B-138871, JUL. 21, 1959

B-138871, JUL. 21, 1959

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 20, 1959, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY, PDTATAC CONTROL NUMBER 59-3, QUESTIONING THE PROPRIETY OF AUDIT EXCEPTIONS TAKEN BY OUR MARINE CORPS AUDIT BRANCH TO PAYMENTS MADE TO SERGEANT CARL D. MACEK, USMC,FOR PER DIEM COVERING THE PERIOD FROM OCTOBER 5, 1955, TO AUGUST 7, 1957, INCIDENT TO TEMPORARY DUTY PERFORMED AT SAN DIEGO, CALIFORNIA, IN THE CIRCUMSTANCES SHOWN.

BY ORDERS DATED OCTOBER 3, 1955, AS MODIFIED, ISSUED BY HEADQUARTERS, MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, SERGEANT MACEK WAS DIRECTED TO PROCEED ON OCTOBER 4, 1955, FROM CAMP PENDLETON AND REPORT AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, FOR TEMPORARY ADDITIONAL DUTY FOR AN INDEFINITE PERIOD IN CONNECTION WITH THE COMMANDING GENERAL'S PICKET BOAT, AND UPON COMPLETION OF SUCH TEMPORARY ADDITIONAL DUTY HE WAS DIRECTED TO RETURN TO CAMP PENDLETON AND RESUME HIS REGULAR DUTIES. HE REPORTED, AS DIRECTED, AT SAN DIEGO ON OCTOBER 4, 1955. ORDERS DATED JULY 2, 1957, ISSUED BY HEADQUARTERS, MARINE CORPS BASE, CAMP PENDLETON, HE WAS DIRECTED TO PROCEED AND REPORT TO THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF ABOUT 13 WEEKS IN CONNECTION WITH SERVING AS A CREW MEMBER ABOARD THE COMMANDING GENERAL'S PICKET BOAT. SUCH ORDERS FURTHER PROVIDED THAT UPON COMPLETION OF THE TEMPORARY ADDITIONAL DUTY AND WHEN DIRECTED BY PROPER AUTHORITY NOT LATER THAN SEPTEMBER 30, 1957, HE WOULD RETURN TO CAMP PENDLETON AND RESUME HIS REGULAR DUTIES. HE RECEIVED THESE ORDERS AT SAN DIEGO. HE RETURNED TO CAMP PENDLETON AND RESUMED HIS REGULAR DUTIES ON AUGUST 8, 1957. HE WAS PAID PER DIEM FOR THE PERIOD FROM OCTOBER 5, 1955, TO AUGUST 7, 1957, EXCEPT FOR A PERIOD OF LEAVE, WHILE ON DUTY AT SAN DIEGO. IT IS SHOWN THAT HE RESIDED IN SAN DIEGO FROM MAY 1954 THROUGH THE PERIOD HERE INVOLVED. IT APPEARS THAT DURING SUCH PERIOD HE WAS AUTHORIZED TO MESS SEPARATELY AND WAS PAID COMMUTED RATIONS. EXCEPTIONS WERE TAKEN TO THE PER DIEM PAYMENTS MADE TO SERGEANT MACEK ON THE BASIS THAT SAN DIEGO WAS HIS DUTY STATION AND HENCE HE WAS NOT ENTITLED TO PER DIEM WHILE ON DUTY THERE.

IT IS STATED IN THE LETTER OF THE ASSISTANT SECRETARY THAT SERGEANT MACEK'S DUTIES IN CARRYING OUT THE TEMPORARY ADDITIONAL DUTY ORDERS REQUIRED HIM TO REMAIN IN THE IMMEDIATE VICINITY OF THE PICKET BOAT, WHICH BOAT WAS REQUIRED TO BE ON CALL FOR 24 HOURS EVERYDAY; AND THAT SINCE THE NORMAL COMPLEMENT OF THE BOAT WAS THREE MEMBERS, SERGEANT MACEK REMAINED ON THE BOAT EVERY THIRD NIGHT. IT IS FURTHER STATED THAT THE BOAT WAS ASSIGNED TO THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON, FOR PATROL OF THE OCEAN WATERS IMMEDIATELY ADJACENT TO CAMP PENDLETON, WHICH IS APPROXIMATELY 35 MILES FROM THE MARINE CORPS RECRUIT DEPOT AT SAN DIEGO; AND THAT THE ORDER ISSUING AUTHORITY CONTEMPLATED THAT THE TEMPORARY ADDITIONAL DUTY DIRECTED WAS TO BE OF SHORT DURATION BECAUSE OF THE OFFICIAL MISSION OF THE PICKET BOAT AND THE BELIEF THAT AT SOME FUTURE DATE THE BOAT WOULD BE BERTHED IN THE ACTUAL HARBOR FACILITIES OF CAMP PENDLETON WHEN THOSE FACILITIES BECAME AVAILABLE. ON SUCH BASIS, IT IS REQUESTED THAT THE EXCEPTIONS IN QUESTION BE WITHDRAWN.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZE THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS WHILE THEY ARE IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. FOR THE PURPOSES OF ENTITLEMENT TO PER DIEM, A MEMBER'S DUTY STATION HAS BEEN HELD TO INCLUDE THE PLACE FROM WHICH HE COMMUTES DAILY TO HIS STATION. 34 COMP. GEN. 549. ALSO, COMPARE B- 138660, DATED MARCH 30, 1959.

IT APPEARS THAT PRIOR TO THE TIME SERGEANT MACEK WAS DIRECTED TO PROCEED FROM HIS PERMANENT DUTY STATION AT CAMP PENDLETON TO SAN DIEGO BY THE ORDERS OF OCTOBER 3, 1955, HE COMMUTED DAILY FROM HIS RESIDENCE IN SAN DIEGO TO CAMP PENDLETON. DURING THE TIME HE WAS PERFORMING TEMPORARY DUTY AT SAN DIEGO, HE CONTINUED TO RESIDE IN THAT CITY. THUS, HE MAY NOT BE REGARDED AS HAVING BEEN AWAY FROM HIS DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES WITHIN THE MEANING OF THE STATUTE AND REGULATIONS. IN ADDITION, IT MAY BE STATED THAT THE BASIC PURPOSE OF THE PER DIEM ALLOWANCE IS TO COMPENSATE MEMBERS FOR THEIR INCREASED LIVING EXPENSES WHEN REQUIRED BY COMPETENT ORDERS TO SUBSIST THEMSELVES AWAY FROM THEIR USUAL PLACES OF ABODE. SERGEANT MACEK APPARENTLY DID NOT INCUR ANY ADDITIONAL COST BY REASON OF HIS TEMPORARY DUTY AT SAN DIEGO. ON THE CONTRARY, IT WOULD APPEAR THAT HE INCURRED LESS EXPENSE BY REASON OF SUCH TEMPORARY DUTY BECAUSE OF THE SHORTER DISTANCE OF DAILY TRAVEL FROM HIS RESIDENCE TO HIS PLACE OF TEMPORARY DUTY IN SAN DIEGO.

ACCORDINGLY, THE EXCEPTIONS IN QUESTION ARE PROPER AND COLLECTION OF THE INDICATED OVERPAYMENTS SHOULD BE EFFECTED.