B-148809, JUL. 16, 1962

B-148809, JUL. 16, 1962

TO SECOND LIEUTENANT JOHN F. LINK:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1962, REQUESTING A REVIEW OF SETTLEMENT DATED MARCH 15, 1962, WHICH DISALLOWED YOUR CLAIM FOR $84.80 COLLECTED FROM YOU AS EXCESS TRANSPORTATION COSTS FOR THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM LIBERTY, INDIANA, TO FORT EUSTIS, VIRGINIA, ON GOVERNMENT BILL OF LADING DATED SEPTEMBER 21, 1961.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT PURSUANT TO ACTIVE DUTY ORDERS DATED SEPTEMBER 13, 1961, YOU WERE ON TEMPORARY DUTY AT FORT EUSTIS, VIRGINIA, AND THEREFORE NOT ENTITLED TO SHIP MORE THAN 600 POUNDS (THE AUTHORIZED WEIGHT ALLOWANCE UNDER TEMPORARY CHANGE OF STATION ORDERS) OF YOUR HOUSEHOLD GOODS TO THAT STATION AT GOVERNMENT EXPENSE. IT APPEARS TO BE YOUR CONTENTION THAT YOU WERE ENTITLED TO THE PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS FOR THE REASON THAT FORT EUSTIS SHOULD BE CONSIDERED AS YOUR PERMANENT DUTY STATION AS WELL AS YOUR TEMPORARY DUTY STATION WHILE YOU WERE STATIONED THERE SINCE YOUR ACTIVE DUTY ORDERS "ASSIGNED" YOU TO THE ARMY TRANSPORTATION TRAINING COMMAND, FORT EUSTIS, VIRGINIA, IN ADDITION TO ATTACHING YOU TO THE ARMY TRANSPORTATION SCHOOL AT THAT STATION TO ATTEND A COURSE OF INSTRUCTION.

ON SEPTEMBER 13, 1961, LETTER ORDERS NO. A-09-3143, ADDRESSED TO YOU AT 108-7 STATE STREET, WEST LAFAYETTE, INDIANA, WERE ISSUED BY HEADQUARTERS FIFTH UNITED STATES ARMY, CHICAGO, ILLINOIS, CALLING YOU TO ACTIVE DUTY IN YOUR ARMY RESERVE GRADE EFFECTIVE SEPTEMBER 30, 1961, TO SERVE FOR A PERIOD OF 24 MONTHS. THE ORDERS PROVIDED THAT ON THE EFFECTIVE DATE OF ACTIVE DUTY YOU WERE RELIEVED FROM THE SIXTH UNITED STATES ARMY CORPS CONTROL GROUP (DELAYED) AND ASSIGNED TO THE UNITED STATES ARMY TRANSPORTATION TRAINING COMMAND (7600), FORT EUSTIS, VIRGINIA, AND ATTACHED FOR APPROXIMATELY EIGHT WEEKS TO THE UNITED STATES ARMY TRANSPORTATION SCHOOL, FORT EUSTIS, VIRGINIA, TO ATTEND THE TRANSPORTATION OFFICERS ORIENTATION COURSE, AND UPON THE COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE TO BE RELIEVED FROM YOUR ATTACHMENT TO THE SCHOOL. THE ORDERS FURTHER PROVIDED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE, EXCEPT AS PRESCRIBED IN CHAPTER 8, JOINT TRAVEL REGULATIONS, WERE NOT AUTHORIZED FOR TRAVEL TO AND FROM THE TEMPORARY DUTY STATION. THE MOVEMENT DESIGNATOR CODE "O2" WAS SET FORTH IN THE ORDERS IN ACCORDANCE WITH PARAGRAPH 9.1, ARMY REGULATIONS NO. 310- 25 (CHANGE 5), IN EFFECT AT THAT TIME, WHICH PROVIDED THAT THE MOVEMENT DESIGNATOR CODE PRESCRIBED IN PARAGRAPH 9M OF THE REGULATION WOULD BE INCLUDED IN ACTIVE DUTY ORDERS. THE CODE "02" WAS PRESCRIBED IN PARAGRAPH 1B OF THE APPENDIX TO PARAGRAPH 9M (CHANGE 7) OF THE REGULATIONS FOR USE IN ORDERS INVOLVING ACCESSIONS TO THE ARMY AND TRAVEL FROM THE PLACE ORDERED TO ACTIVE DUTY WITH TEMPORARY DUTY AT SCHOOL AND SUBSEQUENT REPORTING TO THE FIRST CONTINENTAL UNITED STATES DUTY STATION. ACCORDINGLY, IT IS CONCLUDED UNDER THE INDICATED CIRCUMSTANCES THAT AT THE TIME OF ISSUANCE OF THE ORDERS IT WAS CONTEMPLATED THAT FORT EUSTIS WOULD BE YOUR STATION ONLY WHILE ON TEMPORARY DUTY AT THE TRANSPORTATION OFFICERS ORIENTATION COURSE AND THAT UPON COMPLETION OF YOUR SCHOOLING YOU WOULD BE FURTHER ASSIGNED TO YOUR FIRST PERMANENT STATION.

PARAGRAPH 8000-6 OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, DEFINES A PERMANENT CHANGE OF STATION WITH REFERENCE TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO INCLUDE THE CHANGE FROM HOME TO THE FIRST PERMANENT DUTY STATION UPON CALL TO ACTIVE DUTY FOR OTHER THAN TRAINING DUTY FOR 6 MONTHS OR MORE, AND PARAGRAPH 1150-10B OF THE REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION AS A STUDENT TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS 20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS A PERMANENT DUTY STATION. WHEN THE COURSE OF INSTRUCTION IS FOR LESS THAN 20 WEEKS, THE STATION IS TEMPORARY. WHILE YOU URGE THAT FORT EUSTIS SHOULD BE CONSIDERED TO BE YOUR PERMANENT DUTY STATION BECAUSE YOUR ORDERS CONTAINED A STATEMENT THAT YOU WERE ASSIGNED TO THE ARMY TRANSPORTATION TRAINING COMMAND (7600), FORT EUSTIS, VIRGINIA, SUCH STATEMENT WAS NECESSARY FOR RECORD PURPOSES IN VIEW OF THE PROVISION RELIEVING YOU FROM THE SIXTH UNITED STATES ARMY CORPS CONTROL GROUP (DELAYED). ARMY REGULATIONS NO. 320-5, DICTIONARY OF UNITED STATES ARMY TERMS, DEFINES THE WORD ,ASSIGN" AS "TO PLACE AN INDIVIDUAL OR MILITARY UNIT UNDER THE CONTROL OF A SPECIFIED COMMAND, BY ORDERS WHICH CHANGE THE PARENT HEADQUARTERS OF THE AFFECTED INDIVIDUAL OR MILITARY UNIT.' HENCE, IT APPEARS THAT THE PURPOSE OF THE ABOVE PORTION OF THE ORDERS WAS MERELY TO SHOW FOR CONTROL PURPOSES YOUR RELIEF FROM THE SIXTH UNITED STATES ARMY CORPS CONTROL GROUP (DELAYED) AND PLACEMENT UNDER THE UNITED STATES ARMY TRANSPORTATION TRAINING COMMAND WHILE ATTACHED TO THE ARMY TRANSPORTATION SCHOOL AT FORT EUSTIS. THE QUESTION OF WHETHER A DUTY ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT AND AS SUCH IT IS NOT DETERMINABLE SOLELY BY THE PRESENCE IN ORDERS OF WORDS GENERALLY USED TO DENOTE A PERMANENT CHANGE OF STATION, BUT MUST BE RESOLVED FROM SUCH FACTORS AS THE NATURE AND DURATION OF THE DUTY INVOLVED. IT SEEMS CLEAR THAT THE ONLY DUTY REQUIRED OR INTENDED BY THE ORDERS OF SEPTEMBER 13, 1961, WAS YOUR ATTENDANCE AT A COURSE OF INSTRUCTION AT FORT EUSTIS FOR A PERIOD OF APPROXIMATELY EIGHT WEEKS AND YOU PERFORMED NO OTHER DUTY THERE. THAT FORT EUSTIS WAS NEVER INTENDED TO BE YOUR PERMANENT STATION IS FURTHER SUBSTANTIATED BY THE FACT THAT BY SPECIAL ORDERS NO. 294 OF HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., DATED NOVEMBER 28, 1961, YOU, ALONG WITH OTHER OFFICERS WHO WERE ATTENDING THE SCHOOL UNDER ORDERS CONTAINING LANGUAGE SIMILAR TO YOURS, WERE FURTHER ASSIGNED TO VARIOUS COMMANDS IN THE CONTINENTAL UNITED STATES FOR PERMANENT DUTY UPON COMPLETION OF THE COURSE OF INSTRUCTION. UNDER SUCH CIRCUMSTANCES, AND IN THE ABSENCE OF ANY EVIDENCE SHOWING THAT IT WAS ADMINISTRATIVELY INTENDED FOR YOU TO REMAIN AT FORT EUSTIS UPON COMPLETION OF THE COURSE OF INSTRUCTION AS A PART OF THE PERMANENT PARTY PERSONNEL OF THAT STATION, IT MUST BE CONSIDERED THAT SUCH STATION WAS ONLY A TEMPORARY DUTY STATION FOR THE PERIOD OF YOUR ASSIGNMENT THERE AND THAT YOU WERE ENTITLED TO SHIP NO MORE THAN YOUR TEMPORARY CHANGE OF STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE TO FORT EUSTIS. YOU WERE ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS ON A PERMANENT CHANGE OF STATION BASIS ONLY FROM YOUR HOME TO SAINT LOUIS, YOUR FIRST PERMANENT DUTY STATION. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT DATED MARCH 15, 1962, IS SUSTAINED.

REGARDING YOUR STATEMENT THAT YOU WERE NOT ENTITLED TO COLLECT PER DIEM WHILE ATTENDING THE ARMY TRANSPORTATION SCHOOL, YOU ARE ADVISED THAT SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), AUTHORIZES, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS 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 IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. WE HELD THAT FROM THE DATE OF THAT DECISION, WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN ANY CASE WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY. IT HAS BEEN RECOGNIZED, HOWEVER, THAT WHERE ORDERS ARE ISSUED IN SUCH CIRCUMSTANCES PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY DIRECTED IN THE INITIAL ORDERS DESIGNATING A FIRST PERMANENT DUTY STATION THE MEMBER IS ENTITLED TO PER DIEM, TO THE EXTENT OTHERWISE AUTHORIZED, FROM THE DATE OF RECEIPT OF SUCH ORDERS FOR THE REMAINDER OF THE TEMPORARY DUTY PERIOD. 39 COMP. GEN. 507. UNTIL NOVEMBER 28, 1961, WHEN SPECIAL ORDERS NO. 294 WERE ISSUED ASSIGNING YOU TO THE UNITED STATES ARMY TRANSPORTATION MATERIEL COMMAND (7560), SAINT LOUIS, MISSOURI, UPON COMPLETION OF YOUR TEMPORARY DUTY AT FORT EUSTIS, YOU HAD NO DUTY STATION OTHER THAN FORT EUSTIS AWAY FROM WHICH YOU COULD PERFORM TEMPORARY DUTY. CONSEQUENTLY, EVEN THOUGH YOU WERE ON TEMPORARY DUTY ASSIGNMENT AT FORT EUSTIS THERE IS NO AUTHORITY UNDER THE LAW FOR THE PAYMENT OF PER DIEM FOR THE TIME YOU WERE THERE PRIOR TO NOVEMBER 28, 1961, WHEN YOU RECEIVED SPECIAL ORDERS NO. 294, AND SINCE THE FILE DOES NOT SHOW HOW LONG YOU REMAINED AT FORT EUSTIS AFTER RECEIPT OF THE ORDERS, PER DIEM FOR SUCH SUBSEQUENT PERIOD MAY NOT BE ALLOWED ON THE BASIS OF THE PRESENT RECORD.