B-143572, SEP. 13, 1960

B-143572, SEP. 13, 1960

TO MR. ANTHONY J. CELENTANO, 441 87 48, CMG3, USNR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1960, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 28, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD NOVEMBER 23, 1955, TO MAY 6, 1956, WHILE PERFORMING DUTY AT GUANTANAMO BAY, CUBA, AS A MEMBER OF A MOBILE CONSTRUCTION BATTALION.

YOU HAVE NOT SUBMITTED ANY ORDERS IN SUPPORT OF YOUR CLAIM FOR PER DIEM BUT THERE IS ON FILE A COMMUNICATION DATED NOVEMBER 23, 1955, FROM THE COMMANDING OFFICER, U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE TO PERSONNEL OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE AS FOLLOWS:

"1. THE MEMBERS LISTED ON ENCLOSURE (1), WHO ARE ATTACHED TO U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE, AS DIRECTED BY REFERENCE (A) AND THE COMMANDING OFFICER'S VERBAL ORDERS, DEPARTED DAVISVILLE, R.I. ON 17 NOVEMBER 1955 AND ARRIVED AT GUANTANAMO BAY, CUBA ON 22 NOVEMBER 1955 FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE ACTIVITIES OF THIS COMMAND. TRAVEL WAS PERFORMED BY GOVERNMENT CONVEYANCE.'

FOR A LONG PERIOD OF TIME DUTY OF THE TYPE YOU WERE PERFORMING DURING THE PERIOD HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTIONS 7220.19 ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPH 6 OF THE SECRETARY'S INSTRUCTIONS PROVIDED:

"C.MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES.

"D. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY, FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION, WILL NOT BE ISSUED CONFIRMING ORDERS.'

THE PROVISIONS OF SUBPARAGRAPH C OF PARAGRAPH 6, SECNAV INSTRUCTIONS 7220.19, QUOTED ABOVE, CONSTITUTES AN EFFECTIVE EXERCISE OF ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAD BEEN ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE SUCH AS COMPLY WITH THE APPLICABLE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES CONCERNED ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS ISSUED IN ADVANCE OF TRAVEL. PARAGRAPHS 3002-1 AND 3002-2 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY DUTY ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT STATION WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. THE COMMUNICATION OF NOVEMBER 23, 1955, ANNOUNCING THE COMPLETION OF A TROOP MOVEMENT DIRECTED IN CONSERVIANT MOVEMENT ORDER NO. 252-55 DATED OCTOBER 14, 1955, WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY," DIRECTS NO TRAVEL NOR DOES IT CONFIRM ANY VERBAL ORDERS DIRECTING TRAVEL. ALSO, IT DOES NOT PROVIDE FOR THE FURTHER ASSIGNMENT OF THE LISTED MEMBERS, INCLUDING YOU, TO A NEW PERMANENT STATION OR FOR THEIR RETURN TO THE OLD PERMANENT STATION. HENCE, IT DOES NOT MEET THE REQUIREMENT OF PARAGRAPH 6C OF SECNAV INSTRUCTIONS 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM OR OTHER SIMILAR CLAIMS. ACCORDINGLY, THE SETTLEMENT OF JANUARY 28, 1959, IS SUSTAINED.

IF CERTAIN MEMBERS OF YOUR BATTALION HAVE BEEN PAID PER DIEM FOR DUTY AT GUANTANAMO BAY SIMILAR TO YOURS, SUCH PAYMENTS WERE ERRONEOUS AND FORM NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.