B-143017, JUN. 17, 1960

B-143017: Jun 17, 1960

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DET.: REFERENCE IS MADE TO YOUR LETTER OF MAY 16. YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 8. UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION AT FORT RUCKER. YOU REQUEST INFORMATION AS TO WHETHER THERE IS ANY RECOURSE IN CIRCUMSTANCES. WHERE THE ORDERS INDICATE TEMPORARY DUTY BUT ACTUALLY IT IS PERMANENT DUTY AND THE ADVANCE PAYMENT OF PER DIEM MUST BE REPAID THE BY MEMBER. REGULATIONS PROMULGATED UNDER THOSE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. WITH THE EXCEPTION THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION FOR A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE.

B-143017, JUN. 17, 1960

TO SERGEANT DONALD J. ZUKOWSKI, USA GARR. DET.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1960, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 22, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD JULY 8, 1958, TO MARCH 27, 1959.

BY TRAVEL ORDERS DATED JULY 7, 1958, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 8, 1958, FROM FORT RUCKER, ALABAMA, TO MEMPHIS, TENNESSEE, FOR TEMPORARY DUTY OF APPROXIMATELY 36 WEEKS TO ATTEND THE TRADEMAN SCHOOL, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION AT FORT RUCKER. YOU REQUEST INFORMATION AS TO WHETHER THERE IS ANY RECOURSE IN CIRCUMSTANCES, SUCH AS THIS, WHERE THE ORDERS INDICATE TEMPORARY DUTY BUT ACTUALLY IT IS PERMANENT DUTY AND THE ADVANCE PAYMENT OF PER DIEM MUST BE REPAID THE BY MEMBER.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES (INCLUDING PER DIEM) WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH POSTS. REGULATIONS PROMULGATED UNDER THOSE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 3050 OF THE REGULATIONS AUTHORIZES PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, WITH THE EXCEPTION THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION FOR A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION. UNDER THOSE PROVISIONS AN ASSIGNMENT TO A COURSE OF INSTRUCTION FOR 20 WEEKS OR MORE INCIDENT TO A CHANGE OF DUTY MUST BE CONSIDERED A PERMANENT DUTY ASSIGNMENT FOR PER DIEM PURPOSES, IRRESPECTIVE OF THE FACT THAT THE ORDERS DIRECTING THE DUTY MIGHT DESIGNATE IT AS TEMPORARY DUTY OR CONTAIN LANGUAGE PURPORTING TO AUTHORIZE PER DIEM OR OTHER ALLOWANCE NOT PAYABLE INCIDENT TO THE PERFORMANCE OF DUTY AT PERMANENT STATION.

THE FACT THAT YOU WERE NOT AWARE OF THE APPLICABLE REGULATIONS OR THAT YOUR ORDERS INDICATED THAT THE ASSIGNMENT WOULD BE ON TEMPORARY DUTY DOES NOT AFFORD A LEGAL BASIS FOR THIS OFFICE TO ALLOW YOUR CLAIM, CONTRARY TO THE REGULATIONS. IN THAT CONNECTION, IT MAY BE STATED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS TO THE CONTRARY, THE UNITED STATES IS NOT LIABLE FOR THE MISTAKES OR NEGLIGENT ACTIONS OF ITS OFFICERS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579; 19 COMP. GEN. 503. WHILE THERE HAS BEEN REPORTED TO THIS OFFICE THE MATTER OF RECOVERING THE AMOUNT OF $360 WHICH YOU SAY WAS ADVANCED TO YOU AS PER DIEM FOR THE PERIOD INVOLVED, IT IS WELL ESTABLISHED THAT PAYMENTS MADE AS THE RESULT OF LEGAL MISTAKES OF OFFICERS OF THE UNITED STATES ARE RECOVERABLE, EVEN THOUGH THE PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH. AS STATED IN THE CASE OF UNITED STATES V. BENTLEY, 107 F.2D 382,"THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE DEFENDANT MAY HAVE SPENT, CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.'

RESPECTING YOUR INQUIRY WHETHER THERE IS ANY RECOURSE OPEN TO AN INDIVIDUAL IN YOUR SITUATION, YOU ARE ADVISED THAT OUR DECISION IN THE MATTER IS CONCLUSIVE UPON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 22, 1959, WAS CORRECT AND IS SUSTAINED.