B-136830, AUG 15, 1958

B-136830, AUG 15, 1958

PRECIS-UNAVAILABLE

MR. DONALD PRIMAVERA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 29, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF THE U. S. ARMY RESERVE DURING THE PERIOD FROM MAY 15 TO OCTOBER 18, 1952.

UNDER THE PROVISIONS OF PARAGRAPH 3, SPECIAL ORDERS NO. 112, HEADQUARTERS, FORT RILEY, KANSAS, DATED APRIL 21, 1952, YOU WERE ORDERED TO ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE ARMY RESERVE AND ASSIGNED TO HEADQUARTERS, CHEMICAL CORPS TRAINING COMMAND, FORT MCCLELLAN, ALABAMA, FOR TEMPORARY DUTY PENDING FURTHER ORDERS FOR THE PURPOSE OF PURSUING THE COMPANY OFFICER'S ASSOCIATE COURSE, AND YOU WERE DIRECTED TO PROCEED TO THAT STATION. FOLLOWING YOUR ARRIVAL AT FORT MCCLELLAN, SPECIAL ORDERS NO. 107 OF HEADQUARTERS, CHEMICAL CORPS TRAINING COMMAND, DATED MAY 15, 1952, ASSIGNED YOU TO DUTY WITH HEADQUARTERS AND HEADQUARTERS COMPANY, CHEMICAL REPLACEMENT TRAINING CENTER, AT FORT MCCLELLAN, A PERMANENT DUTY ASSIGNMENT. YOU INDICATE THAT THE PERIOD OF THE COURSE OF INSTRUCTION ATTENDED AT FORT MCCLELLAN WAS FROM JULY 7 TO OCTOBER 18, 1952. APPEARS TO BE YOUR CONTENTION THAT SINCE YOU WERE IN THE PERFORMANCE OF TEMPORARY DUTY DURING THAT PERIOD UNDER THE ORDERS OF APRIL 21, 1952, THE ORDERS OF MAY 15, 1952, SHOULD HAVE NO EFFECT TO CHANGE THAT STATUS OR TO PROHIBIT THE PAYMENT OF THE PER DIEM ALLOWANCE AUTHORIZED BY PARAGRAPH 4205 OF THE JOINT TRAVEL REGULATIONS INCIDENT TO THE PERFORMANCE OF SUCH A TEMPORARY ASSIGNMENT.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY." CONSEQUENTLY, EVEN THOUGH ASSIGNED TO PERFORM TEMPORARY DUTY OF A TYPE FOR WHICH THE PAYMENT OF PER DIEM ORDINARILY IS AUTHORIZED UNDER THE PROVISIONS OF PARAGRAPH 4205, A MEMBER LEGALLY MAY NOT BE PAID PER DIEM IF THE TEMPORARY DUTY ASSIGNED IS PERFORMED AT HIS DESIGNATED POST OF DUTY. SEE, IN THAT CONNECTION, PARAGRAPH 4201-4, INSTRUCTION MEMORANDUM 2-2 TO THE JOINT TRAVEL REGULATIONS DATED NOVEMBER 1, 1951, PROVIDING THAT PER DIEM ALLOWANCES ARE NOT PAYABLE "FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION."

PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED, DEFINED A MEMBER'S PERMANENT STATION TO BE THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. IT IS THE STATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE MUST REPORT FOR THE ASSUMPTION OF HIS REGULARLY ASSIGNED MILITARY DUTIES UPON THE COMPLETION OF A TEMPORARY DUTY ASSIGNMENT OR OTHER ABSENCE FROM DUTY. WHILE IT MAY BE THAT YOU PERFORMED TEMPORARY DUTY AT FORT MCCLELLAN DURING THE PERIOD CLAIMED UNDER THE ORDERS OF APRIL 21, 1952, OR AT LEAST DURING THE PERIOD WHILE ATTENDING THE COURSE OF INSTRUCTION ASSIGNED, FORT MCCLELLAN BECAME YOUR PERMANENT DUTY STATION - THE PLACE OF YOUR BASIC DUTY ASSIGNMENT AND THE ONE AT WHICH YOU WERE TO PERFORM YOUR REGULAR DUTIES UPON THE COMPLETION OF THE TEMPORARY ASSIGNMENT - UPON THE ISSUANCE OF THE ORDERS OF MAY 15, 1952. CONSEQUENTLY, IT MUST BE HELD THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF THE PER DIEM CLAIMED. ACCORDINGLY, THE SETTLEMENT OF APRIL 29, 1958, IS SUSTAINED.

WITH REFERENCE TO YOUR STATEMENT CONCERNING OTHER OFFICERS RECEIVING PER DIEM FOR TEMPORARY DUTY SIMILAR TO THAT PERFORMED BY YOU, IT IS ASSUMED THAT THEIR BASIC DUTY ASSIGNMENT WAS LOCATED AT A STATION OTHER THAN AT FORT MCCLELLAN. HOWEVER, IF PAYMENTS HAVE BEEN MADE UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, SUCH PAYMENTS WERE ERRONEOUS AND MAY NOT SERVE AS A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.