B-140920, NOV. 24, 1959

B-140920, NOV. 24, 1959

TO CHIEF WARRANT OFFICER EUGENE RICHESON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 17, 1959, IN EFFECT REQUESTING REVIEW OF YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD SEPTEMBER 16, 1956, THROUGH MARCH 24, 1958, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 16, 1959.

IT APPEARS FROM YOUR STATEMENTS THAT YOUR PERMANENT STATION WAS HEADQUARTERS, 45TH ARTILLERY BRIGADE (AIR DEFENSE) ARLINGTON HEIGHTS, ILLINOIS, AND THAT ON SEPTEMBER 15, 1956, YOU WERE ASSIGNED TO DUTY AT CAMP HAVEN, WISCONSIN, BY VERBAL ORDERS OF YOUR COMMANDING OFFICER. IN A CERTIFICATE EXECUTED BY MAJOR ROY C. PATTON IT IS STATED THAT HE HAS OCCUPIED THE POSITION OF ADJUTANT OF THE 45TH ARTILLERY BRIGADE SINCE DECEMBER 1, 1956, AND THAT IT APPEARS FROM AN INVESTIGATION OF THE MATTER THAT, AS A MEMBER OF HEADQUARTERS, 45TH ARTILLERY BRIGADE, YOU WERE SENT TO CAMP HAVEN, WISCONSIN, FOR "A FEW DAYS" OF DUTY WITH THE RANGE SECTION OF THAT HEADQUARTERS THEN STATIONED AT THAT CAMP PURSUANT TO VERBAL ORDERS OF SEPTEMBER 15, 1956. HE FURTHER STATES THAT AT THE TIME THE VERBAL ORDERS WERE ISSUED, IT WAS ANTICIPATED THAT A COMMISSIONED OFFICER WOULD BECOME AVAILABLE (APPARENTLY AS YOUR REPLACEMENT), AND THAT SUCH SITUATION CONTINUED UNTIL YOU WERE TRANSFERRED TO CAMP HAVEN ON A PERMANENT CHANGE OF STATION PURSUANT TO ORDERS OF MARCH 4, 1958. IN SEPTEMBER 1957, YOU REQUESTED THAT YOUR ASSIGNMENT TO CAMP HAVEN, WISCONSIN, BE STABILIZED FOR A ONE-YEAR PERIOD BECAUSE OF YOUR WIFE'S ILLNESS. SUCH REQUEST WAS APPROVED BY THE SECRETARY OF THE ARMY, BUT NO ORDERS WERE ISSUED PURSUANT THERETO. BY ORDERS DATED MARCH 4, 1958, STATED TO BE PERMANENT CHANGE OF STATION ORDERS, YOU WERE TRANSFERRED FROM ARLINGTON HEIGHTS, ILLINOIS, TO FORT SHERIDAN, ILLINOIS, WITH YOUR DUTY STATION AT CAMP HAVEN, WISCONSIN, EFFECTIVE MARCH 24, 1958. ON MARCH 26, 1959, ORDERS WERE ISSUED WHICH STATE THAT THE VERBAL ORDERS OF SEPTEMBER 15, 1956, WHICH PLACED YOU ON TEMPORARY DUTY AT CAMP HAVEN UNTIL MARCH 24, 1958, ARE CONFIRMED, AND THAT CONFIRMATION IS FOR THE PURPOSE OF ALLOWING YOU TO FILE A CLAIM IN THIS OFFICE FOR PER DIEM.

IN YOUR PRESENT LETTER YOU STATE THAT YOU MENTIONED TO YOUR SUPERIOR OFFICERS ON SEVERAL OCCASIONS THAT NO WRITTEN ORDERS HAD BEEN ISSUED TO PLACE YOU ON TEMPORARY DUTY AT CAMP HAVEN; THAT YOU FAIL TO SEE WHERE DELAY IN ISSUING CONFIRMATORY ORDERS CAN BE A FACTOR IN DENYING YOUR CLAIM SO LONG AS THE ORDERS EVENTUALLY WEREISSUED, AND THAT IT IS AN ESTABLISHED FACT THAT THE DUTY WAS PERFORMED UNDER COMPETENT ORDERS. YOU FURTHER STATE THAT YOU KNOW OF NO REGULATION WHICH SETS A LIMIT ON THE AMOUNT OF TEMPORARY DUTY FOR WHICH REIMBURSEMENT MAY BE PAID. ALSO, YOU REQUEST THE RETURN OF THE PAPERS RELATING TO YOUR CLAIM IN ORDER THAT YOU MAY PROSECUTE IT FURTHER, AND APPARENTLY ARE UNDER THE IMPRESSION THAT THERE IS A POSSIBILITY OF PAYMENT FOR SIX MONTHS.

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.' PARAGRAPH 3001 OF THE JOINT TRAVEL REGULATIONS REQUIRES THAT COMPETENT ORDERS BE WRITTEN INSTRUMENTS DIRECTING TRAVEL BETWEEN DESIGNATED POINTS. PARAGRAPH 3002 OF THE REGULATIONS PROVIDES THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR REIMBURSEMENT OF EXPENSES INCIDENT TO THE PERFORMANCE OF OFFICIAL TRAVEL, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF THE VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT VERBAL ORDERS MUST BE CONFIRMED IN WRITING WITHIN A REASONABLE TIME IN ORDER TO BE ACCEPTED FOR THE PURPOSE OF PAYMENT OF ALLOWANCES. THAT RULE IS BASED ON THE FACT THAT THE CONTENT OF VERBAL ORDERS IS UNRECORDED AND, HENCE, CONFIRMATORY ORDERS NECESSARILY MUST BE PREPARED FROM MEMORY. IF THEY ARE NOT PREPARED WITHIN A REASONABLE TIME THEY LACK THE ACCURACY NECESSARY TO SUPPORT THE PAYMENT OF PUBLIC FUNDS. IN YOUR CASE, THE CONFIRMATORY ORDERS WERE NOT ISSUED UNTIL 2 1/2 YEARS AFTER THE ALLEGED VERBAL ORDERS. THERE IS NO SHOWING THAT EMERGENCY CONDITIONS PREVENTED THE TIMELY ISSUANCE OF COMPETENT ORDERS. MOREOVER, THE CONFIRMATORY ORDERS RECITE THAT THEY WERE ISSUED MERELY TO PERMIT YOU TO FILE A CLAIM. SINCE THE DUTY WAS PERFORMED UNDER VERBAL ORDERS WHICH WERE NOT CONFIRMED WITHIN A REASONABLE TIME, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY PART OF YOUR CLAIM. AND, AS STATED IN THE SETTLEMENT EVEN IN CASES WHERE TEMPORARY DUTY IS PERFORMED UNDER PROPER WRITTEN ORDERS, IS HAS BEEN HELD THAT THE WORD "TEMPORARY" IS A TERM OF LIMITATION WHICH INDICATES A PERIOD WHICH IS OF SHORT DURATION AND TRANSITORY IN NATURE, AND THAT PERIODS IN EXCESS OF SIX MONTHS GENERALLY MAY NOT BE REGARDED AS TEMPORARY DUTY. COMP. GEN. 667; 36 ID. 757. IN YOUR CASE, THE CONFIRMATORY ORDERS PURPORT TO CONFIRM VERBAL ORDERS OF SEPTEMBER 15, 1956, WHICH PLACED YOU ON TEMPORARY DUTY AT CAMP HAVEN UNTIL MARCH 24, 1958, A PERIOD OF MORE THAN 18 MONTHS. WHILE IT SEEMS DOUBTFUL THAT VERBAL ORDERS ASSIGNING YOU TO TEMPORARY DUTY FOR SUCH A PERIOD ACTUALLY WERE ISSUED, THERE WOULD BE NO AUTHORITY TO PAY YOU PER DIEM FOR THAT PERIOD EVEN IF THE CONFIRMATORY ORDERS HAD BEEN TIMELY ISSUED SINCE IT WOULD APPEAR, IN VIEW OF THE LENGTH OF THE ASSIGNMENT, THAT CAMP HAVEN WAS IN FACT YOUR PRINCIPAL DUTY STATION. IN THAT CONNECTION, IT IS NOTED THAT THE VERBAL ORDERS AS CONFIRMED CONTAIN NO PROVISION FOR YOUR DISPOSITION AFTER COMPLETION OF THE ALLEGED TEMPORARY DUTY ASSIGNMENT. THE FACT THAT DECISIONS HAVE RECOGNIZED THAT TEMPORARY DUTY ALLOWANCES MAY BE PAID INCIDENT TO A TEMPORARY DUTY ASSIGNMENT FOR A PERIOD OF NOT TO EXCEED SIX MONTHS IN PROPER CASES AFFORDS NO BASIS FOR THE ALLOWANCE OF ANY PART OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JULY 16, 1959, WAS CORRECT AND IS SUSTAINED.

SINCE THE PAPERS ON FILE IN CONNECTION WITH YOUR CLAIM CONSTITUTE THE RECORD ON WHICH ACTION WAS TAKEN AND SINCE SUCH ACTION IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, THEY MAY NOT BE RETURNED TO YOU. HOWEVER, SINCE THE ORDERS OF MARCH 26, 1959, WERE SUBMITTED IN DUPLICATE, A COPY OF THOSE ORDERS IS ENCLOSED.