B-213925, MAY 8, 1984, 63 COMP.GEN. 358

B-213925, MAY 8, 1984, 63 COMP.GEN. 358

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - AWAITING RELEASE A SERVICE MEMBER WAS TRANSFERRED FROM A PERMANENT UNACCOMPANIED TOUR OVERSEAS TO A TEMPORARY ASSIGNMENT FOR RETIREMENT PROCESSING AT KANSAS CITY, MISSOURI, WHICH WAS ALSO HIS ULTIMATE HOME OF SELECTION. HIS FAMILY HAD MAINTAINED THEIR RESIDENCE IN KANSAS CITY DURING HIS UNACCOMPANIED TOUR PRIOR TO HIS TRANSFER, AND HE LIVED AT THE FAMILY RESIDENCE WHILE AWAITING RETIREMENT, COMMUTING FROM THERE TO HIS DUTY STATION. HE WAS NOT ENTITLED TO PER DIEM AFTER HIS ARRIVAL AT THE TEMPORARY DUTY STATION, SINCE IN THESE CIRCUMSTANCES IT HAD THE EFFECTIVE STATUS OF A PERMANENT DUTY STATION.

MATTER OF: MASTER GUNNERY SERGEANT EDWARD W. LORD, USMC, MAY 8, 1984:

THE QUESTION IS WHETHER A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO RECEIVE PER DIEM WHILE HE WAS ASSIGNED TO A TEMPORARY DUTY STATION FOR RETIREMENT PROCESSING WHEN THE TEMPORARY DUTY STATION WAS ALSO HIS HOME OF SELECTION AND HIS PERMANENT RESIDENCE. /1/

PER DIEM IS NOT PAYABLE WHEN TEMPORARY DUTY IS PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION. WHEN THE TEMPORARY RETIREMENT PROCESSING DUTY STATION, PERMANENT RESIDENCE AND ULTIMATE HOME OF SELECTION ARE ALL IN THE SAME VICINITY, THE PERMANENT RESIDENCE HAS THE EFFECTIVE STATUS OF A PERMANENT DUTY STATION AND PAYMENT OF PER DIEM IS PRECLUDED.

MASTER GUNNERY SERGEANT EDWARD W. LORD, USMC, WHO WAS THEN STATIONED IN OKINAWA, JAPAN, RECEIVED PERMANENT CHANGE-OF-STATION ORDERS DATED FEBRUARY 17, 1983, DETACHING HIM FROM HIS OVERSEAS STATION IN JUNE 1983 AND TRANSFERRING HIM TO CAMP PENDLETON, CALIFORNIA, FOR TEMPORARY DUTY IN CONNECTION WITH RETIREMENT PROCESSING. THE ORDERS WERE MODIFIED ON MARCH 11, 1983, TO AUTHORIZE SERGEANT LORD TO TRAVEL TO KANSAS CITY, MISSOURI, AS THE PROCESSING CENTER OF HIS CHOICE FOR THE PURPOSE OF RETIREMENT ON SEPTEMBER 1, 1983. THE ORDERS WERE AGAIN MODIFIED ON MARCH 18, 1983, TO INCLUDE THE DESIGNATION OF SERGEANT LORD AS A "JUMPS COMEBACK TAPE COURIER," TO DELIVER PAY DATA TAPES AND OTHER DOCUMENTS TO THE MARINE CORPS FINANCE CENTER, KANSAS CITY, ON MAY 16, 1983.

SERGEANT LORD WAS DETACHED FROM OKINAWA ON MAY 15, 1983, AND REPORTED TO THE FINANCE CENTER IN KANSAS CITY ON MAY 20, 1983, FOR TEMPORARY DUTY WHILE AWAITING RETIREMENT PROCESSING. HIS ORDERS WERE ENDORSED TO SHOW THAT GOVERNMENT QUARTERS AND DINING FACILITIES WERE NOT AVAILABLE TO HIM AT THE FINANCE CENTER DURING THE PERIOD HE WAS AWAITING RETIREMENT PROCESSING.

SERGEANT LORD'S DETACHMENT FROM OKINAWA WAS ORIGINALLY SCHEDULED DURING JUNE TO ALLOW FOR 10 DAYS PROCESSING AND 75 DAYS TERMINAL LEAVE PRIOR TO HIS SCHEDULED RETIREMENT DATE OF AUGUST 31, 1983. HOWEVER, HE WAS DETACHED A MONTH EARLY FOR THE CONVENIENCE OF THE MARINE CORPS. APPARENTLY PERFORMED DUTY AT THE FINANCE CENTER UNTIL JULY 25 AT WHICH TIME HE WAS PLACED ON LEAVE UNTIL AUGUST 31, THE DATE OF HIS RETIREMENT.

UPON HIS INITIAL ASSIGNMENT TO OKINAWA ON A RESTRICTED TOUR (THAT IS, WITHOUT DEPENDENTS), SERGEANT LORD'S FAMILY REMAINED IN KANSAS CITY, AND MAINTAINED A HOUSEHOLD THERE. UPON REPORTING TO THE FINANCE CENTER IN KANSAS CITY, HE RESIDED IN THE SAME HOUSEHOLD WITH HIS DEPENDENTS AND COMMUTED FROM THAT RESIDENCE TO WORK. SERGEANT LORD'S ULTIMATE HOME OF SELECTION UPON RETIREMENT WAS KANSAS CITY.

UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, WHICH INCLUDES TRAVEL FROM HIS LAST DUTY STATION TO HIS HOME UPON RELEASE FROM ACTIVE DUTY OR RETIREMENT. 37 U.S.C. 404(A). THE JOINT TRAVEL REGULATIONS, VOLUME 1 (1 JTR) CONTAIN THE REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY.

SERGEANT LORD'S ORDERS SHOW THAT ALTHOUGH HE WAS USED AS A COURIER IN RETURNING TO THE UNITED STATES, HE WAS COMPLETELY DETACHED FROM HIS OVERSEAS ASSIGNMENT AND HIS TRANSFER TO THE MARINE CORPS FINANCE CENTER KANSAS CITY, WAS A TEMPORARY ASSIGNMENT FOR THE PRIMARY PURPOSE OF RETIREMENT PROCESSING. SEE MATTER OF VICKERS, B-206299, NOVEMBER 15, 1982, AND 53 COMP.GEN. 44 (1973).

WHILE SERGEANT LORD'S ASSIGNMENT AT KANSAS CITY WAS TEMPORARY, HE HAD NO OTHER PERMANENT STATION AT THAT TIME SINCE IT WAS CONTEMPLATED THAT HE WOULD BE RETIRED AND PROCEED TO HIS HOME OF SELECTION, ALSO KANSAS CITY. WHILE THESE CIRCUMSTANCES ARE NOT SPECIFICALLY COVERED, THE REGULATIONS DO PROVIDE THAT NO PER DIEM IS PAYABLE FOR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT STATION, OR AT A TEMPORARY DUTY STATION TO WHICH THE MEMBER COMMUTES DAILY FROM HIS PERMANENT QUARTERS. 1 JTR PARA. M4201-5 AND M4201-14. AND, WE HAVE HELD THAT WHEN THE PERMANENT RESIDENCE AND THE ULTIMATE HOME UPON RETIREMENT OR SEPARATION ARE WITHIN THE SAME METROPOLITAN AREA, AS THE TEMPORARY RETIREMENT PROCESSING STATION, OR SEPARATION STATION, THE MEMBER IS NOT ENTITLED TO PER DIEM BECAUSE THE TEMPORARY DUTY IS PERFORMED WITHIN THE LIMITS OF THE EFFECTIVE PERMANENT STATION, HIS HOME. SEE MATTER OF VICKERS, CITED ABOVE; B-134839, APRIL 25, 1958, AND 33 COMP.GEN. 55 (1953).

THE PURPOSE OF PER DIEM IS TO REIMBURSE A MEMBER FOR MEALS AND LODGING WHILE ON TEMPORARY DUTY, WHILE HE ALSO MAINTAINS A RESIDENCE AT HIS PERMANENT DUTY STATION. IN THIS CASE THE RATIONALE FOR PER DIEM DOES NOT EXIST. ACCORDINGLY, SERGEANT LORD IS NOT ENTITLED TO PER DIEM FOR THE PERIOD OF HIS ASSIGNMENT TO THE FINANCE CENTER.

IN ADDITION, THE QUESTION IS RAISED AS TO WHETHER THE SAME RESPONSE WOULD BE MADE HAD THE MEMBER MADE A HOME OF SELECTION AFTER THE TIME OF RETIREMENT, OR SELECTED A HOME AT A LOCATION OUTSIDE THE METROPOLITAN AREA OF THE PROCESSING STATION.

IN THESE CIRCUMSTANCES WHERE THE MEMBER RETURNED TO KANSAS CITY FOR RETIREMENT PROCESSING AND RESIDED WITH HIS FAMILY IN THE RESIDENCE WHICH THEY HAD PREVIOUSLY ESTABLISHED, NO PER DIEM WOULD BE PAYABLE EVEN IF HE DELAYED SELECTING KANSAS CITY AS HIS HOME UPON RETIREMENT UNTIL AFTER HE RETIRED, OR HE ULTIMATELY (WITHIN THE PRESCRIBED TIME LIMIT) SELECTED SOMEWHERE ELSE AS HIS HOME UPON RETIREMENT. THAT IS BECAUSE AT THE TIME HE WAS ON DUTY AT KANSAS CITY, HE WAS RESIDING IN HIS PERMANENT RESIDENCE FROM WHICH HE WAS COMMUTING TO HIS DUTY STATION. HOWEVER, IN THOSE CASES IN WHICH THE HOME OF SELECTION IS OUTSIDE THE METROPOLITAN AREA OF THE SEPARATION PROCESSING STATION AND THE MEMBER'S FAMILY HAD NOT ESTABLISHED IN ADVANCE A PERMANENT RESIDENCE IN THE AREA OF THE PROCESSING STATION, PER DIEM WOULD ORDINARILY BE PAYABLE PROVIDED THAT STATION WAS NOT THE MEMBER'S LAST PERMANENT STATION. SEE 53 COMP.GEN. 44, CITED ABOVE, AND 47 COMP.GEN. 166 (1967). THIS MAY BE CONSIDERED GENERAL GUIDANCE AND THE ACTUAL FACTS OF EACH CASE MUST, OF COURSE, BE CONSIDERED IN DETERMINING WHETHER PER DIEM IS AUTHORIZED.

/1/ THIS QUESTION WAS PRESENTED BY THE DISBURSING OFFICER, MARINE CORPS FINANCE CENTER, KANSAS CITY, MISSOURI, AND FORWARDED TO US BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, ALEXANDRIA, VIRGINIA. THE MATTER HAS BEEN ASSIGNED PDTATAC CONTROL NO. 83-22.