B-162622, SEPTEMBER 19, 1969, 49 COMP. GEN. 173

B-162622, SEPTEMBER 19, 1969, 49 COMP. GEN. 173

SUBSISTENCE -- PER DIEM -- MILITARY PERSONNEL -- TEMPORARY DUTY -- CONTINUOUS MISSION V NONCONTINUOUS TRAVEL MEMBERS OF THE UNIFORMED SERVICES ATTACHED TO A FLEET TACTICAL SUPPORT SQUADRON, NAVAL AIR STATION, NORFOLK, VIRGINIA, WHO, ORDERED TO PERFORM TWO FLIGHTS TO CECIL FIELD, FLORIDA, AND RETURN TO CARRY PASSENGERS AND CARGO, DEPART AT 3:40 P.M. ON THE FIRST FLIGHT, RETURNING AT 11:20 P.M. (7 HOURS AND 40 MINUTES), AND AT 1:15 A.M. THE NEXT DAY DEPART ON THE SECOND FLIGHT, RETURNING TO NORFOLK AT 6:40 A.M. (5 HOURS AND 25 MINUTES) ARE NOT ENTITLED TO ANY PER DIEM INCIDENT TO THE MISSION. ALTHOUGH ON A CONTINUOUS MISSION, THE MEMBERS WERE NOT IN A CONTINUOUS TRAVEL STATUS, HAVING RETURNED TO THEIR PERMANENT DUTY STATION FOR THE PERFORMANCE OF DUTY--PASSENGER AND CARGO DISCHARGE- THUS INTERRUPTING THEIR TRAVEL AND SEPARATING THE TRAVEL INTO TWO DISTINCT PERIODS OF LESS THAN 10 HOURS TO PRECLUDE PAYMENT UNDER PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS.

TO LIEUTENANT N. H. BURNS, DEPARTMENT OF THE NAVY, SEPTEMBER 19, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1969, FILE REFERENCE 40G30:NJB:PEW, 4650/1, FORWARDED HERE BY 1ST INDORSEMENT DATED JUNE 25, 1969, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT ON TWO VOUCHERS SUBMITTED BY TWO OFFICERS AND TWO ENLISTED MEMBERS, RESPECTIVELY, ATTACHED TO FLEET TACTICAL SUPPORT SQUADRON ONE, NAVAL AIR STATION, NORFOLK, VIRGINIA, FOR PER DIEM INCIDENT TO A MISSION PERFORMED ON JULY 17 AND 18, 1968. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 69-17.

THE PAPERS SUBMITTED WITH YOUR REQUEST SHOW THAT PURSUANT TO NAVAL AIR LOGISTIC CONTROL OFFICE, U. S. ATLANTIC FLEET, MESSAGE 171601Z JULY 1968, A FLIGHT ORDER WAS ISSUED ON JULY 17, 1968, AUTHORIZING LIEUTENANT COMMANDER ROBERT R. ROEHREN AND CREW MEMBERS LIEUTENANT WILLIAM G. CLEMENTS, ADR1 R. HANNEWALD, AND ABE1 L. C. VINEYARD, OF FLEET TACTICAL SUPPORT SQUADRON ONE, NAVAL AIR STATION, NORFOLK, VIRGINIA, TO PERFORM TWO FLIGHTS TO CECIL FIELD, FLORIDA, AND RETURN TO NORFOLK, FOR PASSENGER AND CARGO PICKUP, WITH SCHEDULED TIME OF DEPARTURE AS 2 P. M., JULY 17, 1968, AND EXPECTED TIME OF RETURN UPON COMPLETION OF THE MISSION AS 4 A. M., ON THE FOLLOWING DAY.

AFTER COMPLETION OF THEIR MISSION, TWO TRAVEL VOUCHERS TO COVER PER DIEM FOR THE MEMBERS INCIDENT TO THAT MISSION WERE SUBMITTED FOR PAYMENT. THE ITINERARY SHOWN ON THOSE VOUCHERS IS AS FOLLOWS:

DEPART NORFOLK 3:45 P.M., JULY 17

ARRIVE CECIL FIELD 6:10 " " "

DEPART CECIL FIELD 8:45 " " "

ARRIVE NORFOLK 11:20 " " "

DEPART NORFOLK 1:15 A.M., JULY 18

ARRIVE CECIL FIELD 3:40 " ""

DEPART 4:15 " " "

ARRIVE NORFOLK 6:40 " " "

IT APPEARS FROM THE ABOVE ITINERARY THAT THE DURATION OF THE MISSION WAS 15 HOURS AND THAT 1 HOUR AND 55 MINUTES OF THAT TIME WAS SPENT AT THE MEMBERS' PERMANENT DUTY STATION, NORFOLK. IT ALSO APPEARS THAT ON JULY 17 THE MEMBERS RETURNED TO NORFOLK AFTER HAVING BEEN AWAY THEREFROM FOR 7 HOURS AND 40 MINUTES AND ON JULY 18 THEY RETURNED TO THAT STATION AFTER HAVING BEEN AWAY THEREFROM FOR 5 HOURS AND 25 MINUTES.

THE QUESTION CONCERNING THE ENTITLEMENT OF THE SUBJECT MEMBERS TO THE PER DIEM ALLOWANCE WAS INITIALLY POSED BY THE COMMANDING OFFICER, FLEET TACTICAL SUPPORT SQUADRON ONE, IN A LETTER DATED OCTOBER 28, 1968, TO THE OFFICE OF THE NAVY COMPTROLLER. IN THIS CONNECTION, HE SAYS THAT THE REGIONAL FINANCE CENTER, NAVAL BASE, NORFOLK, HAS DENIED PAYMENT OF PER DIEM ON TRAVEL VOUCHERS COVERING SUCH FLIGHTS ON THE CONTENTION, BASED ON PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS, THAT EACH STOP AT NORFOLK TERMINATED THE FLIGHT FOR THE PURPOSES OF PER DIEM. ALSO, IN EXPRESSING THE BELIEF THAT THE ENTITLEMENT TO PER DIEM IN SUCH CASES SHOULD NOT END UNTIL THE COMPLETION OF THE "TEMPORARY ADDITIONAL DUTY" AT THE COMPLETION OF THE FLIGHT, HE SAYS THAT:

MANY FLIGHT ADVISORIES ISSUED BY COMNAVAIRLANT DIRECT THAT THE AIRCRAFT RETURN TO NORFOLK ENROUTE TO THE NEXT STOP, OR TO PROVIDE A SHUTTLE SERVICE BETWEEN NORFOLK AND OTHER STATIONS. NORMALLY THESE FLIGHTS ARE IN EXCESS OF TEN (10) HOURS IN THE CALENDAR DAY, OR EXTEND INTO THE NEXT CALENDAR DAY. ALL STOPS AT NORFOLK DURING THE FLIGHT ARE DIRECTED FOR THE PURPOSE OF EMBARKING OR DEBARKING PERSONNEL AND/OR CARGO AND ARE ON THE GROUND LESS THAN TWO (02) HOURS. ALL STOPS AT NORFOLK ARE INCIDENT TO THE FLIGHT AND DO NOT TERMINATE EITHER THE FLIGHT, OR THE ORDER TO CONDUCT THE FLIGHT.

IN YOUR LETTER DATED APRIL 4, 1969, YOU REFERRED TO PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS AND YOU REQUESTED OUR DECISION AS TO WHETHER OR NOT MEMBERS ATTACHED TO FLEET TACTICAL SUPPORT SQUADRONS ARE ENTITLED TO PER DIEM WHEN A FLIGHT IS REQUIRED TO RETURN THEM TO THE PERMANENT STATION WITHIN A 10-HOUR PERIOD IN THE SAME CALENDAR DAY PRIOR TO COMPLETION OF THE MISSION OR WHETHER THE TOTAL TIME REQUIRED TO COMPLETE THE MISSION SHOULD BE USED WITHOUT REGARD TO THE INTERVENING RETURN TO THE PERMANENT STATION.

IN COMMENTING ON THE ISSUE IN THIS MATTER, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE STATED THAT THE SITUATION CONTEMPLATED IN PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS IS DIRECTED TO A MEMBER WHO DEPARTS FROM HIS PERMANENT DUTY STATION AND RETURNS THERETO WITHIN A 10-HOUR PERIOD IN THE SAME CALENDAR DAY NO FURTHER TRAVEL TO BE PERFORMED AWAY FROM THAT STATION IN THAT CALENDAR DAY AND, THEREFORE, IT WAS NOT INTENDED THAT THE PROVISIONS OF THAT PARAGRAPH SHOULD APPLY TO THE SITUATION PRESENTED IN THIS CASE.

SECTION 404(A) OF TITLE 37, U. S. CODE, AUTHORIZES, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES, THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY" REGARDLESS OF THE LENGTH OF TIME HE IS AWAY FROM THAT POST. SUBSECTION (E) PROVIDES THAT A MEMBER WHO IS ON DUTY WITH, OR IS UNDERGOING TRAINING FOR, THE MILITARY AIRLIFT COMMAND, THE MARINE CORPS TRANSPORT SQUADRONS, THE FLEET TACTICAL SUPPORT SQUADRONS, OR THE NAVAL AIRCRAFT FERRYING SQUADRONS, AND WHO IS AWAY FROM HIS PERMANENT STATION, MAY BE PAID A PER DIEM IN LIEU OF SUBSISTENCE IN AN AMOUNT NOT MORE THAN THE AMOUNT TO WHICH HE WOULD BE ENTITLED IF HE WERE PERFORMING TRAVEL IN CONNECTION WITH TEMPORARY DUTY WITHOUT, IN EITHER CASE, THE ISSUANCE OF ORDERS FOR SPECIFIC TRAVEL.

PARAGRAPH M5150 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE FOREGOING STATUTORY AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ON DUTY WITH OR UNDER TRAINING FOR THE ABOVE-NAMED MILITARY AIR TRANSPORT ORGANIZATIONS WHILE ON DUTY AWAY FROM THEIR PERMANENT STATIONS ARE AUTHORIZED PER DIEM ALLOWANCES AS CONTAINED IN CHAPTER 4, PARTS E AND F, OF THE REGULATIONS, WITHOUT THE ISSUANCE OF ORDERS FOR SPECIFIC TRAVEL. PARAGRAPH M3050 OF THE REGULATIONS PROVIDES THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS ONLY WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION ON PUBLIC BUSINESS PURSUANT TO COMPETENT ORDERS, SUCH STATUS TO COMMENCE WITH DEPARTURE FROM THE PERMANENT DUTY STATION AND TO TERMINATE WITH RETURN THERETO.

IN DECISION DATED MARCH 4, 1968, 47 COMP. GEN. 477, WE SAID THAT WHILE MEMBERS OF THE MILITARY ORGANIZATIONS NAMED IN 37 U.S.C. 404(E) ARE NOT IN A TRAVEL STATUS WITHIN THE CONTEMPLATION OF PARAGRAPH M3050 WHEN AWAY FROM THEIR PERMANENT STATION, THAT SECTION EXPRESSLY ASSIMILATES THEM TO MEMBERS IN A TRAVEL STATUS FOR PER DIEM PURPOSES IN CERTAIN CASES WHEN ABSENT FROM THEIR DUTY STATIONS. SUCH MEMBERS, HOWEVER, HAVE NO GREATER RIGHTS FOR PER DIEM PURPOSES UPON RETURN TO THEIR DUTY STATIONS THAN MEMBERS UNDER SECTION 404(A) WHOSE TRAVEL STATUS TERMINATES, UNDER THE EXPRESS PROVISIONS OF PARAGRAPH M3050 OF THE REGULATIONS, UPON RETURN TO THE PERMANENT DUTY STATION. ALSO, PARAGRAPH M4205-4 OF THE REGULATIONS, MADE APPLICABLE TO THE MEMBERS BY PARAGRAPH M5150, PROVIDES THAT NO PER DIEM ALLOWANCE IS AUTHORIZED FOR A ROUND TRIP PERFORMED ENTIRELY WITHIN A 10-HOUR PERIOD OF THE SAME CALENDAR DAY.

AS INDICATED ABOVE, PRIOR TO THE COMPLETION OF THEIR MISSION AND FINAL RETURN TO NORFOLK AT 6:40 A.M., JULY 18, 1968, COMMANDER ROEHREN AND THE THREE CREW MEMBERS RETURNED TO NORFOLK FOR PASSENGER AND CARGO DISCHARGE IN COMPLIANCE WITH THEIR FLIGHT ORDER. THEREFORE, WHILE THEIR MISSION MAY HAVE BEEN CONTINUOUS, THEIR TRAVEL STATUS WAS NOT SINCE THEY WERE REQUIRED TO RETURN TO THEIR PERMANENT DUTY STATION FOR THE PERFORMANCE OF DUTY. ARE OF THE OPINION THAT THE DIRECTED RETURN TO THE PERMANENT DUTY STATION INTERRUPTED THE MEMBERS' TRAVEL, RESULTING IN TWO SEPARATE PERIODS OF TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION IN THE PERFORMANCE OF THE MISSION.

SINCE THE MEMBERS WERE AWAY FROM THEIR PERMANENT DUTY STATION FOR ROUND TRIPS OF LESS THAN 10 HOURS EACH ON THE DAYS OF JULY 17 AND 18, 1968, THE PAYMENT OF PER DIEM FOR THOSE PERIODS IS PRECLUDED BY PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS. CF. 19 COMP. GEN. 846 (1940).

YOUR QUESTION IS ANSWERED ACCORDINGLY. THE VOUCHERS AND SUPPORTING PAPERS WILL BE RETAINED HERE.