B-150203, NOV. 26, 1962

B-150203, NOV. 26, 1962

TO MR. A. D. CLEMENS, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

THERE WAS RECEIVED BY 4TH ENDORSEMENT DATED OCTOBER 29, 1962, YOUR LETTER DATED DECEMBER 28, 1961, 205:BE:JN, REQUESTING ADVANCE DECISION ON VOUCHERS IN FAVOR OF LIEUTENANT (JG) JAMES L. LUKERT, 637611, USNR, FOR DEPENDENT'S TRAVEL, DISLOCATION ALLOWANCE AND PER DIEM. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 62-20, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED NOVEMBER 2, 1959, ADDRESSED TO THE MEMBER (AS OFFICER CANDIDATE SEAMAN APPRENTICE) AT HIS HOME IN ROSEBURG, OREGON, HE WAS DIRECTED TO REPORT TO NAVAL SCHOOLS COMMAND, NEWPORT, RHODE ISLAND, ON NOVEMBER 23, 1959, FOR FOUR MONTHS' DUTY UNDER INSTRUCTION, AT THE CONCLUSION OF WHICH HE WAS APPOINTED AN ENSIGN IN THE NAVAL RESERVE AND ORDERED TO FURTHER ACTIVE DUTY. BY ORDERS DATED FEBRUARY 26, 1960, AS AMENDED BY ORDERS DATED MARCH 21, 1960, HE WAS TRANSFERRED FROM NEWPORT, RHODE ISLAND, TO PENSACOLA, FLORIDA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR TEN WEEKS AND FOR FURTHER ASSIGNMENT. HIS DEPENDENT (WIFE) TRAVELED FROM ROSEBURG, OREGON, TO WARRINGTON (PENSACOLA), FLORIDA, DURING THE PERIOD NOVEMBER 2, 1959, TO APRIL 15, 1960. ORDERS DATED AUGUST 26, 1960, DIRECTED TRAVEL FROM PENSACOLA TO CORPUS CHRISTI, TEXAS, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR ABOUT 16 WEEKS AND FOR FURTHER ASSIGNMENT. ORDERS DATED NOVEMBER 30, 1960, TRANSFERRED THE MEMBER FROM CORPUS CHRISTI TO GLYNCO, BRUNSWICK, GEORGIA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR 10 WEEKS AND FOR FURTHER ASSIGNMENT. THE LATTER ORDERS WERE MODIFIED BY ORDERS DATED MARCH 9, 1961, TO PROVIDE THAT UPON COMPLETION OF TEMPORARY DUTY AT BRUNSWICK AND SAN DIEGO, CALIFORNIA, HE WAS TO REPORT TO PATROL SQUADRON ONE, NAVAL AIR STATION, WHIDBEY ISLAND, OAK HARBOR, WASHINGTON, FOR DUTY. HE APPARENTLY REPORTED FOR SUCH DUTY ON SEPTEMBER 22, 1961. HIS WIFE TRAVELED FROM WARRINGTON (PENSACOLA), FLORIDA, TO OAK HARBOR, WASHINGTON, DURING THE PERIOD AUGUST 26, 1960, TO SEPTEMBER 22, 1961.

THE MEMBER HAS REQUESTED REIMBURSEMENT FOR HIS WIFE'S TRAVEL FROM ROSEBURG, OREGON, TO PENSACOLA, FLORIDA, AND FROM PENSACOLA TO OAK HARBOR, WASHINGTON, WITH DISLOCATION ALLOWANCE ON THE LATTER MOVE, AND PER DIEM ALLOWANCE FROM SEPTEMBER 9, 1960, THROUGH DECEMBER 8, 1960, FOR TEMPORARY DUTY AT CORPUS CHRISTI, TEXAS, AND FROM JANUARY 13 THROUGH MARCH 14, 1961, FOR TEMPORARY DUTY AT BRUNSWICK, GEORGIA, TOGETHER WITH AN ADJUSTMENT ON ALLOWANCES FOR SHIPMENT OF HOUSEHOLD EFFECTS. IN THE LATTER CONNECTION HE WAS CHARGED $64.32 AS EXCESS COST OF SHIPPING 1,450POUNDS OF HOUSEHOLD EFFECTS FROM PENSACOLA, FLORIDA, TO CORPUS CHRISTI, TEXAS, AND $53.63 EXCESS COST ON SHIPMENT OF 1,100 POUNDS FROM CORPUS CHRISTI, TEXAS, TO BRUNSWICK, GEORGIA, WHICH AMOUNTS HAVE BEEN COLLECTED BY CHECK AGE. WAS PAID MILEAGE FOR HIS TRAVEL. ON MARCH 15, 1961, HE RECEIVED THE ORDERS OF MARCH 9, 1961, MODIFYING THE ORDERS OF NOVEMBER 30, 1960, AND ON THAT BASIS WAS PAID PER DIEM FOR TEMPORARY DUTY FOR APPROPRIATE PERIODS FROM MARCH 15, 1961, THROUGH MAY 2, 1961.

YOU SAY THE OMISSION OF A FURTHER ASSIGNMENT TO DUTY PROVISION IN ALL ORDERS EXCEPT THOSE DATED MARCH 9, 1961, CREATES AN ELEMENT OF DOUBT AS TO THE PROPRIETY OF THE PAYMENTS CLAIMED AND QUESTION WHETHER THE TRAVEL AND DUTY ASSIGNMENTS UNDER THESE ORDERS CONSTITUTE TEMPORARY DUTY AS DEFINED IN PARAGRAPH 3003-2, JOINT TRAVEL REGULATIONS, AND OUR DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 511, BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245.

IN PRESENTING HIS CLAIM THE MEMBER MENTIONS THE FINANCIAL HARDSHIPS ENCOUNTERED IN BEING ORDERED FROM HOME TO SUCCESSIVE PERIODS OF TEMPORARY DUTY WITHOUT BEING ASSIGNED TO A PERMANENT STATION SO THAT HE NEITHER WAS PAID PER DIEM NOR ENTITLED TO TRANSPORTATION OF DEPENDENT AND HOUSEHOLD EFFECTS AS FOR A PERMANENT STATION. ALSO, HE COMPARES HIS SITUATION WITH OTHER MEMBERS ORDERED TO THE SAME COURSES OF INSTRUCTIONS UNDER CIRCUMSTANCES PERMITTING PAYMENT OF PER DIEM ALLOWANCES. IN 3RD ENDORSEMENT DATED OCTOBER 11, 1962, THE CHIEF OF NAVAL PERSONNEL POINTS OUT THAT LIEUTENANT (JG) LUKERT WAS NOT ASSIGNED A PERMANENT DUTY STATION UNTIL HE HAD BEEN ON ACTIVE DUTY FOR A PERIOD OF ABOUT 15 MONTHS, AND THAT AT NO TIME DURING THIS PERIOD WAS HE ATTACHED TO A TEMPORARY DUTY STATION FOR A PERIOD OF 20 WEEKS OR LONGER. THUS, IT IS STATED THAT IN ACCORDANCE WITH THE DECISION OF JANUARY 11, 1960, HE WAS NOT ENTITLED TO PER DIEM, NOR WAS HE ENTITLED TO PERMANENT CHANGE OF STATION BENEFITS FOR THE NECESSARY COURSES OF INSTRUCTIONS. IT FURTHER IS STATED THAT THIS SITUATION IS RECOGNIZED AS IMPOSING UNDUE FINANCIAL HARDSHIPS UPON CERTAIN MEMBERS SELECTED FOR TRAINING IN THE NAVAL AVIATION OFFICER PROGRAM SINCE SEVERAL COURSES OF INSTRUCTIONS ARE REQUIRED TO ESTABLISH THE REQUISITE QUALIFICATIONS.

THE CHIEF OF NAVAL PERSONNEL STATES THAT ASSIGNMENT OF A PERMANENT DUTY STATION EARLY IN THE TRAINING FOR THIS PROGRAM WOULD AMELIORATE THE SITUATION; HOWEVER, SUCH ASSIGNMENT IN THESE CASES WOULD NORMALLY BE ONLY A DEVICE TO ESTABLISH ENTITLEMENT TO PER DIEM SINCE THE ULTIMATE PERMANENT DUTY STATION CANNOT BE DETERMINED EARLY IN THE PROGRAM AS THE REQUIREMENT FOR ANY PARTICULAR MEMBER AT ANY PARTICULAR STATION NORMALLY CANNOT, WITH ANY DEGREE OF CERTAINTY, BE DETERMINED SO FAR IN THE FUTURE. HE FURTHER STATES THAT A PERMANENT DUTY STATION WAS DETERMINED IN LIEUTENANT (JG) LUKERT'S CASE AND ORDERS WERE ISSUED AS SOON AS FEASIBLE, CONSISTENT WITH THE KNOWN NEEDS OF THE SERVICE. IN VIEW OF THE OBVIOUS FINANCIAL HARDSHIPS ENCOUNTERED IN THE CIRCUMSTANCES OUTLINED IN THE CLAIM, THE CHIEF OF NAVAL PERSONNEL SUGGESTS THAT THE DECISION OF JANUARY 11, 1960, MAY BE TOO BROAD AN INTERPRETATION OF THE COURT'S DECISION IN THE CALIFANO CASE.

THE PERTINENT STATUTE, 37 U.S.C. 404, 406, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN 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. PARAGRAPH 3050-1 OF THE SAME REGULATIONS PROVIDES THAT MEMBERS 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.

IN THE CALIFANO CASE 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 HIS 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.

IN OUR DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 511, WE ADVISED THE SECRETARY OF THE NAVY THAT A MEMBER WHO IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT, MAY NOT BE CONSIDERED FOR THE PERIODS OF SUCH TEMPORARY DUTY AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE APPLICABLE PROVISIONS OF THE STATUTE AND REGULATIONS SO AS TO BE ENTITLED TO PER DIEM. IN SUCH CIRCUMSTANCES, AND IRRESPECTIVE OF ANY EARLIER TEMPORARY DUTY PERFORMED AT ANOTHER PLACE, THE PLACE AT WHICH HE IS CURRENTLY PERFORMING TEMPORARY DUTY CONSTITUTES HIS ONLY DESIGNATED POST OF DUTY AND, HENCE, WHILE SO SERVING, HE WOULD NOT BE TRAVELING AWAY FROM A PERMANENT STATION.

PARAGRAPH 7000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN THE REGULATIONS. SUBPARAGRAPH 3 SPECIFICALLY EXCEPTS FROM SUCH BENEFITS MEMBERS ASSIGNED TO A SCHOOL OR INSTALLATION AS A STUDENT TO ATTEND A COURSE OF INSTRUCTION IF IT IS TO BE OF LESS THAN 20 WEEKS' DURATION. PARAGRAPH 7053 OF THE SAME REGULATIONS PROVIDES THAT WHEN A MEMBER CALLED TO ACTIVE DUTY IS FIRST ASSIGNED TO A TEMPORARY DUTY STATION AND IS SUBSEQUENTLY ORDERED TO MAKE A PERMANENT CHANGE OF STATION, HE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED TO THE PERMANENT STATION PROVIDED THAT ENTITLEMENT WILL NOT EXCEED THAT FROM HIS HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO HIS FIRST PERMANENT STATION. PARAGRAPH 9003-3 OF THE SAME REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED FROM HOME OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, REENLISTMENT, OR INDUCTION.

IN THE PRESENT CASE, SINCE THE MEMBER WAS ORDERED TO ACTIVE DUTY FROM ROSEBURG, OREGON, WITH FIRST PERMANENT DUTY STATION AT OAK HARBOR, WASHINGTON, FOLLOWING TEMPORARY DUTY AT VARIOUS POINTS INCLUDING PENSACOLA, FLORIDA, HE IS ENTITLED TO REIMBURSEMENT FOR HIS WIFE'S TRAVEL NOT TO EXCEED THE DISTANCE FROM ROSEBURG TO OAK HARBOR. THERE IS NO BASIS ON WHICH REIMBURSEMENT MAY BE AUTHORIZED FOR TRAVEL FROM HOME TO A TEMPORARY DUTY STATION AND THENCE TO THE FIRST PERMANENT STATION AS CLAIMED. ALSO, SINCE THE ALLOWABLE TRAVEL OF THE DEPENDENT IS FROM HOME TO FIRST PERMANENT STATION THERE IS NO BASIS FOR PAYMENT OF THE DISLOCATION ALLOWANCE. AS TO THE PER DIEM CLAIMED, SINCE THE MEMBER WAS ORDERED TO ACTIVE DUTY TO TEMPORARY STATIONS AND WAS NOT IN RECEIPT OF PERMANENT CHANGE OF STATION ORDERS UNTIL MARCH 15, 1961, HE IS NOT ENTITLED TO PER DIEM FOR TEMPORARY DUTY FROM SEPTEMBER 9 THROUGH DECEMBER 8, 1960, AT CORPUS CHRISTI, TEXAS, OR FOR THE PERIOD JANUARY 13 THROUGH MARCH 14, 1961, AT BRUNSWICK, GEORGIA. ALSO, SINCE HE SHIPPED HOUSEHOLD EFFECTS FROM PENSACOLA, FLORIDA, TO CORPUS CHRISTI,TEXAS, AND THENCE TO BRUNSWICK INCIDENT TO THE TEMPORARY DUTY ORDERS, HE IS NOT ENTITLED TO AN ADJUSTMENT BY REASON OF HAVING SHIPPED HOUSEHOLD EFFECTS IN EXCESS OF HIS TEMPORARY CHANGE OF STATION WEIGHT ALLOWANCE.

WHILE THE DECISION OF THE COURT OF CLAIMS IN THE CALIFANO CASE MAY RESULT IN FINANCIAL HARDSHIPS IN CASES WHERE MEMBERS ARE ORDERED TO ACTIVE DUTY AND ASSIGNED TO A SERIES OF TEMPORARY DUTY STATIONS BEFORE BEING ASSIGNED TO A PERMANENT STATION AND THIS MAY RESULT IN MEMBERS ATTENDING THE COURSES OF INSTRUCTIONS WITHOUT BENEFIT OF PER DIEM ALLOWANCES WHILE OTHER MEMBERS ATTENDING THE SAME COURSE ON TEMPORARY DUTY AWAY FROM A PERMANENT STATION ARE PAID PER DIEM, THE DECISION OF JANUARY 11, 1960, IS IN CONFORMITY WITH THE COURT'S DECISION IN THE CALIFANO CASE AND APPEARS REQUIRED BY IT.

ACCORDINGLY, THE VOUCHER COVERING TRAVEL OF DEPENDENTS IS RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED TO THE EXTENT INDICATED ABOVE. THE OTHER VOUCHERS WILL BE RETAINED HERE.