B-130765, OCT. 11, 1965

B-130765, OCT. 11, 1965

TO MR. B. REYNOLDS, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1965, FM 100 NCA SA:MJ, REQUESTING A DECISION AS TO THE ENTITLEMENT OF ENSIGN WILFORD R. TAYLOR, 679647/1105, USNR, TO REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FROM MINDEN, LOUISIANA, TO NEWPORT, RHODE ISLAND, FEBRUARY 12 TO 15, 1964, AND FROM NEWPORT, RHODE ISLAND, TO NORFOLK, VIRGINIA, APRIL 3 TO JUNE 19, 1964, AND DISLOCATION ALLOWANCE, OR PER DIEM FOR THE PERIOD FEBRUARY 16 TO APRIL 2, 1964, AS AN ALTERNATIVE. THE REQUEST WAS ASSIGNED CONTROL NO. 65 -27 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BASED ON BUREAU OF NAVAL PERSONNEL NOCAR 437712 OF JUNE 5, 1963, MR. TAYLOR WAS ORDERED TO ACTIVE DUTY FROM MINDEN, LOUISIANA, BY UNDATED ORDERS WHICH DIRECTED HIM TO REPORT TO THE U.S. NAVAL SCHOOLS COMMAND, NEWPORT, RHODE ISLAND, ON SEPTEMBER 21, 1963, FOR INDOCTRINATION, UPON COMPLETION OF WHICH HE WAS TO BE APPOINTED AN ENSIGN IN THE U.S. NAVAL RESERVE. BY BUREAU OF NAVAL PERSONNEL ORDER 042577, DATED JANUARY 22, 1964, UPON ACCEPTANCE OF APPOINTMENT AS ENSIGN, THE MEMBER WAS TO REPORT TO NAVAL JUSTICE SCHOOL, NAVAL BASE, NEWPORT, RHODE ISLAND, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR ABOUT 7 WEEKS COMMENCING FEBRUARY 16, 1964, UPON COMPLETION OF WHICH HE WAS TO PROCEED TO THE PORT IN WHICH THE U.S.S. TELFAIR (APA-210) MIGHT BE, FOR DUTY. ENDORSEMENTS ON THOSE ORDERS SHOW HE WAS COMMISSIONED ON FEBRUARY 7, 1964; THAT HE REPORTED AT THE SCHOOL FOR TEMPORARY DUTY UNDER INSTRUCTIONS ON FEBRUARY 15, 1964; THAT THE COURSE OF INSTRUCTIONS AND TEMPORARY DUTY WERE COMPLETED APRIL 3, 1964, AND THAT HE REPORTED ABOARD THE U.S.S. TELFAIR (APA-210) FOR DUTY ON APRIL 19, 1964. THUS, HE WAS AT NEWPORT AS AN OFFICER CANDIDATE AND AS A COMMISSIONED OFFICER FROM SEPTEMBER 21, 1963, TO APRIL 3, 1964, A PERIOD OF OVER 27 WEEKS.

THE MEMBER WAS PAID PER DIEM OF $164.50 FOR THE PERIOD FEBRUARY 16 TO APRIL 2, 1964, ON THE BASIS THAT HE WAS ON TEMPORARY DUTY UNDER INSTRUCTION AT THE NAVAL JUSTICE SCHOOL. ON MAY 14, 1965, A PAY ADJUSTMENT AUTHORIZATION WAS ISSUED IN THAT AMOUNT IT HAVING BEEN ADMINISTRATIVELY DETERMINED THAT THERE WAS NO ENTITLEMENT TO PER DIEM FOR THAT PERIOD.

THE TRAVEL OF THE DEPENDENTS FROM MINDEN TO NEWPORT IN FEBRUARY 1964 APPARENTLY WAS INCIDENT TO THE MEMBER'S ASSIGNMENT TO THE NAVAL JUSTICE SCHOOL BY THE ORDERS OF JANUARY 22, 1964. THEY RETURNED TO MINDEN IN APRIL 1964 AND REMAINED THERE UNTIL JUNE 1964 WHILE THE VESSEL WAS ON DEPLOYMENT IN THE MEDITERRANEAN. THEY SUBSEQUENTLY TRAVELED FROM MINDEN TO NORFOLK, VIRGINIA, THE HOME PORT OF THE VESSEL, ARRIVING THERE ON JUNE 19, 1964.

YOU SAY THAT THE MEMBER BELIEVES THAT IF OUR DECISION B-130765 OF APRIL 12, 1965, WHICH APPARENTLY PROVIDED THE BASIS FOR ISSUANCE OF THE PAY ADJUSTMENT AUTHORIZATION OF MAY 14, 1965, REQUIRES DENIAL OF PER DIEM FOR TEMPORARY DUTY AT NEWPORT, HE SHOULD BE REIMBURSED FOR TRAVEL OF HIS DEPENDENTS FROM THEIR HOME TO NEWPORT; THAT IF ENTITLED TO THE TRAVEL FROM HOME TO NEWPORT, HE SHOULD BE REIMBURSED ALSO FOR TRAVEL OF DEPENDENTS TO NORFOLK AND PAID A DISLOCATION ALLOWANCE; AND THAT IF REIMBURSEMENT FOR TRAVEL OF DEPENDENTS AND DISLOCATION ALLOWANCE ARE NOT PAYABLE ON EITHER MOVE HE SHOULD BE REPAID A PER DIEM FOR THE PERIOD OF TEMPORARY DUTY UNDER INSTRUCTION AT THE NAVAL JUSTICE SCHOOL.

THE DECISION OF APRIL 12, 1965, TO WHICH YOU REFER INVOLVED THE PROPRIETY OF PAYMENT OF PER DIEM TO OFFICER CANDIDATES ASSIGNED TO THE U.S. NAVAL SCHOOLS COMMAND AT NEWPORT, WHO HAD BEEN COMMISSIONED AS OFFICERS, FOR TEMPORARY DUTY UNDER INSTRUCTION AT THE U.S. NAVAL JUSTICE SCHOOL AT NEWPORT PURSUANT TO ORDERS WHICH NAMED A SUBSEQUENT PERMANENT STATION AWAY FROM NEWPORT, THE MEMBERS HAVING BEEN ORDERED AS ENLISTED MEMBERS TO THE U.S. NAVAL OFFICER SCHOOL FROM CIVILIAN LIFE. SINCE THE LENGTH OF THE COMBINED COURSES AT NEWPORT COVERED A PERIOD OF APPROXIMATELY 25 WEEKS NEWPORT WAS REGARDED AS A PERMANENT STATION AND IT WAS HELD THAT NO PER DIEM WAS PAYABLE. IN THE PRESENT CASE, IT MUST BE CONCLUDED THAT PER DIEM IS NOT PAYABLE TO ENSIGN TAYLOR FOR THE TEMPORARY DUTY AT NEWPORT SINCE IT SIMILARLY WAS A PERMANENT STATION BY VIRTUE OF THE DURATION OF THE COMBINED DUTY ASSIGNMENTS THERE WHICH EXCEEDED 27 WEEKS. SEE PARAGRAPH M4201-4, JOINT TRAVEL REGULATIONS.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION FOR DEPENDENTS UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH GRADES, RANKS, AND RATINGS AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH M7000-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT TRANSPORTATION IS NOT AUTHORIZED ON PERMANENT CHANGE OF STATION FOR DEPENDENTS OF ENLISTED MEMBERS IN PAY GRADES E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2, AND E-1. IT IS REPORTED THAT NAVY PERSONNEL ENTERING OFFICER CANDIDATE SCHOOL DIRECTLY FROM CIVILIAN LIFE ARE IN A SPECIAL ENLISTED STATUS EQUIVALENT TO GRADE E-1. THUS, MR. TAYLOR WAS NOT AUTHORIZED TRAVEL OF HIS DEPENDENTS INCIDENT TO THE ORDERS DIRECTING HIM TO PROCEED FROM HIS HOME TO NEWPORT. WHILE THE ORDERS OF JANUARY 22, 1964, WERE PREDICATED UPON THE MEMBER'S APPOINTMENT OF AN OFFICER AND HE WAS SO APPOINTED ON FEBRUARY 7, 1964, THOSE ORDERS DIRECTED A SHORT PERIOD OF TEMPORARY DUTY AT NEWPORT, WHICH AS INDICATED WAS HIS PERMANENT STATION, TO BE FOLLOWED BY PERMANENT DUTY ABOARD A VESSEL. REASONABLY, THEREFORE, THE TRAVEL OF HIS DEPENDENTS TO NEWPORT (FEBRUARY 12 TO 15, 1964) IS TO BE VIEWED AS HAVING BEEN FOR THE PURPOSE OF A VISIT AND NOT WITH THE INTENTION OF ESTABLISHING A RESIDENCE. PARAGRAPH M7000-12 OF THE JOINT TRAVEL REGULATIONS PROHIBITS REIMBURSEMENT FOR TRAVEL OF DEPENDENTS TO A PLACE WHERE THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. HENCE, WHILE NEWPORT IS REGARDED AS A PERMANENT STATION AT WHICH PER DIEM ALLOWANCES FOR TEMPORARY DUTY ARE NOT PAYABLE, AND TO WHICH TRANSPORTATION FOR DEPENDENTS OTHERWISE WOULD HAVE BEEN AUTHORIZED (39 COMP. GEN. 76), THERE IS NO AUTHORITY FOR REIMBURSEMENT FOR TRAVEL OF THE MEMBER'S DEPENDENTS TO THAT STATION. HOWEVER, IN VIEW OF THAT RESTRICTION, AND SINCE THE DEPENDENTS WERE LOCATED AT THE MEMBER'S HOME AT MINDEN WHEN THE ORDERS OF JANUARY 22, 1964, WHICH DIRECTED A PERMANENT CHANGE OF STATION FROM NEWPORT TO THE U.S.S. TELFAIR, WERE ISSUED, HE IS ENTITLED UNDER PARAGRAPH M7055 OF THE JOINT TRAVEL REGULATIONS TO REIMBURSEMENT FOR THE DEPENDENTS' TRAVEL FROM MINDEN TO NORFOLK, THE HOME PORT OF THAT VESSEL.

SECTION 407 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS APPROVED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION IS ENTITLED TO A DISLOCATION ALLOWANCE, PROVIDED, HOWEVER, THAT A MEMBER IS NOT ENTITLED TO A DISLOCATION ALLOWANCE WHEN "ORDERED FROM HIS HOME TO HIS FIRST DUTY STATION.' THE DEPENDENTS' MOVEMENT FROM MINDEN TO NORFOLK, HOWEVER, WAS NOT INCIDENT TO AN ORDER FROM HOME TO FIRST DUTY STATION BUT WAS AUTHORIZED IN CONNECTION WITH THE MEMBER'S PERMANENT CHANGE OF STATION FROM NEWPORT TO THE U.S.S. TELFAIR UNDER THE ORDERS OF JANUARY 22, 1964. A DISLOCATION ALLOWANCE IS PAYABLE IN CONNECTION WITH SUCH MOVEMENT.

THE PAPERS ARE RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED TO THE EXTENT INDICATED.