B-143009, SEP. 16, 1960

B-143009, SEP. 16, 1960

TO MR. AND MRS. CHARLES WILLIAM LEHMANN:

BY REFERENCE FROM THE HONORABLE THOMAS LUDLOW ASHLEY, HOUSE OF REPRESENTATIVES, THERE WAS RECEIVED YOUR CLAIM FOR TRAVEL AND PER DIEM ALLOWANCES BELIEVED TO HAVE BEEN DUE YOUR SON, WILLIAM CHARLES LEHMANN, DECEASED, INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED BY HIM DURING THE PERIOD FROM DECEMBER 11, 1956, TO MAY 21, 1957, AS AN ENLISTED MEMBER OF THE U.S. NAVY. SINCE A SIMILAR CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF MARCH 1, 1960, BY WHICH YOU WERE ALLOWED THE ARREARS OF PAY DUE YOUR SON AT THE TIME OF HIS DEATH, YOUR PRESENT REQUEST WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT PART OF SUCH SETTLEMENT DEALING WITH YOUR RIGHT TO THE CLAIMED TRAVEL ALLOWANCES.

FROM THE RECORDS NOW AVAILABLE IT APPEARS THAT YOUR SON WAS ENLISTED IN THE NAVY AT DETROIT, MICHIGAN, ON OCTOBER 3, 1956. BY ORDERS OF UNITED STATES NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, DATED DECEMBER 11, 1956, HE WAS DIRECTED TO PROCEED FROM GREAT LAKES, WHERE HE APPARENTLY HAD BEEN SENT FOR HIS BASIC TRAINING, AND REPORT TO THE NAVAL AIR TECHNICAL TRAINING COMMAND AT NORMAN, OKLAHOMA, FOR A COURSE OF INSTRUCTION, THE CLASS TO WHICH HE WAS ASSIGNED CONVENING ON JANUARY 14, 1957. HE REPORTED AT NORMAN ON DECEMBER 30, 1956, AND FOR THAT TRAVEL HE RECEIVED A CREDIT OF $52.68, REPRESENTING A MILEAGE ALLOWANCE FOR THE DISTANCE FROM GREAT LAKES TO NORMAN. IN THE CLAIM SUBMITTED IT IS SHOWN THAT HE THEREAFTER TRAVELED FROM NORMAN TO THE NAVAL AIR TECHNICAL TRAINING COMMAND, MEMPHIS, TENNESSEE, ON FEBRUARY 13, 1957, AND FROM THAT ASSIGNMENT TO THE NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA, DURING THE PERIOD FROM MAY 2 TO 21, 1957. IT IS STATED THAT HE WAS ON LEAVE FROM DECEMBER 12 TO 30, 1956, AND FROM MAY 3 TO 18, 1957. THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THEY HAVE BEEN UNABLE TO LOCATE ORDERS DIRECTING THE MOVES FROM NORMAN TO MEMPHIS AND FROM MEMPHIS TO MOFFETT FIELD, BUT THERE WERE FURNISHED, IN LIEU OF THE MISSING ORDERS, EXCERPTS FROM YOUR SON'S SERVICE RECORD INDICATING THAT HIS TRANSFER TO MEMPHIS ON FEBRUARY 13, 1957, WAS FOR TEMPORARY DUTY UNDER INSTRUCTION, AND THAT HE WAS TRANSFERRED ON MAY 2, 1957, TO MOFFETT FIELD FOR DUTY, HIS FIRST PERMANENT DUTY ASSIGNMENT. APPARENTLY BELIEVED HIMSELF ENTITLED TO PER DIEM INCIDENT TO THE TEMPORARY DUTY PERFORMED WHILE UNDERGOING INSTRUCTION AT NORMAN AND AT MEMPHIS.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253 (A), 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 UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. 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. IN THE CASE OF CALIFANO V. UNITED STATES, CT.CL. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST UNDER THAT AUTHORITY FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION 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.

IN OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, TO THE SECRETARY OF DEFENSE, WE SAID THAT WHILE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT, WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE BEGINNING WITH THE DATE OF SUCH DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, ON THE BASIS OF OUR PRIOR DECISIONS WOULD NOT BE QUESTIONED. THAT DECISION WAS MODIFIED IN DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 506, TO THE SECRETARY OF THE AIR FORCE WHEREIN WE SAID THAT PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, WOULD NOT BE QUESTIONED, BUT THAT SUCH DECISION WAS NOT TO BE CONSTRUED AS AUTHORIZING THE PAYMENT OF PER DIEM ADMINISTRATIVELY AFTER SEPTEMBER 30, 1959, COVERING PERIODS OF TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE.

FOLLOWING THE PRINCIPLE OF THE COURT IN THE CALIFANO CASE, IT WAS HELD IN DECISION OF JANUARY 11, 1960, TO THE SECRETARY OF THE NAVY, 39 COMP. GEN. 511, THAT A MEMBER WHO IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON THE COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT, MAY NOT BE CONSIDERED FOR THE PERIODS OF SUCH TEMPORARY DUTY AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY SO AS TO BE ENTITLED TO PER DIEM.

THE RECORDS AVAILABLE IN YOUR SON'S CASE INDICATE THAT HIS SITUATION WHILE PERFORMING TEMPORARY DUTY AT NORMAN AND MEMPHIS, PRIOR TO REPORTING FOR DUTY AT MOFFETT FIELD, WAS SIMILAR TO THAT INVOLVED IN THE CITED DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 511. CONSEQUENTLY, THERE WOULD APPEAR TO BE NO PROPER BASIS UPON WHICH IT MIGHT BE CONSIDERED THAT HE WAS THEN IN A STATUS ENTITLING HIM TO PER DIEM. PAYMENT OF PER DIEM AFTER SEPTEMBER 30, 1959, COVERING PERIODS OF TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE, AS IN YOUR SON'S CASE, IS NOT AUTHORIZED.

IN THE CLAIM SUBMITTED, HOWEVER, IT IS INDICATED THAT YOUR SON PERFORMED THE TRAVEL FROM NORMAN, OKLAHOMA, TO MEMPHIS, TENNESSEE, AND FROM MEMPHIS TO MOFFETT FIELD, CALIFORNIA, BY COMMERCIAL MEANS OF TRANSPORTATION AT HIS OWN EXPENSE, AND THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THEIR RECORDS DO NOT SHOW THAT HE WAS REIMBURSED FOR THAT TRAVEL. UNDER SUCH CIRCUMSTANCES IT WILL BE CONSIDERED THAT HE WAS ENTITLED TO A MILEAGE ALLOWANCE OF FIVE CENTS PER MILE FOR THE OFFICIAL DISTANCES FROM NORMAN TO MEMPHIS AND FROM MEMPHIS TO MOFFETT FIELD UNDER THE PROVISIONS OF PARAGRAPH 4154-2 OF THE JOINT TRAVEL REGULATIONS WHICH AUTHORIZE THAT ALLOWANCE IN LIEU OF TRANSPORTATION FOR CERTAIN TRAVEL TO A NEW PERMANENT STATION PERFORMED BY MEMBERS AT PERSONNEL EXPENSE, PARAGRAPH 5052 OF THE JOINT TRAVEL REGULATIONS PROVIDING THAT MEMBERS ENLISTING IN THE ARMED FORCES ARE ENTITLED GENERALLY TO THE SAME BENEFITS FOR TRAVEL TO THEIR FIRST STATION. FURTHER SETTLEMENT OF YOUR CLAIM WILL BE MADE ON THAT BASIS IN DUE COURSE.