B-14436, JAN. 6, 1961

B-14436: Jan 6, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO CAPTAIN SAMUEL KOBRINSKY (DC) USA: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10. WHILE YOU WERE ATTACHED TO HEADQUARTERS AND HEADQUARTERS COMPANY. TRAVEL BY MILITARY TRANSPORTATION WAS DIRECTED. YOU STATE THAT YOU WERE ORIGINALLY SENT TO YAKIMA FIRING CENTER TO PROVIDE EMERGENCY DENTAL SERVICE FOR THE NATIONAL GUARD AND RESERVE UNITS TRAINING THERE DURING THE SUMMER OF 1956 AND THAT YOU WERE HELD OVER TO PROVIDE DENTAL SERVICE FOR THE MANY ANTIAIRCRAFT ARTILLERY OUTFITS AND OTHER UNITS TRAINING AT THE CENTER AND ENGAGED IN MANEUVER ACTIVITIES UNTIL YOU RETURNED TO FORT LEWIS. WERE ASSIGNED TO UNITED STATES ARMY GARRISON (6006). APPARENTLY NO ORDERS WERE ISSUED PURPORTING TO EXTEND THE TEMPORARY ASSIGNMENT REFERRED TO IN THE ORDERS OF APRIL 21.

B-14436, JAN. 6, 1961

TO CAPTAIN SAMUEL KOBRINSKY (DC) USA:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10, 1960, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 20, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR DUTY PERFORMED AT YAKIMA FIRING CENTER, YAKIMA, WASHINGTON, DURING THE PERIOD APRIL 25, 1956, TO JULY 8, 1958.

SPECIAL ORDERS NO. 94, DATED APRIL 21, 1956, ISSUED AT FORT LEWIS, WASHINGTON, WHILE YOU WERE ATTACHED TO HEADQUARTERS AND HEADQUARTERS COMPANY, SECOND MEDICAL BATTALION, PLACED YOU ON TEMPORARY DUTY FOR AN INDEFINITE PERIOD EFFECTIVE APRIL 25, 1956, AT YAKIMA FIRING CENTER, YAKIMA, WASHINGTON, FOR THE PURPOSE OF PROVIDING DENTAL SERVICE. THE ORDERS ALSO PROVIDED THAT UPON COMPLETION OF THE TEMPORARY DUTY OR UNLESS SOONER RELIEVED BY PROPER AUTHORITY, YOU WOULD RETURN TO YOUR PROPER STATION AND ORGANIZATION. TRAVEL BY MILITARY TRANSPORTATION WAS DIRECTED. YOU STATE THAT YOU WERE ORIGINALLY SENT TO YAKIMA FIRING CENTER TO PROVIDE EMERGENCY DENTAL SERVICE FOR THE NATIONAL GUARD AND RESERVE UNITS TRAINING THERE DURING THE SUMMER OF 1956 AND THAT YOU WERE HELD OVER TO PROVIDE DENTAL SERVICE FOR THE MANY ANTIAIRCRAFT ARTILLERY OUTFITS AND OTHER UNITS TRAINING AT THE CENTER AND ENGAGED IN MANEUVER ACTIVITIES UNTIL YOU RETURNED TO FORT LEWIS, WASHINGTON, ON JULY 8, 1958, AND WERE ASSIGNED TO UNITED STATES ARMY GARRISON (6006). APPARENTLY NO ORDERS WERE ISSUED PURPORTING TO EXTEND THE TEMPORARY ASSIGNMENT REFERRED TO IN THE ORDERS OF APRIL 21, 1956, TO DIRECT THOSE CONTINUING ACTIVITIES AT YAKIMA. YOUR CLAIM WAS DENIED FOR THE REASON THAT WHILE YOU WERE ASSIGNED TO FORT LEWIS YOUR DUTY STATION WAS IN FACT YAKIMA, WASHINGTON, AND THAT PER DIEM ALLOWANCE IS NOT PAYABLE FOR DUTY PERFORMED AT THE PERMANENT DUTY STATION.

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 PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION OR OTHERWISE OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO AUTHORIZED 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, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY DUTY.

WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT--- PARTICULARLY AS TO THE DURATION THEREOF, NATURE OF DUTY ENJOINED, ETC. 24 COMP. GEN. 667. IF A MEMBER'S IMMEDIATE DUTY ASSIGNMENT EXTENDS BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS IT BECOMES HIS PARAMOUNT ASSIGNMENT--- HIS PERMANENT DUTY ASSIGNMENT--- AND THE ONE INDICATED AS THAT WHICH HE SHOULD RESUME OR ASSUME UPON ITS COMPLETION BECOMES SO REMOTE THAT IT LOSES ITS CHARACTERISTICS OF BEING HIS BASIC DUTY ASSIGNMENT. 36 COMP. GEN. 757. CONSEQUENTLY, DUTY OVER A PROLONGED PERIOD PERFORMED UNDER ORDERS DIRECTING ITS PERFORMANCE FOR AN INDEFINITE PERIOD, EVEN THOUGH SUCH ORDERS DESCRIBE THE DUTY AS TEMPORARY, HAS NOT BEEN CONSIDERED AS TEMPORARY DUTY FOR PER DIEM PURPOSES UNLESS OTHER EVIDENCE, IN THE ORDERS OR ELSEWHERE, SHOWED THAT IT WAS INITIALLY INTENDED THAT THE ASSIGNMENT WAS TO BE OF THE SHORT TEMPORARY NATURE CONTEMPLATED BY THE STATUTE, AND THAT IT WAS NECESSARY TO EXTEND SUCH PERIOD BECAUSE OF UNFORESEEN CIRCUMSTANCES THEREAFTER ARISING.

DEPARTMENT OF THE ARMY PAMPHLET NO. 210-1 LISTS YAKIMA FIRING CENTER AS A CLASS I SUBINSTALLATION OF FORT LEWIS, WASHINGTON. IT APPEARS THAT WHILE THE CENTER HAS A SMALL PERMANENT STAFF IT IS PRIMARILY A TRAINING AND MANEUVER AREA LOCATED SOME 180 MILES FROM THE FORT. WHILE YOU WERE DETAILED THERE ON TEMPORARY DUTY EFFECTIVE APRIL 25, 1956, YOUR DETAIL WAS FOR AN INDEFINITE PERIOD. YOUR ORIGINAL ASSIGNMENT WAS FOR THE PURPOSE OF PROVIDING DENTAL SERVICE AT THE CENTER MAINLY FOR THE MEN ASSIGNED THERE FOR TRAINING DURING MANEUVERS. YOUR CONTINUED DUTY THERE WAS ALSO IN SUPPORT OF A SUCCESSION OF TRAINING UNITS ASSIGNED TO THE CENTER FOR FIELD DUTY ACTIVITIES. THE FACT THAT YOU REMAINED AT THE CENTER EXCEPT FOR BRIEF TRIPS TO FORT LEWIS FOR A PERIOD EXCEEDING TWO YEARS, FAR EXCEEDING THAT WHICH MIGHT BE CONSIDERED AS WITHIN TEMPORARY DUTY LIMITATIONS, AND THAT NO FURTHER ORDERS DIRECTING AN EXTENSION OF TEMPORARY DUTY AT YAKIMA WERE ISSUED, NECESSARILY REQUIRES THE CONCLUSION THAT YOUR ASSIGNMENT TO YAKIMA FIRING CENTER WAS NOT A TEMPORARY ASSIGNMENT OF SHORT DURATION OR TRANSITORY NATURE FOR WHICH THE PAYMENT OF PER DIEM ALLOWANCE IS AUTHORIZED. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW IS SUSTAINED.

WITH REFERENCE TO YOUR ALTERNATIVE REQUEST FOR A REFUND OR ADJUSTMENT OF YOUR QUARTERS ALLOWANCE FOR THE PERIOD IN QUESTION ON THE BASIS THAT YOU WERE REQUIRED TO OCCUPY INADEQUATE QUARTERS, YOU ARE ADVISED THAT SUCH ALLOWANCE MAY NOT BE PAID ON THE BASIS OF INADEQUACY IF SUCH QUARTERS WERE OCCUPIED BY THE MEMBER WITHOUT COST, SUCH ALLOWANCE BEING INTENDED AS REIMBURSEMENT FOR EXPENSES INCURRED BECAUSE GOVERNMENT QUARTERS WERE NOT OCCUPIED. SEE 23 COMP. GEN. 346.

IF OTHER DENTAL OR MEDICAL OFFICERS WERE PAID PER DIEM FOR DUTY AT THE YAKIMA FIRING CENTER, IT MUST HAVE BEEN UNDER CIRCUMSTANCES DIFFERENT FROM THOSE UNDER WHICH YOUR DUTY WAS PERFORMED. OF COURSE, IF THOSE MEN ERRONEOUSLY RECEIVED PER DIEM ALLOWANCES, SUCH PAYMENTS WOULD NOT FURNISH A LEGAL BASIS FOR PAYMENT OF YOUR CLAIM.