B-143624, SEP. 22, 1960

B-143624: Sep 22, 1960

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05506165: REFERENCE IS MADE TO YOUR LETTER OF JULY 14. STATED THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 26. IN WHICH THERE WAS CITED AS AUTHORITY CALIFANO V. IN YOUR PRESENT LETTER YOU SAY THAT IT WAS THE PRACTICE OF THE FINANCE OFFICERS AT YOUR DUTY STATION AT FORT SAM HOUSTON. YOU CONTEND THAT SINCE YOU WOULD HAVE BEEN PERMITTED TO KEEP THE PER DIEM IF IT HAD BEEN PAID CURRENTLY. 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. THE COURT OF CLAIMS IN A JUDICIAL INTERPRETATION OF THAT PROVISION IN THE CALIFANO CASE HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY FROM WHICH TRAVEL IS BEING PERFORMED.

B-143624, SEP. 22, 1960

TO SECOND LIEUTENANT WILLIAM W. ALEXANDER, MSC, 05506165:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1960, REQUESTING REVIEW OF OUR SETTLEMENT OF FEBRUARY 26, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 23 TO JUNE 18, 1959.

LETTER ORDERS DATED MAY 23, 1958, DIRECTED YOU TO PROCEED FROM YOUR HOME AT LINCOLN, NEBRASKA, TO THE ARMY MEDICAL SERVICE SCHOOL, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION. THE ORDERS REQUIRED YOU TO REPORT NOT LATER THAN APRIL 22, 1959, AND STATED THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. IT APPEARS THAT YOU REPORTED AT THE BROOKE ARMY MEDICAL CENTER ON APRIL 22, 1959, AND REMAINED THERE UNTIL AUGUST 15, 1959.

YOUR CLAIM FOR PER DIEM FROM APRIL 23 TO JUNE 18, 1959, WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 26, 1960, IN WHICH THERE WAS CITED AS AUTHORITY CALIFANO V. UNITED STATES, CT.CL.NO. 86-58, DECIDED MARCH 4, 1959, AND OUR DECISION OF JUNE 19, 1959, B-138900, 38 COMP. GEN. 849. IN THAT DECISION, WE STATED THAT WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION, BUT THAT PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, IF OTHERWISE PROPER.

IN YOUR PRESENT LETTER YOU SAY THAT IT WAS THE PRACTICE OF THE FINANCE OFFICERS AT YOUR DUTY STATION AT FORT SAM HOUSTON, TEXAS, TO PAY PER DIEM AT THE COMPLETION OF THE COURSE OF INSTRUCTION. YOU CONTEND THAT SINCE YOU WOULD HAVE BEEN PERMITTED TO KEEP THE PER DIEM IF IT HAD BEEN PAID CURRENTLY, YOU SHOULD BE ALLOWED SUCH PER DIEM FOR THE PERIOD UP TO THE CUT-OFF DATE, JUNE 19, 1959.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 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 UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY, AND THAT THE RESPECTIVE SECRETARIES MAY PRESCRIBE THE CONDITIONS UNDER WHICH TRANSPORTATION ALLOWANCES SHALL BE AUTHORIZED. 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 THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. THE COURT OF CLAIMS IN A JUDICIAL INTERPRETATION OF THAT PROVISION IN THE CALIFANO CASE HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY 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 (TEMPORARY DUTY) 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.

UPON CONSIDERATION OF THAT DECISION AND SINCE PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS APPLIES TO ALL MEMBERS OF THE UNIFORMED SERVICES, WE ADVISED THE SECRETARY OF DEFENSE IN THE DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, THAT FROM THE DATE OF THE DECISION WE WOULD FOLLOW THE RULING OF THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED 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. THE DECISION OF JUNE 19, 1959, INSOFAR AS HERE INVOLVED, WAS AFFIRMED BY DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, TO THE SECRETARY OF THE ARMY. WE FURTHER ADVISED THE SECRETARY 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 THE DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, OUR REASON FOR NOT QUESTIONING THOSE PAYMENTS BEING THAT THEY WERE BASED ON OUR DECISIONS REACHED PRIOR TO THE ISSUANCE OF THE DECISION OF JUNE 19, 1959. HENCE, THERE WAS A LEGAL BASIS TO SUPPORT THE PAYMENTS. HOWEVER, SINCE THOSE DECISIONS ARE NO LONGER IN EFFECT, AND SINCE YOU WERE NOT IN A TRAVEL STATUS FOR PER DIEM PURPOSES UNDER THE RULING IN THE CALIFANO CASE, YOU ARE NOT ENTITLED TO THE PER DIEM CLAIMED, AND CONSEQUENTLY WE HAVE NO LEGAL BASIS TO AUTHORIZE THE PAYMENT OF YOUR CLAIM.