B-142464, MAY 17, 1960

B-142464: May 17, 1960

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MOSELEY: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20. WHILE YOU WERE AT FORT DEVENS. BY WHICH YOU WERE PERMANENTLY ASSIGNED TO DUTY AT FORT DEVENS EFFECTIVE UPON COMPLETION OF SUCH TEMPORARY DUTY. YOU WERE PAID PER DIEM AT THE RATE OF $4 PER DAY THROUGH SEPTEMBER 23. THE DATE OF COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE THEN ATTENDING. THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND YOU WERE NO LONGER ENTITLED TO PER DIEM. IN YOUR PRESENT LETTER YOU SAY THERE IS NO DOUBT THAT YOU RECEIVED THE PAYMENT. YOU BELIEVE YOU WERE ENTITLED TO THESE PAYMENTS UNTIL THE EFFECTIVE DATE OF THE ORDERS REASSIGNING YOU AS PERMANENT PARTY. 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.

B-142464, MAY 17, 1960

TO MR. CLARKSON P. MOSELEY:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1960, REQUESTING REVIEW OF THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $144 ARISING AS A RESULT OF ERRONEOUS PER DIEM PAYMENT YOU RECEIVED INCIDENT TO YOUR SERVICE IN THE ARMY AS A SECOND LIEUTENANT.

THE RECORD SHOWS THAT ON AUGUST 19, 1955, WHILE YOU WERE AT FORT DEVENS, MASSACHUSETTS, IN THE PERFORMANCE OF TEMPORARY DUTY, YOU RECEIVED DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 163, DATED AUGUST 17, 1955, BY WHICH YOU WERE PERMANENTLY ASSIGNED TO DUTY AT FORT DEVENS EFFECTIVE UPON COMPLETION OF SUCH TEMPORARY DUTY. YOU WERE PAID PER DIEM AT THE RATE OF $4 PER DAY THROUGH SEPTEMBER 23, 1955, THE DATE OF COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE THEN ATTENDING. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENT OF PER DIEM FOR THE PERIOD AUGUST 19 TO SEPTEMBER 23, 1955, FOR THE REASON THAT UPON RECEIPT OF YOUR ORDERS NAMING FORT DEVENS AS YOUR PERMANENT STATION, THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND YOU WERE NO LONGER ENTITLED TO PER DIEM. IN YOUR PRESENT LETTER YOU SAY THERE IS NO DOUBT THAT YOU RECEIVED THE PAYMENT. HOWEVER, YOU BELIEVE YOU WERE ENTITLED TO THESE PAYMENTS UNTIL THE EFFECTIVE DATE OF THE ORDERS REASSIGNING YOU AS PERMANENT PARTY.

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 CHANGE OF PERMANENT STATION OR OTHERWISE,"OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH DUTY IS PERFORMED IN A TRAVEL STATUS AT A POINT REMOVED FROM THE MEMBER'S PERMANENT STATION. A MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT STATION IS THE LOCATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE IS TO RETURN OR TO PROCEED UPON COMPLETION OF A TEMPORARY DUTY ASSIGNMENT. IF THE LOCATION OF A MEMBER'S PERMANENT STATION IS CHANGED TO THE STATION WHERE TEMPORARY DUTY IS BEING PERFORMED, NO FURTHER TRAVEL IS REQUIRED TO COMPLY WITH THE ORDERS REGARDLESS OF THE EFFECTIVE DATE OF THE CHANGE AND THE MEMBER IS NO LONGER IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY.

IN YOUR CASE, ALTHOUGH SPECIAL ORDERS NO. 163, DIRECTED THE CONTINUED PERFORMANCE OF YOUR THEN TEMPORARY DUTY, THE ORDERS ALSO REMOVED THE NECESSITY FOR FURTHER TRAVEL ON YOUR PART AND YOU WERE NO LONGER IN THE STATUS OF BEING AWAY FROM YOUR DESIGNATED POST OF DUTY. NO RIGHT TO PER DIEM COULD ACCRUE TO YOU THEREAFTER SINCE SUCH DUTY WAS THEN BEING PERFORMED AT YOUR DESIGNATED POST OF DUTY. SEE 34 COMP. GEN. 427.

WITH RESPECT TO YOUR CONTENTION THAT YOU BELIEVE YOU SHOULD BE ENTITLED TO THE PER DIEM PAYMENT UNTIL THE EFFECTIVE DATE OF THE ORDERS REASSIGNING YOU AS A PERMANENT PARTY, YOU ARE ADVISED THAT AN ATTEMPT TO PERMIT PAYMENT OF PER DIEM AFTER RECEIPT OF ORDERS DESIGNATING A TEMPORARY DUTY STATION AS THE MEMBER'S NEW POST OF DUTY, EVEN BY ORDERS INCLUDING A STATEMENT THAT THE CHANGE IS TO BECOME EFFECTIVE AT A FUTURE DATE, IS CONTRARY TO THE PURPOSE OF THE LAW AND MAY NOT BE GIVEN EFFECT. CONCERNING YOUR INQUIRY AS TO YOUR "APPELLATE RIGHTS," YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, 74, THE ACTION TAKEN BY OUR OFFICE IN THE SETTLEMENT OF CLAIMS BY AND AGAINST THE UNITED STATES IS MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENT OF THE GOVERNMENT. THEREFORE, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY IN THIS MATTER.

ACCORDINGLY, SINCE IT IS CLEAR THAT THE SUM OF $144 PAID TO YOU AFTER YOUR PERMANENT STATION WAS CHANGED TO FORT DEVENS WAS NOT AUTHORIZED, WE HAVE NO ALTERNATIVE OTHER THAN TO INSIST THAT YOU MAKE FULL RESTITUTION OF THE ERRONEOUS PAYMENT TO THE UNITED STATES. PAYMENT OF THE $144 SHOULD BE MADE IN THE FORM OF A CHECK OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE AND SENT TO:

UNITED STATES GENERAL ACCOUNTING OFFICE

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