B-143173, SEP. 9, 1960

B-143173: Sep 9, 1960

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SCANLAN: REFERENCE IS MADE TO YOUR LETTERS OF MAY 2 AND JULY 11. WHILE YOU WERE SERVING ON ACTIVE DUTY AT TSUCHIURA. APPARENTLY THE PERIOD OF TEMPORARY DUTY WAS EXTENDED THROUGH OCTOBER 31. YOU WERE PAID PER DIEM FOR SUCH DUTY PERFORMED DURING THE PERIOD FROM DECEMBER 1. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENTS OF PER DIEM MADE ON ACCOUNT OF THIS TEMPORARY DUTY SINCE PER DIEM IS NOT POSSIBLE FOR TEMPORARY DUTY PERFORMED AT A MEMBER'S PERMANENT STATION. THAT UNLIKE SOME OTHER MEMBERS WHO WERE ASSIGNED TO PERMANENT DUTY AT TSUCHIURA PRIOR TO DECEMBER 1. YOU WERE NOT ASSIGNED TO DUTY THERE EXCEPT IN A TEMPORARY STATUS AWAY FROM YOUR TOKYO HEADQUARTERS BY SPECIAL ORDERS NO. 268.

B-143173, SEP. 9, 1960

TO MR. ROBERT J. SCANLAN:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 2 AND JULY 11, 1960, AND ENCLOSURES, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $2,199.60, REPRESENTING PER DIEM ERRONEOUSLY PAID TO YOU FOR THE PERIOD FROM DECEMBER 1, 1953, TO OCTOBER 31, 1954, WHILE YOU WERE SERVING ON ACTIVE DUTY AT TSUCHIURA, HONSHU, JAPAN, AS SERGEANT FIRST CLASS, UNITED STATES ARMY.

SPECIAL ORDERS NO. 260, HEADQUARTERS, SAFETY ADVISORY GROUP, JAPAN, 8065TH ARMY UNIT, APO 500, DATED DECEMBER 3, 1953, CONFIRMING VERBAL ORDERS OF DECEMBER 1, 1953, RELIEVED YOU FROM PERMANENT DUTY ASSIGNMENT AT TSUCHIURA AND PLACED YOU ON TEMPORARY DUTY AT THE SAME STATION FOR A PERIOD OF 31 DAYS COMMENCING DECEMBER 1, 1953. APPARENTLY THE PERIOD OF TEMPORARY DUTY WAS EXTENDED THROUGH OCTOBER 31, 1954, BY LATER ORDERS ISSUED BY THE SAME HEADQUARTERS. YOU WERE PAID PER DIEM FOR SUCH DUTY PERFORMED DURING THE PERIOD FROM DECEMBER 1, 1953, TO OCTOBER 31, 1954, IN THE TOTAL AMOUNT OF $2,199.60. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENTS OF PER DIEM MADE ON ACCOUNT OF THIS TEMPORARY DUTY SINCE PER DIEM IS NOT POSSIBLE FOR TEMPORARY DUTY PERFORMED AT A MEMBER'S PERMANENT STATION.

IN YOUR LETTER OF MAY 2, 1960, YOU SAY, IN SUBSTANCE, THAT UNLIKE SOME OTHER MEMBERS WHO WERE ASSIGNED TO PERMANENT DUTY AT TSUCHIURA PRIOR TO DECEMBER 1, 1953, YOU WERE NOT ASSIGNED TO DUTY THERE EXCEPT IN A TEMPORARY STATUS AWAY FROM YOUR TOKYO HEADQUARTERS BY SPECIAL ORDERS NO. 268, DATED DECEMBER 3, 1953. ON SUCH BASIS, YOU URGE THAT THE PER DIEM PAYMENTS MADE TO YOU WERE PROPER AND THAT YOU SHOULD NOT BE REQUIRED TO REFUND SUCH PAYMENTS.

AUTHORITY FOR THE 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 TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS SHALL BE 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, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. IN CONSONANCE WITH THIS BASIC REQUIREMENT THAT A TRAVEL STATUS IS NECESSARY TO ENTITLEMENT TO TRAVEL ALLOWANCES, PARAGRAPH 4250-6 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROVIDES THAT PER DIEM IS NOT AUTHORIZED FOR TEMPORARY DUTY AT A PERMANENT DUTY STATION.

YOU HAVE FURNISHED NO ORDERS TO SUPPORT YOUR CONTENTION THAT YOU WERE SERVING ON TEMPORARY DUTY AT TSUCHIURA ON DECEMBER 1, 1953, AWAY FROM A PERMANENT DUTY STATION, COPY OF ORDERS DATED NOVEMBER 5, 1953, WHICH YOU SUBMITTED, SHOWING ONLY THAT YOU WERE TRANSFERRED TO THE SAFETY ADVISORY GROUP, JAPAN, 8065TH ARMY UNIT, APO 500, AND DIRECTED TO PROCEED TO THAT ORGANIZATION, THE MOVEMENT BEING DESIGNATED A PERMANENT CHANGE OF STATION. ON THE OTHER HAND, THE ORDERS OF DECEMBER 3, 1953, STATE THAT YOU WERE RELIEVED FROM YOUR PERMANENT DUTY ASSIGNMENT AT TSUCHIURA AND THAT YOU WERE PLACED ON TEMPORARY DUTY AT THAT STATION, NO TRAVEL BEING INVOLVED, INDICATING THAT YOUR ASSIGNMENT UNDER THE ORDERS OF NOVEMBER 5, 1943, WAS FOR THE PERFORMANCE OF DUTY AT TSUCHIURA. YOUR ARRIVAL AT TSUCHIURA EFFECTIVELY TERMINATED YOUR TRAVEL STATUS UNDER THOSE ORDERS. THUS, EVEN IF THE ORDERS OF DECEMBER 3, 1953, HAD UNDERTAKEN TO DESIGNATE TOKYO AS YOUR PERMANENT STATION, NO RIGHT TO PER DIEM WOULD HAVE ACCRUED TO YOU SINCE YOU WOULD NOT HAVE ENTERED INTO A NEW TRAVEL STATUS UNTIL YOU WERE REQUIRED BY COMPETENT ORDERS TO LEAVE TSUCHIURA UPON COMPLETION OF TEMPORARY DUTY. HENCE, ON THE PRESENT RECORD, WE HAVE NO CHOICE OTHER THAN TO CONCLUDE THAT YOU WERE NOT ENTITLED TO THE PER DIEM PAYMENTS MADE TO YOU IN THE SUM OF $2,199.60 FOR THE PERIOD FROM DECEMBER 1, 1953, TO OCTOBER 31, 1954, WHICH RESULTED IN YOUR INDEBTEDNESS TO THE UNITED STATES.

WE ARE REQUIRED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE PROVISIONS OF LAW AND REGULATIONS. WHILE IT IS UNFORTUNATE THAT YOU WERE ERRONEOUSLY PAID PER DIEM DURING THE PERIOD INVOLVED, WE HAVE NO AUTHORITY TO CANCEL OR WAIVE YOUR INDEBTEDNESS TO THE UNITED STATES.