B-130913, APR. 24, 1957

B-130913, APR. 24, 1957

TO LIEUTENANT ROBERT C. MASON, SC, USNR:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 8, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 3 TO MAY 13, 1954, WHILE ON TEMPORARY DUTY AT BROOKLYN, NEW YORK.

BY BUREAU OF NAVAL PERSONNEL ORDERS DATED MARCH 16, 1954, YOU WERE DETACHED FROM DUTY AT NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, AND DIRECTED TO REPORT TO THE COMMANDING OFFICER, NAVY SHIPS STORE OFFICE, BROOKLYN, NEW YORK, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT SIX WEEKS, UPON COMPLETION OF WHICH YOU WERE TO REPORT TO THE SAME OFFICER FOR DUTY AT THE SAME PLACE. YOU REPORTED FOR SUCH TEMPORARY DUTY ON APRIL 2, 1954. BY ORDERS DATED APRIL 30, 1954, WHEN DIRECTED BY YOUR COMMANDING OFFICER ON OR ABOUT MAY 17, 1954, YOU WERE TO BE DETACHED FROM ALL DUTY AT NAVY SHIPS STORE OFFICE, AND WERE TO PROCEED TO PORT LYAUTEY, FRENCH MOROCCO, FOR DUTY. ON MAY 14, 1954, UPON COMPLETION OF TEMPORARY DUTY AT NAVY SHIPS STORE OFFICE, YOU WERE DETACHED FROM THAT STATION. THUS, NO PERMANENT DUTY WAS PERFORMED THERE. YOU WERE PAID A PER DIEM ALLOWANCE OF $347 FOR THE PERIOD OF TEMPORARY DUTY. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, HOWEVER, WE TOOK EXCEPTION TO THE PAYMENT AND THE SAID SUM WAS COLLECTED FROM YOU BY CHECK AGE AGAINST YOUR PAY. THEREAFTER, BY LETTER OF JANUARY 19, 1956, THE BUREAU OF NAVAL PERSONNEL ATTEMPTED TO CORRECT OR AMEND THE ORDERS OF APRIL 30, 1954, RETROACTIVELY, BY ADDING A NEW PARAGRAPH STATING THAT PARAGRAPH 2 OF THE ORDERS OF MARCH 16, 1954 (THE PROVISION FOR PERMANENT DUTY AT NAVY SHIPS STORE OFFICE),"IS HEREBY CANCELLED.' THE LETTER FURTHER STATES THAT IT NEVER WAS INTENDED THAT YOU BE ASSIGNED TO DUTY AT THE NAVY SHIPS STORE OFFICE, BROOKLYN, NEW YORK, UPON COMPLETION OF THE TEMPORARY DUTY THERE, AND THAT WORDING TO THAT EFFECT IN YOUR ORDERS WAS INCLUDED ERRONEOUSLY. YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. THE PRINCIPAL CONTENTION IN YOUR REQUEST FOR REVIEW IS THAT THE ORIGINAL CHECK AGE WAS IN ERROR FOR THE REASON THAT YOU DID NOT PERFORM PERMANENT DUTY AT BROOKLYN. ALSO, YOU STATE THAT SEVERAL HUNDRED OFFICERS WERE PAID PER DIEM FOR THE IDENTICAL TEMPORARY DUTY; THAT ONLY YOU AND ACCOMPANYING OFFICERS WERE CHECKED FOR THE AMOUNT PAID, AND THAT THE DIFFERENCE WAS CAUSED BY AN ERROR IN THE ORDERS.

IT HAS BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE INCOMPLETE OR AMBIGUOUS OR WHERE A PROVISION WHICH WAS ORIGINALLY INTENDED TO BE INCLUDED IN AN ORDER BUT WAS OMITTED THROUGH ERROR OF INADVERTENCE IN PREPARING SUCH ORDER, THE ORDER MAY BE CORRECTED OR COMPLETED TO SHOW THE ORIGINAL INTENT. 24 COMP. GEN. 439. HOWEVER, NO SUCH ELEMENTS APPEAR IN YOUR CASE. THE ORDERS OF MARCH 16, 1954, WERE CLEAR AND UNAMBIGUOUS. THEY DETACHED YOU FROM A PERMANENT STATION AT BAYONNE, NEW JERSEY, AND ASSIGNED YOU TO DUTY AT BROOKLYN, NEW YORK, FOLLOWING A SHORT PERIOD OF TEMPORARY DUTY AT THE LATTER PLACE. THUS, BROOKLYN WAS YOUR DESIGNATED POST OF DUTY AND, IN EFFECT, YOUR PERMANENT STATION FROM THE TIME YOU ARRIVED THERE. THIS IS TRUE EVEN THOUGH SUBSEQUENT ORDERS TRANSFERRED YOU FROM BROOKLYN TO AN OVERSEAS STATION AT THAT EXPIRATION OF THE TEMPORARY DUTY. THEREFORE, THE LETTER OF JANUARY 19, 1956, FROM THE BUREAU OF NAVAL PERSONNEL CANNOT SERVE AS A LEGAL BASIS TO CHANGE YOUR RIGHTS AND LIABILITIES UNDER THE ORDERS OF MARCH 16, 1954.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 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 OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON CHANGE OF STATION OR OTHERWISE, "OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.' WE KNOW OF NO STATUTORY AUTHORITY, HOWEVER, FOR PAYMENT OF PER DIEM DURING A PERIOD OF DUTY AT A DESIGNATED POST. FOR THAT REASON, IT IS THE UNIFORM PRACTICE TO DENY PER DIEM IN SUCH CASES. 34 COMP. GEN. 427. SUCH BEING THE CASE, THE SETTLEMENT OF OCTOBER 8, 1956, WAS CORRECT AND IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED.