B-136187, JUL. 2, 1958

B-136187, JUL. 2, 1958

TO MR. CLINTON E. HARRISON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1958 (FORWARDED HERE BY THE U.S. NAVY REGIONAL ACCOUNTS OFFICE), WHICH WILL BE TREATED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF JULY 29, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, DURING THE PERIOD MAY 4, 1956, TO AUGUST 2, 1956.

IN YOUR REQUEST FOR REVIEW YOU AVER GENERALLY THAT YOU PERFORMED THE DUTY IN QUESTION UNDER ,WRITTEN ORDERS," AND ALSO THAT YOU KNOW OF ANOTHER ENLISTED MAN WHO RECEIVED PER DIEM FOR DUTY PERFORMED WHILE AT ANTIGUA, BRITISH WEST INDIES. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT PURSUANT TO A STANDARD TRANSFER ORDER DATED MAY 2, 1956, DIRECTING YOU AND OTHER NAMED PERSONNEL TO PROCEED FOR "RESUMPTION OF DUTIES" WITH MOBILE CONSTRUCTION BATTALION SIX AT ANTIGUA, BRITISH WEST INDIES, YOU DEPARTED MOBILE CONSTRUCTION BATTALION SIX, DETACHMENT JIG, DAVISVILLE, RHODE ISLAND, ON MAY 4, 1956, SUBSEQUENTLY REPORTING TO THE U.S. NAVAL RECEIVING STATION, NORFOLK, VIRGINIA, AND THE U.S. NAVAL STATION, SAN JUAN, PUERTO RICO, AS INTERMEDIATE STATIONS FOR FURTHER TRANSFER TO MOBILE CONSTRUCTION BATTALION SIX, AND THAT ON MAY 14, 1956, YOU REPORTED FOR DUTY WITH YOUR PARENT COMMAND THEN LOCATED AT ANTIGUA, BRITISH WEST INDIES.

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. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 OF THE REGULATIONS AS THE POST OF DUTY OR 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. YOU REPORTED TO ANTIGUA FOR DUTY WITH MOBILE CONSTRUCTION BATTALION SIX PURSUANT TO TRAVEL ORDERS OF MAY 2, 1956. SUCH ORDERS DID NOT DIRECT THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY AT THAT PLACE, OR REQUIRE YOUR RETURN TO DAVISVILLE. IF IT WAS INTENDED THAT YOU SHOULD BE ASSIGNED TO TEMPORARY ADDITIONAL DUTY AT ANTIGUA,THE ORDERS SHOULD HAVE SO PROVIDED AND DIRECTED YOUR RETURN TO DAVISVILLE UPON COMPLETION OF THE TEMPORARY ASSIGNMENT. WHILE THE FIRST INDORSEMENT OF JUNE 11, 1956, TO YOUR BASIC DUTY ORDERS PURPORTED TO MODIFY YOUR ORIGINAL ORDERS ON THE BASIS OF VERBAL ORDERS ALLEGEDLY ISSUED MAY 14, 1956, SUCH ORDERS, IF GIVEN, WERE WITHOUT EFFECT TO PLACE YOU IN A TEMPORARY ADDITIONAL DUTY STATUS SINCE THE ORDERS OF MAY 2 REQUIRED YOU TO REPORT TO ANTIGUA FOR "RESUMPTION OF DUTIES.' UPON REPORTING AT YOUR NEW DESIGNATED POST OF DUTY, YOU COULD NOT AGAIN ENTER A TRAVEL STATUS UNTIL YOU LEFT THAT PLACE. IT IS SHOWN THAT YOU LEFT ANTIGUA ON JULY 26, 1956, AND REPORTED AT DAVISVILLE ON AUGUST 2, 1956, APPARENTLY PURSUANT TO A SECOND INDORSEMENT DATED JULY 27, 1956. HOWEVER, AS IN THE CASE OF THE FIRST INDORSEMENT DATED JUNE 11, 1956, SUCH INDORSEMENT WAS WITHOUT EFFECT TO CHANGE YOUR DUTY ASSIGNMENT AT ANTIGUA TO THAT OF TEMPORARY ADDITIONAL DUTY. THE FACT THAT ANOTHER ENLISTED MAN WITH WHOM YOU WERE STATIONED AT ANTIGUA MAY HAVE BEEN PAID PER DIEM AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO EXISTING REGULATIONS.

IN THE CIRCUMSTANCES, AND ON THE BASIS OF THE ORDERS SUBMITTED, IT MUST BE CONCLUDED THAT YOUR STATION AT ANTIGUA, BRITISH WEST INDIES, WAS A PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION AND CONSEQUENTLY THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM WAS CORRECT AND IS SUSTAINED.