B-131518, MAY 29, 1957

B-131518, MAY 29, 1957

TO STAFF SERGEANT CHARLES A. SPATZIER, USMC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 19, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD APRIL 10 TO JUNE 19, 1956.

BY ORDERS DATED FEBRUARY 28, 1956, MARINE BARRACKS, U.S. NAVAL BASE, SUBIC BAY, PHILIPPINE ISLANDS, YOU WERE DETACHED FROM DUTY AT THAT STATION, RETURNED TO THE UNITED STATES, AND ASSIGNED TO MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, FOR DUTY. ENDORSEMENTS ON YOUR ORDERS INDICATE THAT UPON YOUR ARRIVAL AT CAMP PENDLETON ON APRIL 9, 1956, YOU WERE PLACED ON TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE WESTERN DIVISION RIFLE AND PISTOL MATCHES, AND A NOTATION ON THE REVERSE OF YOUR ORDER SHOWS THAT ON APRIL 27, 1956, YOU WERE CREDITED WITH $50 AS A TRAVEL ADVANCE FOR PER DIEM FOR 34 DAYS' TEMPORARY DUTY. BY SIXTH ENDORSEMENT DATED JUNE 18, 1956, CAMP PENDLETON, ISSUED PURSUANT TO A MESSAGE FROM THE COMMANDANT OF THE MARINE CORPS, YOU WERE TRANSFERRED ON JUNE 19, 1956, FROM CAMP PENDLETON TO MARINE CORPS, SCHOOLS, QUANTICO, VIRGINIA, FOR DUTY. ON JUNE 25, 1956, THE ORDER-ISSUING AUTHORITY AT SUBIC BAY ISSUED AN AMENDMENT PURPORTING TO MODIFY THE ORDERS OF FEBRUARY 28, 1956, RETROACTIVELY, TO PROVIDE THAT YOUR TRANSFER TO MARINE CORPS BASE, CAMP PENDLETON, WAS FOR TEMPORARY DUTY IN CONNECTION WITH THE COMPETITION-IN- ARMS PROGRAM 1956, AND FOR FURTHER ASSIGNMENT BY HEADQUARTERS MARINE CORPS UPON COMPLETION THEREOF. ON THE BASIS OF THAT AMENDMENT, IT IS YOUR CONTENTION THAT YOU ARE ENTITLED TO PER DIEM FOR THE ENTIRE PERIOD OF DUTY AT CAMP PENDLETON.

IN THE SETTLEMENT MENTIONED ABOVE, YOU WERE ADVISED THAT, EXCEPT TO CORRECT OR COMPLETE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER APPLICABLE STATUTES AND REGULATIONS FOR TRAVEL AND DUTY ALREADY PERFORMED. YOU FURTHER WERE ADVISED THAT NO RETROACTIVE EFFECT MAY BE GIVEN TO A MODIFICATION OR CORRECTION OF A TRAVEL ORDER EXCEPT WHERE A TRAVEL ORDER, ON ITS FACE, IS INCOMPLETE OR AMBIGUOUS OR WHERE ALL THE FACTS AND CIRCUMSTANCES WOULD CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED, AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED, HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDER. IN YOUR PRESENT LETTER YOU INVITE ATTENTION TO THE FACT THAT THE SUBIC BAY ORDERS OF FEBRUARY 28, 1956, PROVIDED YOU WOULD BE DETACHED FROM THAT ORGANIZATION ON OR ABOUT MARCH 4, 1956, AND FURTHER PROVIDED YOU WOULD REPRESENT THAT COMMAND IN THE MARINE CORPS WESTERN DIVISION RIFLE MATCHES. APPARENTLY, IT IS YOUR CONTENTION THAT SUCH SEEMINGLY INCONSISTENT PROVISIONS CONSTITUTE A PROPER BASIS FOR THE AMENDMENT OF JUNE 25, 1956. ALSO, YOU STATE THAT PARAGRAPH 4205, JOINT TRAVEL REGULATIONS, PERMITS PAYMENT OF PER DIEM FOR DUTY SUCH AS WAS HERE INVOLVED.

THE ORDERS OF FEBRUARY 28, 1956, WERE ISSUED IN ACCORDANCE WITH MARINE CORPS MEMORANDUM 4-56, AND PARAGRAPH 24405, MARINE CORPS MANUAL. MARINE CORPS MEMORANDUM 4-56 (NOW MARINE CORPS DIRECTIVE 3591.2), ANNOUNCED THE MARINE CORPS COMPETITION-IN-ARMS TRAINING PROGRAM FOR THE CALENDAR YEAR 1956, AND LISTED VARIOUS MATCHES INCLUDING THE WESTERN DIVISION RIFLE AND PISTOL MATCHES AT CAMP PENDLETON, MAY 7 TO 10, 1956. PARAGRAPH 24405, MARINE CORPS MANUAL, REFERRING TO SUCH MATCHES, PROVIDED THAT COMMANDING OFFICERS WOULD SELECT THE OFFICERS AND ENLISTED COMPETITORS THEY DESIRED TO SEND TO THE MATCHES; THAT COMPETITORS WOULD BE SENT TO THE PLACE THE MATCHES WERE TO BE HELD FOR PRELIMINARY TRAINING OF SIX WEEKS OR MORE PRIOR TO THE MATCHES; THAT MEMBERS OF OVERSEAS ORGANIZATIONS SELECTED FOR THE MATCHES WOULD BE ISSUED PERMANENT CHANGE OF STATION ORDERS, AND WOULD BE REASSIGNED THEREAFTER BY HEADQUARTERS, U.S. MARINE CORPS. IT FURTHER PROVIDED THAT MEMBERS SELECTED FROM ORGANIZATIONS WITHIN THE UNITED STATES WOULD BE PLACED ON TEMPORARY ADDITIONAL DUTY FOR THE MATCHES AND WOULD BE RETURNED TO THEIR PERMANENT DUTY STATION UPON COMPLETION OF THE MATCHES.

IT SEEMS CLEAR THAT THE ORDERS OF FEBRUARY 28, 1956, WERE ISSUED IN CONFORMITY WITH THOSE REGULATIONS. THAT IS, YOU WERE ORDERED FROM AN OVERSEAS STATION TO CAMP PENDLETON FOR PERMANENT DUTY AND THEREAFTER WERE REASSIGNED BY HEADQUARTERS, U.S. MARINE CORPS. YOUR ORDERS WERE NOT AMBIGUOUS AS TO THE DUTY ENJOINED AND MAY NOT BE AMENDED RETROACTIVELY TO INCREASE OR DECREASE THE RIGHTS WHICH ACCRUED AND BECAME FIXED FOR THE DUTY PERFORMED THEREUNDER. THUS, IT MUST BE CONCLUDED THAT CAMP PENDLETON WAS YOUR PERMANENT STATION UNDER THE ORDERS OF FEBRUARY 28, 1956. WHILE THE RECORD INDICATES YOU WERE ON TEMPORARY DUTY DURING THE PERIOD COVERED BY YOUR CLAIM AND THAT YOU WERE CREDITED WITH PER DIEM FOR A PORTION OF THAT PERIOD, IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT YOU WERE AWAY FROM CAMP PENDLETON DURING THAT PERIOD THERE IS NO BASIS FOR THE PAYMENT OF ADDITIONAL PER DIEM. THE SETTLEMENT OF FEBRUARY 19, 1957, WAS CORRECT AND IS SUSTAINED.

SINCE THE MATCHES APPARENTLY WERE HELD AT CAMP PENDLETON, YOUR PERMANENT STATION, AND YOUR CLAIM DOES NOT REFLECT ANY TRAVEL AWAY FROM THAT STATION DURING THE PERIOD APRIL 10 TO JUNE 19, 1956, THE LEGALITY OF THE PAYMENT TO YOU OF PER DIEM FOR 34 DAYS DURING THAT PERIOD WILL BE CONSIDERED UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS.