B-145294, MAY 8, 1961

B-145294, MAY 8, 1961

TO FIRST LIEUTENANT RUDOLPH E. CLARK, USA:

YOUR LETTER OF APRIL 7, 1961, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY FOR THE PERIOD APRIL 22 TO JUNE 18, 1959, AT FORT SAM HOUSTON, TEXAS, INCIDENT TO PARAGRAPH 19, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 20, DATED JANUARY 29, 1959.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 4, 1960, AND IN DECISION B-145294, DATED MARCH 30, 1961, YOU WERE ADVISED THAT UNDER THE PROVISIONS OF YOUR ORDERS YOUR CLAIM MAY NOT BE PAID BECAUSE OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CALIFANO V. UNITED STATES, CT.CL.NO. 86-58, DECIDED MARCH 4, 1959. IN YOUR PRESENT LETTER YOU REFER TO PER DIEM FOR THE PERIOD APRIL 23 THROUGH AUGUST 13, 1959, AND STATE THAT THIS OFFICE HAS PAID SIMILAR CLAIMS SUBMITTED BY LIEUTENANT JACK G. PANJIAN AND LIEUTENANT DONALD R. LETOURNEAU.

WE ADVISED THE SECRETARY OF DEFENSE IN A DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, THAT FROM THE DATE OF THE DECISION WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED FROM HIS HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY. THE DECISION OF JUNE 19, 1959, INSOFAR AS HERE INVOLVED, WAS AFFIRMED BY DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, TO THE SECRETARY OF THE ARMY, WITH THE ADVICE THAT, WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION OF JUNE 19, 1959, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, WOULD NOT BE QUESTIONED, SUCH PAYMENTS HAVING BEEN BASED ON OUR DECISIONS RENDERED PRIOR TO THE ISSUANCE OF THE DECISION OF JUNE 19, 1959. HOWEVER, YOU WERE NOT PAID UNDER THE EARLIER DECISIONS AND THE RULING IN THE CALIFANO CASE PRECLUDES US FROM NOW ALLOWING YOU ANY PER DIEM FOR THE PERIOD APRIL 22 TO JUNE 18, 1959, UNDER THE ORDERS OF JANUARY 29, 1959, TO TEMPORARY DUTY PENDING FURTHER ASSIGNMENT.

WITH RESPECT TO A RIGHT TO PER DIEM ON AND AFTER JUNE 19, 1959, WE HELD IN THE ABOVE-MENTIONED DECISION OF JANUARY 11, 1960, TO THE SECRETARY OF THE ARMY, THAT IN CASES WHERE THE ORDERS OF THE TYPE THERE INVOLVED WERE AMENDED PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY DIRECTED IN THE INITIAL ORDERS TO DESIGNATE A FIRST PERMANENT STATION, SUCH AMENDATORY ORDERS WOULD PLACE THE MEMBER IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY FROM THE DATE OF RECEIPT BY HIM OF THE AMENDATORY ORDERS.

IN THE CASES OF LIEUTENANTS PANJIAN AND LETOURNEAU THERE WERE SUBMITTED COPIES OF PERMANENT CHANGE OF STATION ORDERS (PARAGRAPH 65, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 114, DATED JUNE 9, 1959), WHICH RELEASED THEM FROM THEIR ASSIGNED DUTY AT FORT SAM HOUSTON, TEXAS, UPON COMPLETION OF THE COURSE OF INSTRUCTION THEY WERE ATTENDING AND DIRECTED THEM TO PROCEED TO A PERMANENT STATION. SINCE THOSE ORDERS WERE RECEIVED AT FORT SAM HOUSTON ON JUNE 15, 1959, AND THE COURSE OF INSTRUCTION THERE WAS COMPLETED ON AUGUST 14, 1959, THEY WERE PAID PER DIEM FOR THAT PERIOD UNDER THOSE ORDERS. WHILE NO SUCH ORDERS HAVE BEEN SUBMITTED IN YOUR CASE THE FILES IN THOSE CASES REVEAL THAT THE SAME ORDERS ASSIGNED YOU TO DUTY AT QUARTERMASTER RESEARCH AND ENGINEER COMMAND, NATICK, MASSACHUSETTS, UPON COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE ATTENDING AT FORT SAM HOUSTON, TEXAS. THEREFORE, YOUR LETTER WILL BE CONSIDERED AS A CLAIM FOR PER DIEM FOR THE PERIOD JUNE 15 THROUGH AUGUST 14, 1959, UNDER THE JUNE 9, 1959, ORDERS, AND A SETTLEMENT FOR THE AMOUNT FOUND DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.