B-150309, JAN. 3, 1963

B-150309: Jan 3, 1963

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USAR: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9. YOU WERE ORDERED TO ACTIVE DUTY WITH YOUR CONSENT FOR A PERIOD OF 30 DAYS. YOU WERE ASSIGNED AND DIRECTED TO REPORT ON JULY 23. IT IS ADMINISTRATIVELY REPORTED THAT DURING THIS TOUR OF ACTIVE DUTY YOU RECEIVED BASE PAY AT $480. WAS DENIED BY THE SETTLEMENT OF NOVEMBER 7. ON THE BASIS THAT YOU WERE NOT IN A TRAVEL STATUS AWAY FROM YOUR DESIGNATED POST OF DUTY WHILE AT SUMTER. YOU WERE ORDERED TO EXTENDED ACTIVE DUTY AND. IT IS PROVIDED THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. MEMBERS OF THE RESERVE COMPONENTS WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4. NO TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR ANY PERIOD A MEMBER IS AT HIS TRAINING DUTY STATION.'.

B-150309, JAN. 3, 1963

TO CAPTAIN ROBERT F. TURNBULL, USAR:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1962, REQUESTING REVIEW OF THE CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 7, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD JULY 22 TO AUGUST 21, 1962, INCIDENT TO YOUR CALL TO ACTIVE DUTY FOR A PERIOD OF 30 DAYS.

THE RECORD SHOWS THAT BY LETTER ORDERS A-07-1041, HEADQUARTERS, SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, DATED JULY 18, 1962, YOU WERE ORDERED TO ACTIVE DUTY WITH YOUR CONSENT FOR A PERIOD OF 30 DAYS. YOU WERE ASSIGNED AND DIRECTED TO REPORT ON JULY 23, 1962, TO HEADQUARTERS, UNITED STATES ARMY GARRISON, FORT JACKSON, SOUTH CAROLINA, WITH DUTY STATION AT SUMTER, SOUTH CAROLINA, FOR DUTY WITH THE JOINT INFORMATION OFFICE FOR EXERCISE SWIFT STRIKE II. THE RECORD SHOWS THAT YOU LEFT YOUR HOME, NORFOLK, VIRGINIA, ON JULY 22, 1962, AND REPORTED TO YOUR DUTY STATION AT SUMTER, SOUTH CAROLINA, ON JULY 23, 1962, AND THAT YOU DEPARTED THAT PLACE ON AUGUST 21, 1962, AFTER COMPLETING YOUR ORDERED TOUR OF DUTY, AND RETURNED ON THAT DATE TO NORFOLK. IT IS ADMINISTRATIVELY REPORTED THAT DURING THIS TOUR OF ACTIVE DUTY YOU RECEIVED BASE PAY AT $480, SUBSISTENCE ALLOWANCE AT $47.88 AND QUARTERS ALLOWANCE AT $102.60 PER MONTH. YOUR CLAIM FOR PER DIEM, WHILE AT SUMTER, SOUTH CAROLINA, WAS DENIED BY THE SETTLEMENT OF NOVEMBER 7, 1962, ON THE BASIS THAT YOU WERE NOT IN A TRAVEL STATUS AWAY FROM YOUR DESIGNATED POST OF DUTY WHILE AT SUMTER, CITING AS AUTHORITY PARAGRAPH 6001 OF THE JOINT TRAVEL REGULATIONS. IN YOUR REQUEST FOR REVIEW, YOU APPEAR TO BELIEVE THAT SINCE YOUR ORDERS CITED SECTION 233 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, P.L. 476-82D CONGRESS, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY AND, THEREFORE, NOT ACTIVE DUTY FOR TRAINING, AND ON THIS BASIS YOU APPARENTLY FEEL THAT YOUR CLAIM FOR PER DIEM INCIDENT TO YOUR TOUR OF DUTY AT SUMTER, SOUTH CAROLINA, SHOULD BE ALLOWED.

IN 37 U.S.C. 404 (A), IT IS PROVIDED 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 CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. UNDER SUCH PROVISIONS, APPLICABLE TO REGULAR AND RESERVE COMPONENTS OF THE ARMED FORCES, PER DIEM AND OTHER TRAVEL ALLOWANCES MAY NOT BE PAID FOR ANY PERIODS OF TRAVEL OR DUTY NOT PERFORMED AWAY FROM THE MEMBER'S DESIGNATED POSTS OF DUTY. IN THIS REQUEST, PARAGRAPH 6001 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THE AUTHORITY OF THE CONTROLLING STATUTE PROVIDES, AS FOLLOWS:

"UPON CALL (OR ORDER) TO, OR RELIEF FROM, ACTIVE DUTY FOR TRAINING WITH PAY, INCLUDING TRAVEL REQUIRED IN CONNECTION WITH QUALIFYING EXAMINATIONS UPON CALL (OR ORDER) TO ACTIVE DUTY FOR TRAINING WITH PAY, MEMBERS OF THE RESERVE COMPONENTS WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4. NO TRAVEL PER DIEM ALLOWANCES ARE PAYABLE FOR ANY PERIOD A MEMBER IS AT HIS TRAINING DUTY STATION.'

THE BASIS FOR THE LIMITATION ON THE PAYMENT OF PER DIEM IN SUCH REGULATION IS NOT THAT THE MEMBER IS ON ACTIVE DUTY FOR TRAINING, BUT IS THAT HIS ASSIGNED DUTY STATION, SUCH AS SUMTER, SOUTH CAROLINA, IN THE CIRCUMSTANCES OF YOUR CASE, IS THE MEMBER'S ONLY DUTY STATION AND, THEREFORE, HE MAY NOT, WHILE THERE, BE CONSIDERED AS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES UNDER THE PROVISIONS OF 37 U.S.C. 404 (A). SEE, IN THIS CONNECTION, CALIFANO V. UNITED STATES, 145 CT.CL. 245, IN WHICH 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 FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR 4 MONTHS' INDOCTRINATION (TEMPORARY DUTY) AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION FOR PURPOSES OF ENTITLEMENT TO PER DIEM SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME.

WHEN YOU WERE ORDERED TO ACTIVE DUTY FOR A PERIOD OF 30 DAYS TO BE PERFORMED AT SUMTER, SOUTH CAROLINA, WITH THE JOINT INFORMATION OFFICE IN CONNECTION WITH EXERCISE SWIFT STRIKE II, YOU HAD BUT ONE DUTY STATION AND CONSEQUENTLY MAY NOT BE PAID PER DIEM FOR SUCH PERIOD OF DUTY SINCE YOUR STATUS WHILE THERE WAS NOT THAT OF BEING AWAY FROM YOUR DESIGNATED POST OF DUTY. IT SHOULD BE UNDERSTOOD THAT SUCH LIMITATION IS NOT IMPOSED BECAUSE OF A RESERVE OR REGULAR STATUS, OR AS A CONSEQUENCE OF DECISIONS OF THIS OFFICE, BUT EXISTS BECAUSE OF THE EXPRESS LIMITATION AGAINST THE PAYMENT OF PER DIEM TO ALL MEMBERS OF THE MILITARY SERVICE SO SITUATED, AS PROVIDED IN 37 U.S.C. 404 (A). WHILE YOUR ORDERS OF JULY 18, 1962, DID CITE SECTION 233 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, AS AUTHORITY FOR CALLING YOU TO ACTIVE DUTY FOR A PERIOD OF 30 DAYS, THE AUTHORITY BY WHICH YOU WERE CALLED TO ACTIVE DUTY IS NOT DETERMINATIVE OF YOUR ENTITLEMENT TO PER DIEM DURING THE PERIOD OF YOUR CLAIM, AND HAS NO BEARING ON THE FACT THAT SUMTER MUST BE CONSIDERED YOUR DESIGNATED POST OF DUTY FOR PURPOSES OF PER DIEM IN THE CIRCUMSTANCES INVOLVED.

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 7, 1962, DISALLOWING YOUR CLAIM, IS SUSTAINED.