B-126268, MAR. 15, 1956

B-126268, MAR. 15, 1956

TO SECOND LIEUTENANT WALDO SANTIAGO, TC:

YOUR LETTER OF NOVEMBER 16, 1955, REQUESTS REVIEW OF OUR SETTLEMENT

OF AUGUST 24, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM COVERING THE PERIOD FROM NOVEMBER 1, 1954, TO FEBRUARY 1, 1955, INCIDENT TO DUTY PERFORMED BY YOU AT FORT EUSTIS, VIRGINIA.

ORDERS OF HEADQUARTERS FOURTH ARMY, FORT SAM HOUSTON, TEXAS, DATED MAY 27, 1953, PROVIDED THAT BY DIRECTION OF THE SECRETARY OF THE ARMY YOU WERE ORDERED INTO ACTIVE MILITARY SERVICE AS AN OFFICER OF THE UNITED STATES ARMY RESERVE AND THAT ON MAY 28, 1954, YOU SHOULD PROCEED FROM NEW ORLEANS, LOUISIANA, TO THE TRANSPORTATION SCHOOL, FORT EUSTIS, FOR THE PURPOSE OF ATTENDING A BASIC COURSE OF INSTRUCTION COMMENCING JUNE 5, 1954. THOSE ORDERS DESIGNATED THE DUTY DIRECTED AS TEMPORARY DUTY PENDING FURTHER ORDERS AND IT WAS STATED THAT TRAVEL OF DEPENDENTS AND MOVEMENT OF HOUSEHOLD GOODS WERE NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. THE PROVISION STATING THAT THE COURSE WOULD COMMENCE JUNE 5, 1954, WAS AMENDED BY ORDERS OF THE SAME COMMAND DATED FEBRUARY 19, 1954, TO DIRECT THAT YOU REPORT NOT LATER THAN JUNE 1, 1954. ORDERS OF LOUISIANA MILITARY DISTRICT HEADQUARTERS, NEW ORLEANS, LOUISIANA, DATED MARCH 9, 1954, PROVIDED THAT, BY DIRECTION OF THE SECRETARY OF THE ARMY, YOUR ORDERS OF MAY 27, 1953, WERE AMENDED TO ORDER YOU INTO ACTIVE MILITARY SERVICE EFFECTIVE SEPTEMBER 30, 1954, AND YOU WERE DIRECTED TO PROCEED FROM NEW ORLEANS ON SEPTEMBER 30, TO CAMP CHAFEE, ARKANSAS. THE NATURE OR PURPOSE OF YOUR ASSIGNMENT THERE WAS NOT STATED ALTHOUGH IT WAS STATED THAT TRAVEL OF DEPENDENTS AND MOVEMENT OF HOUSEHOLD GOODS WERE NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. ORDERS OF HEADQUARTERS FOURTH ARMY, FORT SAM HOUSTON, TEXAS, DATED SEPTEMBER 22, 1954, FURTHER AMENDED THE BASIC ORDERS OF MAY 27, 1953, TO SHOW YOUR ADDRESS AS AT RIO PIEDRAS, PURETO RICO, RATHER THAN NEW ORLEANS, AND TO DIRECT THAT YOU PROCEED FROM PUERTO RICO, TO THE TRANSPORTATION SCHOOL, FORT EUSTIS, ON OCTOBER 15, 1954, RATHER THAN ON SEPTEMBER 30, AS PREVIOUSLY DIRECTED IN THE ORDERS OF MARCH 9, 1954. ORDERS OF LOUISIANA MILITARY DISTRICT HEADQUARTERS, DATED SEPTEMBER 23, 1954, PROVIDED THAT, BY DIRECTION OF THE SECRETARY OF THE ARMY, THE ORDERS OF MAY 27, 1953, AS AMENDED, WERE FURTHER AMENDED TO ORDER YOU INTO THE ACTIVE MILITARY SERVICE EFFECTIVE OCTOBER 15, 1954, AND DIRECT THAT YOU DEPART FROM YOUR ADDRESS IN PUERTO RICO ON THAT DATE AND PROCEED TO THE TRANSPORTATION TRAINING COMMAND, FORT EUSTIS, REPORTING FROM ARRIVAL TO THE COMMANDING OFFICER AT THAT STATION. THE MOVEMENT WAS DESIGNATED AS A PERMANENT CHANGE OF STATION, BUT IT WAS PROVIDED THAT TRAVEL OF DEPENDENTS AND MOVEMENT OF HOUSEHOLD GOODS WERE NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. ORDERS OF HEADQUARTERS, TRANSPORTATION TRAINING COMMAND, FORT EUSTIS, VIRGINIA, DATED NOVEMBER 3, 1954, PROVIDED THAT YOU WERE ASSIGNED DUTY WITH THE JUDGE ADVOCATE DIVISION AT THAT STATION EFFECTIVE NOVEMBER 1, 1954. UNDER ORDERS OF THE SAME COMMAND DATED JANUARY 4, 1955, YOU WERE PLACED ONTEMPORARY DUTY WITH A STUDENT OFFICER COMPANY FOR A PERIOD OF APPROXIMATELY 74 DAYS FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO THE PARENT ORGANIZATION, INDICATED TO BE THE ORGANIZATION TO WHICH YOU WERE ATTACHED AND SERVING UNDER THE ORDERS OF NOVEMBER 3, 1954. PARAGRAPH 10, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 45, DATED MARCH 7, 1955, PROVIDED THAT UPON THE COMPLETION OF THE COURSE OF INSTRUCTION IN WHICH YOU WERE THEN ENGAGED YOU WERE RELEASED FROM YOUR DUTY ASSIGNMENT, DESIGNATED AS TEMPORARY DUTY PENDING FURTHER ORDERS, AT THE TRANSPORTATION TRAINING COMMAND, AND PERMANENTLY ASSIGNED TO DUTY WITH THAT COMMAND.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE ARMED FORCES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, INCLUDING PERIODS OF NECESSARY TEMPORARY TO TEMPORARY ADDITIONAL DUTY. THE QUESTION OF WHETHER AN ASSIGNMENT TO A PARTICULAR DUTY STATION IS TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE NATURE OF THE ASSIGNMENT ITSELF. WHILE YOUR BASIC ORDERS OF MAY 27, 1953, APPEAR TO HAVE CONTEMPLATED A TEMPORARY DUTY ASSIGNMENT LIMITED TO THE DURATION OF A COURSE OF INSTRUCTION SCHEDULES TO COMMENCE JUNE 5, 1954, AT THE CONCLUSION OF WHICH YOU WOULD BE GIVEN FURTHER ASSIGNMENT, THE ORDERS OF SEPTEMBER 23, 1954, PROVIDED THAT YOU WERE ORDERED INTO THE ACTIVE MILITARY SERVICE EFFECTIVE OCTOBER 15, 1954, AND DIRECTED THAT YOU PROCEED AND REPORT TO THE COMMANDING OFFICER, TRANSPORTATION TRAINING COMMAND, AT FORT EUSTIS, A PERMANENT CHANGE OF STATION. SUCH ORDERS, ISSUED BY DIRECTION OF THE SECRETARY OF THE ARMY, HAD THE EFFECT OF CANCELING THE PRIOR ORDERS, INSOFAR AS THEY DIRECTED ATTENDANCE AT A COURSE OF INSTRUCTION OF TEMPORARY AND TERMINABLE DURATION, AND OF ASSIGNING YOU TO A DUTY AT FORT EUSTIS OF A CONTINUING AND INDEFINITE NATURE CHARACTERISTIC OF A PERMANENT DUTY ASSIGNMENT. CONSISTENT WITH THAT VIEW THE ORDERS OF NOVEMBER 3, 1954, AND OF JANUARY 4, 1955, WERE ISSUED ON THE BASIS THAT YOU WERE PERMANENTLY ASSIGNED TO DUTY WITH THE TRANSPORTATION TRAINING COMMAND UNDER THE ORDERS OF SEPTEMBER 23. THEREFORE, WHILE THE COURSE OF INSTRUCTION TO WHICH YOU WERE ASSIGNED UNDER THE ORDERS OF JANUARY 4, 1955, WAS OF A TEMPORARY NATURE, IT IS CONSIDERED THAT IT WAS FOR PERFORMANCE AND WAS PERFORMED AT YOUR PERMANENT STATION ASSIGNED AT FORT EUSTIS UNDER THE ORDERS OF SEPTEMBER 23, AND THAT THE ORDERS OF MARCH 7, 1955, WERE IN ERROR IF THEY WERE INTENDED TO INDICATE THAT YOUR STATUS AT FORT EUSTIS WAS THAT OF AN OFFICER ON TEMPORARY DUTY PENDING FURTHER ORDERS.

SINCE FORT EUSTIS WAS YOUR PERMANENT STATION FROM THE DATE OF YOUR REPORTING THERE UNDER THE ORDERS OF SEPTEMBER 23, NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PER DIEM AT THAT STATION DURING THE PERIOD INVOLVED BECAUSE YOU WERE NOT IN A TRAVEL STATUS EVEN THOUGH YOUR DUTY ASSIGNMENT THERE UNDER SUBSEQUENTLY ISSUED ORDERS MAY HAVE BEEN TEMPORARY IN NATURE. COMPARE 33 COMP. GEN. 14. ACCORDINGLY, THE SETTLEMENT OF AUGUST 24, 1955, IS SUSTAINED.