B-148049, MAY 3, 1962, 41 COMP. GEN. 726

B-148049, MAY 3, 1962, 41 COMP. GEN. 726

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENT - DUTY AWAY FROM INITIAL REPORTING STATION--- SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENT - DUTY AWAY FROM INITIAL REPORTING STATION WHEN MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ORDERED DUTY IS PERFORMED, THE LOCATION OF SUCH DUTY MUST IN FACT BE CONSIDERED THE TRAINING DUTY STATION AND THE MEMBERS MAY NOT BE CONSIDERED "AWAY FROM THEIR DESIGNATED POSTS OF DUTY" FOR ENTITLEMENT TO PER DIEM. AIR NATIONAL GUARD MEMBERS WHO WERE ORDERED TO REPORT TO BROOKLYN, NEW YORK, FOR A 15-DAY TOUR OF DUTY FOR TRAINING AND WHO, DURING THE PERIOD, PERFORMED 12 DAYS OF DUTY AT READING, PENNSYLVANIA, PURSUANT TO TEMPORARY DUTY ORDERS MUST HAVE READING REGARDED AS IN FACT THE TRAINING DUTY STATION SO THAT THE MEMBERS MAY NOT BE CONSIDERED AWAY FROM THEIR DESIGNATED POST OF DUTY FOR ENTITLEMENT TO PER DIEM WHILE AT READING; HOWEVER, IN VIEW OF AN ADMINISTRATIVE MISINTERPRETATION OF 39 COMP. GEN. 753 WHICH DID NOT STAND FOR THE PROPOSITION THAT PER DIEM COULD BE PAID FOR DUTY AT A LOCATION AWAY FROM THE INITIAL REPORTING POINT WHEN PRACTICALLY ALL OF THE PERIOD OF ORDERED DUTY IS PERFORMED AT SUCH LOCATION, PER DIEM PAYMENTS IN THIS INSTANCE WILL NOT BE QUESTIONED.

TO THE SECRETARY OF THE AIR FORCE, MAY 3, 1962:

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), 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 POSTS OF DUTY" REGARDLESS OF THE LENGTH OF TIME INVOLVED. SECTION 303 (G) OF THE 1949 ACT, 37 U.S.C. 253 (G), AUTHORIZES THE SECRETARIES CONCERNED TO DETERMINE WHAT SHALL CONSTITUTE A ,TRAVEL STATUS.' PARAGRAPH 6001 OF THE JOINT TRAVEL REGULATIONS, WHICH AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF RESERVE COMPONENTS CALLED OR ORDERED TO ACTIVE DUTY FOR TRAINING WITH PAY, SPECIFICALLY PROVIDES THAT " NO TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR ANY PERIOD A MEMBER IS AT HIS TRAINING DUTY STATION.' CERTAIN MEMBERS OF THE AIR NATIONAL GUARD, HOWEVER, HAVE BEEN PAID PER DIEM WHILE ON TRAINING DUTY CONTRARY TO THAT PROHIBITION.

THE QUESTIONABLE PER DIEM PAYMENTS INVOLVED TRAVEL UNDER SPECIAL ORDERS NO. 27, DATED AUGUST 16, 1958, ISSUED BY HEADQUARTERS 106TH FIGHTER INTERCEPTOR WING, NEW YORK AIR NATIONAL GUARD, U.S. NAVAL AIR STATION, NEW YORK, NEW YORK, DIRECTING CERTAIN MEMBERS TO PROCEED ON TEMPORARY DUTY FROM NATIONAL GUARD AIR FORCE BASE AT THAT STATION TO NATIONAL GUARD AIR FORCE BASE, READING, PENNSYLVANIA, FOR APPROXIMATELY 14 DAYS FOR THE PURPOSE OF RECEIVING INSTRUCTION AND TRAINING IN THE OPERATION AND MAINTENANCE OF C-119 TYPE AIRCRAFT. UPON COMPLETION OF THE TEMPORARY DUTY, THE ORDERS DIRECTED THE MEMBERS TO RETURN TO THEIR STATION AT NEW YORK. PER DIEM WAS AUTHORIZED FOR THE TEMPORARY DUTY AT READING PURSUANT TO VERBAL ORDERS OF THE CHIEF, NATIONAL GUARD BUREAU, WHICH WERE CONFIRMED BY MESSAGE, HEADQUARTERS, NEW YORK AIR NATIONAL GUARD, AHX449, AUGUST 15, 1958. INFORMATION BEFORE US SHOWS THAT THE MEMBERS CONCERNED REPORTED TO THE U.S. NAVAL AIR STATION, BROOKLYN, NEW YORK, ON AUGUST 16, 1958, THE FIRST DAY OF FIELD TRAINING, AND AFTER NECESSARY ORIENTATION AND INDOCTRINATION AS TO THE MISSION AND PENDING ACTIVITIES OF THEIR ORGANIZATION, THEY DEPARTED ON TEMPORARY DUTY. THE MEMBERS WERE PAID PER DIEM FOR THE PERIOD AUGUST 18 TO 29, 1958, AS EVIDENCED BY VOUCHER NO. 20152, OCTOBER 1958 ACCOUNTS OF R. W. BARNES, SYMBOL B5255. ON AUGUST 29, 1958, THE MEMBERS DEPARTED READING FOR NEW YORK TO BE ADMINISTRATIVELY PROCESSED AS REQUIRED, INCLUDING FINAL MUSTER AND PAY. THE ABOVE VOUCHER NO. 20152 CONTAINS A NOTATION " PAID IN ACCORDANCE ANGR 50-03.' AIR NATIONAL GUARD REGULATION 50-03, DATED DECEMBER 10, 1956, IN EFFECT DURING THE PERIOD HERE INVOLVED, ESTABLISHED POLICIES AND PROCEDURES FOR THE CONDUCT OF AIR NATIONAL GUARD FIELD TRAINING AND PROVIDED, IN PARAGRAPH 16C, THAT AIR NATIONAL GUARD PERSONNEL WOULD NOT BE PAID PER DIEM DURING FIELD TRAINING EXCEPT WHEN AUTHORIZED BY THE CHIEF, NATIONAL GUARD BUREAU. THE PROHIBITION IS CURRENTLY CONTAINED IN PARAGRAPH 15C, AIR NATIONAL GUARD REGULATION 50-03, FEBRUARY 2, 1961.

IN RESPONSE TO INQUIRY BY OUR AIR FORCE AUDIT BRANCH AS TO THE PROPRIETY OF PER DIEM PAYMENTS MADE UNDER THE CIRCUMSTANCES DISCLOSED, THE CHIEF, NATIONAL GUARD BUREAU, IN THIRD ENDORSEMENT DATED JUNE 7, 1961, EXPRESSED AN OPINION, IN SUBSTANCE, THAT THE PER DIEM PAYMENTS WERE PROPER ON THE BASIS OF 39 COMP. GEN. 753. CONCURRENCE IN THAT VIEW WAS EXPRESSED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER IN LETTER DATED SEPTEMBER 18, 1961. IN A LATER COMMUNICATION THE NATIONAL GUARD BUREAU EXPRESSED THE VIEW THAT THE PROVISIONS OF AIR NATIONAL GUARD REGULATION 177-04 DATED MAY 10, 1961, SATISFIED THE REQUIREMENTS OF 39 COMP. GEN. 753.

AIR NATIONAL GUARD REGULATION NO. 177-04, DATED MAY 10, 1961--- WHICH WAS ISSUED SUBSEQUENT TO THE DUTY PERFORMED BY THE NEW YORK AIR NATIONAL GUARD UNIT--- EXPLAINS THE POLICY ON PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO AIR NATIONAL GUARD MEMBERS WHO ARE DIRECTED TO PERFORM TEMPORARY DUTY TRAVEL AWAY FROM THEIR TRAINING DUTY STATION DURING PERIODS OF ACTIVE DUTY FOR TRAINING AND CITES THE JOINT TRAVEL REGULATIONS AND 39 COMP. GEN. 753 AS AUTHORITY FOR THE PAYMENT OF PER DIEM FOR TEMPORARY DUTY TRAVEL. PARAGRAPH 3A OF THOSE REGULATIONS PROVIDES THAT AIR NATIONAL GUARD MEMBERS WILL NOT BE CALLED TO ACTIVE DUTY FOR TRAINING AND CONCURRENTLY PLACED ON TEMPORARY DUTY SOLELY FOR THE PURPOSE OF ENTITLING THEM TO TRAVEL AND TRANSPORTATION ALLOWANCES, AND SUBPARAGRAPH B PROVIDES, IN PERTINENT PART, THAT BEFORE ENTITLEMENT CAN EXIST THE FOLLOWING CONDITIONS MUST BE SATISFIED:

(1) MEMBERS MUST BE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A SPECIFIC PURPOSE AT A DEFINITE TRAINING DUTY STATION. THE TRAINING DUTY STATION THEN BECOMES THE MEMBERS PERMANENT DUTY STATION SO FAR AS THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS ARE CONCERNED.

(2)AFTER REPORTING FOR DUTY IN COMPLIANCE WITH THE ORDERS REFERRED TO IN THE PRECEDING PARAGRAPH, MEMBERS MAY THEN BE DIRECTED TO PERFORM TDY TRAVEL AWAY FROM THE TRAINING DUTY STATION.

THE PROVISIONS OF THE ABOVE-QUOTED PARAGRAPH 3B (2) APPARENTLY ARE VIEWED BY THE NATIONAL GUARD AUTHORITIES AS CONTEMPLATING THAT THE STATION TO WHICH THE MEMBER FIRST REPORTS SHALL BE CONSIDERED HIS TRAINING DUTY STATION FOR TRAVEL ALLOWANCE PURPOSES, EVEN THOUGH TRAINING DUTY FOR PERFORMANCE BY HIM AT SOME OTHER POINT MAY CONSTITUTE THE MAJOR PORTION OF HIS TOUR OF TRAINING DUTY. IN THIS REGARD IT MAY BE NOTED THAT PARAGRAPH 4F OF THE AIR FORCE REGULATION 45-14, APPLICABLE IN THE CASE OF AIR RESERVE TRAINING DUTY, SPECIFICALLY LIMITS THE DURATION OF TEMPORARY DUTY BY RESERVISTS AT ANY ONE STATION AWAY FROM THE DESIGNATED POST OF DUTY (TRAINING DUTY STATION) TO NOT MORE THAN 50 PERCENT OF THEIR TOUR OF DUTY.

IN 28 COMP. GEN. 166, INVOLVING NAVAL RESERVE PERSONNEL ORDERED TO PROCEED TO A SPECIFIC LOCATION FOR TEMPORARY ACTIVE DUTY OF SHORT DURATION AND SUBSEQUENTLY ORDERED TO ONE OR MORE OTHER LOCATIONS FOR TEMPORARY ADDITIONAL DUTY UPON COMPLETION OF WHICH THEY ARE TO RETURN TO THE FORMER PLACE, IT WAS POINTED OUT THAT NOTHING THEREIN IS TO BE CONSTRUED AS APPROVING ANY PRACTICE OF ORDERING SUCH PERSONNEL TO TEMPORARY ACTIVE DUTY AT A PLACE OTHER THAN THE PLACE IT IS INTENDED THEIR PRIMARY DUTIES WILL BE PERFORMED AND THEN SUBSEQUENTLY ORDERING THEM TO ANOTHER PLACE--- WHERE THEIR PRIMARY DUTIES ACTUALLY WILL BE PERFORMED--- FOR TEMPORARY ADDITIONAL DUTY SOLELY FOR THE PURPOSE OF PAYING THEM A PER DIEM IN LIEU OF SUBSISTENCE AT THE LATTER PLACE. SEE, ALSO, 33 COMP. GEN. 494. DECISION OF MAY 9, 1960, B-138219, 39 COMP. GEN. 753, CITED IN THE ABOVE- MENTIONED NATIONAL GUARD REGULATION NO. 177-04, THERE WERE INVOLVED BOTH PUBLIC HEALTH SERVICE OFFICERS AND CIVILIAN EMPLOYEES WHO WERE TO BE ORDERED TO REPORT TO GRAND JUNCTION, COLORADO, FOR THE PURPOSE OF ENGAGING IN A SPECIFIC PROJECT WHICH WOULD REQUIRE THEM TO BE AWAY FROM GRAND JUNCTION FOR THE PERFORMANCE OF TEMPORARY DUTY AT VARIOUS POINTS IN THE FIELD, GENERALLY FOR PERIODS OF ONE OR TWO DAYS AT EACH LOCATION. IT WAS CONCLUDED THAT IF SUCH PERSONS ARE ORDERED TO REPORT AT GRAND JUNCTION FOR DUTY, IN CONNECTION WITH WHICH A CONSIDERABLE AMOUNT OF CONTINUOUS TRAVEL IN THE FIELD INVOLVING SHORT STOPOVERS AT SEVERAL DIFFERENT LOCATIONS IS CONTEMPLATED AFTER A PERIOD OF INDOCTRINATION, TRAINING, AND INSTRUCTION AT THAT PLACE, AND LATER ORDERS ARE ISSUED DIRECTING THE PERFORMANCE OF TEMPORARY DUTY AWAY FROM AND RETURN TO THAT PLACE UPON THE COMPLETION OF SUCH DUTY, SUCH PERSONS MAY BE REGARDED AS BEING IN A TRAVEL STATUS AWAY FROM THEIR PERMANENT DUTY STATION WHILE PERFORMING SUCH TEMPORARY DUTY IN THE FIELD.

CONTRARY TO THE VIEW TAKEN BY THE NATIONAL GUARD BUREAU, WHICH VIEW IS TO SOME EXTENT SUPPORTED BY ITS SYLLABUS, THE DECISION REPORTED AT 39 COMP. GEN. 753 DOES NOT STAND FOR THE PROPOSITION THAT PER DIEM IS AUTHORIZED FOR DUTY PERFORMED AT A LOCATION AWAY FROM THE INITIAL REPORTING POINT WHEN PRACTICALLY THE ENTIRE PERIOD OF AN ORDERED TOUR OF DUTY IS PERFORMED AT SUCH LOCATION.

IN THE CASE OF THE ABOVE-MENTIONED NEW YORK AIR NATIONAL GUARD UNIT, 12 DAYS OF THE 15-DAY TOUR OF DUTY WAS PERFORMED AT READING, PENNSYLVANIA. HENCE, READING WAS IN FACT THE TRAINING DUTY STATION AND UNDER THE LAW AND REGULATIONS THE MEMBERS CONCERNED MAY NOT BE CONSIDERED AS BEING ,AWAY FROM THEIR DESIGNATED POST OF DUTY" WHILE AT READING FOR PER DIEM PURPOSES. IT FOLLOWS THAT THERE WAS NO PROPER BASIS FOR AUTHORIZING THE PER DIEM PAYMENTS IN THE CASE DISCUSSED. SINCE, HOWEVER, AS INDICATED ABOVE, THE VIEW OF THE NATIONAL GUARD BUREAU FINDS SUPPORT IN THE SYLLABUS OF 39 COMP. GEN. 753, WE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS IN THIS INSTANCE.

WE WILL BE REQUIRED TO TAKE EXCEPTION TO FUTURE PER DIEM PAYMENTS MADE UNDER SIMILAR CIRCUMSTANCES, AND IN ORDER TO AVOID ANY MISUNDERSTANDING THAT ENTITLEMENT TO PER DIEM UNDER THE CIRCUMSTANCES STATED MIGHT EXIST UNDER AIR NATIONAL GUARD REGULATION NO. 177-04, PARTICULARLY THE PROVISIONS OF PARAGRAPH 3B (2), QUOTED ABOVE, WE SUGGEST THAT THIS REGULATION BE CLARIFIED TO CONFORM WITH THE RULE IN THIS AREA AS EXPLAINED ABOVE.