED THERE ON TEMPORARY DUTY.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH 3003-2C OF THE JOINT TRAVEL REGULATIONS (CHANGE 106, JULY 1, 1961) PROVIDED THAT EXCEPT WHEN AUTHORIZED IN ACCORDANCE WITH SUBPARAGRAPH D, TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) ASSIGNMENTS WOULD BE LIMITED TO PERIODS NOT IN EXCESS OF 6 MONTHS. THIS LIMITATION DID NOT PRECLUDE BONA FIDE EXTENSIONS OF SUCH ASSIGNMENTS WHICH, WHEN ADDED TO THE ORIGINALLY AUTHORIZED PERIOD, TOTALED MORE THAN 6 MONTHS. SUCH EXTENSIONS WERE LIMITED TO THOSE CASES IN WHICH THERE WAS A DEFINITE CHANGE OR UNFORESEEN EXPANSION IN THE DUTY, OR UNFORESEEN DELAYS WERE ENCOUNTERED, REQUIRING AN EXTENSION OF THE TEMPORARY DUTY PERIOD.

SUBPARAGRAPH 2D PROVIDED THAT WHEN UNUSUAL OR EMERGENCY CIRCUMSTANCES OR THE EXIGENCIES OF THE SERVICE APPEARED TO REQUIRE THE ASSIGNMENT OF MEMBERS TO TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) FOR PERIODS OF MORE THAN 6 MONTHS UNDER CONDITIONS WHERE IT WAS IMPRACTICABLE OR UNECONOMICAL TO EFFECT A PERMANENT CHANGE OF STATION, SUCH CASES WOULD BE FORWARDED WITH A FULL STATEMENT OF THE FACTS IN THE CASE TO THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED FOR AUTHORIZATION. NORMALLY, THIS AUTHORIZATION WAS TO BE SECURED IN ADVANCE OF ISSUANCE OF ORDERS, BUT IF THE UNUSUAL OR EMERGENCY NATURE OF THE CASE DID NOT PERMIT SUCH DELAY, ORDERS COULD BE ISSUED DIRECTING PERFORMANCE OF THE TEMPORARY DUTY AND THE CASE THEN SUBMITTED IMMEDIATELY WITH A FULL STATEMENT OF THE FACTS IN THE CASE TO THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED WHO WAS TO

1. APPROVE THE ORDERS AS WRITTEN;

2. DIRECT THE ORDERS TO BE AMENDED TO TERMINATE THE DUTY RETURNING THE MEMBER TO HIS OLD STATION OR ASSIGNING A NEW STATION;

3. DIRECT THE ORDERS TO BE AMENDED TO CHANGE THE ASSIGNMENT FOR TEMPORARY DUTY TO A PERMANENT CHANGE OF STATION; OR

4. DIRECT THE ORDERS TO BE AMENDED TO A FIXED PERIOD OF 6 MONTHS OR LESS FROM ORIGINAL EFFECTIVE DATE OF ORDERS.

SUBPARAGRAPH 2D CONCLUDED WITH: "THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED WILL BE THE SECRETARY OF THE SERVICE CONCERNED OR THE CHIEF OF AN APPROPRIATE BUREAU OR STAFF AGENCY SPECIFICALLY DESIGNATED FOR THAT PURPOSE. THIS AUTHORITY MAY NOT BE REDELEGATED.' SEE IN THIS CONNECTION 38 COMP. GEN. 853.

THE ORDER WRITING AUTHORITY IN THIS CASE, HEADQUARTERS, U.S. ARMY TRANSPORTATION RESEARCH COMMAND, TRANSPORTATION CORPS, FORT EUSTIS, VIRGINIA, ON JANUARY 14, 1960, REQUESTED AUTHORITY OF THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, TO ISSUE TEMPORARY DUTY ORDERS FOR INDEFINITE PERIODS. THE SECRETARY OF THE ARMY BY INDORSEMENT OF THE ADJUTANT GENERAL DATED FEBRUARY 5, 1960, GRANTED AUTHORITY TO ISSUE ORDERS FOR TEMPORARY DUTY IN EXCESS OF 180 DAYS DURING A 12-MONTH PERIOD, WITH THE RESTRICTION THAT UNDER NO CIRCUMSTANCES WOULD AN INDIVIDUAL BE PLACED ON CONTINUOUS TEMPORARY DUTY ORDERS AT ONE LOCATION FOR A PERIOD IN EXCESS OF 180 DAYS WITHOUT THE PRIOR APPROVAL OF HEADQUARTERS, DEPARTMENT OF THE ARMY.

THE ORDERS OF NOVEMBER 5, 1962, AS AMENDED; ORDERS OF MAY 2, 1963, AS AMENDED, AND ORDERS OF OCTOBER 21, 1963, AS AMENDED, DO NOT, ON THEIR FACE, PROVIDE FOR TEMPORARY DUTY ASSIGNMENTS EXCEEDING 180 DAYS. HOWEVER, THOSE ORDERS WERE ISSUED IN SUCCESSION, AND FROM INITIAL DEPARTURE FROM FORT EUSTIS ON NOVEMBER 6, 1962, TO FINAL RETURN THERETO FOR SEPARATION ON JANUARY 16, 1964, A PERIOD OF OVER 14 MONTHS ELAPSED. IT APPEARS THAT YOU RETURNED TO FORT EUSTIS ON APRIL 29, 1963, AFTER BEING AWAY FOR APPROXIMATELY 175 DAYS; THAT YOU DEPARTED ON MAY 3, 1963, PURSUANT TO THE ORDERS OF MAY 1, 1963; THAT ON OCTOBER 20, 1963, YOU RETURNED TO FORT EUSTIS AFTER BEING AWAY FOR APPROXIMATELY 170 DAYS; THAT YOU AGAIN DEPARTED ON OCTOBER 23, 1963, PURSUANT TO THE ORDERS OF OCTOBER 21, 1963, AND THAT YOU RETURNED TO FORT EUSTIS ON JANUARY 16, 1964, INCIDENT TO YOUR ORDERS FOR RETIREMENT. IN YOUR LETTER OF JANUARY 30, 1964, YOU SAY THAT IN APRIL AND AGAIN IN OCTOBER 1963, YOU WERE ORDERED TO RETURN TO FORT EUSTIS IN ORDER TO BREAK THE PERIODS OF TEMPORARY DUTY AT CAPE CANAVERAL. THIS IS SUPPORTED BY THE FACT THAT ON APRIL 29, 1963, YOU WERE ISSUED A TRANSPORTATION REQUEST AT PATRICK AIR FORCE BASE PROVIDING FOR AIR TRANSPORTATION FROM ORLANDO, FLORIDA, TO NEWPORT NEWS, VIRGINIA, AND RETURN. ALSO, ON OCTOBER 17, 1963, YOU WERE ISSUED ANOTHER TRANSPORTATION REQUEST AT PATRICK AIR FORCE BASE WITH WHICH YOU OBTAINED AIR TRANSPORTATION FROM MELBOURNE, FLORIDA, TO NEWPORT NEWS AND RETURN TO MELBOURNE VIA WASHINGTON, D.C., TRAVEL BETWEEN NEWPORT NEWS AND FORT EUSTIS HAVING BEEN PERFORMED BY GOVERNMENT VEHICLE. THUS, IT IS CLEAR THAT IT WAS EXPECTED THAT YOU WOULD RETURN TO CAPE CANAVERAL WHEN YOU WERE DIRECTED TO TRAVEL TO FORT EUSTIS. THERE IS NOTHING IN THE RECORD TO INDICATE, AND IT IS NOT CONTENDED THAT THE ORDERS OF MAY 1, 1963, AND OCTOBER 21, 1963, WHICH IN EFFECT EXTENDED YOUR ASSIGNMENT AT CAPE CANAVERAL WERE ISSUED BECAUSE OF ANY CHANGE OR UNFORESEEN DELAY OR EXPANSION IN YOUR DUTY ASSIGNMENT. HENCE, IT SEEMS EVIDENT THAT YOUR ORDERED RETURN TO FORT EUSTIS IN APRIL AND OCTOBER 1963 WAS FOR THE PURPOSE OF MAKING IT APPEAR THAT YOUR TEMPORARY DUTY ASSIGNMENTS AT CAPE CANAVERAL DID NOT EXCEED THE 180 DAY LIMITATION. THERE APPEARS TO BE LITTLE ROOM FOR DOUBT, HOWEVER, THAT THE ASSIGNMENT WAS IN FACT SUBSTANTIALLY CONTINUOUS.

SINCE THE TEMPORARY DUTY DIRECTED BY THE VARIOUS ORDERS IN YOUR CASE EXCEEDED 6 MONTHS AND THE ORDERS WERE NOT APPROVED BY PROPER AUTHORITY, THERE IS NO BASIS FOR ALLOWANCE OF YOUR PRESENT CLAIM FOR ADDITIONAL PER DIEM FOR DUTY PERFORMED AT CAPE CANAVERAL.

IT LONG HAS BEEN THE RULE THAT THE LANGUAGE OF ORDERS ASSIGNING MILITARY PERSONNEL TO DUTY IS NOT ALWAYS, IN ITSELF, DETERMINATIVE OF THE CHARACTER OF THE ASSIGNMENT AND THEREFORE, NOT NECESSARILY CONCLUSIVE AS TO WHETHER A PERMANENT OR TEMPORARY CHANGE OF STATION WAS EFFECTED THEREBY. 24 COMP. GEN. 667. IN THE PRESENT CASE, YOUR ORDERS FOR THE LIMITED PERIOD NOVEMBER 6 TO DECEMBER 17, 1962, DIRECTED PERFORMANCE OF TEMPORARY DUTY AND DID NOT CONTAIN THE "NO PER DIEM" PROVISION. THEREFORE, THE PAYMENT OF PER DIEM FOR THAT PERIOD WILL NOT BE QUESTIONED. HOWEVER, EFFECTIVE DECEMBER 17, 1962, AND FOR THE REMAINDER OF YOUR DUTY AT PATRICK AIR FORCE BASE YOUR ORDERS PROVIDED FOR TEMPORARY DUTY AT NO COST TO THE GOVERNMENT. SINCE YOUR ORDERS DO NOT APPEAR TO HAVE BEEN APPROVED FOR TEMPORARY DUTY EXCEEDING 180 DAYS AS PROVIDED BY THE ADMINISTRATIVE REGULATIONS AND PROVIDED THAT EFFECTIVE DECEMBER 17, 1962, THE DUTY AT CAPE CANAVERAL WOULD BE AT NO COST TO THE GOVERNMENT, IT WOULD APPEAR THAT AT THAT TIME IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR ASSIGNMENT WAS TO BE FOR A PERIOD OF UNLIMITED DURATION. SO FAR AS THE RECORD SHOWS, THE SUBSEQUENT EXTENSIONS OF DUTY WERE NOT BECAUSE OF UNFORESEEN NEEDS. THESE CIRCUMSTANCES AND SINCE THE ASSIGNMENT AT CAPE CANAVERAL EXCEEDED 14 MONTHS, IT IS CONCLUDED THAT YOUR BASIC DUTY ASSIGNMENT WAS THERE AND THAT CAPE CANAVERAL WAS IN FACT YOUR PERMANENT STATION DURING THE PERIOD COVERED BY THE CLAIM. THEREFORE YOU WERE ON TEMPORARY DUTY AND ENTITLED TO PER DIEM ONLY WHILE AWAY FROM THAT STATION IN A TRAVEL STATUS UNDER COMPETENT ORDERS. ALSO, SINCE YOU SAY THAT YOU MOVED YOUR DEPENDENTS AND HOUSEHOLD EFFECTS FROM FORT EUSTIS TO CAPE CANAVERAL WHILE ON DUTY THERE, YOU MAY FILE A CLAIM WITH THIS OFFICE THROUGH ARMY CHANNELS FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS (SUPPORTED BY EVIDENCE OF THE EXPENSES INCURRED AND THE WEIGHT OF THE GOODS) OR TRAILER ALLOWANCE IF APPROPRIATE, AND DISLOCATION ALLOWANCE. IN THIS CONNECTION INFORMATION SHOULD BE FURNISHED AS TO THE PLACE OF YOUR RETIREMENT AND THE POINTS AND AMOUNT INVOLVED IN YOUR RETIREMENT TRAVEL ALLOWANCE. UPON RECEIPT OF SUCH CLAIM A SETTLEMENT WILL ISSUE FOR THE AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE, INCLUDING PER DIEM FOR THE TEMPORARY DUTY AWAY FROM CAPE CANAVERAL.