B-151524, JUN. 10, 1963

B-151524: Jun 10, 1963

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STEURER: REFERENCE IS MADE TO YOUR LETTERS OF APRIL 29 AND MAY 15. YOU WERE CALLED TO ACTIVE DUTY EFFECTIVE FEBRUARY 25. STATED THAT BY REASON OF HAVING BEEN ELIMINATED FROM FURTHER TRAINING YOU WERE RELIEVED FROM PRESENT ASSIGNMENT AND DUTY WITH THE 3516TH TRAINING SQUADRON AND WERE ASSIGNED TO HEADQUARTERS AND HEADQUARTERS SQUADRON. YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY WITH HEADQUARTERS. 3510TH AB GROUP AND WERE ASSIGNED TO HEADQUARTERS. YOU SUBMITTED A CLAIM FOR PER DIEM FOR THE PERIOD DURING WHICH YOU WERE UNDERGOING A COURSE OF INSTRUCTION AT RANDOLPH AIR FORCE BASE AND ON OTHER DUTY AT THAT STATION FROM MARCH 10 TO NOVEMBER 13. YOUR CLAIM WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT YOU WERE STATIONED AT RANDOLPH AIR FORCE BASE FOR MORE THAN 20 WEEKS AND WERE NOT ENTITLED TO PER DIEM.

B-151524, JUN. 10, 1963

TO MR. ROBERT W. STEURER:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 29 AND MAY 15, 1963, REQUESTING A REVIEW OF OUR SETTLEMENT OF APRIL 26, 1963, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD FROM MARCH 10 TO NOVEMBER 13, 1951, INCIDENT TO ORDERS OF MARCH 2 AND JUNE 29, 1951.

BY PARAGRAPH 18, SPECIAL ORDERS NO. 15, HEADQUARTERS FIRST AIR FORCE, MITCHELL AIR FORCE BASE, DATED JANUARY 22, 1951, YOU WERE CALLED TO ACTIVE DUTY EFFECTIVE FEBRUARY 25, 1951, TO REPORT NOT LATER THAN FEBRUARY 26, 1951, AT THE 2212TH PERSONNEL PROCESSING SQUADRON, LANGLEY AIR FORCE BASE, VIRGINIA. THE ORDERS FURTHER ASSIGNED YOU TO HEADQUARTERS AND HEADQUARTERS SQUADRON, 3510TH PLATOON TRAINING WING (PP) (ATRC), RANDOLPH AIR FORCE BASE, TEXAS, FOR PERMANENT DUTY AND ASSIGNMENT, TO REPORT NOT LATER THAN MARCH 8 FOR CLASSES COMMENCING MARCH 10, 1951. PARAGRAPH 23, SPECIAL ORDERS NO. 45, HEADQUARTERS 2212TH PERSONNEL PROCESSING SQUADRON, LANGLEY AIR FORCE BASE, DATED MARCH 2, 1951, DIRECTED YOU TO PROCEED TO HEADQUARTERS AND HEADQUARTERS SQUADRON, 3510TH TRAINING WING, RANDOLPH AIR FORCE BASE, TEXAS, TO REPORT NOT LATER THAN MARCH 8, 1951, FOR CLASSES COMMENCING MARCH 10, 1951. PARAGRAPH 40, SPECIAL ORDERS NO. 152, HEADQUARTERS, RANDOLPH AIR FORCE BASE, DATED JUNE 29, 1951, STATED THAT BY REASON OF HAVING BEEN ELIMINATED FROM FURTHER TRAINING YOU WERE RELIEVED FROM PRESENT ASSIGNMENT AND DUTY WITH THE 3516TH TRAINING SQUADRON AND WERE ASSIGNED TO HEADQUARTERS AND HEADQUARTERS SQUADRON, 3510TH AB GROUP, PENDING DISPOSITION INSTRUCTIONS. BY PARAGRAPH 24, SPECIAL ORDERS NO. 267, HEADQUARTERS, RANDOLPH AIR FORCE BASE, DATED NOVEMBER 13, 1951, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY WITH HEADQUARTERS, 3510TH AB GROUP AND WERE ASSIGNED TO HEADQUARTERS, APG, EGLIN AIR FORCE BASE, FLORIDA, TO REPORT NOT LATER THAN NOVEMBER 22, 1951, FOR DUTY, THE TRANSFER BEING DESIGNATED AS A PERMANENT CHANGE OF STATIONS.

ON SEPTEMBER 21, 1962, YOU SUBMITTED A CLAIM FOR PER DIEM FOR THE PERIOD DURING WHICH YOU WERE UNDERGOING A COURSE OF INSTRUCTION AT RANDOLPH AIR FORCE BASE AND ON OTHER DUTY AT THAT STATION FROM MARCH 10 TO NOVEMBER 13, 1951. YOU REFERRED TO DEPARTMENT OF THE AIR FORCE LETTER OF OCTOBER 7, 1959, AFAAF-3B, AS THE BASIS FOR YOUR CLAIM. YOUR CLAIM WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT YOU WERE STATIONED AT RANDOLPH AIR FORCE BASE FOR MORE THAN 20 WEEKS AND WERE NOT ENTITLED TO PER DIEM. UPON RESUBMITTING YOUR CLAIM, IT WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 26, 1963, FOR THE REASONS STATED THEREIN.

IN YOUR LETTERS YOU STATE YOU WERE AT RANDOLPH AIR FORCE BASE ON A TEMPORARY BASIS IN A ,PIPELINE" STATUS AND THIS CONSTITUTED TEMPORARY DUTY ACCORDING TO THE AIR FORCE LETTER REFERRED TO ABOVE. THIS LETTER STATED THAT CERTAIN OFFICERS MAY BE DUE PER DIEM FOR SHORT COURSES OF INSTRUCTION OF LESS THAN 20 WEEKS, DURING THE PERIOD FROM APRIL 1, 1951, THROUGH JUNE 30, 1955, FOR WHICH THEY HAD NOT BEEN PAID, BECAUSE THE ORDERS INDICATED THE TRANSFER AS "PERMANENT CHANGE OF STATION PIPELINE.' HOWEVER, THE LETTER STATED FURTHER THAT PER DIEM WAS NOT PAYABLE UNDER ORDERS TO ACTIVE DUTY AND ASSIGNMENT TO A STATION FOR TEMPORARY DUTY WHICH DID NOT NAME A SPECIFIC PERMANENT DUTY STATION. IT CITED AS AUTHORITY A DECISION OF OUR OFFICE DATED JUNE 19, 1959, B 138900 (38 COMP. GEN. 849).

WE HELD IN 38 COMP. GEN. 849 THAT WE WOULD FOLLOW THE RULING OF THE COURT OF CLAIMS IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245, HOLDING 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 THE 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. IN 39 COMP. GEN. 507, AT PAGE 510, WE HELD THAT THIS RULING APPLIES "IN ANY CASE" WHERE A MEMBER IS ORDERED 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 AND THE ORDERS DO NOT DESIGNATE A SPECIFIC PERMANENT DUTY STATION TO WHICH THE MEMBER IS TO TRAVEL TO AND REPORT FOR DUTY UPON COMPLETION OF THE TEMPORARY DUTY. SEE ALSO 39 COMP. GEN. 511 WHICH HELD THAT A MEMBER ORDERED TO ACTIVE DUTY FROM HIS HOME, WHO IS 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 HAVE THE PLACE AT WHICH THE SECOND OR SUBSEQUENT PERIODS OF TEMPORARY DUTY ARE PERFORMED CONSIDERED AS OTHER THAN THE MEMBER'S ONLY POST OF DUTY, TO PLACE THE MEMBER IN A TRAVEL STATUS FOR PER DIEM PURPOSES.

SPECIAL ORDERS NO. 45, DATED MARCH 2, 1951, ASSIGNED YOU TO RANDOLPH AIR FORCE BASE ON PERMANENT DUTY WITH HEADQUARTERS AND HEADQUARTERS SQUADRON, 3510TH TRAINING WING, FOR A COURSE OF INSTRUCTION. ALTHOUGH THE ORDERS DID NOT INDICATE THE LENGTH OF THE CONTEMPLATED ASSIGNMENT, IT MUST BE ASSUMED FROM THE ORDERS THAT THE DURATION OF THE COURSE WAS 20 WEEKS OR MORE. THE FACT THAT YOU WERE ELIMINATED FROM TRAINING AND ASSIGNED TO OTHER DUTY EFFECTIVE JULY 2, 1951, BY SPECIAL ORDERS NO. 152, DATED JUNE 29, 1951, DID NOT CHANGE THE ADMINISTRATIVE INTENT AS EXPRESSED IN YOUR ORDERS OF MARCH 2, 1951, THAT THE ASSIGNMENT AT RANDOLPH AIR FORCE BASE WAS FOR PERMANENT DUTY WITHIN THE CONTEMPLATION OF THE REGULATIONS, PRESUMABLY ON THE BASIS THAT THE DURATION OF THE COURSE WAS TO BE 20 WEEKS OR MORE. WHILE YOU MAY HAVE BEEN CONSIDERED TO BE IN A "PIPELINE" STATUS, THAT DID NOT ALTER THE FACT THAT YOUR ASSIGNMENT WAS FOR PERMANENT DUTY. SEE 37 COMP. GEN. 637. HOWEVER, EVEN IF THE ASSIGNMENT TO RANDOLPH AIR FORCE BASE HAD BEEN DESIGNATED TEMPORARY DUTY ASSIGNMENT, YOU WOULD NOT BE ENTITLED TO PER DIEM DURING YOUR STAY AT THAT STATION UNDER THE RULING IN CALIFANO V. UNITED STATES, SINCE YOU WERE ORDERED TO ACTIVE DUTY AND ASSIGNED TO THAT STATION FOR DUTY UNDER ORDERS WHICH DID NOT DESIGNATE ANY OTHER PERMANENT DUTY STATION TO WHICH YOU WERE TO TRAVEL TO AND REPORT FOR DUTY UPON COMPLETION OF THE ASSIGNMENT. ACCORDINGLY, THE SETTLEMENT OF APRIL 26, 1963, WAS CORRECT AND IS SUSTAINED.