B-144955, APR. 13, 1961

B-144955: Apr 13, 1961

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AMCS: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9. YOU WERE ORDERED TO PROCEED FROM YOUR DUTY STATION AT MIRAMAR. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF MAY 31. FOR THE REASON THAT ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR DECREASE A MEMBER'S RIGHTS UNDER THE ORIGINAL ORDERS AND BECAUSE BOTH THE PERMANENT AND TEMPORARY DUTY STATIONS WERE WITHIN THE METROPOLITAN AREA OF SAN DIEGO. WE RECOGNIZED THAT ALTHOUGH SAN DIEGO IS USED AS THE POSTAL ADDRESS FOR BOTH NORTH ISLAND AND MIRAMAR. THEY ARE DISTINCT LOCALITIES OUTSIDE THE CORPORATE LIMITS OF THE CITY OF SAN DIEGO. SINCE THOSE ORDERS DIRECTED THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY ONLY FOR A PERIOD OF ABOUT 90 DAYS AND SINCE PARAGRAPHS 3000 AND 3001 OF THE REGULATIONS PROHIBIT PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES UNLESS THE TRAVEL OR TEMPORARY DUTY INVOLVED IS DIRECTED BY WRITTEN ORDERS.

B-144955, APR. 13, 1961

TO WILLIAM J. SAMPSON, AMCS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 31, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM WHILE AT THE NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA, DURING THE PERIOD JUNE 6, 1958, TO FEBRUARY 19, 1959.

BY ORDERS DATED JUNE 6, 1958, YOU WERE ORDERED TO PROCEED FROM YOUR DUTY STATION AT MIRAMAR, SAN DIEGO, CALIFORNIA, TO NORTH ISLAND, SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 90 DAYS. ENDORSEMENTS ON YOUR ORDERS SHOW YOU REPORTED FOR DUTY ON JUNE 6, 1958, AND DEPARTED FROM THERE ON FEBRUARY 19, 1959. THE ITINERARY FURNISHED IN CONNECTION WITH YOUR CLAIM SHOWS THAT DURING THE TEMPORARY DUTY YOU RETURNED TO YOUR HOME AT POWAY, CALIFORNIA, EACH NIGHT EXCEPT FOR DATES SHOWN AND THAT DAILY TRAVEL COMMENCED AT 6:30 A.M. AND ENDED AT 5:30 P.M. BY ORDERS DATED DECEMBER 1, 1959, THE ORDER ISSUING AUTHORITY ATTEMPTED TO RETROACTIVELY EXTEND YOUR TEMPORARY DUTY STATUS AND TO AUTHORIZE PER DIEM FOR A PERIOD OF ABOUT 199 DAYS.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF MAY 31, 1960, FOR THE REASON THAT ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR DECREASE A MEMBER'S RIGHTS UNDER THE ORIGINAL ORDERS AND BECAUSE BOTH THE PERMANENT AND TEMPORARY DUTY STATIONS WERE WITHIN THE METROPOLITAN AREA OF SAN DIEGO, CALIFORNIA.

IN OUR DECISION OF SEPTEMBER 5, 1956, B-128830, WE RECOGNIZED THAT ALTHOUGH SAN DIEGO IS USED AS THE POSTAL ADDRESS FOR BOTH NORTH ISLAND AND MIRAMAR, THEY ARE DISTINCT LOCALITIES OUTSIDE THE CORPORATE LIMITS OF THE CITY OF SAN DIEGO. HENCE, WHEN YOU LEFT THE NAVAL AIR STATION, MIRAMAR, FOLLOWING YOUR DETACHMENT ON JUNE 6, 1958, AND PROCEEDED TO YOUR TEMPORARY DUTY STATION AT THE NAVAL AIR STATION, NORTH ISLAND, YOU ENTERED INTO A TRAVEL STATUS WHICH REQUIRED AN ABSENCE FROM YOUR PERMANENT DUTY STATION FOR A PERIOD IN EXCESS OF TEN HOURS AND FOR WHICH YOU MAY BE PAID PER DIEM UNDER YOUR ORDERS OF JUNE 6, 1958, AS PRESCRIBED IN PARAGRAPH 4205-2 OF THE JOINT TRAVEL REGULATIONS. SEE 34 COMP. GEN. 549; 35 ID. 547. HOWEVER, SINCE THOSE ORDERS DIRECTED THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY ONLY FOR A PERIOD OF ABOUT 90 DAYS AND SINCE PARAGRAPHS 3000 AND 3001 OF THE REGULATIONS PROHIBIT PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES UNLESS THE TRAVEL OR TEMPORARY DUTY INVOLVED IS DIRECTED BY WRITTEN ORDERS, THERE IS NO AUTHORITY TO ALLOW YOU PER DIEM IN EXCESS OF THE AMOUNT DUE FOR THE 90 DAY PERIOD COVERED BY YOUR ORIGINAL ORDERS, IN THE ABSENCE OF COMPETENT ORDERS PROSPECTIVELY EXTENDING YOUR TEMPORARY DUTY STATUS. THE ORDERS OF DECEMBER 1, 1959, PURPORTING TO CONTINUE IN EFFECT YOUR TEMPORARY DUTY STATUS AND AUTHORIZE PER DIEM ALLOWANCE FOR A PERIOD OF ABOUT 199 DAYS, INCLUDING THE PERIOD COVERED BY THE COMPLETED ORDERS OF JUNE 6, 1958, IS WITHOUT EFFECT, IT BEING WELL ESTABLISHED THAT A PER DIEM MAY NOT BE AUTHORIZED RETROACTIVELY. SEE 24 COMP. GEN. 362, 364. THE REASON FOR YOUR RETENTION AT NORTH ISLAND FOLLOWING THE 90-DAY PERIOD COVERED BY THE ORDERS OF JUNE 6, 1958, IS NOT DISCLOSED BY THE RECORD. HOWEVER, SINCE NO COMPETENT ORDERS ISSUED DIRECTING A CONTINUATION OF THE TEMPORARY DUTY, NO AUTHORITY MAY BE CONSIDERED TO EXIST FOR THE PAYMENT OF PER DIEM FOR ANY PERIOD EXCEEDING THAT AUTHORIZED IN THE ORDERS OF JUNE 6. ACCORDINGLY, PAYMENT OF PER DIEM IS AUTHORIZED ONLY FOR THE 90-DAY PERIOD COVERED BY THOSE ORDERS, COMPUTED ON A FRACTIONAL PART OF THE DAY BASIS AS PRESCRIBED IN PARAGRAPH 4205-2 OF THE JOINT TRAVEL REGULATIONS.

A SETTLEMENT FOR THE AMOUNT OF PER DIEM FOUND DUE YOU ON THE FOREGOING BASIS WILL ISSUE IN YOUR FAVOR IN DUE COURSE.