B-143279, JUL. 27, 1960

B-143279: Jul 27, 1960

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WRIGHT: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 7. YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED FROM YOUR HOME. BY THE SETTLEMENT MENTIONED ABOVE YOU WERE ADVISED THAT YOU ARE NOT ENTITLED TO PER DIEM FOR TEMPORARY DUTY PERFORMED PRIOR TO JUNE 19. YOUR PRESENT LETTER YOU REFER TO THAT DECISION AND EXPRESS THE OPINION THAT IT IS UNFAIR TO DENY YOUR CLAIM WHEN PAYMENTS MADE PRIOR TO JULY 1. FOR THE SAME TYPE OF DUTY WERE APPROVED. 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. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

B-143279, JUL. 27, 1960

TO SECOND LIEUTENANT WILBUR E. WRIGHT:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 7, 1960, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 25, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD APRIL 20 TO JUNE 18, 1959, WHILE ON TEMPORARY DUTY AT BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS.

BY SPECIAL ORDERS NO. 35, DATED FEBRUARY 18, 1959, YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED FROM YOUR HOME, 810 WALLBERG AVENUE, WESTFIELD, NEW JERSEY, TO STUDENT DETACHMENT, UNITED STATES ARMY MEDICAL SERVICE SCHOOL, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, FOR TEMPORARY DUTY PENDING FURTHER ORDERS TO ATTEND A COURSE OF INSTRUCTION. BY THE SETTLEMENT MENTIONED ABOVE YOU WERE ADVISED THAT YOU ARE NOT ENTITLED TO PER DIEM FOR TEMPORARY DUTY PERFORMED PRIOR TO JUNE 19, 1959, UNDER THOSE ORDERS, CITING OUR DECISION B-138900, DATED JUNE 19, 1959. YOUR PRESENT LETTER YOU REFER TO THAT DECISION AND EXPRESS THE OPINION THAT IT IS UNFAIR TO DENY YOUR CLAIM WHEN PAYMENTS MADE PRIOR TO JULY 1, 1959, FOR THE SAME TYPE OF DUTY WERE APPROVED. YOU SAY YOU HAD NO REASON TO REQUEST PAYMENT OF PER DIEM PRIOR TO JULY 1, 1959, SINCE YOU HAD YOUR OWN FUNDS TO PROVIDE FOR THE ADDITIONAL EXPENSES INCURRED.

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 PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST 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 THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

IN THE CASE OF CALIFANO V. UNITED STATES, C.CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST 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 THE 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, B-138900, 38 COMP. GEN. 849, WE ADVISED THE SECRETARY OF DEFENSE THAT WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. WE FURTHER STATED IN THAT DECISION THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED IF OTHERWISE PROPER. IN DECISION OF JANUARY 11, 1960, B- 138900, 39 COMP. GEN. 506, THE CUT-OFF DATE WITH RESPECT TO ADMINISTRATIVELY MADE PER DIEM PAYMENTS WAS CHANGED FROM JULY 1, 1959, TO OCTOBER 1, 1959. IN VIEW OF THE CLEAR HOLDING IN THE CALIFANO CASE, HOWEVER, NO BASIS EXISTS FOR ANY FURTHER PAYMENT OF PER DIEM IN CASES COMING WITHIN THE RULE OF THAT CASE AND WE EMPHASIZED IN THE DECISION OF JANUARY 11, 1960, THAT,"SUCH CHANGE * * * IS 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.' YOUR CLAIM, WHICH WAS NOT PAID ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, NECESSARILY WAS DISALLOWED IN ACCORDANCE WITH THE CALIFANO CASE. LIKE ACTION WAS TAKEN IN SIMILAR CLAIMS RECEIVED HERE AFTER THE DATE OF THE DECISION.

WHILE APPRECIATING YOUR FEELINGS IN THIS MATTER WE TRUST YOU WILL UNDERSTAND THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THAT THE SETTLEMENT OF FEBRUARY 25, 1960, MUST BE SUSTAINED.