B-141183, JAN. 26, 1960

B-141183: Jan 26, 1960

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TO FIRST LIEUTENANT DUDLEY COLEMAN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. STATED THAT THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. THAT YOU WERE PAID PER DIEM FOR FOUR MONTHS. WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN WHICH THERE WAS CITED CALIFANO V. YOUR PRESENT LETTER YOU STATE YOU WERE ADVISED BY ARMY PERSONNEL TO RESUBMIT YOUR CLAIM BASED ON THE JOINT TRAVEL REGULATIONS AND THE SAID CASE OF CALIFANO V. LONG BEFORE THE CALIFANO CASE WAS DECIDED. IT IS NOT APPLICABLE TO YOUR CLAIM. THAT OFFICERS ORDERED TO ACTIVE DUTY ARE ENTITLED TO PER DIEM UNTIL ASSIGNED TO FIRST PERMANENT STATION. YOU STATE THAT OTHER OFFICERS WHO WERE IN YOUR CLASS AT FORT BENNING AND WHO WERE TRANSFERRED TO CAMP RUCKER ON THE ORDERS OF APRIL 28.

B-141183, JAN. 26, 1960

TO FIRST LIEUTENANT DUDLEY COLEMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1959, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 1, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD MAY 15 TO JUNE 30, 1955.

LETTER ORDERS DATED SEPTEMBER 3, 1954, DIRECTED YOU TO PROCEED FROM YOUR HOME, DOZIER, TEXAS, TO THE INFANTRY SCHOOL, FORT BENNING, GEORGIA, FOR THE PURPOSE OF ATTENDING INFANTRY OFFICER'S BASIC COURSE OF INSTRUCTION. THE ORDERS REQUIRED YOU TO REPORT NOT LATER THAN JANUARY 17, 1955, AND STATED THAT THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. ORDERS DATED APRIL 28, 1955, TRANSFERRED YOU TO CAMP RUCKER, ALABAMA, FOR TEMPORARY DUTY PENDING FURTHER ORDERS, WITH TEMPORARY DUTY EN ROUTE AT GARY AIR FORCE BASE, SAN MARCOS, TEXAS. IT APPEARS THAT YOU REPORTED AT FORT BENNING ON JANUARY 14, 1955, AND REMAINED ON TEMPORARY DUTY THERE UNTIL JUNE 30, 1955; ALSO, THAT YOU WERE PAID PER DIEM FOR FOUR MONTHS, JANUARY 14 TO MAY 14, 1955. YOUR CLAIM FOR PER DIEM FROM MAY 15 TO JUNE 30, 1955, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN WHICH THERE WAS CITED CALIFANO V. UNITED STATES, C.CLS. NO. 86-58, DECIDED MARCH 4, 1959. YOUR PRESENT LETTER YOU STATE YOU WERE ADVISED BY ARMY PERSONNEL TO RESUBMIT YOUR CLAIM BASED ON THE JOINT TRAVEL REGULATIONS AND THE SAID CASE OF CALIFANO V. UNITED STATES. YOU CALL ATTENTION TO THE FACT THAT YOU SUBMITTED YOUR CLAIM ON JULY 25, 1958, LONG BEFORE THE CALIFANO CASE WAS DECIDED. YOU CONTEND THAT SINCE THE SAID CASE INVOLVED ENLISTED MEN ORDERED TO OFFICER CANDIDATE SCHOOL, IT IS NOT APPLICABLE TO YOUR CLAIM, AND THAT OFFICERS ORDERED TO ACTIVE DUTY ARE ENTITLED TO PER DIEM UNTIL ASSIGNED TO FIRST PERMANENT STATION. ALSO, YOU STATE THAT OTHER OFFICERS WHO WERE IN YOUR CLASS AT FORT BENNING AND WHO WERE TRANSFERRED TO CAMP RUCKER ON THE ORDERS OF APRIL 28, 1955, WERE PAID PER DIEM FROM MAY 15 TO JUNE 30, 1955.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 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 UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY, AND THAT THE RESPECTIVE SECRETARIES MAY PRESCRIBE THE CONDITIONS UNDER WHICH TRANSPORTATION ALLOWANCES SHALL BE AUTHORIZED. 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 THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. THE COURT OF CLAIMS IN A JUDICIAL INTERPRETATION OF THAT PROVISION IN THE CALIFANO CASE HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION (TEMPORARY DUTY) AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME.

UPON CONSIDERATION OF THAT DECISION AND SINCE PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS APPLIES TO ALL MEMBERS OF THE UNIFORMED SERVICES, WE ADVISED THE SECRETARY OF DEFENSE BY LETTER OF JUNE 19, 1959, B-138900, THAT FROM THE DATE OF THE DECISION WE WOULD FOLLOW THE RULING OF THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY. INSOFAR AS HERE INVOLVED THE DECISION OF JUNE 19, 1959, WAS AFFIRMED BY DECISION DATED JANUARY 11, 1960, B-138900, TO THE SECRETARY OF THE ARMY. FURTHER ADVISED THE SECRETARY THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED. THEREFORE, YOUR CLAIM, WHICH WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 31, 1959, WAS DISALLOWED IN ACCORDANCE WITH THE CALIFANO CASE. THE DATE ON WHICH YOU ORIGINALLY PRESENTED IT TO THE DEPARTMENT OF THE ARMY OR THE DATE OF RECEIPT HERE IS NOT MATERIAL INASMUCH AS IT WAS SETTLED AFTER THE CALIFANO CASE HAD BEEN DECIDED. ALSO, SINCE THE PER DIEM PAYMENTS RECEIVED BY YOU AND OTHER OFFICERS AT FORT BENNING WERE MADE BY THE DEPARTMENT OF THE ARMY PRIOR TO JULY 1, 1959, THEY WILL NOT BE QUESTIONED, IF OTHERWISE CORRECT, REGARDLESS OF THE ACTUAL PERIOD COVERED.

THE SETTLEMENT OF OCTOBER 1, 1959, WAS CORRECT AND IS SUSTAINED. YOUR ORDERS ARE RETURNED HEREWITH.