B-133687, DEC. 23, 1957

B-133687: Dec 23, 1957

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FEDDERSEN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21. WITH YOUR CURRENT REQUEST FOR REVIEW YOU HAVE SUBMITTED A STATEMENT. IT APPEARS THAT THESE MOVEMENTS WERE IN ACCORD WITH VERBAL ORDERS. 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 INSTRUCTION PROVIDES AS FOLLOWS: "MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY.

B-133687, DEC. 23, 1957

TO CHARLES A. FEDDERSEN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1957, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JULY 17, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION FOUR, DURING THE PERIOD JUNE 5 TO DECEMBER 12, 1955.

WITH YOUR CURRENT REQUEST FOR REVIEW YOU HAVE SUBMITTED A STATEMENT, DATED AUGUST 16, 1957, FROM THE COMMANDING OFFICER OF MOBILE CONSTRUCTION BATTALION FOUR GIVING INFORMATION ABOUT YOUR ASSIGNMENT TO DUTY WITH MOBILE CONSTRUCTION BATTALION FOUR AT PORT LYAUTEY, FRENCH MOROCCO. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT YOU DEPARTED PORT LYAUTEY, MOBILE CONSTRUCTION BATTALION EIGHT, AND ARRIVED AT PORT LYAUTEY (APPARENTLY MOBILE CONSTRUCTION BATTALION FOUR) ON JUNE 5, 1955, THAT YOU DEPARTED PORT LYAUTEY ON NOVEMBER 28, 1955, AND RETURNED TO DAVISVILLE, RHODE ISLAND, ON DECEMBER 12, 1955. IT APPEARS THAT THESE MOVEMENTS WERE IN ACCORD WITH VERBAL ORDERS.

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 THE RECEIPT OF 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. AN EXAMINATION OF THE RECORD SHOWS THAT NO SUCH ORDERS WERE ISSUED IN YOUR CASE. THE "ORDERS" OF APRIL 25, 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 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 IN AN OTHERWISE PROPER CASE IS A MATTER FOR ADMINISTRATIVE DETERMINATION. PARAGRAPH 6D 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.