B-110241, JUL 16, 1952

B-110241: Jul 16, 1952

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PRECIS-UNAVAILABLE THE SECRETARY OF DEFENSE: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF LIEUTENANT COMMANDER CHARLES B. UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS PRESENT STATION AND RESUME HIS REGULAR DUTIES. THAT SUCH DUTY WAS COMPLETED ON APRIL 30. THAT NO GOVERNMENT QUARTERS OR MESSING FACILITIES WERE AVAILABLE TO HIM AT THAT COMMAND. IS WITHIN ARLINGTON "CORPORATE LIMITS" OR. IS THEN A SELF-CONTAINED RESERVATION. HE WAS AWAY FROM HIS PERMANENT DUTY STATION WHILE PERFORMING ADDITIONAL TEMPORARY DUTY AT THE MILITARY SEA TRANSPORTATION SERVICE WITHIN THE CORPORATE LIMITS OF WASHINGTON. STATES THAT PER DIEM IS NOT PAYABLE "FOR ANY PERIOD PRIOR TO DEPARTURE FROM A SHIP OR PRIOR TO THE DAY OF DEPARTURE FROM THE LIMITS OF THE PERMANENT DUTY STATION AS DEFINED IN PAR. 1150-10 OR FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION OTHER THAN THAT AUTHORIZED FOR THE DAY OF RETURN TO THE PERMANENT DUTY STATION UNDER PAR. 4205.".

B-110241, JUL 16, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF DEFENSE:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF LIEUTENANT COMMANDER CHARLES B. BARRY, USN, ASSIGNED TO NAVAL OPERATIONS, NAVY DEPARTMENT, WASHINGTON, D.C., FOR PER DIEM IN CONNECTION WITH DUTY PERFORMED BY HIM AT THE MILITARY SEA TRANSPORTATION SERVICE, WASHINGTON, D.C., PURSUANT TO BUREAU OF NAVAL PERSONNEL ORDERS OF APRIL 17, 1952.

THE SAID ORDERS OF APRIL 17 DIRECTED THE OFFICER TO PROCEED ON OR ABOUT APRIL 21, 1952, TO CAMP PICKETT, VIRGINIA, AND TO SUCH OTHER PLACES AS MIGHT BE NECESSARY, FOR TEMPORARY DUTY IN CONNECTION WITH OPERATIONS LOGEX 52, UPON COMPLETION OF WHICH HE WAS TO RETURN TO HIS PRESENT STATION AND RESUME HIS REGULAR DUTIES, IT BEING STATED THEREIN THAT REIMBURSEMENT WOULD BE ON A PER DIEM BASIS IN ACCORDANCE WITH CHAPTER 4, PARTS E AND F, JOINT TRAVEL REGULATIONS, AS APPLICABLE. FIRST ENDORSEMENT BY THE COMMANDER, MILITARY SEA TRANSPORTATION SERVICE, WASHINGTON, D.C., STATES THAT HE REPORTED FOR TEMPORARY ADDITIONAL DUTY ON APRIL 21; THAT SUCH DUTY WAS COMPLETED ON APRIL 30, 1952, AND THAT NO GOVERNMENT QUARTERS OR MESSING FACILITIES WERE AVAILABLE TO HIM AT THAT COMMAND. IT APPEARS THAT HE THEN PROCEEDED TO CAMP PICKETT AND ENDORSEMENT OF MAY 10, 1952, SHOWS THAT HE RETURNED AND RESUMED HIS REGULAR DUTIES AT THE OFFICE OF THE CHIEF OF NAVAL OPERATIONS ON THAT DATE. LIEUTENANT COMMANDER BARRY CLAIMS PER DIEM UNDER PARAGRAPH 4201-4 OF THE JOINT TRAVEL REGULATIONS, AS AMENDED BY INSTRUCTION MEMORANDUM 2-2, NOVEMBER 1, 1951, CONTENDING THAT HIS PERMANENT STATION, THE PENTAGON BUILDING IN ARLINGTON COUNTY, VIRGINIA, IS WITHIN ARLINGTON "CORPORATE LIMITS" OR, IF NOT SO CONSIDERED, IS THEN A SELF-CONTAINED RESERVATION, AND THAT, IN EITHER CASE, HE WAS AWAY FROM HIS PERMANENT DUTY STATION WHILE PERFORMING ADDITIONAL TEMPORARY DUTY AT THE MILITARY SEA TRANSPORTATION SERVICE WITHIN THE CORPORATE LIMITS OF WASHINGTON, D.C.

SAID PARAGRAPH 4201-4, OF THE JOINT TRAVEL REGULATIONS, AS AMENDED BY INSTRUCTION MEMORANDUM 2-2, NOVEMBER 1, 1951, STATES THAT PER DIEM IS NOT PAYABLE "FOR ANY PERIOD PRIOR TO DEPARTURE FROM A SHIP OR PRIOR TO THE DAY OF DEPARTURE FROM THE LIMITS OF THE PERMANENT DUTY STATION AS DEFINED IN PAR. 1150-10 OR FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION OTHER THAN THAT AUTHORIZED FOR THE DAY OF RETURN TO THE PERMANENT DUTY STATION UNDER PAR. 4205." PARAGRAPH 1150-10, CHANGE 1, OF SAID REGULATIONS PROVIDES THAT THE LIMITS OF A PERMANENT STATION "WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED." PRESUMABLY, SO MUCH OF PARAGRAPH 1150-10, CHANGE 1, OF THE JOINT TRAVEL REGULATIONS, AS UNDERTAKES TO PRESCRIBE THE PHYSICAL BOUNDARIES OF PERMANENT STATIONS WAS PROMULGATED PURSUANT TO THE PROVISION IN SECTION 303(C) AUTHORIZING THE SECRETARIES CONCERNED TO DEFINE THE TERM "PERMANENT STATION" IN CONJUNCTION WITH THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, SUCH DEFINITION TO INCLUDE, BUT NOT BE LIMITED TO, A SHORE STATION OR THE HOME YARD OR HOME PORT OF A VESSEL TO WHICH A MEMBER MAY BE ORDERED. ASIDE FROM A QUESTION AS TO WHETHER SUCH AUTHORITY TO DEFINE THE TERM PERMANENT STATION GOES BEYOND A DETERMINATION OF THE TYPES OF ASSIGNMENTS WHICH CONSTITUTE PERMANENT CHANGES OF STATION TO THE EXTENT OF AUTHORIZING THE FIXING OF PHYSICAL BOUNDARIES OF STATIONS, IT SEEMS DOUBTFUL THAT THE AUTHORITY SO CONFERRED IN SECTION 303(C) IS IN ANYWAY APPLICABLE TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949.

IT LONG HAS BEEN RECOGNIZED THAT THE GENERAL PURPOSE OF THE PROVISIONS OF LAW AUTHORIZING THE PAYMENT OF TRAVEL ALLOWANCES TO MILITARY PERSONNEL FOR TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS AWAY FROM THE DESIGNATED POSTS OF DUTY OF THE PERSONS CONCERNED, IS TO REIMBURSE SUCH PERSONS FOR THE ADDITIONAL EXPENSE FOR SUBSISTENCE AND QUARTERS WHICH ORDINARILY ARE INCURRED BY THEM WHILE THEY ARE REQUIRED TO MAINTAIN THEMSELVES TEMPORARILY AWAY FROM THEIR DESIGNATED POST OF DUTY. IN ORDER TO PREVENT UNJUST ENRICHMENT OF OFFICERS AT THE EXPENSE OF THE GOVERNMENT IN CASES WHERE TEMPORARY DUTY WAS PERFORMED AT PLACES SO CLOSE TO THE TRAVELER'S STATION THAT IT APPEARED REASONABLE TO SUPPOSE THAT HE COULD RETURN TO HIS USUAL RESIDENCE EACH NIGHT (IN WHICH EVENT NO SUBSTANTIAL INCREASED COST OF LIVING WOULD BE INCURRED), THIS OFFICE IN DECISIONS INVOLVING PERIODS PRIOR TO APRIL 1, 1951, TOOK THE VIEW THAT AN OFFICER'S STATION INCLUDED NOT ONLY THE CORPORATE LIMITS OF THE CITY IN WHICH THE INSTALLATION TO WHICH HE WAS ATTACHED, WAS LOCATED, BUT ALSO PLACES ADJACENT THERETO, IN GENERAL, PLACES WITHIN THE SAME METROPOLITAN AREA. SUCH RULE MAY HAVE WORKED TO THE DISADVANTAGE OF A FEW OFFICERS IN CASES INVOLVING METROPOLITAN AREAS WHICH WERE SO LARGE THAT CONSIDERABLE TRAVEL WAS NECESSARY IF THE OFFICER CONCERNED RETURNED TO HIS HOME EACH NIGHT, AND IT MAY BE THAT THE AUTHORITY OF THE SECRETARIES CONCERNED TO PROMULGATE REGULATIONS UNDER SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, IS BROAD ENOUGH TO PERMIT THE PROMULGATION OF REGULATIONS WHICH WOULD GO INTO SUFFICIENT DETAIL TO PROTECT THE INTEREST OF BOTH THE GOVERNMENT AND THE TRAVELER IN CASES OF THIS TYPE.

IT IS SELF-EVIDENT THAT LIEUTENANT COMMANDER BARRY INCURRED NO ADDITIONAL EXPENSE FOR SUBSISTENCE AND QUARTERS IN PERFORMING TEMPORARY DUTY WITH THE MILITARY SEA TRANSPORTATION SERVICE IN WASHINGTON, D.C., AND, WHILE HE MAY BE MISTAKEN IN HIS CONTENTION THAT THE AREA OF HIS PERMANENT STATION DID NOT INCLUDE THE DISTRICT OF COLUMBIA, HIS CLAIM AMPLY DEMONSTRATES THE POSSIBILITY OF PAYMENT OF PER DIEM UNDER THE PRESENT PROVISIONS OF PARAGRAPHS 1150-10 AND 4201-4 OF THE JOINT TRAVEL REGULATIONS IN MANY CASES IN CONTRAVENTION OF THE LONG ACCEPTED CONCEPT OF PER DIEM AS CONSTITUTING REIMBURSEMENT FOR ADDITIONAL EXPENSES INCURRED IN THE PERFORMANCE OF ASSIGNED DUTY. THEREFORE, AN EXPRESSION OF YOUR VIEWS WITH RESPECT TO WHETHER IT WAS INTENDED THAT PER DIEM BE PAID UNDER THE CIRCUMSTANCES HERE DISCLOSED, AND IF NOT, WHETHER CONSIDERATION SHOULD BE GIVEN TO CLARIFYING THE REGULATIONS IN SUCH MANNER AS TO PREVENT UNJUST ENRICHMENT OF THE TRAVELER AT THE EXPENSE OF THE GOVERNMENT, WILL BE APPRECIATED.