B-133587, SEP. 26, 1957

B-133587: Sep 26, 1957

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LINDLEY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5. IT IS WITH RESPECT TO SUCH PERIODS THAT YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM. YOUR CLAIM WAS DISALLOWED GENERALLY ON THE GROUND THAT THE DUTY PERFORMED BY YOU WAS NOT TEMPORARY ADDITIONAL DUTY UNDER COMPETENT ORDERS. SECNAV INSTRUCTION 7220.19 (ISSUED SEVERAL MONTHS AFTER THE PERIOD FOR WHICH YOU CLAIM PER DIEM) CLARIFIES THE NAVY DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHEN PROPER WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE DETERMINATION THAT PER DIEM WAS NOT PAYABLE. THAT MEMBERS DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE ISSUED PROPER CONFIRMATORY ORDERS.

B-133587, SEP. 26, 1957

TO MR. EUGENE G. LINDLEY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1957, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 14, 1957, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD MAY 8, 1954, TO JANUARY 16, 1956, INCIDENT TO YOUR SERVICE AS AN OFFICER IN THE UNITED STATES NAVY. IT APPEARS FROM YOUR LETTER THAT YOU CONCEDE THE CORRECTNESS OF THE ACTION TAKEN IN THE SETTLEMENT EXCEPT FOR THAT PORTION RELATING TO YOUR DUTY IN FRENCH MOROCCO FOR THE PERIODS FROM NOVEMBER 29, 1955, TO JANUARY 4, 1956, AND FROM JANUARY 10 TO 15, 1956, AND IT IS WITH RESPECT TO SUCH PERIODS THAT YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM.

YOUR CLAIM WAS DISALLOWED GENERALLY ON THE GROUND THAT THE DUTY PERFORMED BY YOU WAS NOT TEMPORARY ADDITIONAL DUTY UNDER COMPETENT ORDERS. IN YOUR REQUEST FOR RECONSIDERATION YOU CONTEND THAT YOU SHOULD BE ALLOWED PER DIEM UNDER YOUR ORDERS OF NOVEMBER 9, 1955, FOR THE PERIOD NOVEMBER 29, 1955, TO JANUARY 15, 1956, EXCLUSIVE OF FIVE DAYS' LEAVE, ON THE BASIS OF PERFORMING TEMPORARY ADDITIONAL DUTY AS DEFINED IN PARAGRAPH 3003/2), JOINT TRAVEL REGULATIONS, AND IN PARAGRAPH 3, SECNAV INSTRUCTION 7220.19, AND ALSO ON THE BASIS OF HAVING BEEN ISSUED TEMPORARY ADDITIONAL DUTY ORDERS AS PROVIDED FOR IN PARAGRAPH 4 OF SECNAV INSTRUCTION 7220.19.

SECNAV INSTRUCTION 7220.19 (ISSUED SEVERAL MONTHS AFTER THE PERIOD FOR WHICH YOU CLAIM PER DIEM) CLARIFIES THE NAVY DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHEN PROPER WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE DETERMINATION THAT PER DIEM WAS NOT PAYABLE. THE INSTRUCTION PROVIDES, AMONG OTHER THINGS, THAT MEMBERS 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 THE SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE. PARAGRAPH 6D OF SUCH INSTRUCTION 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.'

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. WHERE SUCH COMPETENT ORDERS WERE NOT ISSUED BECAUSE OF 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 AS TO WHETHER PROPER CONFIRMATORY ORDERS WILL BE ISSUED IS A MATTER FOR ADMINISTRATIVE DETERMINATION. THE ORDERS OF NOVEMBER 9, 1955, EXPRESSLY PROVIDED THAT UPON COMPLETION OF APPROXIMATELY 25 DAYS OF TEMPORARY ADDITIONAL DUTY DIRECTED THEREIN, AND UPON ARRIVAL OF DETACHMENT JIG, USN MOBILE CONSTRUCTION BATTALION CME, YOU WOULD ,RESUME YOUR REGULAR DUTIES AS OFFICER IN CHARGE.' THE CONCLUSION APPEARS REQUIRED, THEREFORE, THAT PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE.