B-138517, FEB 27, 1959

B-138517, FEB 27, 1959

PRECIS-UNAVAILABLE

CAPTAIN R. E. CARIGNAN, DEPARTMENT OF THE ARMY:

YOUR LETTER OF DECEMBER 12, 1958, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF LIEUTENANT COLONEL EMANUEL A. TIMM, 030619, IN THE AMOUNT OF $89.42, REPRESENTING THE BALANCE DUE AS PER DIEM ALLOWANCE FOR THE PERIOD NOVEMBER 10 TO 24, 1958. YOUR LETTER WAS FORWARDED TO US BY 1ST INDORSEMENT DATED JANUARY 21, 1959, UNDER PDTATAC CONTROL NO. 59-1.

BY PARAGRAPH 59, SPECIAL ORDERS NO. 186, DATED SEPTEMBER 17, 1958, THE OFFICER WAS TRANSFERRED ON A PERMANENT CHANGE OF STATION FROM JACKSONVILLE, FLORIDA, TO STUDENT DETACHMENT MDW (7001), WASHINGTON, D. C., WITH STATION AT THE U. S. NAVAL SCHOOL, NAVAL INTELLIGENCE, U. S. NAVAL RECEIVING STATION, WASHINGTON, D. C., FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION IN THE SPANISH LANGUAGE, PRESUMABLY, FOR A PERIOD OF 20 WEEKS OR MORE. THE ORDERS FURTHER DIRECTED TEMPORARY DUTY EN ROUTE OF APPROXIMATELY FOUR WEEKS AT THE MILITARY ASSISTANCE INSTITUTE, ARLINGTON TOWERS APARTMENTS, ARLINGTON, VIRGINIA. THE VOUCHER COVERS MILEAGE FOR TRAVEL FROM JACKSONVILLE, FLORIDA, TO FORT MYER, VIRGINIA, ON NOVEMBER 5 AND 6, 1958, AND PER DIEM FOR TEMPORARY DUTY FOR THE PERIOD NOVEMBER 10 THROUGH 24, 1958, WHILE ATTENDING SCHOOL AT ARLINGTON, LESS THE AMOUNT ADVANCED FOR MILEAGE. YOUR DOUBT AS TO THE VALIDITY OF THE CLAIM ARISES FROM THE FACT THAT PARAGRAPH 4201-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION OTHER THAN AUTHORIZED FOR THE DAY OF RETURN TO THE PERMANENT DUTY STATION UNDER PARAGRAPH 4205 OF THOSE REGULATIONS. THE CHIEF OF FINANCE IN TRANSMITTING THE REQUEST FOR DECISION EXPRESSED FURTHER DOUBT BASED ON VARIOUS DECISIONS OF THIS OFFICE, INCLUDING 33 COMP. GEN. 55; 34 ID. 597; 35 ID. 548, AND B-134839, APRIL 25, 1958, WHEN COMPARED WITH 37 COMP. GEN. 669.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, 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 CHANGE OF PERMANENT STATION OR OTHERWISE, OR WHEN "AWAY FROM THEIR DESIGNATED POSTS OF DUTY." PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AND THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION ON PUBLIC BUSINESS PURSUANT TO COMPETENT ORDERS. UNDER PARAGRAPH 3050-3 OF THE REGULATIONS, A TRAVEL STATUS FOR SUCH PURPOSES, COMMENCING UPON DEPARTURE FROM THE OLD STATION UNDER CHANGE OF STATION ORDERS, CONTINUES UNTIL THE MEMBER REPORTS AT THE NEW DUTY STATION.

A PERMANENT DUTY STATION IS DEFINED BY PARAGRAPH 1150-10A OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED, THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED OR, IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE RESERVATION, STATION, OR ESTABLISHED AREA, OR SUBDIVISION THEREOF. IN THE PRESENT CASE, WHILE ARLINGTON, VIRGINIA, AND WASHINGTON, D. C., ARE IN CLOSE PROXIMITY TO EACH OTHER, THE TEMPORARY DUTY STATION IS NOT WITHIN THE CORPORATE LIMITS OF THE PERMANENT STATION. THE OFFICER WAS IN A TRAVEL STATUS DURING THE PERIOD INVOLVED AND HAD NOT YET REPORTED FOR DUTY AT HIS NEW PERMANENT STATION.

IN DECISION OF APRIL 14, 1958, 37 COMP. GEN. 669, INVOLVING SIMILAR FACTS AND IDENTICAL REGULATIONS, IT WAS HELD THAT THE CONCLUSION APPEARS REQUIRED THAT THE MEMBER IS ENTITLED TO OTHERWISE AUTHORIZED PER DIEM FOR ANY DIRECTED TEMPORARY DUTY DURING THE TRAVEL PERIOD PERFORMED ON CHANGE OF STATION ORDERS PRIOR TO HIS ACTUAL ARRIVAL AT HIS NEW DUTY STATION IRRESPECTIVE OF CONSIDERATIONS OF PROXIMITY TO THE DUTY STATION. THE PRESENT CASE FALLS WITHIN THE RULE ENUNCIATED IN THAT DECISION AND IS DISTINGUISHABLE FROM THE DECISIONS REFERRED TO BY THE CHIEF OF FINANCE. IN THE CASES CONSIDERED IN 34 COMP. GEN. 597 AND 35 ID. 548, PAYMENT OF PER DIEM WAS PROHIBITED BY PARAGRAPH 6450 OF THE JOINT TRAVEL REGULATIONS, IT BEING CLEAR THAT THE TEMPORARY DUTY REQUIRED ONLY SHORT TRIPS IN THE IMMEDIATE VICINITY OF THE PLACE REGARDED AS THE PERMANENT STATION OF THE MEMBER CONCERNED. IN 33 COMP. GEN. 55 AND B-134839 OF APRIL 25, 1958, THE TEMPORARY DUTY WAS AT A POINT NEAR THE MEMBER'S HOME WHILE AWAITING RELEASE FROM ACTIVE DUTY IN THE ONE CASE AND RETIREMENT IN THE OTHER. NEITHER THE LAW NOR THE REGULATIONS CONTEMPLATE THE PAYMENT OF PER DIEM SUBSEQUENT TO THE ARRIVAL OF A MEMBER AT HIS HOME UNDER ORDERS TERMINATING HIS ACTIVE SERVICE EVEN THOUGH TERMINATION MAY BE DELAYED FOR THE PERFORMANCE OF TEMPORARY DUTY NEARBY.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED AS INDICATED ABOVE.