B-133762, NOV. 26, 1957

B-133762: Nov 26, 1957

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UNDERINER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3. WHILE YOU WERE ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE U.S. " AND YOU WERE DIRECTED TO PROCEED THERE BY WAY OF THE USN CONSTRUCTION BATTALION BASE UNIT. WHERE YOU WERE TO REPORT ON OR BEFORE MARCH 5. IT WAS STATED THAT AS DIRECTED BY CONSERVIANT MOVEMENT ORDER 29 56. YOU WERE AT CAPE HATTERAS FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE ACTIVITIES OF THAT COMMAND. TO THAT COMMUNICATION STATED THAT TEMPORARY ADDITIONAL DUTY WAS COMPLETED AND THAT YOU WERE TRANSFERRED ON AUGUST 14. YOU WERE TRANSFERRED FROM MOBILE CONSTRUCTION BATTALION SEVEN. THE BASIS FOR YOUR CLAIM APPEARS TO BE A BELIEF THAT PERSONNEL ASSIGNED TO MOBILE CONSTRUCTION BATTALION SEVEN WERE IN A TEMPORARY ADDITIONAL DUTY STATUS WHILE AT CAPE HATTERAS AND THAT UPON BEING TRANSFERRED TO DUTY WITH THAT GROUP YOU ASSUMED A SIMILAR STATUTE BY VIRTUE OF VERBAL ORDERS OF YOUR COMMANDING OFFICER DESIGNATING YOUR ASSIGNMENT AS A TEMPORARY ADDITIONAL DUTY ASSIGNMENT.

B-133762, NOV. 26, 1957

TO MR. PAUL T. UNDERINER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 21, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 10 TO AUGUST 13, 1956, WHILE YOU WERE ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE U.S. NAVAL RESERVE AT CAPE HATTERAS, NORTH CAROLINA.

STANDARD TRANSFER ORDER NO. 61-56, PREPARED FEBRUARY 8, 1956, TRANSFERRED YOU FROM DUTY ABOARD THE U.S.S. TANNER (AOS-15), THEN AT NORFOLK, VIRGINIA, TO MOBILE CONSTRUCTION BATTALION SEVEN "FOR DUTY," AND YOU WERE DIRECTED TO PROCEED THERE BY WAY OF THE USN CONSTRUCTION BATTALION BASE UNIT, DAVISVILLE, RHODE ISLAND, AN INTERMEDIATE STATION, WHERE YOU WERE TO REPORT ON OR BEFORE MARCH 5, 1956. YOU REPORTED AT DAVISVILLE ON MARCH 5 AS DIRECTED, AND COMPLYING WITH FURTHER DIRECTIONS ADDED TO YOUR ORDERS DIRECTING YOU TO REPORT TO MOBILE CONSTRUCTION BATTALION SEVEN AT CAPE HATTERAS "FOR DUTY," YOU SO REPORTED ON MARCH 9, 1956. IN A COMMUNICATION OF THE COMMANDING OFFICER, NAVAL MOBILE CONSTRUCTION BATTALION SEVEN, DATED JUNE 1, 1956, IT WAS STATED THAT AS DIRECTED BY CONSERVIANT MOVEMENT ORDER 29 56--- WHICH PRESUMABLY DIRECTED THE MOVEMENT OF MOBILE CONSTRUCTION BATTALION SEVEN FROM DAVISVILLE TO CAPE HATTERAS--- AND THE COMMANDING OFFICER'S VERBAL ORDERS, YOU WERE AT CAPE HATTERAS FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE ACTIVITIES OF THAT COMMAND. FIRST ENDORSEMENT OF AUGUST 14, 1956, TO THAT COMMUNICATION STATED THAT TEMPORARY ADDITIONAL DUTY WAS COMPLETED AND THAT YOU WERE TRANSFERRED ON AUGUST 14, 1956. BY STANDARD TRANSFER ORDER NO. 359 56, DATED AUGUST 14, 1956, YOU WERE TRANSFERRED FROM MOBILE CONSTRUCTION BATTALION SEVEN, CAPE HATTERAS, TO THE U.S. NAVAL HOSPITAL, PORTSMOUTH, VIRGINIA, FOR DUTY UNDER TREATMENT. THE BASIS FOR YOUR CLAIM APPEARS TO BE A BELIEF THAT PERSONNEL ASSIGNED TO MOBILE CONSTRUCTION BATTALION SEVEN WERE IN A TEMPORARY ADDITIONAL DUTY STATUS WHILE AT CAPE HATTERAS AND THAT UPON BEING TRANSFERRED TO DUTY WITH THAT GROUP YOU ASSUMED A SIMILAR STATUTE BY VIRTUE OF VERBAL ORDERS OF YOUR COMMANDING OFFICER DESIGNATING YOUR ASSIGNMENT AS A TEMPORARY ADDITIONAL DUTY ASSIGNMENT.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 OF THE REGULATIONS AS THE POST OF DUTY OF OFFICIAL STATION TO WHICH THE MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. THE TERM "TEMPORARY DUTY," OF WHICH TEMPORARY ADDITIONAL DUTY IS A FORM, IS DEFINED IN PARAGRAPH 3003-2 AS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

ENTITLEMENT TO PER DIEM FOR TEMPORARY ADDITIONAL DUTY UNDER THE CITED REGULATIONS ARISES ONLY WHEN IT IS PERFORMED UNDER WRITTEN ORDERS WHICH DIRECT ITS PERFORMANCE AND PROVIDE FOR THE MEMBER'S RETURN TO THE OLD PERMANENT STATION. YOUR ORDERS OF FEBRUARY 8, 1956, DIRECTED YOU TO PROCEED TO CAPE HATTERAS FOR DUTY WITH MOBILE CONSTRUCTION BATTALION SEVEN. THEY MADE NO PROVISION FOR A DUTY ASSIGNMENT BEYOND THAT POINT. IF THE PERMANENT STATION OF THAT BATTALION WAS AT DAVISVILLE AND IT WAS INTENDED THAT YOU SHOULD BE ASSIGNED TO DAVISVILLE WITH TEMPORARY DUTY AT CAPE HATTERAS, THE ORDERS WOULD HAVE SO PROVIDED AND WOULD HAVE DIRECTED YOUR RETURN TO DAVISVILLE UPON THE COMPLETION OF THE TEMPORARY ASSIGNMENT. WHILE THE COMMUNICATION OF THE COMMANDING OFFICER DATED JUNE 1, 1956, SUGGESTS THAT YOU WERE GIVEN VERBAL ORDERS DESIGNATING YOUR ASSIGNMENT AT CAPE HATTERAS AS TEMPORARY ADDITIONAL DUTY, SUCH ORDERS, IF GIVEN, WERE WITHOUT EFFECT TO PLACE YOU IN A TEMPORARY ADDITIONAL DUTY STATUS SINCE THE ORDERS OF FEBRUARY 8 REQUIRED YOU TO REPORT TO THAT PLACE "FOR DUTY" AND UPON REPORTING AT YOUR NEW DESIGNATED POST OF DUTY, YOU COULD NOT AGAIN ENTER A TRAVEL STATUS UNTIL YOU LEFT THAT PLACE. IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR STATION AT CAPE HATTERAS WAS A PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION AND CONSEQUENTLY THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF AUGUST 21, 1957, IS SUSTAINED.

IF THE OTHER PERSONS TO WHOM YOU REFERRED IN YOUR LETTER WERE PAID PER DIEM UNDER ORDERS DIRECTING THEM TO REPORT "FOR DUTY" AT CAPE HATTERAS, SUCH PAYMENTS WOULD APPEAR TO BE ERRONEOUS AND WOULD FURNISH NO BASIS FOR A LIKE PAYMENT TO YOU.