B-135170, MARCH 25, 1958, 37 COMP. GEN. 637

B-135170: Mar 25, 1958

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FOR PER DIEM FOR A PERIOD WHILE HE WAS ATTENDING A COURSE OF INSTRUCTION AT THE NAVAL AIR STATION. PRIVATE PICKERING WAS ORDERED ON PERMANENT CHANGE OF STATION TO NAVAL AIR TECHNICAL TRAINING CENTER. CLASS " WHICH WAS SCHEDULED FOR A PERIOD OF SIX WEEKS. PRIVATE PICKERING WAS ASSIGNED TO THE AVIATION ELECTRICIAN'S MATE ( MAINT) CLASS "A" SCHOOL. THIS ASSIGNMENT WAS EFFECTED IN ACCORDANCE WITH AUTHORITY CONTAINED IN LETTER DATED JUNE 15. YOUR QUESTION IS WHETHER PRIVATE PICKERING'S CONTINUOUS ATTENDANCE AT THE P AND A SCHOOLS AT THE NAVAL AIR STATION. FOR AN AGGREGATE PERIOD OF 21 WEEKS SHOULD BE CONSIDERED AS ONE ASSIGNMENT UNDER INSTRUCTION SO THAT HIS TRANSFER TO THAT STATION SHOULD BE REGARDED AS A PERMANENT CHANGE OF STATION OR WHETHER HIS ASSIGNMENT TO THE A SCHOOL SHOULD BE CONSIDERED TEMPORARY ADDITIONAL DUTY UNDER INSTRUCTION SO THAT PAYMENT OF PER DIEM ALLOWANCES ARE AUTHORIZED.

B-135170, MARCH 25, 1958, 37 COMP. GEN. 637

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENTS - CONSECUTIVE TRAINING PERIODS - COMPLETION OF COURSE THE ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES TO A SCHOOL OF INSTRUCTION FOR SIX WEEKS AND, UPON THE SUCCESSFUL COMPLETION OF THE COURSE, THE FURTHER ASSIGNMENT TO ANOTHER TRAINING COURSE AT THE SAME STATION FOR AN ADDITIONAL 15 WEEKS CONSTITUTES A PERMANENT RATHER THAN TEMPORARY CHANGE OF STATION FOR 21 CONSECUTIVE WEEKS TO PRECLUDE THE RECEIPT OF PER DIEM, AND THE CONTINGENCY THAT THE MEMBER MAY FAIL TO MEET THE SCHOLASTIC REQUIREMENTS FOR SUCCESSFUL COMPLETION OF THE FIRST COURSE MAY NOT DEFEAT THE ADMINISTRATIVE INTENT TO CONTINUE THE MEMBER UNDER INSTRUCTION FOR BOTH TRAINING PERIODS.

TO MAJOR J. J. MURPHY, UNITED STATES MARINE CORPS, MARCH 25, 1958:

BY ENDORSEMENT OF FEBRUARY 3, 1958, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER DATED DECEMBER 13, 1957, AND ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE ON VOUCHER SUBMITTED IN FAVOR OF PRIVATE FIRST CLASS DAVID C. PICKERING, USMC, FOR PER DIEM FOR A PERIOD WHILE HE WAS ATTENDING A COURSE OF INSTRUCTION AT THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA.

BY 2ND ENDORSEMENT DATED JULY 13, 1956, TO BASIC RECRUIT TRAINING ORDERS DATED JUNE 12, 1956, PRIVATE PICKERING WAS ORDERED ON PERMANENT CHANGE OF STATION TO NAVAL AIR TECHNICAL TRAINING CENTER, JACKSONVILLE, FLORIDA, FOR DUTY UNDER INSTRUCTION IN AVIATION FUNDAMENTALS SCHOOL, CLASS " WHICH WAS SCHEDULED FOR A PERIOD OF SIX WEEKS. UPON SUCCESSFUL COMPLETION OF THIS COURSE, PRIVATE PICKERING WAS ASSIGNED TO THE AVIATION ELECTRICIAN'S MATE ( MAINT) CLASS "A" SCHOOL, NAVAL AIR STATION, JACKSONVILLE, FLORIDA, SCHEDULED FOR A PERIOD OF FIFTEEN (15) WEEKS. THIS ASSIGNMENT WAS EFFECTED IN ACCORDANCE WITH AUTHORITY CONTAINED IN LETTER DATED JUNE 15, 1956 (DFB-2865-1BH-22), FROM COMMANDANT OF THE MARINE CORPS TO COMMANDING OFFICER, MARINE AVIATION DETACHMENT, NAVAL AIR TECHNICAL TRAINING CENTER, JACKSONVILLE, FLORIDA. THIS LETTER PROVIDED FOR THE AUTOMATIC ASSIGNMENT OF ENLISTED PERSONNEL GRADUATED FROM AVIATION FUNDAMENTALS SCHOOL, CLASS ,P," TO VARIOUS CLASS "A" SCHOOLS AT THE NAVAL AIR TECHNICAL TRAINING CENTER, JACKSONVILLE, FLORIDA. YOUR QUESTION IS WHETHER PRIVATE PICKERING'S CONTINUOUS ATTENDANCE AT THE P AND A SCHOOLS AT THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA, FOR AN AGGREGATE PERIOD OF 21 WEEKS SHOULD BE CONSIDERED AS ONE ASSIGNMENT UNDER INSTRUCTION SO THAT HIS TRANSFER TO THAT STATION SHOULD BE REGARDED AS A PERMANENT CHANGE OF STATION OR WHETHER HIS ASSIGNMENT TO THE A SCHOOL SHOULD BE CONSIDERED TEMPORARY ADDITIONAL DUTY UNDER INSTRUCTION SO THAT PAYMENT OF PER DIEM ALLOWANCES ARE AUTHORIZED.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. PARAGRAPH 1150-10 (B) OF THE REGULATIONS PROVIDES THAT WHERE A MEMBER IS TRANSFERRED 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. WHILE ORDINARILY THE SCHEDULED LENGTH OF A COURSE OF INSTRUCTION IS DETERMINATIVE IN THE MATTER, THE QUESTION OF WHETHER AN ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED PRIMARILY BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, AND WHETHER THERE EXISTS OR HAS BEEN ASSIGNED TO ANOTHER STATION TO WHICH THE MEMBER MUST PROCEED UPON ITS COMPLETION TO RESUME HIS NORMAL DUTY ASSIGNMENT.

IN VIEW OF THE COMMANDANT'S LETTER OF JUNE 15, 1956, IT SEEMS CLEAR THAT PRIVATE PICKERING'S ORDERS OF JULY 13, 1956, ASSIGNING HIM TO DUTY AT THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA, CONTEMPLATED THAT UPON SUCCESSFUL COMPLETION OF HIS WORK IN THE CLASS P SCHOOL HE WOULD CONTINUE HIS TRAINING IN THE CLASS A SCHOOL FOR AN ADDITIONAL 15 WEEKS. IT IS UNDERSTOOD THAT THERE EXISTED A CONTINGENCY THAT HE MIGHT HAVE BEEN DISENROLLED FOR FAILURE TO MEET THE SCHOLASTIC REQUIREMENTS. HOWEVER, IN ALL ASSIGNMENTS TO DUTY UNDER INSTRUCTION THERE IS PRESENT THE CONTINGENCY THAT THE MEMBER MAY BE UNABLE TO COMPLETE THE INSTRUCTION CONTEMPLATED BY HIS ORDERS NECESSITATING HIS TRANSFER TO ANOTHER ASSIGNMENT. THEREFORE, THE CONTINGENCY OF PRIVATE PICKERING'S DISENROLLMENT MAY NOT BE USED TO DEFEAT THE ADMINISTRATIVE INTENT, AS EXPRESSED IN HIS ORDERS, TO CONTINUE HIM ON DUTY UNDER INSTRUCTION FOR 21 CONSECUTIVE WEEKS. UNDER THESE CIRCUMSTANCES PRIVATE PICKERING'S ASSIGNMENT AT THE NAVAL AIR TECHNICAL TRAINING CENTER UNDER PERMANENT CHANGE OF STATION ORDERS MUST BE CONSIDERED PERMANENT RATHER THAN TEMPORARY. ACCORDINGLY, SINCE PER DIEM IS NOT PAYABLE FOR DUTY PERFORMED AT A PERMANENT STATION THERE IS NO LEGAL BASIS FOR THE PAYMENT OF PER DIEM AS CLAIMED. THEREFORE, PAYMENT OF THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.