B-143033, JUL. 26, 1960

B-143033, JUL. 26, 1960

TO BILL L. DICKENS, RMC,:

BY REFERENCE OF THE UNITED STATES NAVY REGIONAL ACCOUNTS OFFICE, WASHINGTON, D.C., THERE WAS RECEIVED YOUR CLAIM FOR REFUND OF $231.30 WHICH WAS CHECKED AGAINST YOUR PAY REPRESENTING PER DIEM ERRONEOUSLY PAID TO YOU INCIDENT TO TEMPORARY DUTY PERFORMED AT COOS HEAD, OREGON, DURING THE PERIOD MARCH 23 TO MAY 12, 1958. SINCE A SIMILAR CLAIM SUBMITTED BY YOU WAS DISALLOWED IN OUR SETTLEMENT OF AUGUST 27, 1959, YOUR PRESENT CLAIM WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE ACTION TAKEN IN THAT SETTLEMENT.

UNDER ORDERS OF THE UNITED STATES NAVAL TRAINING CENTER, BAINBRIDGE,MARYLAND, DATED JANUARY 28, 1958, YOU WERE DIRECTED TO PROCEED FROM BAINBRIDGE TO THE RECEIVING STATION, SAN FRANCISCO, CALIFORNIA, AND, WHEN DIRECTED, TO NAVAL FACILITIES, COOS HEAD, OREGON, WHERE YOU WERE TO REPORT NOT LATER THAN MARCH 23, 1958, FOR DUTY. YOU STATE THAT YOU REPORTED AT SAN FRANCISCO ON MARCH 6, 1958, WHERE YOU WERE ADVISED THAT YOUR ULTIMATE DUTY STATION WAS UNDER CONSTRUCTION, AND THAT BECAUSE OF CONSTRUCTION DELAYS IT WAS DECIDED TO SEND 15 MEN TO THE SITE OF THE FACILITY TO ASSIST IN THE HANDLING OF NAVY OWNED EQUIPMENT AND SUPPLIES WHICH WERE BECOMING A SECURITY PROBLEM TO THE CIVILIAN CONTRACTOR. MEMORANDUM ENDORSEMENT OF THE COMMANDING OFFICER AT THE NAVAL RECEIVING STATION, SAN FRANCISCO, TO THE ORDERS OF JANUARY 28, DATED MARCH 21, 1958, STATED THAT YOUR ORIGINAL ORDERS WERE THEREBY MODIFIED TO DIRECT TEMPORARY DUTY IN CONNECTION WITH THE ESTABLISHMENT OF NAVAL FACILITIES, COOS HEAD, AND FOR DUTY AT NAVAL FACILITIES, COOS HEAD, WHEN ESTABLISHED, RATHER THAN TO DIRECT THAT YOU REPORT AT THAT STATION INITIALLY FOR DUTY. YOU STATE THAT YOU LEFT SAN FRANCISCO ON MARCH 21 AND ARRIVED AT COOS BAY (ABOUT 15 MILES FROM THE SITE OF THE BASE) WHERE YOU ARRANGED FOR QUARTERS AND MEALS, THERE BEING NO FACILITIES FOR EITHER AT THE BUILDING SITE. FURTHER ENDORSEMENTS TO THE ORDERS SHOW THAT BERTHING AND MESSING FACILITIES WERE MADE AVAILABLE AT COOS HEAD ON APRIL 7, 1958, AND THAT THE TEMPORARY DUTY WAS COMPLETED AND YOU REPORTED FOR DUTY AT THE NAVAL FACILITIES, COOS HEAD, ON MAY 13, 1958. CHECK AGE OF THE SUM RECEIVED BY YOU AS PER DIEM DURING THE PERIOD OF TEMPORARY DUTY WAS MADE ON THE BASIS THAT COOS HEAD WAS IN FACT YOUR DESIGNATED POST OF DUTY DURING THE PERIOD IN QUESTION.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' CONSEQUENTLY, IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF THOSE ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH TEMPORARY DUTY IS PERFORMED AT A POINT REMOVED FROM THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION. YOUR ORDERS OF JANUARY 28, 1958, AS MODIFIED, DIRECTED THE PERFORMANCE OF TEMPORARY DUTY AT COOS HEAD, BUT ALSO ASSIGNED YOU TO DUTY AT COOS HEAD. UNDER THOSE CIRCUMSTANCES COOS HEAD WAS YOUR DESIGNATED POST OF DUTY AND THE PLACE OF YOUR BASIC DUTY ASSIGNMENT EVEN THOUGH THE PERFORMANCE OF TEMPORARY DUTY THERE WAS REQUIRED BEFORE YOU WERE TO ASSUME THE DUTIES OF YOUR BASIC ASSIGNMENT. YOU HAD NO OTHER DUTY ASSIGNMENT. SEE IN THAT CONNECTION PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT A MEMBER WILL NOT BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY WHEN PERMANENT CHANGE OF STATION ORDERS ARE ISSUED DESIGNATING THE TEMPORARY DUTY STATION AS HIS PERMANENT STATION, EFFECTIVE EITHER IMMEDIATELY OR ON A LATER DATE, UNLESS HE IS REQUIRED UPON THE COMPLETION OF THE TEMPORARY ASSIGNMENT TO RETURN TO HIS OLD DUTY STATION PRIOR TO THE ASSUMPTION OF HIS NEW PERMANENT DUTY ASSIGNMENT.

YOU SUGGEST THAT SINCE YOUR ULTIMATE DUTY STATION WAS UNDER CONSTRUCTION DURING THE PERIOD IN QUESTION YOUR SITUATION SHOULD BE CONSIDERED AS SIMILAR TO THAT OF PERSONNEL ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH FITTING OUT OR CONVERSION OF A VESSEL AND TO DUTY ABOARD THE VESSEL WHEN COMMISSIONED, FOR WHICH PER DIEM IS AUTHORIZED UNDER THE PROVISIONS OF PARAGRAPH 4206 OF THE JOINT TRAVEL REGULATIONS. IN SUCH CASES TEMPORARY DUTY IS CONSIDERED AS DIRECTED AT A SHORE STATION RATHER THAN ABOARD THE VESSEL AND CONSEQUENTLY DOES NOT INVOLVE THE PERFORMANCE OF TEMPORARY DUTY AT THE DESIGNATED DUTY STATION. 23 COMP. GEN. 522. YOUR ASSIGNED DUTY STATION WAS AT COOS HEAD AND YOUR TEMPORARY ASSIGNMENT WAS FOR PERFORMANCE AT THAT PLACE. COOS HEAD BECAME YOUR DESIGNATED POST OF DUTY UPON THE ISSUANCE OF THE ORDERS, AND ITS STATUS IN THAT RESPECT WAS NOT AFFECTED BY A CONSIDERATION OF WHETHER OR NOT THE FACILITIES OF THE INSTALLATION WERE THEN READY FOR USE. IT MAY BE STATED FOR YOUR INFORMATION THAT ON MAY 4, 1960, A BILL, S. 3479, WAS INTRODUCED IN CONGRESS TO AUTHORIZE THE PAYMENT OF PER DIEM IN CERTAIN CASES FOR TEMPORARY DUTY PERFORMED AT COOS HEAD, OREGON, AFTER JANUARY 1, 1958. THIS BILL, HOWEVER, HAS NOT BEEN ENACTED INTO LAW BY CONGRESS.

INASMUCH AS YOUR TEMPORARY DUTY UNDER THE ORDERS OF JANUARY 28, 1958, AS MODIFIED, WAS PERFORMED AT THE PERMANENT DUTY STATION ASSIGNED BY THOSE ORDERS, THERE WAS NO AUTHORITY UNDER THE LAW FOR THE PAYMENT OF PER DIEM INCIDENT TO ITS PERFORMANCE. ACCORDINGLY, THE SETTLEMENT OF AUGUST 27, 1959, IS SUSTAINED.

WHILE YOU WERE NOT ENTITLED TO PER DIEM FOR THE PERIOD OF TEMPORARY DUTY IN QUESTION, YOU WERE ENTITLED UNDER THE PROVISIONS OF SECTIONS 301 AND 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED, TO BASIC ALLOWANCES FOR SUBSISTENCE AND QUARTERS FOR ANY PORTIONS OF THAT PERIOD DURING WHICH RATIONS IN KIND AND GOVERNMENT QUARTERS WERE NOT AVAILABLE TO YOU. IT IS ASSUMED THAT YOU HAVE BEEN DULY CREDITED WITH THOSE ALLOWANCES.

YOUR ORIGINAL ORDERS OF JANUARY 28, 1958, WITH ENDORSEMENTS, ARE RETURNED HEREWITH.