B-145422, MAY 11, 1961

B-145422: May 11, 1961

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YOU WERE DETACHED FROM DUTY AT U.S. WERE CORRECTED TO REQUIRE YOU TO REPORT TO THE "COMMANDANT THIRTEENTH NAVAL DISTRICT FOR DUTY AS SUPPLY OFFICER. YOU WERE FURTHER DIRECTED TO RETURN TO YOUR DUTY STATION AND RESUME YOUR REGULAR DUTIES. WAS COMPLETED ON FEBRUARY 24. THAT THE VESSEL WAS TRANSFERRED TO THE GOVERNMENT OF SPAIN ON MARCH 25. YOU WERE PAID PER DIEM FOR TEMPORARY DUTY AT ASTORIA FROM FEBRUARY 9 TO 23. DEPLOYED AS UNITS AT AN INSTALLATION OF THE UNIFORMED SERVICES WHERE BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. IT IS YOUR BELIEF THAT YOU ARE ENTITLED TO PER DIEM FOR THE PERIOD JANUARY 3 TO FEBRUARY 8. BY REASON OF THE MODIFICATION OF YOUR ORDERS AND THAT THE CORRECT RATE FOR THE PERIODS OF TEMPORARY DUTY IS $6 A DAY.

B-145422, MAY 11, 1961

TO MR. PAUL H. ZUCKERMAN:

YOUR LETTER OF MARCH 13, 1961, REQUESTS REVIEW OF THE SETTLEMENT OF JANUARY 4, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JANUARY 3 TO FEBRUARY 8, 1960, AND FOR ADDITIONAL PER DIEM FOR THE PERIODS FEBRUARY 9 TO 23 AND FEBRUARY 26 TO MARCH 25, 1960, WHILE SERVING AS LIEUTENANT (JG), UNITED STATES NAVY.

BY BUREAU OF NAVAL PERSONNEL ORDERS DATED DECEMBER 7, 1959, YOU WERE DETACHED FROM DUTY AT U.S. NAVAL STATION, SEATTLE, WASHINGTON, ON DECEMBER 28, 1959, AND PROCEEDED TO ASTORIA, OREGON, FOR DUTY AS SUPPLY OFFICER, LSM TRANSFER TEAM, THIRTEENTH NAVAL DISTRICT. YOU REPORTED FOR SUCH DUTY AS A PERMANENT CHANGE OF STATION ON JANUARY 2, 1960. ON FEBRUARY 8, 1960, THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, UPON RECEIPT OF A BUREAU OF NAVAL PERSONNEL MESSAGE OF FEBRUARY 1960, ISSUED A MODIFICATION OF YOUR ORDERS. THE MODIFICATION STATED THAT THE ORDERS OF DECEMBER 7, 1959, WERE CORRECTED TO REQUIRE YOU TO REPORT TO THE "COMMANDANT THIRTEENTH NAVAL DISTRICT FOR DUTY AS SUPPLY OFFICER, LSM TRANSFER TEAM, THIRTEENTH NAVAL DISTRICT," SEATTLE, WASHINGTON, INSTEAD OF PROCEEDING TO ASTORIA, OREGON. ON THE SAME DATE THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, ALSO ISSUED ORDERS BACK DATED TO JANUARY 1, 1960, DIRECTING YOU TO PROCEED ON OR ABOUT JANUARY 2, 1960, TO ASTORIA, OREGON, AND REPORT TO THE COMMANDER, PACIFIC RESERVE FLEET, COLUMBIA RIVER GROUP, FOR TEMPORARY ADDITIONAL DUTY AS SUPPLY OFFICER, LSM TRANSFER PROGRAM. UPON COMPLETION THEREOF, YOU WERE FURTHER DIRECTED TO RETURN TO YOUR DUTY STATION AND RESUME YOUR REGULAR DUTIES. ENDORSEMENTS ON THOSE ORDERS SHOW THAT THE DUTY AT ASTORIA, OREGON, WAS COMPLETED ON FEBRUARY 24, 1960; THAT YOU DEPARTED ASTORIA ON BOARD THE LSM-329 ON THAT DATE; ARRIVED AT BREMERTON, WASHINGTON, THE NEXT DAY, AND THAT THE VESSEL WAS TRANSFERRED TO THE GOVERNMENT OF SPAIN ON MARCH 25, 1960, AFTER WHICH YOU RETURNED TO SEATTLE FOR DUTY. YOU WERE PAID PER DIEM FOR TEMPORARY DUTY AT ASTORIA FROM FEBRUARY 9 TO 23, 1960, AND AT BREMERTON FROM FEBRUARY 26 TO MARCH 25, 1960, AT THE RATE OF $4 A DAY, THAT BEING THE RATE PRESCRIBED IN PARAGRAPH 4205-5G OF THE JOINT TRAVEL REGULATIONS FOR MEMBERS OF GROUPS (SHIP REPAIR UNITS, CONSTRUCTION BATTALIONS, ETC.) DEPLOYED AS UNITS AT AN INSTALLATION OF THE UNIFORMED SERVICES WHERE BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. IT IS YOUR BELIEF THAT YOU ARE ENTITLED TO PER DIEM FOR THE PERIOD JANUARY 3 TO FEBRUARY 8, 1960, BY REASON OF THE MODIFICATION OF YOUR ORDERS AND THAT THE CORRECT RATE FOR THE PERIODS OF TEMPORARY DUTY IS $6 A DAY.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 OF THE REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH THE MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. THE TERM "TEMPORARY DUTY," OF WHICH TEMPORARY ADDITIONAL DUTY IS A FORM, IS DEFINED IN PARAGRAPH 3003-2 OF THOSE REGULATIONS AS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

ENTITLEMENT TO PER DIEM FOR TEMPORARY ADDITIONAL DUTY UNDER THE CITED REGULATIONS ARISES ONLY WHEN IT IS PERFORMED UNDER ORDERS WHICH DIRECT ITS PERFORMANCE AND PROVIDE FOR THE MEMBER'S RETURN TO THE OLD STATION. THE ORDERS OF DECEMBER 7, 1959, DID NOT PROVIDE FOR SUCH DUTY. THEY TRANSFERRED YOU TO ASTORIA, OREGON, ON A PERMANENT CHANGE OF STATION AND YOU REPORTED THERE ON THAT BASIS. INSOFAR AS THE RECORD SHOWS, THE ORDERS PROPERLY EXPRESSED THE ADMINISTRATIVE INTENT AT THE TIME THEY WERE ISSUED. WHILE AMENDATORY ORDERS PURPORTED TO PLACE YOU ON TEMPORARY ADDITIONAL DUTY AT ASTORIA FROM THE TIME YOU ARRIVED THERE ON JANUARY 2, 1960, SUCH ORDERS WERE NOT ISSUED UNTIL FEBRUARY 8, 1960. WHERE ORDERS ARE MODIFIED RETROACTIVELY IT MUST BE SHOWN THAT THE TRAVEL ORDERS WERE ERRONEOUSLY PREPARED ORIGINALLY AND THAT THE ERROR IN PREPARATION OF ORDERS WAS THE RESULT OF OMISSION OF SOME PROVISION PREVIOUSLY DETERMINED, OTHERWISE AUTHORIZED, AND DEFINITELY INTENDED. IN YOUR CASE, THE MODIFICATION WAS REQUESTED BY THE COMMANDANT, THIRTEENTH NAVAL DISTRICT "IN ORDER TO PROVIDE CONFORMITY WITH THE OTHER OFFICERS' ORDERS.' HOWEVER, THE FACT THAT OTHER OFFICERS MAY HAVE BEEN ORDERED TO ASTORIA ON A TEMPORARY BASIS DOES NOT ESTABLISH THAT IT WAS NOT INTENDED ORIGINALLY TO ORDER YOU THERE ON A PERMANENT BASIS OR THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED WAS OMITTED FROM YOUR ORDERS. MOREOVER AFTER A MEMBER HAS REPORTED TO A PARTICULAR PLACE FOR PERMANENT DUTY PURSUANT TO COMPETENT ORDERS ANY ATTEMPT TO AUTHORIZE THE PAYMENT OF PER DIEM BY AMENDING HIS ORDERS OR RETROACTIVELY ISSUING NEW ORDERS REFERRING TO SUCH DUTY AS TEMPORARY IS WITHOUT EFFECT SINCE THE DUTY IS, IN FACT, RENDERED AT HIS PERMANENT STATION. IN YOUR CASE THE ORDERS OF DECEMBER 7, 1959, DIRECTED YOU TO PROCEED TO ASTORIA, OREGON, FOR PERMANENT DUTY AND THAT BECAME YOUR PERMANENT STATION UPON YOUR ARRIVAL THERE. THE RETROACTIVE ORDERS DATED JANUARY 1, 1960, PURPORTED TO AUTHORIZE PER DIEM BY DIRECTING THAT YOU PROCEED TO ASTORIA FOR TEMPORARY ADDITIONAL DUTY AFTER WHICH YOU WERE TO RETURN TO SEATTLE. SINCE YOU HAD BEEN DETACHED FROM SEATTLE, YOUR PRIOR STATION, AND PERMANENTLY ASSIGNED TO ASTORIA, THAT CONTINUED TO BE YOUR PERMANENT STATION UNTIL YOU WERE REQUIRED TO DEPART THEREFROM. PER DIEM IS NOT AUTHORIZED FOR TEMPORARY DUTY PERFORMED AT A PERMANENT STATION.

ACCORDINGLY, YOU ARE NOT ENTITLED TO PER DIEM CLAIMED FOR THE PERIOD JANUARY 3 TO FEBRUARY 8, 1960, NOR WERE YOU ENTITLED TO THE SUM OF $60 PAID AS PER DIEM FOR THE PERIOD FEBRUARY 9 TO 23, 1960, SINCE ENDORSEMENT ON YOUR ORDERS SHOWS YOU WERE AT ASTORIA. WITH RESPECT TO THE PER DIEM RATE APPLICABLE TO THE RECOGNIZED PERIOD OF TEMPORARY DUTY, IT IS REPORTED THAT THE DUTY PERFORMED WAS NOT OF THE TYPE CONTEMPLATED BY PARAGRAPH 4205 -5G OF THE REGULATIONS. THEREFORE, AND SINCE GOVERNMENT QUARTERS APPARENTLY WERE AVAILABLE, YOU WERE ENTITLED TO PER DIEM AT THE RATE OF $6 A DAY UNDER PARAGRAPH 4205-5C2 OF THE JOINT TRAVEL REGULATIONS FOR THE PERIOD FEBRUARY 26 TO MARCH 25, 1960. SINCE YOU WERE PAID AT THE RATE OF $4 PER DAY, YOU WERE UNDERPAID $58 FOR THAT PERIOD. HOWEVER, SINCE YOU WERE OVERPAID PER DIEM IN THE SUM OF $60 FOR THE PERIOD FEBRUARY 9 TO 23, 1960, NO AMOUNT IS DUE YOU.