B-132614, AUG. 30, 1957

B-132614: Aug 30, 1957

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USN: REFERENCE IS MADE TO YOUR LETTER OF JUNE 30. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT YOU WERE DEPLOYED TO ANTIGUA. THESE ORDERS WERE CONFIRMED BY WRITTEN ORDERS ON JUNE 7. CLARIFIES NAVY DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHERE PROPER WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE CONCLUSION THAT PER DIEM WAS NOT PAYABLE. THAT MEMBERS CURRENTLY DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE ISSUED PROPER CONFIRMATORY ORDERS. THAT MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY DUTY AND WHO. WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE.

B-132614, AUG. 30, 1957

TO WILLIAM ROBINSON, JR., CD2, USN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1957, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 14, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, DURING THE PERIOD SEPTEMBER 19, 1955, TO JUNE 24, 1956.

IN YOUR REQUEST FOR REVIEW YOU AVER GENERALLY THAT OTHER MEMBERS OF MOBILE CONSTRUCTION BATTALION SIX RECEIVED PER DIEM ON THE SAME TYPE OF ORDERS UNDER WHICH YOU PERFORMED YOUR DUTY. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT YOU WERE DEPLOYED TO ANTIGUA, BRITISH WEST INDIES, FOR A PERIOD OF TEMPORARY ADDITIONAL DUTY UNDER VERBAL ORDERS GIVEN PURSUANT TO MOVEMENT ORDERS NO. 203-55, OF AUGUST 29, 1955. THESE ORDERS WERE CONFIRMED BY WRITTEN ORDERS ON JUNE 7, 1956, SUCH ORDERS STIPULATING THAT YOUR TEMPORARY ADDITIONAL DUTY STATUS TERMINATED ON JUNE 5, 1956.

SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, CLARIFIES NAVY DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHERE PROPER WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE CONCLUSION THAT PER DIEM WAS NOT PAYABLE. THE INSTRUCTION PROVIDES, AMONG OTHER THINGS, THAT MEMBERS CURRENTLY DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE ISSUED PROPER CONFIRMATORY ORDERS, AND THAT MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY DUTY AND WHO, PRIOR TO RECEIPT OF THE SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE. PARAGRAPH 6B OF SUCH INSTRUCTION PROVIDES AS FOLLOWS:

"MEMBERS CURRENTLY DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS UPON RECEIPT OF THIS INSTRUCTION. SUCH MEMBERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE FROM THE DATE THE WRITTEN ORDERS ARE ACTUALLY ISSUED.'

SINCE YOUR WRITTEN ORDERS CONFIRMING YOUR PERIOD OF TEMPORARY ADDITIONAL DUTY WERE ACTUALLY ISSUED JUNE 7, 1956, AND YOUR TEMPORARY ADDITIONAL DUTY STATUS ENDED ON JUNE 5, 1956 IT IS APPARENT THAT PARAGRAPH 6B PRECLUDES ANY RETROACTIVE PAYMENT OF PER DIEM IN YOUR CASE.

INSOFAR AS YOUR REQUEST FOR INFORMATION CONCERNING THE SECURING OF COMPETENT ORDERS FOR PAYMENT OF YOUR CLAIM, IT MIGHT BE POINTED OUT THAT PARAGRAPH 6D OF THE SECNAV INSTRUCTION PROVIDES THAT:

"MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY, FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION, WILL NOT BE ISSUED CONFIRMING ORDERS.'

IT APPEARS THAT THE DUTY PERFORMED BY YOU FALLS WITHIN THE COVERAGE OF PARAGRAPH 6D, THUS PRECLUDING ISSUANCE OF CONFIRMING ORDERS IN YOUR CASE.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63 STAT. 813, AUTHORIZED THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS. COMPETENT ORDERS FOR PER DIEM PURPOSES ARE DEFINED IN PARAGRAPH 3000-3003, JOINT TRAVEL REGULATIONS. AN EXAMINATION OF THE RECORD SHOWS THAT NO SUCH ORDERS WERE ISSUED IN YOUR CASE. WHERE SUCH COMPETENT ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE BELIEF THAT PER DIEM WAS NOT PAYABLE AND THE EXPENSES OF TRAVEL WERE OF MINOR NATURE BECAUSE OF THE FACT THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE, THE QUESTION OF WHETHER PROPER CONFIRMATORY ORDERS WILL BE ISSUED IS A MATTER FOR ADMINISTRATIVE DETERMINATION. HENCE, PARAGRAPHS 6B AND 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTE A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM WAS CORRECT AND IS SUSTAINED.