B-138900, JANUARY 11, 1960, 39 COMP. GEN. 511

B-138900, JANUARY 11, 1960, 39 COMP. GEN. 511

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TRAINING OR SCHOOL ASSIGNMENT - CALIFANO CASE A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT MAY NOT HAVE THE PLACE AT WHICH THE SECOND OR SUBSEQUENT PERIODS OF TEMPORARY DUTY ARE PERFORMED CONSIDERED AS OTHER THAN THE MEMBER'S ONLY POST OF DUTY TO PLACE THE MEMBER IN A TRAVEL STATUS FOR PER DIEM PURPOSES. 38 COMP. GEN. 849, CLARIFIED.

TO THE SECRETARY OF THE NAVY, JANUARY 11, 1960:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 29, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) CONCERNING OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, TO THE SECRETARY OF DEFENSE, CONCERNING THE RULING OF THE COURT IN THE CASE OF CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58.

IN THE DECISION OF JUNE 19, 1959, IT WAS APPOINTED OUT THAT IN THE CASE OF CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR 4 MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. WE STATED IN THE DECISION OF JUNE 19, 1959 THAT FROM THE DATE OF THAT DECISION WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. STATED FURTHER, HOWEVER, THAT THE DECISION WAS NOT TO BE CONSTRUED AS PROHIBITING THE PAYMENT OF PER DIEM, IN OTHERWISE PROPER CASES, WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO TEMPORARY DUTY, AND THE ORDERS DESIGNATE A SPECIFIC DUTY STATION TO WHICH HE IS TO TRAVEL TO AND REPORT FOR DUTY UPON COMPLETION OF THE TEMPORARY DUTY.

THE LETTER OF THE ASSISTANT SECRETARY IS IN PART AS FOLLOWS:

ADMINISTRATIVE CONSIDERATIONS FREQUENTLY REQUIRE THAT MEMBERS ORDERED FROM THEIR HOMES WILL PERFORM MORE THAN ONE PERIOD OF TEMPORARY DUTY PRIOR TO THEIR REACHING AN ULTIMATE PERMANENT DUTY STATION. QUESTIONS HAVE ARISEN IN THESE CASES CONCERNING THE EXISTENCE OF PER DIEM ALLOWANCE ENTITLEMENT DURING THE SECOND (AND SUBSEQUENT) PERIODS OF SUCH TEMPORARY DUTY. THE FOLLOWING CASES ARE GIVEN AS TYPICAL EXAMPLES OF THESE SITUATIONS. WHILE ONLY ONE ADDITIONAL TEMPORARY DUTY STATION IS PROPOSED IN THE EXAMPLES, IT SHOULD BE NOTED THAT ON OCCASION THERE MAY BE SEVERAL SUCH ASSIGNMENTS PRIOR TO A MEMBER RECEIVING ORDERS WHICH DESIGNATE A PERMANENT DUTY STATION.

CASE 1: A MEMBER IS ORDERED FROM HOME TO TEMPORARY DUTY UNDER ORDERS WHICH DIRECT THAT ON COMPLETION THEREOF HE WILL PROCEED TO ANOTHER LOCATION FOR FURTHER TEMPORARY DUTY AND FURTHER ASSIGNMENT.

CASE 2: A MEMBER IS ORDERED FROM HOME TO TEMPORARY DUTY UNDER ORDERS WHICH INDICATE ONLY THAT ON COMPLETION HE WILL BE FURTHER ASSIGNED. PRIOR TO COMPLETION OF THIS TEMPORARY DUTY HE RECEIVES FURTHER ORDERS WHICH DIRECT HIM TO ANOTHER LOCATION FOR ADDITIONAL TEMPORARY DUTY AND FURTHER ASSIGNMENT.

CASE 3: A MEMBER IS ORDERED FROM HOME TO OFFICER CANDIDATE SCHOOL FOR TEMPORARY ACTIVE DUTY FOR A PERIOD OF INDOCTRINATION AND ON COMPLETION TO FURTHER ACTIVE DUTY (THE USUAL WORDING OF SUCH ORDERS). ON COMPLETION OF THE OFFICER CANDIDATE COURSE, HE RECEIVES NEW ORDERS TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT.

CASE 4: A NEWLY ENLISTED MEMBER, ON COMPLETION OF BASIC TRAINING, RECEIVES ORDERS TO TEMPORARY DUTY AND FURTHER ASSIGNMENT. THE TEMPORARY DUTY INVOLVED IS NOT OF A NATURE FOR WHICH PER DIEM ALLOWANCE PAYMENTS ARE PROHIBITED BY JOINT TRAVEL REGULATIONS, PARAGRAPH 4201, ITEM 12.)

IN THE ABOVE CASES, IT APPEARS REASONABLE TO CONCLUDE THAT ONCE THE MEMBER DEPARTS FROM THE LOCATION OF HIS FIRST TEMPORARY DUTY OR INDOCTRINATION, HE ENTERS A TRAVEL STATUS, SINCE HE THEN HAS BEEN REQUIRED TO PERFORM TRAVEL AWAY FROM A DESIGNATED POST OF DUTY, AND IS THEREFORE ENTITLED TO PAYMENT OF OTHERWISE PROPER PER DIEM ALLOWANCES. IN ADDITION, IT APPEARS THAT CASE 1 MIGHT BE CONSIDERED TO FALL WITHIN THE AREA OF YOUR CITED DECISION IN WHICH YOU STATE THAT PAYMENT OF PER DIEM ALLOWANCES IN CONNECTION WITH TEMPORARY DUTY AT HIS INITIAL DESIGNATED POST OF DUTY WAS NOT PROHIBITED IN THE CASE OF A MEMBER ORDERED FROM HOME TO TEMPORARY DUTY UNDER ORDERS "WHICH DESIGNATE A SPECIFIC DUTY STATION TO WHICH HE IS TO TRAVEL AND REPORT FOR DUTY ON COMPLETION OF THE TEMPORARY DUTY.' WHILE IN THE CIRCUMSTANCES CONTEMPLATED IN CASE 1, NO ULTIMATE PERMANENT DUTY STATION IS NAMED, AN ADDITIONAL DUTY STATION TO WHICH THE MEMBER MUST TRAVEL AND REPORT IS INDICATED IN THE ORDERS.

YOUR DECISION IS THEREFORE REQUESTED CONCERNING WHETHER PER DIEM ALLOWANCES MAY BE PAID TO MEMBERS IN THE CIRCUMSTANCES OUTLINED IN CASES 1 THROUGH 4, WHILE AT TEMPORARY DUTY STATIONS SUBSEQUENT TO THE ONE TO WHICH THEY WERE ORDERED FROM THEIR HOMES AND, IN ADDITION, WHETHER IN THE CIRCUMSTANCES APPLICABLE TO CASE 1, PER DIEM ENTITLEMENT CAN ALSO BE CONSIDERED TO EXIST DURING THE INITIAL PERIOD OF TEMPORARY DUTY.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION PARAGRAPH 1150-10B STATES THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION AS A STUDENT TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS 20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT STATION.

A MEMBER WHO IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT, MAY NOT BE CONSIDERED FOR THE PERIODS OF SUCH TEMPORARY DUTY AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE APPLICABLE PROVISIONS OF THE STATUTE AND REGULATIONS SO AS TO BE ENTITLED TO PER DIEM. IN SUCH CIRCUMSTANCES, AND IRRESPECTIVE OF ANY EARLIER TEMPORARY DUTY PERFORMED AT ANOTHER PLACE, THE PLACE AT WHICH HE IS CURRENTLY PERFORMING TEMPORARY DUTY CONSTITUTES HIS ONLY DESIGNATED POST OF DUTY AND, HENCE, WHILE SO SERVING HE WOULD NOT BE TRAVELING AWAY FROM A PERMANENT STATION. ON THIS BASIS, THE ANSWERS TO THE QUESTIONS PRESENTED ARE AS FOLLOWS:

IN CASE (1) THE MEMBER WOULD NOT BE ENTITLED TO PER DIEM DURING THE INITIAL PERIOD OF TEMPORARY DUTY, OR DURING THE SUBSEQUENT PERIOD, SINCE THE ORDERS DO NOT DESIGNATE A SPECIFIC PERMANENT DUTY STATION TO WHICH HE IS TO REPORT UPON COMPLETION OF THE PERIODS OF TEMPORARY DUTY.

IN CASE (2) THE ANSWER IS THE SAME AS THE ANSWER IN CASE (1).

IN CASE (3) IT WOULD APPEAR THAT THE INITIAL ORDERS, PRESUMABLY TO A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE, IF WRITTEN AS THERE INDICATED, WOULD CONSTITUTE THE OFFICER CANDIDATE SCHOOL THE MEMBER'S PERMANENT DUTY STATION AND, HENCE, HE WOULD NOT BE PRECLUDED FROM RECEIVING PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY AWAY FROM THE SCHOOL PERFORMED UNDER TEMPORARY DUTY ORDERS WHICH FALL WITHIN PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS.

IN CASE (4) THE MEMBER WOULD NOT BE ENTITLED TO PER DIEM.

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, AS HEREIN CLARIFIED, IS AFFIRMED.

THERE ARE ENCLOSED FOR YOUR INFORMATION COPIES OF OUR LETTERS OF TODAY TO THE SECRETARY OF THE AIR FORCE AND THE SECRETARY OF THE ARMY CONCERNING THE MATTER HERE INVOLVED.