B-132755, SEP. 24, 1957

B-132755, SEP. 24, 1957

TO LIEUTENANT COMMANDER HERBERT E. MANSHIP, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 11, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD DECEMBER 19, 1951, TO APRIL 15, 1952.

BY ORDERS DATED SEPTEMBER 29, 1951, U.S. NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, YOU WERE DIRECTED TO PROCEED VIA GOVERNMENT TRANSPORTATION TO THE PORT IN WHICH COMPOSITE SQUADRON SIX (VC-6) MIGHT BE AND REPORT TO THE COMMANDING OFFICER OF THAT SQUADRON FOR ADDITIONAL DUTY. THE ORDERS STATED THAT NO EXPENSE TO THE GOVERNMENT WAS INVOLVED AND NONE WAS AUTHORIZED. THE ORDERS CONTAINED NO INDICATION OF FURTHER ASSIGNMENT TO A NEW PERMANENT DUTY STATION OR FOR RETURN TO YOUR OLD STATION. YOU REPORTED FOR SUCH DUTY ON DECEMBER 27, 1951. YOU REMAINED THERE UNTIL APRIL 14, 1952, DURING WHICH PERIOD GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AND USED. YOUR RETURN TO THE UNITED STATES AND ASSIGNMENT TO DUTY AT NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, WAS EFFECTED BY THIRD ENDORSEMENT DATED APRIL 13, 1952. YOUR CLAIM FOR PER DIEM FOR THE PERIOD DECEMBER 19, 1951, TO APRIL 15, 1952, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT IT WAS NOT SUPPORTED BY ORDERS DIRECTING THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY FOR WHICH PER DIEM COULD BE PAID. YOUR REQUEST FOR REVIEW IS BASED ON THE FACT THAT THE THIRD ENDORSEMENT DIRECTED YOUR RETURN TO THE STATION FROM WHICH YOU HAD DEPARTED, AND THAT PAYMENT WAS MADE IN SIMILAR CLAIMS. ALSO, YOU REFER TO DECISION B-121943, DATED DECEMBER 9, 1954, 34 COMP. GEN. 284.

ORIGINALLY, DUTY OF THE TYPE HERE INVOLVED, DESCRIBED AS "DEPLOYMENT" WAS NOT REGARDED, EITHER HERE OR IN THE DEPARTMENT OF THE NAVY, AS ENTITLING PERSONNEL SO ASSIGNED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS OR UNDER ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS "DUTY" OR "ADDITIONAL DUTY.' IN SOME CASES, THE DEPARTMENT OF THE NAVY ADVISED US THAT THE DUTY THERE INVOLVED WAS IN FACT DUTY OF A NATURE FOR WHICH PER DIEM SHOULD BE PAID. SEE 34 COMP. GEN. 284. SUBSEQUENTLY, SECNAV INSTRUCTION 7220.19, DATED JUNE 4, 1956, WAS ISSUED TO CLARIFY THE DEPARTMENT OF THE NAVY 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 6D OF SUCH INSTRUCTION SPECIFICALLY PROVIDES AS OLLOWS:

"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 CLEAR 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, 63 STAT. 813, AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS. COMPETENT ORDERS FOR PER DIEM PURPOSES ARE DEFINED IN PARAGRAPHS 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 A 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. PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE. THE CLAIMS CITED BY YOU MAY NOT BE CONSIDERED AS PRECEDENTS FOR ALLOWING CLAIMS CONTRARY TO THAT DETERMINATION.

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