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B-121366, DEC 17, 1954

B-121366 Dec 17, 1954
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KENDRICK: REFERENCE IS MADE TO LETTER OF SEPTEMBER 8. YOU WERE RELEASED FROM DUTY AT MCCHORD FIELD. YOU STATE THAT YOU PERFORMED DUTY AT DIFFERENT PLACES IN AUSTRALIA AND AT PORT MORESBY DURING THE PERIOD OF YOUR CLAIM UNTIL YOU WERE HOSPITALIZED WITH A FRACTURED SPINE. THAT PER DIEM WAS PAID FOR THE MONTHS OF FEBRUARY THROUGH JUNE 1942 "(MONTH OF JUNE IN DOUBT)" AND FOR THE PERIOD DECEMBER 1942 THROUGH MAY 1943. THE RECORD SHOWS THAT PER DIEM ALSO WAS PAID FOR THE PERIOD AUGUST 16 TO NOVEMBER 15. WERE ISSUED. THE GENERAL PURPOSE OF SUCH PROVISIONS OF LAW WAS TO REIMBURSE THE PERSON CONCERNED FOR THE ADDITIONAL EXPENSES NECESSARILY INCURRED IN OBTAINING QUARTERS AND SUBSISTENCE ON A TRANSIENT BASIS WHILE HE TEMPORARILY WAS REQUIRED TO MAINTAIN HIMSELF AWAY FROM HIS DESIGNATED POST OF DUTY.

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B-121366, DEC 17, 1954

PRECIS-UNAVAILABLE

MR. HARRISON F. KENDRICK:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 8, 1954, WRITTEN ON YOUR BEHALF BY JOHN J. CORCORAN, LEGAL CONSULTANT, NATIONAL REHABILITATION COMMISSION, THE AMERICAN LEGION, WASHINGTON, D.C., RELATIVE TO SETTLEMENT OF MARCH 17, 1948, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM IN CONNECTION WITH DUTY PERFORMED BY YOU AS A CAPTAIN, AUS, IN AUSTRALIA, AND PORT MORESBY, NEW GUINEA, DURING THE PERIOD JULY 1, 1942, TO SEPTEMBER 12, 1944.

BY WAR DEPARTMENT ORDERS OF JANUARY 1, 1942, YOU WERE RELEASED FROM DUTY AT MCCHORD FIELD, WASHINGTON, AND ASSIGNED TO THE "ARMY GROUP, WASHINGTON, D.C." WITH DIRECTION TO PROCEED AND REPORT TO THE SAN FRANCISCO PORT OF EMBARKATION, SAN FRANCISCO, CALIFORNIA, FOR TRANSPORTATION TO BRISBANE, AUSTRALIA, REPORTING ON ARRIVAL TO THE COMMANDING GENERAL, U.S. MILITARY TROOPS, AUSTRALIA, "FOR DUTY, AND UPON COMPLETION OF THIS TEMPORARY DUTY" RETURN TO YOUR PROPER STATION AT WASHINGTON, D.C. THE ORDERS AUTHORIZED A FLAT PER DIEM OF $6 FOR TRAVEL BY AIRCRAFT OUTSIDE THE UNITED STATES AND FOR THE PERIOD OF TEMPORARY DUTY OUTSIDE THE UNITED STATES, IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS. EVACUATION ORDERS OF SEPTEMBER 12, 1944, DIRECTED YOUR EVACUATION FROM AUSTRALIA TO THE UNITED STATES AS A PATIENT, ON OR ABOUT SEPTEMBER 13, 1944.

YOU STATE THAT YOU PERFORMED DUTY AT DIFFERENT PLACES IN AUSTRALIA AND AT PORT MORESBY DURING THE PERIOD OF YOUR CLAIM UNTIL YOU WERE HOSPITALIZED WITH A FRACTURED SPINE, APPARENTLY IN FEBRUARY 1944, AND THAT PER DIEM WAS PAID FOR THE MONTHS OF FEBRUARY THROUGH JUNE 1942 "(MONTH OF JUNE IN DOUBT)" AND FOR THE PERIOD DECEMBER 1942 THROUGH MAY 1943. THE RECORD SHOWS THAT PER DIEM ALSO WAS PAID FOR THE PERIOD AUGUST 16 TO NOVEMBER 15, 1942, BUT THAT YOU LATER REFUNDED THE AMOUNTS PAID FOR THAT PERIOD, SUCH PAYMENTS BEING REGARDED AS ERRONEOUS.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, IN EFFECT AT THE TIME THE ORDERS OF JANUARY 1, 1942, WERE ISSUED, PERMITTED THE PRESCRIBING OF PER DIEM RATES OF ALLOWANCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY OUTSIDE THE LIMITS OF THE UNITED STATES. THE GENERAL PURPOSE OF SUCH PROVISIONS OF LAW WAS TO REIMBURSE THE PERSON CONCERNED FOR THE ADDITIONAL EXPENSES NECESSARILY INCURRED IN OBTAINING QUARTERS AND SUBSISTENCE ON A TRANSIENT BASIS WHILE HE TEMPORARILY WAS REQUIRED TO MAINTAIN HIMSELF AWAY FROM HIS DESIGNATED POST OF DUTY. HOWEVER, IT WAS NOT INTENDED THAT PER DIEM SHOULD BE PAID FOR LONG OR INDEFINITE PERIODS OF TIME. WHILE SUCH PROVISIONS OF LAW DID NOT SPECIFY THE PERIOD FOR WHICH PER DIEM COULD BE PAID FOR TEMPORARY DUTY TRAVEL OUTSIDE THE UNITED STATES, THIS OFFICE TOOK THE VIEW THAT A TRAVEL STATUS TERMINATED AT THE END OF 30 DAYS' TEMPORARY DUTY AT A PARTICULAR STATION. ALTHOUGH THAT RULE WAS RELAXED TO SOME EXTENT AFTER THE COMMENCEMENT OF WORLD WAR II, THERE WAS NO BASIS FOR THE PAYMENT OF PER DIEM FOR A LONG PERIOD SUCH AS IS HERE INVOLVED. EVEN AFTER AUTHORITY WAS GRANTED FOR THE PAYMENT OF PER DIEM TO OFFICERS FOR TRAVEL AWAY FROM THEIR POSTS OF DUTY IN THE UNITED STATES "WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY" (BY PROVISIONS IN THE ACT OF APRIL 28, 1942, 56 STAT. 227, AND SIMILAR PROVISIONS IN THE ANNUAL APPROPRIATION ACTS), REGULATIONS WERE ISSUED LIMITING TO 30 DAYS THE PERIOD FOR WHICH PER DIEM COULD BE PAID AT ANY ONE TEMPORARY DUTY STATION. PARAGRAPH 9C, ARMY REGULATIONS 35-4820, SEPTEMBER 13, 1943.

THE ORDERS OF JANUARY 1, 1942, ARE NOT CLEAR, THE DUTY DIRECTED IN SUCH ORDERS BEING DESIGNATED BOTH AS DUTY AND AS TEMPORARY DUTY. ALSO, IT IS NOTED THAT SUCH ORDERS DO NOT SHOW THE DURATION OF ANY TEMPORARY DUTY AND THE INFERENCE IS THAT THE ORDERS EITHER WERE REGARDED AS EFFECTING A PERMANENT CHANGE OF STATION TO AUSTRALIA OR THAT THEY ARE AMENDED OR SUPERSEDED BY LATER ORDERS TERMINATING THE TEMPORARY DUTY. YOU STATE THAT YOU WERE TRANSFERRED TO DIFFERENT PLACES IN AUSTRALIA AND NEW GUINEA BUT YOU HAVE NOT FURNISHED COPIES OF THE ORDERS EFFECTING SUCH TRANSFER AND THE RECORD CONTAINS NO INFORMATION WHICH WOULD AID THIS OFFICE IN LOCATING SUCH ORDERS. WHILE YOU SAY THAT AT NO TIME WERE YOU ISSUED ORDERS "THAT I WAS IN A PERMANENT STATUS," THE MATTER OF WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO ITS DURATION, THE NATURE OF THE DUTY ENJOINED, ETC. 24 COMP. GEN. 667, 670. THE ORDERS OF JANUARY 1, 1942, CONTAIN NO INFORMATION AS TO THE NATURE OF THE DUTY ENJOINED AND YOU HAVE FURNISHED NO INFORMATION FROM WHICH IT COULD BE CONCLUDED THAT YOUR DUTIES WERE OF A TEMPORARY NATURE. IF SUCH ORDERS WERE INTENDED TO DIRECT PERFORMANCE OF TEMPORARY DUTY FOR THE PERIOD YOU WERE ON DUTY OUTSIDE THE UNITED STATES (OVER TWO AND ONE-HALF YEARS) SUCH ORDERS, OF NECESSITY, WOULD HAVE TO BE REGARDED AS EFFECTING A PERMANENT CHANGE OF STATION.

CONCERNING THE TIME YOU WERE IN THE DIFFERENT HOSPITALS IN AUSTRALIA, IT IS WELL ESTABLISHED THAT PER DIEM IS NOT PAYABLE FOR PERIOD OF HOSPITALIZATION. DECISION OF AUGUST 6, 1948, B-77616.

IN THE CIRCUMSTANCES DISCLOSED THERE IS NO BASIS ESTABLISHED FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF MARCH 17, 1948, IS SUSTAINED.

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