B-133585, OCT. 28, 1957

B-133585: Oct 28, 1957

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USN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5. YOU REPORTED FOR DUTY WITH MOBILE CONSTRUCTION BATTALION SIX WHICH WAS THEN LOCATED AT ANTIGUA. 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. PARAGRAPH 6D OF SUCH INSTRUCTIONS PROVIDES AS FOLLOWS: "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.'.

B-133585, OCT. 28, 1957

TO MR. JAMES W. LILES, HM 2, USN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 10, 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 OCTOBER 25, 1955, TO MAY 9, 1956.

IN YOUR REQUEST FOR REVIEW YOU AVER GENERALLY THAT OTHER MEMBERS OF MOBILE CONSTRUCTION BATTALION SIX RECEIVED PER DIEM FOR THE SAME PERIOD INVOLVED IN YOUR CLAIM. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT PURSUANT TO STANDARD TRANSFER ORDER NO. 168-55, DATED AUGUST 5, 1955, DIRECTING YOU TO PROCEED FOR DUTY WITH MOBILE CONSTRUCTION BATTALLION SIX, YOU DEPARTED THE U.S. NAVAL HOSPITAL, PHILADELPHIA, PENNSYLVANIA, ON AUGUST 29, 1955, SUBSEQUENTLY REPORTING TO THE U.S. NAVAL BASE, NORFOLK, VIRGINIA, AS AN INTERMEDIATE STATION PENDING FURTHER TRANSFER TO MOBILE CONSTRUCTION BATTALION SIX, AND THAT ON OCTOBER 25, 1955, YOU REPORTED FOR DUTY WITH MOBILE CONSTRUCTION BATTALION SIX WHICH WAS THEN LOCATED AT ANTIGUA, BRITISH WEST INDIES.

SECNAV INSTRUCTION 7220.19, DATED 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 THE RECEIPT OF SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE. PARAGRAPH 6D OF SUCH INSTRUCTIONS PROVIDES AS FOLLOWS:

"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.'

THE ORDERS DIRECTING YOU TO REPORT AT ANTIGUA DIRECTED DUTY RATHER THAN TEMPORARY DUTY, AND ANY MODIFICATION OF THOSE ORDERS WOULD SEEM TO FALL WITHIN THE COVERAGE OF PARAGRAPH 6D. THE FACT THAT OTHER NAVAL PERSONNEL WITH WHOM YOU WERE STATIONED AT ANTIGUA MAY HAVE BEEN PAID PER DIEM AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO THIS ADMINISTRATIVE REGULATION.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63 STAT. 813, AUTHORIZES 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. THE "ORDERS" OF MAY 18, 1956, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM ARE NOT TRAVEL ORDERS; THEY DO NOT DIRECT YOU TO PERFORM TEMPORARY DUTY, RETURN TO YOUR OLD STATION OR PROCEED TO A NEW STATION UPON COMPLETION OF TEMPORARY DUTY. WHERE COMPETENT ORDERS FOR PER DIEM PURPOSES 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. PARAGRAPH 7D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE.

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