B-141041, NOV. 24, 1959

B-141041, NOV. 24, 1959

TO MR. DONALD C. CLARK:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1959, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES FOR PER DIEM AT THE RATE OF $1.65 FOR 19 DAYS FROM JANUARY 12 TO 31, 1954 ($31.35), ERRONEOUSLY PAID TO YOU INCIDENT TO YOUR COMMISSIONED SERVICE IN THE UNITED STATES ARMY RESERVE.

BY SPECIAL ORDERS NO. 5 DATED JANUARY 8, 1954, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., YOU WERE RELIEVED FROM TEMPORARY DUTY WITH THE 9135TH TSU QM TRAINING COMMANC, FORT LEE, VIRGINIA, AND ASSIGNED ON PERMANENT CHANGE OF STATION TO THE SAME ORGANIZATION AT THAT STATION. EXCEPTIONS WERE TAKEN IN OUR AUDIT TO THE PER DIEM PAID TO YOU ON VOUCHER NO. 806189, JANUARY 22, 1954, ACCOUNTS OF A. E. BARNEY, AT THE RATE OF $1.65 FOR THE PERIOD JANUARY 12 TO 22, 1954, WITH THE EXCEPTION OF JANUARY 18, 1954, WHEN YOU WERE ON FIELD DUTY AND PER DIEM WAS NOT PAID TO YOU (10 DAYS AT $1.65, $16.50), AND ON VOUCHER NO. 806584, JANUARY 29, 1954, ACCOUNTS OF A. E. BARNEY, AT THE RATE OF $1.65 FOR THE PERIOD JANUARY 23 THROUGH 31, 1954 (9DAYS AT $1.65, $14.85), INCIDENT TO THE DUTY PERFORMED AT FORT LEE, ON THE BASIS THAT YOU WERE NOT IN A STATUS FOR WHICH THE PAYMENT OF PER DIEM IS AUTHORIZED SUBSEQUENT TO THE RECEIPT OF THE ORDERS OF JANUARY 8, 1954. THE NOTICES OF EXCEPTION WERE ISSUED PURSUANT TO OUR DECISION OF JUNE 8, 1955, B-122508, TO THE SECRETARY OF DEFENSE, A COPY OF WHICH DECISION WAS ENCLOSED WITH A LETTER DATED NOVEMBER 20, 1957, TO YOU, FROM THE DEPARTMENT OF THE ARMY. IN THE LETTER JULY 16, 1959, YOU CONTEND THAT THE DECISION OF JUNE 8, 1955, SHOULD NOT BE GIVEN RETROACTIVE EFFECT AND THAT SINCE THE ORDERS OF JANUARY 8, 1954, WERE ISSUED APPROXIMATELY 1 1/2 YEARS PRIOR TO THE DATE OF THE DECISION, SUCH DECISION IS NOT APPLICABLE TO YOUR CASE. YOU LIKEWISE CONTEND THAT THE DECISION IS APPLICABLE ONLY TO SITUATIONS WHERE THE DUTY ASSIGNMENT REMAINS THE SAME AND THE STATION STATUS IS CHANGED FROM TEMPORARY TO PERMANENT AT SOME FUTURE DATE AND THAT SUCH DECISION MAY NOT REASONABLY BE APPLIED TO CASES SUCH AS YOURS WHERE BOTH THE DUTY ASSIGNMENT AND THE STATION STATUS ARE CHANGED.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCE 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 COMPLETION OF A REGULAR DUTY ASSIGNMENT OR UPON ABSENCE FROM THIS REGULAR DUTY. WHEN YOU RECEIVED THE ORDERS OF JANUARY 8, 1954, ASSIGNING YOU TO DUTY AT FORT LEE UPON THE COMPLETION OF THE TEMPORARY DUTY YOU WERE THEN PERFORMING, FORT LEE 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 JANUARY 8 EVEN THOUGH YOU CONTINUED IN THE PERFORMANCE OF TEMPORARY DUTY AT FORT LEE.

WITH REGARD TO YOUR CONTENTION THAT THE DECISION OF JUNE 8, 1955, SHOULD NOT BE APPLICABLE IN YOUR CASE SINCE IT WAS RENDERED ON THE DATE SUBSEQUENT TO THE PERIOD IN QUESTION, YOU ARE ADVISED THAT SUCH DECISION DID NOT ESTABLISH A NEW RULE OR INTERPRETATION OF THE LAW PROSPECTIVE ONLY IN EFFECT. THE PURPOSE OF THE DECISION WAS TO CALL TO THE ATTENTION OF THE SECRETARY OF DEFENSE THE FACT THAT A PART OF THE THEN ADMINISTRATIVE REGULATIONS, PROVIDING IN EFFECT THAT A MEMBER AT A TEMPORARY STATION WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS DESIGNATING THE TEMPORARY STATION PERMANENT STATION, EFFECTIVE AT A FUTURE DATE, IS ENTITLED TO PER DIEM UNTIL SUCH FUTURE DATE (PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS), WAS WITHOUT AUTHORITY UNDER THE LAW, AND TO SUGGEST ITS CORRECTION. IN RESPONSE TO THAT SUGGESTION, SUCH REGULATION WAS CHANGED TO PROVIDE THAT PER DIEM WOULD NOT BE PAID UNDER THE CIRCUMSTANCES SUCH AS THOSE HERE DISCUSSED. SEE CHANGE NO. 38 TO THE REGULATIONS, DATED SEPTEMBER 1, 1955. ACCORDINGLY, FOR THE ABOVE REASONS, YOUR INDEBTEDNESS TO THE GOVERNMENT IN THE SUM OF $31.35 IS FOUND TO BE CORRECT.

RESPECTING YOUR INQUIRY WHETHER YOU ARE ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT WIFE 19 DAYS PRIOR TO YOUR DISCHARGE, YOU ARE ADVISED THAT PARAGRAPH 7000-11, CHANGE NO. 25, DATED AUGUST 1, 1954, JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME YOUR WIFE TRAVELED, PROVIDED THAT REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS WHO TRAVEL PRIOR TO THE ISSUANCE OF THE ORDERS IS NOT AUTHORIZED UNLESS THE CLAIM FOR SUCH REIMBURSEMENT IS SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF SUCH ORDERS THAT THE ORDERS WOULD BE ISSUED. SUCH A CERTIFICATE HAS NOT BEEN SUBMITTED BY YOU, AND HENCE, CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR SUCH TRAVEL IS NOT AUTHORIZED.

YOU ARE REQUESTED TO REMIT THAT SUM OF YOUR INDEBTEDNESS OR MAKE SUITABLE ARRANGEMENTS FOR THE LIQUIDATION THEREOF WITHIN 30 DAYS FROM THE DATE OF THIS DECISION. PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE AND ADDRESSED:

CLAIMS DIVISION

UNITED STATES GENERAL ACCOUNTING OFFICE

POST OFFICE BOX 2610 ..END :