B-145381, APR. 13, 1961

B-145381: Apr 13, 1961

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MAISENHOLDER: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 1. THE RECORD SHOWS THAT YOU WERE DEPLOYED TO ANTIGUA. FOR A LONG TIME DUTY OF THIS TYPE WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO. WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES. "D. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY. FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION.

B-145381, APR. 13, 1961

TO MR. WAYNE E. MAISENHOLDER:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 1, 1961, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 19, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JANUARY 26 TO JULY 15, 1956.

THE RECORD SHOWS THAT YOU WERE DEPLOYED TO ANTIGUA, BRITISH WEST INDIES, AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX UNDER VERBAL ORDERS GIVEN PURSUANT TO MOVEMENT ORDERS NO. 203-55, DATED AUGUST 29, 1955. WRITTEN ORDERS DATED JUNE 7, 1956, PURPORTED TO CONFIRM VERBAL ORDERS DIRECTING TEMPORARY ADDITIONAL DUTY FOR THE PERIOD IN QUESTION.

FOR A LONG TIME DUTY OF THIS TYPE WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTION 7220.19 ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPH 6 OF THE SECRETARY'S INSTRUCTION PROVIDED:

"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES.

"D. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY, FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION, WILL NOT BE ISSUED CONFIRMING ORDERS.'

THE PROVISIONS OF PARAGRAPH 6C OF THE ABOVE-QUOTED INSTRUCTION CONSTITUTE AN EFFECTIVE EXERCISE OF ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAD BEEN ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE SUCH AS COMPLY WITH THE JOINT TRAVEL REGULATIONS. PARAGRAPHS 3002-1 AND 3002-2 OF THOSE REGULATIONS PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO, BUT THAT VERBAL ORDERS GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. PARAGRAPH 3003-2 OF THE REGULATIONS DEFINES TEMPORARY DUTY ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT STATION, WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

YOUR ORDERS OF JUNE 7, 1956, WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY; CONFIRMATION OF VERBAL ORDERS FOR" ARE NOT COMPETENT ORDERS. WHILE THEY SHOW THAT YOU WERE ASSIGNED TO DUTY WITH THE U.S. NAVAL MOBIL CONSTRUCTION BATTALION SIX ON FEBRUARY 16, 1956, AND THAT YOU WERE DETACHED ON JULY 17, 1956, TO COMPLY WITH THE ORDERS OF JUNE 7, 1956, TRANSFERRING YOU TO NORFOLK, VIRGINIA, FOR TEMPORARY ADDITIONAL DUTY, THEY DO NOT CONFIRM SPECIFIC VERBAL ORDERS DIRECTING TRAVEL AND PROVIDING FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR YOUR RETURN TO YOUR OLD PERMANENT STATION, BUT RECITE ONLY THAT THEY CONFIRM SUCH ORDERS FOR THE DUTY PERFORMED AS MUST HAVE BEEN ISSUED "AS A MATTER OF NECESSITY.' HENCE, THESE ORDERS DO NOT MEET THE REQUIREMENT OF PARAGRAPH 6C OF SECNAV INSTRUCTION 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORD NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

REGARDING YOUR STATEMENTS THAT OTHER INDIVIDUALS RECEIVED PER DIEM FOR THE SAME DUTY UNDER THE SAME CIRCUMSTANCES, SUCH PAYMENTS WOULD APPEAR TO HAVE BEEN IMPROPER AND HENCE AFFORD NO BASIS FOR AUTHORIZING PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 19, 1958, WAS CORRECT AND IS SUSTAINED. YOUR ORIGINAL ORDERS AND THE SETTLEMENT OF FEBRUARY 19, 1958, ARE RETURNED HEREWITH.