B-141760, MAR. 3, 1960

B-141760: Mar 3, 1960

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BOHON: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28. YOU WERE RELIEVED FROM TEMPORARY DUTY AT THE JUDGE ADVOCATE GENERAL'S SCHOOL. YOU WERE PAID PER DIEM OF $5 PER DAY UNTIL 1200 HOURS ON JUNE 10. THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND YOU WERE NO LONGER ENTITLED TO PER DIEM. SUCH ACTION WAS IN CONFORMITY WITH OUR DECISION B-122508. YOU SAY THAT THE PAYMENTS WERE IN ACCORDANCE WITH PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME. WERE NOT RECEIVED BY YOU ON MAY 27. 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. A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY.

B-141760, MAR. 3, 1960

TO MR. SCOTT E. BOHON:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1959, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $72.50 ARISING FROM ERRONEOUS PAYMENTS OF PER DIEM FOR THE PERIOD MAY 27, 1955, TO 1200 HOURS ON JUNE 10, 1955, WHILE SERVING AS FIRST LIEUTENANT, ARMY.

BY PARAGRAPH 10, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 104, DATED MAY 25, 1955, YOU WERE RELIEVED FROM TEMPORARY DUTY AT THE JUDGE ADVOCATE GENERAL'S SCHOOL, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA, UPON COMPLETION OF COURSE OF INSTRUCTION, AND ASSIGNED TO PERMANENT DUTY THERE EFFECTIVE JUNE 11, 1955. YOU WERE PAID PER DIEM OF $5 PER DAY UNTIL 1200 HOURS ON JUNE 10, 1955. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS THIS OFFICE TOOK EXCEPTION TO THE PAYMENT OF PER DIEM FOR 14 1/2 DAYS FOR THE REASON THAT UPON RECEIPT OF THE ORDERS DESIGNATING CHARLOTTESVILLE, VIRGINIA, AS YOUR PERMANENT STATION, THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND YOU WERE NO LONGER ENTITLED TO PER DIEM. SUCH ACTION WAS IN CONFORMITY WITH OUR DECISION B-122508, DATED JUNE 8, 1955.

YOU SAY THAT THE PAYMENTS WERE IN ACCORDANCE WITH PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME, AND THAT THE DECISION OF JUNE 8, 1955, DID NOT GIVE PROPER COGNIZANCE TO THE FACT THAT ORDERS EFFECTIVE AT A FUTURE DATE DO NOT CHANGE OR RELIEVE IN ANY WAY THE ADDITIONAL EXPENSES INCURRED BY A MARRIED MEMBER ON TEMPORARY DUTY. ALSO, YOU STATE THAT THE ORDERS OF MAY 25, 1955, WERE NOT RECEIVED BY YOU ON MAY 27, 1955, AND THAT A DOCUMENT PREPARED FOR YOU BY THE PERSONNEL OFFICE OF THE JUDGE ADVOCATE GENERAL'S SCHOOL ON JUNE 1, 1955, STATES THAT NO FURTHER ORDERS HAD BEEN RECEIVED BY YOU AS OF MAY 31, 1955.

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 (A), 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,"FOR 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. SEE CALIFANO V. UNITED STATES, C.CLS. NO. 86- 58, DECIDED MARCH 4, 1959.

THE DECISION OF JUNE 8, 1955, 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 AT A FUTURE DATE IS ENTITLED TO PER DIEM UNTIL SUCH EFFECTIVE DATE) WAS WITHOUT AUTHORITY OF LAW UNDER THE CITED 1949 ACT, AND TO SUGGEST ITS CORRECTION. IN RESPONSE TO THAT SUGGESTION THE 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.

PARAGRAPH 6, ARMY REGULATIONS 310-110A, DATED JANUARY 18, 1955, PROVIDES THAT ORDERS TO AN INDIVIDUAL ARE GENERALLY EFFECTIVE UPON RECEIPT OF THE ORDERS. SUCH RECEIPT MAY BE ACTUAL OR CONSTRUCTIVE. SEE 6 BULLETIN OF THE JAG 211; 4 BULL. 456; 3 BULL. 406; 27 COMP. GEN. 176. IN CASES WHERE ORDERS, SUCH AS DEPARTMENT OF THE ARMY SPECIAL ORDERS APPLICABLE TO NUMEROUS INDIVIDUALS, DO NOT BEAR ENDORSEMENTS SHOWING THE DATE OF RECEIPT BY EACH PERSON NAMED THEREIN, IT IS THE PRACTICE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE DATE OF RECEIPT OF THE ORDERS AT THE STATION AS THE DATE OF CONSTRUCTIVE RECEIPT OR NOTICE BY THE INDIVIDUALS INVOLVED. THAT WAS DONE IN YOUR CASE.

SINCE IT NOW APPEARS, HOWEVER, THAT YOU DID NOT RECEIVE THE ORDERS UNTIL JUNE 1, 1955, THE EXCEPTION TO PAYMENT OF PER DIEM IN THE SUM OF $25 FOR THE PERIOD MAY 27 TO 31, 1955 (VOUCHER NO. 066206, JUNE 1955 ACCOUNTS OF LT.COL. A. E. KOSEL, SYMBOL NO. 267), WILL BE REMOVED. THIS WILL REDUCE YOUR INDEBTEDNESS TO $47.50, PAYMENT OF WHICH SHOULD BE ACCOMPLISHED IN THE MANNER INDICATED IN THE LETTER OF DECEMBER 7, 1959, FROM OUR CLAIMS DIVISION.