B-134839, APR. 25, 1958

B-134839, APR. 25, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED JANUARY 7, 1958 (WITH ENCLOSURES), FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), REQUESTING A DECISION AS TO WHETHER NORMAN E. YENTER, LIEUTENANT COMMANDER, UNITED STATES NAVY, IS ENTITLED TO A PER DIEM ALLOWANCE FOR THE PERIOD FROM SEPTEMBER 21 THROUGH OCTOBER 18, 1957, WHILE UNDER TEMPORARY DUTY ASSIGNMENT AT THE NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA, AWAITING ACTION UPON HIS APPLICATION FOR RETIREMENT.

OFFICER YENTER WAS ON PERMANENT DUTY AT TETERBORO, NEW JERSEY, WHEN, PURSUANT TO ORDERS DATED FEBRUARY 20, 1957, AS MODIFIED, HE WAS DETACHED THEREFROM AND ORDERED TO PROCEED TO MEMPHIS, TENNESSEE, AND TO REPORT TO THE COMMANDING OFFICER, NAVAL AIR TECHNICAL TRAINING CENTER, NOT LATER THAN MAY 23, 1957, FOR TEMPORARY DUTY OF ABOUT 12 WEEKS AT THE AIRCRAFT MAINTENANCE OFFICERS SCHOOL. WHILE ON TEMPORARY DUTY UNDER INSTRUCTION AT MEMPHIS THE OFFICER FILED APPLICATION FOR RETIREMENT AND SELECTED SUNNYVALE, CALIFORNIA, TO BE HIS HOME UPON RETIREMENT. THE RECORD SHOWS THAT THE OFFICER REPORTED AT MOFFETT FIELD ON SEPTEMBER 20, 1957, WHERE GOVERNMENT QUARTERS WERE REPORTED TO HAVE BEEN AVAILABLE FOR HIM BUT NOT FOR HIS DEPENDENTS. YOU STATE THAT SUNNYVALE IS LOCATED ABOUT FIVE MILES FROM MOFFETT FIELD.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN PERFORMING PUBLIC BUSINESS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. THE RESPECTIVE SECRETARIES CONCERNED ARE VESTED WITH THE AUTHORITY TO PRESCRIBE THE CONDITIONS UNDER WHICH SUCH ALLOWANCES SHALL BE AUTHORIZED. SUBPARAGRAPHS (G) AND (H) OF THAT SECTION PROVIDE THAT THE SECRETARIES CONCERNED SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS AND SHALL PROMULGATE REGULATIONS AS THEREIN PROVIDED, SUCH REGULATIONS TO BE UNIFORM FOR ALL SERVICES INSOFAR AS PRACTICABLE. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY IN EFFECT SINCE APRIL 1, 1951, ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN AN ACTUAL TRAVEL STATUS. A MEMBER IS DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING AUTHORIZED TRAVEL OR WHILE TRANSACTING OFFICIAL PUBLIC BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY IN COMPLIANCE WITH COMPETENT TRAVEL ORDERS. THE TERM TEMPORARY DUTY IS CONSTRUED TO MEAN DUTY AT A LOCATION OTHER THAN A PERMANENT STATION UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. THE TERM "PERMANENT CHANGE OF STATION" INCLUDES THE CHANGE FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY OR INDUCTION, AND FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, RELEASE FROM ACTIVE DUTY, OR RETIREMENT.

PARAGRAPH 4205-4 OF THE JOINT TRAVEL REGULATIONS, READS IN PERTINENT PART, AS FOLLOWS:

"4. ROUND TRIPS OF TEN HOURS OR LESS WITHIN ONE CALENDAR DAY. NO PER DIEM ALLOWANCE IS AUTHORIZED FOR A ROUND TRIP PERFORMED ENTIRELY WITHIN A 10-HOUR PERIOD OF THE SAME CALENDAR DAY * * *.'

MOREOVER, PARAGRAPH 6450 THEREOF SPECIFICALLY PROVIDES THAT EXPENSES INCURRED AT A DUTY STATION INCIDENT TO TRAVEL TO AND FROM HOME AND PLACE OF DUTY OR TO SHORT TRIPS WITHIN THE IMMEDIATE VICINITY OF THE DUTY STATION ARE NOT PAYABLE.

THE BASIC PURPOSE OF THE PER DIEM ALLOWANCE IS TO COMPENSATE THE MEMBER FOR THE INCREASED EXPENSES WHICH HE SUSTAINS WHILE TEMPORARILY REQUIRED TO MAINTAIN HIMSELF AWAY FROM HIS PERMANENT STATION. IN THE INSTANT CASE THE DUTY STATION AND SELECTED HOME WERE IN THE SAME GENERAL AREA AND IT IS REASONABLE TO ASSUME--- IN THE ABSENCE OF A SPECIFIC SHOWING THAT GOVERNMENT QUARTERS WERE OCCUPIED--- THAT DURING THE INVOLVED PERIOD THE OFFICER ACTUALLY RESIDED IN SUNNYVALE, THE PLACE HE SELECTED AS HIS HOME. FURTHER, IN VIEW OF THE PURPOSE OF THE TEMPORARY DUTY ASSIGNMENT AS EXPRESSED IN THE AMENDING ORDERS OF AUGUST 29, 1957, THE CONCLUSION APPEARS REQUIRED THAT THOSE ORDERS ARE TANTAMOUNT TO ORDERS TO HOME TO AWAIT RETIREMENT. PAYMENT OF PER DIEM INCIDENT TO SUCH AN ASSIGNMENT IS NOT DEEMED PROPER AND, ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED.

THE VOUCHER AND RELATED PAPERS WHICH ACCOMPANIED YOUR LETTER ARE BEING RETAINED HERE.