B-144350, FEB 6, 1961

B-144350: Feb 6, 1961

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CAROCCI: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 24. WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PER DIEM WHICH WAS ADMINISTRATIVELY COLLECTED FROM YOU AS AN OVERPAYMENT OF PER DIEM FOR THE PERIOD JUNE 19 TO 30. PER DIEM WHICH WAS PAID TO YOU IN THE AMOUNT OF $48 FOR THE PERIOD JUNE 19 TO 31. WAS COLLECTED FROM YOU BY THE DEPARTMENT OF THE ARMY. YOU WERE ADVISED THAT UNDER THE APPLICABLE STATUTES AND REGULATIONS. MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHEN ACTUALLY IN A TRAVEL STATUS. THAT SINCE YOUR ORDERS DID NOT PLACE YOU IN A TRAVEL STATUS AT FORT HOLABIRD DURING THE PERIOD INVOLVED IN YOUR CLAIM THERE WAS NO AUTHORITY FOR US TO ALLOW YOU THE PER DIEM CLAIMED.

B-144350, FEB 6, 1961

TO FIRST LIEUTENANT VINCENT P, CAROCCI:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 24, 1960, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED OCTOBER 18, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PER DIEM WHICH WAS ADMINISTRATIVELY COLLECTED FROM YOU AS AN OVERPAYMENT OF PER DIEM FOR THE PERIOD JUNE 19 TO 30, 1959.

LETTER ORDER C-4-71, DATED APRIL 18, 1958, DIRECTED YOU TO PROCEED FROM YOUR HOME IN SCRANTON, PENNSYLVANIA, TO THE STUDENT DETACHMENT, UNITED STATES ARMY INTELLIGENCE SCHOOL, FORT HOLABIRD, MARYLAND, FOR TEMPORARY DUTY PENDING FURTHER ORDERS TO ATTEND A COURSE OF INSTRUCTION. THE ORDERS REQUIRED YOU TO REPORT AT FORT HOLABIRD NOT LATER THAN APRIL 12, 1959. PER DIEM WHICH WAS PAID TO YOU IN THE AMOUNT OF $48 FOR THE PERIOD JUNE 19 TO 31, 1959, WAS COLLECTED FROM YOU BY THE DEPARTMENT OF THE ARMY, CITING AS AUTHORITY, OUR DECISION B 138900, DATED JUNE 19, 1959. IN OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 18, 1960, YOU WERE ADVISED THAT UNDER THE APPLICABLE STATUTES AND REGULATIONS, MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHEN ACTUALLY IN A TRAVEL STATUS, AND THAT SINCE YOUR ORDERS DID NOT PLACE YOU IN A TRAVEL STATUS AT FORT HOLABIRD DURING THE PERIOD INVOLVED IN YOUR CLAIM THERE WAS NO AUTHORITY FOR US TO ALLOW YOU THE PER DIEM CLAIMED. SUCH SETTLEMENT, AS APPLIED IN YOUR CASE, WAS BASED ON OUR DECISION B-138900, DATED JUNE 19, 1959. IN YOUR PRESENT LETTER YOU REFER TO OUR DECISION B-138900, DATED JANUARY 11, 1960, APPARENTLY AS A BASIS FOR PAYMENT OF YOUR CLAIM AND YOU ALSO REFER TO THREE CLAIMS, SIMILAR IN CIRCUMSTANCE TO YOURS, WHICH WERE APPROVED UNDER SUCH DECISION.

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 A 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 THAT 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 OF FOR RETURN TO THE OLD PERMANENT STATION.

IN THE CASE OF CALIFANO V UNITED STATES, CT.CL. 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 THE DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED IF OTHERWISE PROPER. IN OUR 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.' WHILE YOU MAY HAVE REFUNDED PER DIEM YOU RECEIVED FOR THE PERIOD JUNE 19 TO 30, 1959, BASED ON AN ADMINISTRATIVE MISUNDERSTANDING OF OUR DECISION OF JUNE 19, 1959, B-138900, 38 COMP. GEN. 849, IT MUST BE CONSIDERED THAT YOU ARE IN THE SAME STATUS AS OTHER OFFICERS WHO WERE NOT PAID PER DIEM ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, AND THERE IS NO AUTHORITY TO REFUND TO YOU ANY PART OF THE AMOUNT YOU REPAID IN LIQUIDATION OF THE PER DIEM PAYMENT RECEIVED BY YOU. SEE B-138900, DATED JUNE 9, 1960. WHILE CLAIMS SIMILAR TO YOURS MAY HAVE BEEN ALLOWED THROUGH ERROR, SUCH ERRONEOUS ACTION DOES NOT PROVIDE A SOUND PRECEDENT FOR THE ALLOWANCE OF YOUR CLAIM.

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 OCTOBER 18, 1960, MUST BE SUSTAINED.