B-177085, JUL 23, 1973, 53 COMP GEN 44

B-177085, JUL 23, 1973, 53 COMP GEN 44

MILITARY PERSONNEL - SEPARATION - STATUS OF PERMANENT CHANGE OF STATION ORDERS A MILITARY OFFICER TRANSFERRED UNDER PERMANENT CHANGE OF STATION ORDERS FROM OVERSEAS TO FORT BENJAMIN HARRISON FOR SEPARATION WHO MOVED HIS DEPENDENTS TO THE NEW DUTY STATION WHERE THEY RESIDED IN RENTED OFF BASE HOUSING UNTIL HIS DISCHARGE IS NOT ENTITLED TO TRAVEL EXPENSES AND A DISLOCATION ALLOWANCE FOR HIS DEPENDENTS SINCE THE FORT AT NO TIME WAS THE OFFICER'S PERMANENT DUTY STATION, NOTWITHSTANDING HIS TRANSFER WAS DEEMED A PERMANENT CHANGE OF STATION AND HE WAS REASSIGNED TO SERVE AS EXECUTIVE OFFICER, AND THE MEMBER ON TEMPORARY DUTY WHILE AT THE FORT IS ENTITLED ONLY TO PER DIEM FOR THE 90 DAYS HE WAS AT THE FORT. WHETHER A DUTY ASSIGNMENT IS PERMANENT OR TEMPORARY IS DETERMINED BY CONSIDERING ORDERS, AND THE CHARACTER, PURPOSE, AND DURATION OF AN ASSIGNMENT, AND THE OFFICER'S ORDERS EVIDENCING DETACHMENT FROM OVERSEAS DUTY FOR SEPARATION, THE PERMANENT CHANGE OF STATION ORDERS AND INTERIM ASSIGNMENT AS EXECUTIVE OFFICER DID NOT CHANGE THE CHARACTER OF THE SEPARATION TRANSFER.

TO H. C. MCDANIEL, DEPARTMENT OF THE ARMY, JULY 23, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 13, 1972, WITH ENCLOSURES (FILE REFERENCE FINCS-A), REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO CAPTAIN VICTOR E. NOE, USAR, XXX-XX-XXXX, FOR TRAVEL AND TRANSPORTATION ALLOWANCES CLAIMED IN CONNECTION WITH HIS ORDERED TRANSFER FROM AN OVERSEAS DUTY STATION TO FORT BENJAMIN HARRISON, INDIANA, IN THE CIRCUMSTANCES DESCRIBED THEREIN. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE BY ENDORSEMENT DATED SEPTEMBER 21, 1972, AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 72-45.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 81, DATED MARCH 21, 1972, ISSUED BY HEADQUARTERS, 3D INFANTRY DIVISION, APO NEW YORK 09036, THE MEMBER WAS TRANSFERRED ON A CHANGE OF PERMANENT STATION FROM SCHWEINFURT, GERMANY, TO THE U.S. ARMY GARRISON TRANSFER POINT, FORT BENJAMIN HARRISON, INDIANA, TO REPORT ON APRIL 2, 1972, FOR THE PURPOSE OF SEPARATION PROCESSING ON JUNE 16, 1972. PURSUANT TO THE AUTHORITY OF THOSE ORDERS, THE MEMBER MOVED HIS DEPENDENTS FROM HIS LAST PERMANENT DUTY STATION TO FORT BENJAMIN HARRISON AND RESIDED IN RENTED OFF-BASE HOUSING UNTIL HIS DISCHARGE.

BY SPECIAL ORDERS NO. 69, DATED APRIL 7, 1972, ISSUED BY THE U.S. ARMY ADMINISTRATIVE SCHOOL CENTER AND FORT BENJAMIN HARRISON, THE MEMBER WAS REASSIGNED (DIVERTED) FROM THE U.S. ARMY GARRISON TRANSFER POINT TO HEADQUARTERS COMPANY, HEADQUARTERS COMMAND, FORT BENJAMIN HARRISON, AND HE WAS RELIEVED FROM HIS ASSIGNMENT (NOT JOINED) WITH THE U.S. ARMY GARRISON TRANSFER POINT. ON APRIL 21, 1972, SPECIAL ORDERS NO. 79 WERE ISSUED, AMENDING THE APRIL 7, 1972, ORDERS, DESIGNATING HIM AS EXECUTIVE OFFICER OF COMPANY C, HEADQUARTERS COMMAND, FORT BENJAMIN HARRISON. IT IS INDICATED THAT THE MEMBER PERFORMED THOSE DUTIES UNTIL HE WAS SEPARATED FROM THE SERVICE ON JUNE 16, 1972.

YOU SAY THAT THE PURPOSE FOR WHICH THE MEMBER WAS TRANSFERRED TO FORT BENJAMIN HARRISON WAS HIS ULTIMATE SEPARATION FROM THE SERVICE AND THAT HIS ASSIGNMENT TO DUTY WITH COMPANY C, HEADQUARTERS COMMAND, DID NOT CHANGE THIS FACT. HOWEVER, SINCE YOU INDICATE THAT THE MEMBER WAS NOT SCHEDULED FOR IMMEDIATE SEPARATION UNDER THE ORDER TRANSFERRING HIM TO FORT BENJAMIN HARRISON, YOU ASK THE FOLLOWING QUESTIONS:

(1) MAY FORT BENJAMIN HARRISON BE CONSIDERED THE MEMBER'S PERMANENT STATION TO ENTITLE HIM TO PAYMENT FOR TRAVEL PERFORMED HERE BY HIS DEPENDENTS AND TO A DISLOCATION ALLOWANCE?

(2) IN THE EVENT THIS DUTY IS CONSIDERED AS TEMPORARY IN NATURE, IS THE MEMBER ENTITLED TO BE PAID PER DIEM FOR THE PERIOD THAT HE REMAINED AT THE STATION?

(3) WOULD OUR ANSWER IN THIS CASE BE DIFFERENT IF THE MEMBER HAD REMAINED ASSIGNED TO THE U.S. ARMY GARRISON TRANSFER POINT UNTIL HIS SEPARATION AND HAD NOT BEEN ASSIGNED TO PERFORM DUTY AS EXECUTIVE OFFICER OF COMPANY C UNTIL SEPARATION? YOU INDICATE THAT OTHER MEMBERS HAVE BEEN TRANSFERRED TO FORT BENJAMIN HARRISON UNDER SIMILAR CIRCUMSTANCES EXCEPT THAT THEY HAVE REMAINED ASSIGNED TO THE TRANSFER POINT UNTIL SEPARATION.

SECTION 404 OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY AND, ALSO, UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FOR TRAVEL FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS (JTR), PROMULGATED PURSUANT TO THE ABOVE AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT A MEMBER IS DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM HIS PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING PERIODS OF TEMPORARY DUTY. PARAGRAPH M1150-10A OF THE REGULATIONS DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. SUBPARAGRAPH M3003-2A DEFINES "TEMPORARY DUTY" AS DUTY AT ONE OR MORE LOCATIONS, OTHER THAN AT THE PERMANENT STATION, AT WHICH A MEMBER PERFORMS DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT, OR PENDING FURTHER ASSIGNMENT, EITHER TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION UPON COMPLETION OF THE TEMPORARY DUTY.

WHETHER A PARTICULAR DUTY ASSIGNMENT IS PERMANENT OR TEMPORARY IN NATURE IS DETERMINED BY CONSIDERING THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND THE CHARACTER OF THE ASSIGNMENT ITSELF, WITH THE PURPOSE AND DURATION OF THE ASSIGNMENT BEING VITAL ELEMENTS IN THAT DETERMINATION. DEFINITION, THE WORD "TEMPORARY" IS A TERM OF LIMITATION WHICH INDICATES A PERIOD OF RELATIVELY SHORT DURATION AND OF A TRANSITORY NATURE WITH RESPECT TO THE PURPOSE OF THE ASSIGNMENT. IT HAS BEEN SO USED WITH REFERENCE TO TEMPORARY DUTY ASSIGNMENTS. SEE 24 COMP. GEN. 667 (1945). WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT, AS REFLECTED IN THE ORDERS DIRECTING ITS PERFORMANCE, ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH DETERMINATION, IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A CONTRARY FACTUAL SITUATION. SEE B-139112, MAY 27, 1959, COPY ENCLOSED.

IN THE PRESENT CASE, THE MEMBER'S ORDERS SHOW THAT HE WAS COMPLETELY DETACHED FROM HIS OVERSEAS ASSIGNMENT AND THAT HIS TRANSFER TO FORT BENJAMIN HARRISON WAS DEEMED A PERMANENT CHANGE OF STATION ASSIGNMENT. HOWEVER, IT SEEMS REASONABLY CLEAR FROM THE FACT THAT THE ORDERS STATE THAT THE MEMBER WAS ASSIGNED TO THAT LOCATION FOR THE PURPOSE OF SEPARATION PROCESSING AND THE FACT THAT THE TOTAL PERIOD THAT HE WAS TO BE AT THAT LOCATION DID NOT EXCEED 90 DAYS, THAT THE CHARACTER OF THE DUTY TO BE PERFORMED AND THE LIMITED DURATION OF THE MEMBER'S ASSIGNMENT DELINEATED A DUTY STATUS WHICH WAS TEMPORARY RATHER THAN PERMANENT.

WHILE AT A SEPARATION STATION IN A TEMPORARY DUTY STATUS, A MEMBER AUTHORIZED TO TRAVEL FROM HIS LAST PERMANENT DUTY STATION TO A SEPARATION STATION OF HIS OWN CHOICE FOR HIS OWN CONVENIENCE, IS ENTITLED TO PER DIEM ALLOWANCES EXCEPT WHERE THE APPROPRIATE SEPARATION STATION AUTHORIZED BY SERVICE REGULATIONS IS AT THE MEMBER'S LAST PERMANENT DUTY STATION (SUBPAR. M4157-1C, JTR).

CAPTAIN NOE HAS INDICATED THAT WHILE ON DUTY OVERSEAS HE RECEIVED NOTIFICATION FROM THE DEPARTMENT OF THE ARMY ON MARCH 18, 1972, THAT HE WAS TO BE RELEASED FROM THE ARMY ON THE 90TH DAY AFTER NOTIFICATION. ADDITIONALLY, HE WAS INFORMED THAT HE COULD REQUEST ANY PLACE OF ASSIGNMENT WITHIN THE UNITED STATES PROVIDED IT HAD A TRANSFER POINT. CONSEQUENTLY, CAPTAIN NOE REQUESTED ASSIGNMENT TO FORT BENJAMIN HARRISON. IN SUCH CIRCUMSTANCES, THE OFFICER IS ENTITLED TO PER DIEM ALLOWANCES WHILE ON TEMPORARY DUTY AT THAT STATION.

WITH REGARD TO THE MEMBER HAVING BEEN DISJOINED AND TRANSFERRED FROM THE U.S. ARMY GARRISON TRANSFER POINT AND ASSIGNED TO PERFORM DUTY ELSEWHERE AT FORT BENJAMIN HARRISON, IT WOULD APPEAR THAT SUCH ASSIGNMENT WAS MADE FOR THE PURPOSE OF UTILIZING THE MEMBER'S SERVICES PENDING SEPARATION FROM ACTIVE DUTY. SINCE THE RECORD INDICATES THAT THE MEMBER WAS SEPARATED FROM THE SERVICE ON OR ABOUT THE DATE THAT HE WAS ORIGINALLY SCHEDULED FOR SEPARATION, IT IS OUR VIEW THAT SUCH AN INTERIM ASSIGNMENT DID NOT REPRESENT A CHANGE IN THE CHARACTER OF HIS ASSIGNMENT AT FORT BENJAMIN HARRISON.

ACCORDINGLY, YOUR FIRST AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE AND YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.