B-136134, JUL. 3, 1958

B-136134: Jul 3, 1958

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USN: REFERENCE IS MADE TO YOUR COMMUNICATION OF APRIL 8. WHICH WILL BE TREATED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF SEPTEMBER 12. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT DURING THE PERIODS IN QUESTION YOU WERE AT FORT LYAUTAY. YOUR CLAIM WAS DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT TEMPORARY DUTY ORDERS WITHIN THE CONTEMPLATION OF PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS. DUTY OF THE TYPE YOU WERE PERFORMING DURING THE PERIODS HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBER SO ENGAGED TO PER DIEM. MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO.

B-136134, JUL. 3, 1958

TO GEORGE J. GRACIA, SW3, USN:

REFERENCE IS MADE TO YOUR COMMUNICATION OF APRIL 8, 1958 (FORWARDED HERE THROUGH THE DEPARTMENT OF THE NAVY), WHICH WILL BE TREATED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF SEPTEMBER 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION FOUR DURING PERIODS NOW STATED TO BE JULY 1, 1955, TO NOVEMBER 28, 1955, AND FROM MARCH 9, 1956, TO JUNE 8, 1956.

IN YOUR REQUEST FOR REVIEW, YOU CITE THREE COMSERVLANT MOVEMENT ORDERS DATED MAY 2, 1955, OCTOBER 17, 1955, AND FEBRUARY 15, 1956, AND YOU APPARENTLY CONTEND THAT THESE MOVEMENT ORDERS CONSTITUTE AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE PERIODS OF DUTY INVOLVED IN YOUR CLAIM. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT DURING THE PERIODS IN QUESTION YOU WERE AT FORT LYAUTAY, FRENCH MOROCCO, AND ARGENTIA, NEWFOUNDLAND. YOUR CLAIM WAS DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT TEMPORARY DUTY ORDERS WITHIN THE CONTEMPLATION OF PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS.

FOR A LONG PERIOD OF TIME, DUTY OF THE TYPE YOU WERE PERFORMING DURING THE PERIODS HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBER SO ENGAGED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD, THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTION 7220.19 ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPH 6 OF THE SECRETARY'S INSTRUCTIONS PROVIDED:

"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES.

"D. 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.'

THE PROVISIONS OF SUBPARAGRAPH C OF PARAGRAPH 6, SECNAV INSTRUCTIONS 7220.19, QUOTED ABOVE, CONSTITUTES AN EFFECTIVE EXERCISE OF ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAD BEEN ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE SUCH AS COMPLY WITH THE APPLICABLE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES CONCERNED ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS ISSUED IN ADVANCE OF TRAVEL. PARAGRAPHS 3002-1 AND 3002-2 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OF FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY DUTY ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT STATION WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. THE COMMUNICATIONS OF APRIL 25, 1956, AND JUNE 8, 1956 (WHICH CONTAIN REFERENCES TO THE MOVEMENT ORDERS CITED BY YOU IN SUPPORT OF YOUR CLAIM), WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY," DIRECT NO TRAVEL NOR DO THEY CONFIRM ANY VERBAL ORDERS DIRECTING TRAVEL. ALSO, THEY DO NOT PROVIDE FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR YOUR RETURN TO THE OLD PERMANENT STATION. HENCE, THEY DO NOT MEET THE REQUIREMENTS OF PARAGRAPH 6C OF SECNAV INSTRUCTIONS 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORD NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR PER DIEM WHILE PERFORMING DUTY WITH MOBILE CONSTRUCTION BATTALION FOUR AT FORT LYAUTAY, FRENCH MOROCCO, AND ARGENTIA, NEWFOUNDLAND.

ACCORDINGLY, ON THE BASIS OF THE ORDERS SUBMITTED IN SUPPORT OF YOUR CLAIM, THE SETTLEMENT OF SEPTEMBER 12, 1957, MUST BE SUSTAINED.