B-141288, DEC. 29, 1959

B-141288, DEC. 29, 1959

TO MR. TRAFTON W. FLEETWOOD, JR.:

WE HAVE RECEIVED YOUR TWO LETTERS DATED OCTOBER 29, 1959, RELATING TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $29.70 ARISING FROM YOUR ACTIVE DUTY AS A SECOND LIEUTENANT, UNITED STATES ARMY RESERVE. WITH THE LETTER WHICH IS ADDRESSED TO OUR CLAIMS DIVISION AT INDIANAPOLIS, INDIANA, YOU ENCLOSED YOUR CHECK FOR $29.70 IN LIQUIDATION OF SUCH INDEBTEDNESS. IN THE OTHER LETTER YOU REQUEST THAT WE REVIEW YOUR CASE AND THAT WE ALSO REVIEW OUR DECISION DATED JUNE 8, 1955, B-122508, WHICH YOU HAVE BEEN ADVISED WAS THE BASIS OF THE ACTION TAKEN IN YOUR CASE.

THE RECORDS SHOW THAT PURSUANT TO ORDERS DATED MAY 26, 1954, AS AMENDED BY ORDERS DATED JUNE 2, 1954, AND OCTOBER 13, 1954, YOU REPORTED FOR TEMPORARY DUTY PENDING FURTHER ORDERS AT THE ENGINEER SCHOOL, FORT BELVOIR, VIRGINIA, ON MARCH 16, 1955, TO ATTEND THE ENGINEER OFFICERS BASIC COURSE, FOR A PERIOD OF APPROXIMATELY 14 WEEKS. BY PARAGRAPH 72, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 110, WASHINGTON, D.C., JUNE 3, 1955, YOU WERE RELEASED FROM TEMPORARY DUTY AT THAT SCHOOL AND ASSIGNED TO PERMANENT DUTY WITH THE ENGINEER CENTER, FORT BELVOIR, VIRGINIA, EFFECTIVE JUNE 25, 1955. IT APPEARS THAT SUCH ORDERS WERE RECEIVED AT FORT BELVOIR NOT LATER THAN JUNE 6, 1955. YOU WERE PAID PER DIEM AT THE RATE OF $1.65 FOR THE PERIOD FROM MARCH 17, 1955, THROUGH JUNE 23, 1955, ON VOUCHER NO. 50347, JUNE 1955 ACCOUNTS OF LIEUTENANT COLONEL R. J. CLYNES, AND UPON THE AUDIT OF THAT VOUCHER WE TOOK EXCEPTION TO THE PAYMENT OF PER DIEM FOR THE PERIOD FROM JUNE 6 TO 23, 1955, IN THE AMOUNT OF $29.70, FOR THE REASON THAT UPON THE RECEIPT OF THE LATTER ORDERS DESIGNATING FORT BELVOIR AS YOUR NEW PERMANENT STATION, THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND YOU WERE NO LONGER ENTITLED TO PER DIEM.

YOU SAY THAT WHILE IN ATTENDANCE AT THE ENGINEER SCHOOL YOUR STATUS WAS ON A TEMPORARY BASIS IN THAT YOUR EXPENSES WERE IN EXCESS OF NORMAL AND THAT SUCH STATUS DID NOT CHANGE UNTIL YOU RECEIVED YOUR FURNITURE AND OTHER BELONGINGS IN THE FIRST WEEK OF JULY 1955. YOU CONTEND THAT A SUDDEN CHANGE TO A PERMANENT STATUS COULD NOT BE ACCOMPLISHED FROM ONE DAY TO THE NEXT BUT THAT A TRANSITIONAL PERIOD IS REQUIRED TO ACCOMPLISH THIS CHANGE IN STATUS.

AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH 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 OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE,"OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' UNDER SUCH PROVISIONS OF LAW, A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. IN YOUR CASE, THE ORDERS OF JUNE 3, 1955, DESIGNATED FORT BELVOIR AS YOUR PERMANENT STATION AND,ALTHOUGH SUCH ORDERS DIRECTED THE CONTINUANCE OF YOUR THEN TEMPORARY DUTY, NO RIGHT TO PER DIEM FOR SUCH DUTY ACCRUED TO YOU AFTER THE RECEIPT OF THOSE ORDERS SINCE THE DUTY THEN WAS FOR PERFORMANCE AT YOUR DESIGNATED POST OF DUTY. AFTER THE RECEIPT OF SUCH ORDERS, YOU WERE ABLE TO MAKE THE SAME ARRANGEMENTS FOR PERMANENT LIVING ACCOMMODATIONS AS OTHER OFFICERS ASSIGNED TO DUTY AT THAT PLACE. IT IS NOT UNCOMMON FOR OFFICERS TO USE TEMPORARY LIVING ACCOMMODATIONS PENDING THE ARRIVAL OF THEIR HOUSEHOLD EFFECTS AT THEIR NEW PERMANENT STATIONS.

WHILE APPRECIATING YOUR FEELINGS IN THE MATTER AND RECOGNIZING THAT SOME EQUITIES MAY EXIST IN YOUR FAVOR, YOU ARE ADVISED THAT IN VIEW OF THE PLAIN PROVISIONS OF THE APPLICABLE STATUTE WE FIND NO BASIS FOR CONCLUDING THAT THE ACTION TAKEN IN YOUR CASE WAS NOT PROPER.

WE FIND NOTHING IN THE REPRESENTATIONS MADE BY YOU WHICH WOULD WARRANT ANY MODIFICATION OF OUR DECISION DATED JUNE 8, 1955, B-122508. WITH RESPECT TO THAT DECISION, IT MAY BE STATED THAT IT DID NOT ESTABLISH A NEW RULE. ITS PURPOSE WAS TO CALL TO THE ATTENTION OF THE SECRETARY OF DEFENSE THE FACT 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 SUCH REGULATIONS WERE CHANGED TO PROVIDE THAT PAYMENT OF PER DIEM IS NOT AUTHORIZED IN CIRCUMSTANCES SUCH AS THOSE INVOLVED IN YOUR CASE. SEE CHANGE 38 TO PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS, DATED SEPTEMBER 1, 1955.