B-148043, MAR. 6, 1962

B-148043: Mar 6, 1962

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USAR: REFERENCE IS MADE TO YOUR CLAIM DATED AUGUST 13. YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE APRIL 14. WERE DIRECTED TO REPORT NOT LATER THAN THAT DAY AT THE U.S. WAS TRANSMITTED TO THIS OFFICE FOR SETTLEMENT. YOU WERE ALLOWED $4. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES 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 THE 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 OR FOR RETURN TO THE OLD PERMANENT STATION.

B-148043, MAR. 6, 1962

TO FIRST LIEUTENANT THOMAS B. BROWN, USAR:

REFERENCE IS MADE TO YOUR CLAIM DATED AUGUST 13, 1961, FORWARDED HERE BY THE FINANCE CENTER, U.S. ARMY, IN WHICH YOU REQUEST, IN EFFECT, A REVIEW OF THAT PART OF OUR SETTLEMENT DATED DECEMBER 19, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM JULY 11 TO AUGUST 17, 1959, INCIDENT TO TEMPORARY DUTY PERFORMED AT FORT SILL, OKLAHOMA, UNDER ORDERS DATED SEPTEMBER 17, 1958.

THE RECORD SHOWS THAT BY AD LO 9-65, HEADQUARTERS, FOURTH U.S. ARMY, FORT SAM HOUSTON, TEXAS, DATED SEPTEMBER 17, 1958, YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE APRIL 14, 1959, AND WERE DIRECTED TO REPORT NOT LATER THAN THAT DAY AT THE U.S. ARMY ARTILLERY AND MISSILE SCHOOL, FORT SILL, OKLAHOMA, FOR TEMPORARY DUTY PENDING FURTHER ORDERS TO ATTEND THE FIELD ARTILLERY OFFICERS' BASIC COURSE. PARAGRAPH 10, SPECIAL ORDERS 134, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED JULY 8, 1959, ASSIGNED YOU, UPON COMPLETION OF THE THEN PRESENT COURSE OF INSTRUCTION, TO DUTY AT FORT HOOD, TEXAS, WITH EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY SHOWN AS AUGUST 26, 1959. YOUR CLAIM FOR PER DIEM WHILE ON TEMPORARY DUTY AT FORT SILL DURING THE PERIOD JUNE 19 TO AUGUST 19, 1959, WAS TRANSMITTED TO THIS OFFICE FOR SETTLEMENT, AND YOU WERE ALLOWED $4, REPRESENTING PER DIEM FOR AUGUST 18 ONLY, FOR THE REASON THAT IT HAD BEEN ADMINISTRATIVELY REPORTED THAT YOU RECEIVED THE ORDERS OF JULY 8, 1959, ON AUGUST 18, 1959, AND THAT NO AUTHORITY EXISTED FOR THE PAYMENT OF THE ALLOWANCE PRIOR TO THAT DATE.

PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES 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 THE 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 OR FOR RETURN TO THE OLD PERMANENT STATION.

IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245, THE COURT 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 ORDERS DIRECTING THE MEMBER TO PROCEED FROM HIS HOME TO A STATION FOR TEMPORARY DUTY AND CONTEMPLATING A FURTHER ASSIGNMENT TO DUTY UPON ITS COMPLETION DID NOT PLACE HIM A TRAVEL STATUS AT THE TEMPORARY STATION SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. IN OUR DECISION IN 39 COMP. GEN. 507, WE STATED THAT WHERE ORDERS TO A MEMBER UNDER SUCH CIRCUMSTANCES WERE AMENDED PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY DIRECTED IN THE INITIAL ORDERS TO DESIGNATE A FIRST PERMANENT STATION, SUCH AMENDATORY ORDERS WOULD BE CONSIDERED TO PLACE THE MEMBER IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY ONLY FROM THE DATE OF RECEIPT BY HIM OF THE AMENDATORY ORDERS AND HE WOULD BE ENTITLED TO OTHERWISE PROPER PER DIEM FROM THAT DATE.

WHILE YOU CONTEND THAT YOU RECEIVED AN EXTRACT OF THE ORDERS OF JULY 8, 1959, ON OR ABOUT JULY 11, 1959, THE FINANCE CENTER, U.S. ARMY, IN RESPONSE TO OUR REQUEST FOR INFORMATION AS TO THE DATE OF THEIR RECEIPT BY YOU, ADVISED IN A COMMUNICATION DATED DECEMBER 5, 1960, THAT YOU RECEIVED SUCH ORDERS ON AUGUST 18, 1959. IN A COMMUNICATION DATED JANUARY 15, 1962, THE FINANCE CENTER ADVISED FURTHER THAT CORRESPONDENCE FROM YOUR COMMANDING OFFICER AT FORT HOOD STATES THAT YOU RECEIVED THE ORDERS ASSIGNING YOU TO THAT STATION ON AUGUST 18, 1959.

IN INSTANCES WHERE THERE IS A CONFLICT BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY A CLAIMANT, IT HAS LONG BEEN THE RULE OF THIS OFFICE TO ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. 16 COMP. GEN. 325; 19 ID. 88; B-143104, JUNE 27, 1960. SINCE WE HAVE NO EVIDENCE TO SUBSTANTIATE YOUR STATEMENT THAT YOU RECEIVED THE ORDERS OF JULY 9, 1959, ON JULY 11, 1959, WE MUST ACCEPT THE REPORT BY THE ADMINISTRATIVE OFFICE THAT YOU RECEIVED THESE ORDERS ON AUGUST 18, 1959.

ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF DECEMBER 19, 1960, WAS PROPER AND UPON REVIEW IS SUSTAINED.