B-144295, NOV. 29, 1960

B-144295: Nov 29, 1960

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05 207 126: REFERENCE IS MADE TO LETTER OF OCTOBER 9. STATED THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 25. IN WHICH THERE WAS CITED AS AUTHORITY CALIFANO V. YOU SAY IT WAS THE PRACTICE AT FORT SAM HOUSTON TO ACCUMULATE THE PER DIEM PAY DURING THE COURSE OF INSTRUCTION AND TO PAY THE FULL AMOUNT DUE ON GRADUATION DAY. IT IS YOUR CONTENTION THAT SINCE 21 DAYS HAD EXPIRED BEFORE YOU WERE OFFICIALLY NOTIFIED THAT PER DIEM PAYMENTS WERE DISCONTINUED. SINCE YOU WOULD HAVE BEEN ENTITLED TO KEEP THE PER DIEM IF IT HAD BEEN PAID TO YOU BEFORE JULY 1. UNDER THE APPLICABLE STATUTES AND REGULATIONS MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC BUSINESS.

B-144295, NOV. 29, 1960

TO SECOND LIEUTENANT JOHN H. MEHIGAN, 05 207 126:

REFERENCE IS MADE TO LETTER OF OCTOBER 9, 1960, WITH ENCLOSURES, TO THE HONORABLE WILLIAM H. AYRES, HOUSE OF REPRESENTATIVES, CONCERNING THE ACTION TAKEN IN OUR SETTLEMENT DATED FEBRUARY 25, 1960, WHICH DISALLOWED YOUR CLAIM OF PER DIEM FOR THE PERIOD APRIL 23 TO JUNE 18, 1959.

LETTER ORDER DATED NOVEMBER 21, 1958, DIRECTED YOU TO PROCEED FROM YOUR HOME IN AKRON, OHIO, 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 NO 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 14, 1959.

YOUR CLAIM FOR PER DIEM FROM APRIL 23 TO JUNE 18, 1959, WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 25, 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 HELD 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.

YOU SAY IT WAS THE PRACTICE AT FORT SAM HOUSTON TO ACCUMULATE THE PER DIEM PAY DURING THE COURSE OF INSTRUCTION AND TO PAY THE FULL AMOUNT DUE ON GRADUATION DAY. YOU ENCLOSED A NOTICE DATED JULY 21, 1959, ISSUED AT THE BROOKE ARMY MEDICAL CENTER, WHICH CONTAINED A MESSAGE FROM THE DEPARTMENT OF THE ARMY, WASHINGTON, D.C., PRECLUDING FURTHER PER DIEM PAYMENTS TO ANY MEMBER ORDERED TO ACTIVE DUTY FROM HIS HOME AND ASSIGNED TO A STATION ON A TEMPORARY DUTY PENDING FURTHER ORDERS STATUS, BUT STATING THAT PAYMENTS MADE PRIOR TO JULY 1, 1959, WOULD NOT BE QUESTIONED. THE MESSAGE CITES OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849. IT IS YOUR CONTENTION THAT SINCE 21 DAYS HAD EXPIRED BEFORE YOU WERE OFFICIALLY NOTIFIED THAT PER DIEM PAYMENTS WERE DISCONTINUED, AND SINCE YOU WOULD HAVE BEEN ENTITLED TO KEEP THE PER DIEM IF IT HAD BEEN PAID TO YOU BEFORE JULY 1, 1959, YOU FEEL YOU SHOULD BE ALLOWED PER DIEM FOR THE PERIOD PRIOR TO JULY 1, 1959.

AS EXPLAINED IN THE SETTLEMENT OF FEBRUARY 25, 1960, UNDER THE APPLICABLE STATUTES AND REGULATIONS MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC BUSINESS. IN THE CALIFANO CASE, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS COULD NOT 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 IN THAT CASE DIRECTING THE MEMBER 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 THE DECISION IN THE CALIFANO CASE 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, WITH THE ADVICE 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 OF JUNE 19, 1959, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, SUCH PAYMENTS HAVING BEEN BASED ON OUR DECISIONS RENDERED PRIOR TO THE ISSUANCE OF THE DECISION OF JUNE 19, 1959. HOWEVER, YOU WERE NOT PAID PER DIEM UNDER THE EARLIER DECISIONS AND THE RULING IN THE CALIFANO CASE PRECLUDES US FROM NOW ALLOWING YOU ANY PER DIEM UNDER YOUR TEMPORARY DUTY PENDING FURTHER ASSIGNMENT ORDERS.

WITH RESPECT TO A RIGHT TO PER DIEM ON AND AFTER JUNE 19, 1959, WE HELD IN THE ABOVE-MENTIONED DECISION OF JANUARY 11, 1960, TO THE SECRETARY OF THE ARMY, THAT IN CASES WHERE THE ORDERS OF THE TYPE THERE INVOLVED WERE AMENDED PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY DIRECTED IN THE INITIAL ORDERS TO DESIGNATE A FIRST PERMANENT STATION,SUCH AMENDATORY ORDERS WOULD PLACE THE MEMBER IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY FROM THE DATE OF RECEIPT BY HIM OF THE AMENDATORY ORDERS. SAID THAT WE WOULD NOT BE REQUIRED TO OBJECT IN SUCH CASES TO OTHERWISE PROPER PER DIEM PAYMENTS MADE ADMINISTRATIVELY COVERING PERIODS OF TEMPORARY DUTY FROM THE DATE OF RECEIPT BY THE MEMBERS OF THE AMENDATORY ORDERS. IN THAT CONNECTION, YOUR NAME, AMONG OTHERS, APPEARS ON SPECIAL ORDERS NO. 114, DATED JUNE 9, 1959, ISSUED AT HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., WHICH ORDERS WERE NOT BEFORE OUR CLAIMS DIVISION WHEN SETTLEMENT OF YOUR CLAIM WAS MADE. SUCH ORDERS RELEASED YOU FROM YOUR DUTY ASSIGNMENT AT FORT SAM HOUSTON, TEXAS, UPON COMPLETION OF YOUR COURSE OF INSTRUCTION AT THAT STATION AND DIRECTED THAT YOU THEN PROCEED TO FORT KNOX, KENTUCKY, FOR DUTY ON A PERMANENT CHANGE OF STATION. WE HAVE RECOGNIZED THE ORDERS OF JUNE 9, 1959, AS AUTHORIZING THE PAYMENT OF PER DIEM IN THE CIRCUMSTANCES STATED FROM JUNE 15, 1959, THE DATE THOSE ORDERS APPARENTLY WERE RECEIVED BY THE MEMBERS INVOLVED AT FORT SAM HOUSTON, TEXAS. B-143981, NOVEMBER 8, 1960. ACCORDINGLY, UPON VERIFICATION FROM YOUR PAY RECORDS THAT YOU WERE NOT PAID PER DIEM FOR THE PERIOD JUNE 15 TO AUGUST 14, 1959, THE DATE OF YOUR DEPARTURE FROM FORT SAM HOUSTON, TEXAS, A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR THAT PERIOD IN THE AMOUNT FOUND DUE ON THE BASIS INDICATED.