B-140840, OCT. 22, 1959

B-140840: Oct 22, 1959

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COOK: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. WE HAVE RECEIVED A LETTER FROM THE HONORABLE KENNETH B. YOU WERE ORDERED TO ACTIVE DUTY AS A SECOND LIEUTENANT. WHERE YOU WERE TO REPORT ON JUNE 8. YOU WERE RELEASED FROM THE SIGNAL SCHOOL AT FORTH MONMOUTH. EFFECTIVE UPON THE COMPLETION OF THE COURSE OF INSTRUCTION THAT YOU THEN WERE ATTENDING. THOSE ORDERS WERE AMENDED BY A COMMUNICATION OF OCTOBER 13. YOU WERE CREDITED WITH ACTIVE DUTY PAY AND ALLOWANCES AS A SECOND LIEUTENANT IN YOUR PAY ACCOUNT COMMENCING ON JUNE 5. THE DAY FOLLOWING THAT ON WHICH YOU ARE PRESUMED TO HAVE RECEIVED THE ORDERS OF OCTOBER 10. THE DATE ON WHICH TEMPORARY DUTY AT FORT MONMOUTH WAS COMPLETED. PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR ACTIVE DUTY AND TRAVEL IS SO PERFORMED.

B-140840, OCT. 22, 1959

TO MR. RICHARD B. COOK:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1959, REQUESTING FURTHER CONSIDERATION IN THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES OF $99.86, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR ONE DAY, JUNE 5, 1955 ($11.86), AND PER DIEM AT THE RATE OF $4 FOR 22 DAYS FROM OCTOBER 12 TO NOVEMBER 2, 1955 ($88), ERRONEOUSLY PAID TO YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY RESERVE. BY REFERENCE FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WE HAVE RECEIVED A LETTER FROM THE HONORABLE KENNETH B. KEATING, UNITED STATES SENATE, DATED AUGUST 25, 1959, TO THE DEPARTMENT OF THE ARMY REQUESTING A REVIEW OF THE CIRCUMSTANCES INVOLVED IN YOUR INDEBTEDNESS.

UNDER ORDERS OF HEADQUARTERS, FIFTH ARMY, CHICAGO, ILLINOIS, DATED JULY 22, 1954, YOU WERE ORDERED TO ACTIVE DUTY AS A SECOND LIEUTENANT, UNITED STATES ARMY RESERVE, AND DIRECTED TO PROCEED ON JUNE 5, 1955, FROM YOUR HOME AT FRANKFORT, INDIANA, TO THE SIGNAL SCHOOL AT FORT MONMOUTH, NEW JERSEY, WHERE YOU WERE TO REPORT ON JUNE 8, 1955, ON TEMPORARY DUTY TO ATTEND THE SIGNAL OFFICERS BASIC COURSE. IN CLAIMING A MILEAGE ALLOWANCE FOR TRAVEL UNDER THOSE ORDERS YOU CERTIFIED THAT YOU LEFT FRANKFORT ON JUNE 6, 1955, AND ARRIVED AT FORTH MONMOUTH ON JUNE 7. BY DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 202, DATED OCTOBER 10, 1955, YOU WERE RELEASED FROM THE SIGNAL SCHOOL AT FORTH MONMOUTH, EFFECTIVE UPON THE COMPLETION OF THE COURSE OF INSTRUCTION THAT YOU THEN WERE ATTENDING, AND ASSIGNED TO PERMANENT DUTY AT THE SIGNAL CORPS CENTER AT FORT MONMOUTH. THOSE ORDERS WERE AMENDED BY A COMMUNICATION OF OCTOBER 13, 1955, FROM THE ADJUTANT GENERALS' OFFICE TO THE COMMANDER OF THE SIGNAL SCHOOL AT FORT MONMOUTH TO DIRECT YOUR ASSIGNMENT, UPON THE COMPLETION OF YOUR TEMPORARY DUTY AT FORT MONMOUTH, TO A DUTY STATION OVERSEAS. YOU WERE CREDITED WITH ACTIVE DUTY PAY AND ALLOWANCES AS A SECOND LIEUTENANT IN YOUR PAY ACCOUNT COMMENCING ON JUNE 5, 1955, AND PAID PER DIEM AT THE RATE OF $4 FOR A PERIOD INCLUDING THAT FROM OCTOBER 12, 1955, THE DAY FOLLOWING THAT ON WHICH YOU ARE PRESUMED TO HAVE RECEIVED THE ORDERS OF OCTOBER 10, 1955, THROUGH NOVEMBER 2, 1955, THE DATE ON WHICH TEMPORARY DUTY AT FORT MONMOUTH WAS COMPLETED.

SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31, 1955, 69 STAT. 19), PROVIDES:

"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH EMBERS: * * *"

EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS UNDER THAT SECTION, PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR ACTIVE DUTY AND TRAVEL IS SO PERFORMED, THE TRAVEL TIME TO BE INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300 MILES TRAVELED, AND ONE DAY FOR EACH FRACTION OF 300 MILES IN EXCESS OF 150 MILES TRAVELED. IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9/B) (1), CHANGE NO. 2, ARMY REGULATIONS 35-1320 DATED FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' ALLOWING TRAVEL TIME OF THREE DAYS FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE AUTHORIZED BY EXECUTIVE ORDER NO. 10153, YOU WERE NOT OFFICIALLY AND NECESSARILY REQUIRED TO BEGIN TO COMPLY WITH THE ORDERS OF JULY 22, 1954, UNTIL JUNE 6, 1955, TO ENABLE YOU TO REPORT AT FORT MONMOUTH ON JUNE 8. CONSEQUENTLY, YOUR RIGHT TO PAY AND ALLOWANCES COMMENCED, UNDER THE CITED LAW AND REGULATIONS, ON JUNE 6, AND NO AUTHORITY EXISTED FOR THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES ON JUNE 5. YOUR ORDERS WERE IN ERROR IN DIRECTING THAT YOU DEPART OF JUNE 5 AND, OF COURSE, THE RECORD SHOWS THAT YOU DID NOT DEPART UNTIL JUNE 6.

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, IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF THOSE ALLOWANCES INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY UNLESS IT IS PERFORMED AT A POINT REMOVED FROM THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION. PARAGRAPH 1150 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY. IT IS THE STATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE MUST REPORT FOR THE ASSUMPTION OF HIS REGULAR DUTIES UPON THE COMPLETION OF A TEMPORARY DUTY ASSIGNMENT OR OTHER ABSENCE FROM HIS REGULAR DUTIES. WHEN YOU RECEIVED THE ORDERS OF OCTOBER 10, 1955, ASSIGNING YOU TO DUTY AT FORT MONMOUTH UPON THE COMPLETION OF THE TEMPORARY DUTY YOU THEN WERE PERFORMING, FORT MONMOUTH IMMEDIATELY BECAME YOUR PERMANENT DUTY STATION WITHIN THE CONTEMPLATION OF THOSE REGULATIONS. CONSEQUENTLY, NO AUTHORITY EXISTED TO PAY YOU PER DIEM AT THAT STATION AFTER YOU RECEIVED THE ORDERS OF OCTOBER 10 EVEN THOUGH YOU CONTINUED IN THE PERFORMANCE OF TEMPORARY DUTY THERE.

YOU SUGGEST THAT OUR DECISION OF JUNE 8, 1955, B-122508--- A COPY OF WHICH WAS ENCLOSED WITH OUR LETTER OF JULY 20, 1959, TO YOU--- WOULD HAVE NO APPLICATION IN YOUR CASE UNLESS THE CHANGES OF EXISTING ADMINISTRATIVE REGULATIONS SUGGESTED IN THAT DECISION ACTUALLY WERE EFFECTED PRIOR TO THE ISSUANCE OF YOUR ORDERS OF OCTOBER 10, 1955.

THAT DECISION DID NOT ESTABLISH A NEW RULE OR INTERPRETATION OF THE LAW PROSPECTIVE ONLY IN EFFECT. ITS PURPOSE WAS TO CALL TO THE ATTENTION OF THE SECRETARY OF DEFENSE THE FACT THAT THAT PART OF THE THEN EXISTING REGULATIONS (PROVIDING THAT A MEMBER AT A TEMPORARY STATION WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS DESIGNATING THE TEMPORARY STATION AS HIS PERMANENT STATION EFFECTIVE ON A FUTURE DATE IS ENTITLED TO PER DIEM UNTIL SUCH EFFECTIVE DATE) WAS WITHOUT AUTHORITY UNDER THE LAW, AND TO SUGGEST ITS CORRECTION. IN RESPONSE TO THAT SUGGESTION, HOWEVER, SUCH REGULATION WAS CHANGED PRIOR TO THE ISSUANCE OF YOUR ORDERS OF OCTOBER 10 TO PROVIDE THAT THE PAYMENT OF PER DIEM IS NOT AUTHORIZED UNDER CIRCUMSTANCES SUCH AS THOSE HERE DISCUSSED. SEE CHANGE NO. 38 TO PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS, DATED SEPTEMBER 1, 1955.

YOUR INDEBTEDNESS TO THE GOVERNMENT IN THE SUM OF $99.86 IS FOUND TO BE CORRECT FOR THE ABOVE INDICATED REASONS. HOWEVER, SINCE FORT MONMOUTH WAS YOUR PERMANENT DUTY STATION AT THE TIME THE ORDERS OF OCTOBER 10, 1955, WERE AMENDED TO DIRECT TRAVEL ON AN OVERSEAS DUTY ASSIGNMENT, IT APPEARS THAT YOU ARE ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 7008-3 OF THE JOINT TRAVEL REGULATIONS TO CREDIT AT THE RATE OF SIX CENTS PER MILE FOR YOUR WIFE'S TRAVEL PERFORMED DURING THE PERIOD NOVEMBER 4 TO 6, 1955, FROM LONG BRANCH, NEW JERSEY, TO FRANKFORT, INDIANA. INSTRUCTIONS ARE BEING ISSUED, THEREFORE, TO ADJUST YOUR INDEBTEDNESS TO REFLECT A CREDIT ON THAT BASIS AND TO ADVISE YOU ACCORDINGLY.