B-134722, FEB. 13, 1958

B-134722, FEB. 13, 1958

TO MR. CARL G. SEMPIER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1957, REQUESTING FURTHER CONSIDERATION IN THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES ARISING BY REASON OF ERRONEOUS PER DIEM PAYMENTS RECEIVED INCIDENT TO DUTY PERFORMED BY YOU DURING THE PERIOD SEPTEMBER 24, 1954, TO MARCH 8, 1955, AT KINGSVILLE, TEXAS, AS AN OFFICER OF THE U.S. NAVAL RESERVE.

THE BASIS FOR THE FINDING OF INDEBTEDNESS IN YOUR CASE WAS THE FACT THAT YOU WERE DIRECTED BY INDORSEMENT OF SEPTEMBER 20, 1954, TO ORDERS DATED SEPTEMBER 1, 1954, TO PARTICIPATE IN A COURSE OF INSTRUCTION AT KINGSVILLE, TEXAS, IN CONNECTION WITH A CHANGE OF DUTY ASSIGNMENT, WHICH COURSE, ACCORDING TO INFORMATION CONTAINED IN A LETTER FROM THE CHIEF OF NAVAL PERSONNEL DATED AUGUST 25, 1954, WAS SCHEDULED FOR A PERIOD IN EXCESS OF 20 WEEKS IN DURATION, A CIRCUMSTANCE THAT MADE YOU INELIGIBLE TO RECEIVE THE PER DIEM PAID TO YOU WHILE AT THAT STATION.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES (INCLUDING PER DIEM) WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH POSTS. REGULATIONS PROMULGATED UNDER THOSE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 3050 OF THE REGULATIONS AUTHORIZES PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, WITH THE EXCEPTION THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION FOR A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION. UNDER THOSE PROVISIONS AN ASSIGNMENT TO A COURSE OF INSTRUCTION FOR 20 WEEKS OR MORE INCIDENT TO A CHANGE OF DUTY MUST BE CONSIDERED A PERMANENT DUTY ASSIGNMENT FOR PER DIEM PURPOSES, IRRESPECTIVE OF THE FACT THAT THE ORDERS DIRECTING THE DUTY MIGHT CONTAIN LANGUAGE PURPORTING TO AUTHORIZE PER DIEM OR OTHER ALLOWANCE NOT PAYABLE INCIDENT TO THE PERFORMANCE OF DUTY AT A PERMANENT STATION. ORDINARILY THE SCHEDULED LENGTH OF A COURSE OF INSTRUCTION IS DETERMINATIVE IN THE MATTER. IN THE LETTER OF AUGUST 25, 1954, FROM THE CHIEF OF NAVAL PERSONNEL, ISSUED PRIOR TO THE DATE OF ISSUANCE OF YOUR BASIC ORDERS, IT WAS INDICATED THAT THE COURSE THAT YOU ATTENDED WAS SCHEDULED FOR A PERIOD IN EXCESS OF 20 WEEKS. IT APPEARS THAT SUCH COURSE IN FACT EXTENDED OVER A PERIOD EXCEEDING 20 WEEKS. UNDER SUCH CIRCUMSTANCES KINGSVILLE BECAME YOUR PERMANENT DUTY STATION WHEN YOU REPORTED THERE FOR THE ASSIGNED COURSE OF INSTRUCTION, AND CONSEQUENTLY THERE WAS NO AUTHORITY UNDER THE LAW TO PAY YOU THE PER DIEM YOU RECEIVED FOR DUTY THERE.

SINCE THE PER DIEM PAYMENTS IN QUESTION WERE IMPROPER, IT IS CONCLUDED THAT YOU ARE LEGALLY OBLIGATED TO THE GOVERNMENT TO THE EXTENT OF SUCH ERRONEOUS PAYMENTS, TOTALING $273.90. IT IS REQUESTED, THEREFORE, THAT PAYMENT OF THAT AMOUNT, OR A SUBSTANTIAL INITIAL PAYMENT, TOGETHER WITH STATEMENT OF A PLAN FOR THE PAYMENT OF THE REMAINDER WITHIN A REASONABLE TIME, BE SUBMITTED TO ..END :