B-151845, AUGUST 1, 1963, 43 COMP. GEN. 107

B-151845: Aug 1, 1963

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WHICH ASSIGNED A GROUP OF NAVY MEMBERS TO TEMPORARY DUTY FOR A SHORT PERIOD WHILE A VESSEL WAS BEING FITTED OUT UNTIL ITS COMMISSIONING DATE. TO TERMINATE THE TEMPORARY DUTY AND MAKE THE ASSIGNMENT TO THE SAME PLACE WHICH WAS THE HOME PORT OF THE VESSEL A PERMANENT CHANGE OF STATION WHEN IT WAS LEARNED THAT THE COMMISSIONING DATE HAD BEEN RESCHEDULED FOR MORE THAN 6 MONTHS LATER IS PROPER UNDER PARAGRAPH 3002-4 OF THE NAVY TRAVEL INSTRUCTIONS WHICH PROVIDES WITH RESPECT TO SECRETARIAL APPROVAL FOR PROLONGED EXTENSIONS OF TEMPORARY DUTY BEYOND 6 MONTHS THAT THE DATE FOR COMPUTING THE 6 MONTHS WILL BE FROM THE DATE OF THE DETERMINATION TO ORDER THE EXTENSION RATHER THAN FROM THE DATE OF THE PREVIOUSLY RESCHEDULED COMMISSIONING DATE AND.

B-151845, AUGUST 1, 1963, 43 COMP. GEN. 107

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TIME LIMITATION A CHANGE OF TEMPORARY DUTY ORDERS, WHICH ASSIGNED A GROUP OF NAVY MEMBERS TO TEMPORARY DUTY FOR A SHORT PERIOD WHILE A VESSEL WAS BEING FITTED OUT UNTIL ITS COMMISSIONING DATE, TO TERMINATE THE TEMPORARY DUTY AND MAKE THE ASSIGNMENT TO THE SAME PLACE WHICH WAS THE HOME PORT OF THE VESSEL A PERMANENT CHANGE OF STATION WHEN IT WAS LEARNED THAT THE COMMISSIONING DATE HAD BEEN RESCHEDULED FOR MORE THAN 6 MONTHS LATER IS PROPER UNDER PARAGRAPH 3002-4 OF THE NAVY TRAVEL INSTRUCTIONS WHICH PROVIDES WITH RESPECT TO SECRETARIAL APPROVAL FOR PROLONGED EXTENSIONS OF TEMPORARY DUTY BEYOND 6 MONTHS THAT THE DATE FOR COMPUTING THE 6 MONTHS WILL BE FROM THE DATE OF THE DETERMINATION TO ORDER THE EXTENSION RATHER THAN FROM THE DATE OF THE PREVIOUSLY RESCHEDULED COMMISSIONING DATE AND, THEREFORE, PER DIEM FOR TEMPORARY DUTY TERMINATED ON THE DATE THE MEMBERS WERE NOTIFIED OF THE PERMANENT CHANGE OF STATION.

TO ENSIGN M. J. HOOLEY, DEPARTMENT OF THE NAVY, AUGUST 1, 1963:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1963 SUBMITTING THROUGH ADMINISTRATIVE CHANNELS FOR AN ADVANCE DECISION THE CLAIMS OF LIEUTENANT (JG) PAUL T. TRAGESER, USNR, ENSIGN EDWARD E. KEMP, USN, AND NORMAND O. HAMEL, SKCA, USN, FOR PER DIEM FOR THE PERIODS MAY 3, MAY 19 AND MAY 3 TO NOVEMBER 3, 1962, RESPECTIVELY, INCIDENT TO DUTY AT BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ALBANY. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 63-13 AND FORWARDED TO US BY FOURTH INDORSEMENT DATED JUNE 17, 1963, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT IS ADMINISTRATIVELY REPORTED THAT DURING THE FALL OF 1961, THE COMMISSIONING DATE OF THE U.S.S. ALBANY WAS ESTABLISHED AS MAY 25, 1962, AND THE CHIEF OF NAVAL PERSONNEL BEGAN ISSUING ORDERS TO MEMBERS. JANUARY 1962 MEMBERS BEGAN REPORTING FOR TEMPORARY DUTY IN CONNECTION WITH CONVERSION AND FITTING OUT OF THE U.S.S. ALBANY AND FOR DUTY ON BOARD WHEN COMMISSIONED. ON JANUARY 17, 1962, THE ANNOUNCED COMMISSIONING DATE WAS CHANGED FROM MAY 25 TO JUNE 30, 1962, AND ON APRIL 21, 1962, THE COMMISSIONING DATE WAS AGAIN RESCHEDULED TO NOVEMBER 1, 1962. SINCE ON THE LAST CHANGE THE PERIOD FROM THE DATE OF DETERMINATION OF THE NEW DATE TO THE EXPECTED DATE OF COMMISSIONING WAS IN EXCESS OF 6 MONTHS AND AS THE HOME PORT OF THE U.S.S. ALBANY HAD BEEN ANNOUNCED AS BOSTON, A DECISION WAS MADE BY THE BUREAU OF NAVAL PERSONNEL TO MODIFY ALL ORDERS ASSIGNING MEMBERS TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF THE SHIP TO SPECIFY "FOR DUTY.'

EACH OF THE CLAIMANTS' ORIGINAL ORDERS PROVIDED FOR TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ALBANY AND DUTY ON BOARD WHEN COMMISSIONED. PURSUANT TO THEIR INDIVIDUAL ORDERS MR. TRAGESER AND MR. HAMEL REPORTED TO THE COMMANDER, BOSTON NAVAL SHIPYARD ON MARCH 26 AND FEBRUARY 26, 1962, RESPECTIVELY, AND WERE PAID PER DIEM UNTIL MAY 3, 1962, WHEN THEY RECEIVED NOTICE THAT THE NATURE OF THEIR ASSIGNMENT AT THE SHIPYARD WAS CHANGED FROM TEMPORARY DUTY TO PERMANENT DUTY IN ACCORDANCE WITH ORDERS FROM THE BUREAU OF NAVAL PERSONNEL, AND THE PAYMENT OF PER DIEM WAS DISCONTINUED. MR. KEMP DID NOT REPORT TO THE COMMANDER, BOSTON NAVAL SHIPYARD, UNTIL MAY 18, 1962, UNDER HIS ORDERS OF FEBRUARY 26, 1962, SINCE HE WAS DIRECTED TO FIRST ATTEND A 6-WEEK NAVAL OFFICER INDOCTRINATION COURSE AT NEWPORT, RHODE ISLAND, WHERE ON MAY 3, 1962, HE WAS NOTIFIED OF THE MODIFICATION OF HIS ORDERS. HENCE, HE RECEIVED NO PER DIEM AT BOSTON IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ALBANY.

THE CLAIMS ARE PREDICATED ON THE PROVISIONS OF PARAGRAPHS 3003-2C AND 4206 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 3002-3 OF THE NAVY TRAVEL INSTRUCTIONS. IT IS CONTENDED, IN SUBSTANCE, THAT UNDER SUCH PROVISIONS THE COMPLETE PERIOD OF DUTY AT BOSTON PRIOR TO NOVEMBER 3, 1962, THE DATE OF ACTUAL COMMISSIONING OF THE U.S.S. ALBANY, WAS IN FACT TEMPORARY DUTY FOR WHICH PER DIEM IS PAYABLE AND THAT THE CHANGING OF THE ASSIGNMENT TO REGULAR DUTY BY ORDERS OF THE BUREAU OF NAVAL PERSONNEL WAS CONTRARY TO THE APPLICABLE LAW AND REGULATIONS INASMUCH AS THE SCHEDULED COMMISSIONING DATE OF NOVEMBER 1, 1962, DID NOT EXCEED THE PREVIOUSLY SCHEDULED DATE OF JUNE 30, 1962, BY MORE THAN 6 MONTHS.

PARAGRAPH 4206 OF THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C. 404, AUTHORIZES THE PAYMENT OF A PER DIEM ALLOWANCE TO A MEMBER WHEN HE IS ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH FITTING OUT OR CONVERSION OF A VESSEL. TEMPORARY OR TEMPORARY ADDITIONAL DUTY ASSIGNMENTS ARE SPECIFICALLY LIMITED BY THE PROVISIONS OF PARAGRAPH 3003-2 OF THE REGULATIONS TO PERIODS NOT IN EXCESS OF 6 MONTHS EXCEPT THAT SUCH DUTY MAY BE AUTHORIZED OR APPROVED FOR LONGER PERIODS BY THE SECRETARIES OR THEIR APPROPRIATE DESIGNEES WHEN UNUSUAL OR EMERGENCY CIRCUMSTANCES OR THE EXIGENCIES OF THE SERVICE APPEAR TO REQUIRE ASSIGNMENTS FOR PERIODS OF MORE THAN 6 MONTHS UNDER CONDITIONS WHERE IT WOULD BE IMPRACTICABLE OR UNECONOMICAL TO EFFECT A PERMANENT CHANGE OF STATION. IT IS FURTHER PROVIDED THAT SUCH PROVISIONS DO NOT PRECLUDE BONA FIDE EXTENSIONS THAT ARE REQUIRED BY A DEFINITE CHANGE OR UNFORESEEN EXPANSION IN DUTY OR BY UNFORESEEN DELAYS, EVEN THOUGH SUCH EXTENSIONS WHEN ADDED TO THE ORIGINALLY AUTHORIZED PERIOD TOTAL MORE THAN 6 MONTHS.

PARAGRAPH 3002-3 OF THE NAVY TRAVEL INSTRUCTIONS IS AS FOLLOWS:

3. APPROVAL NOT REQUIRED. IN INSTANCES WHERE A TEMPORARY ASSIGNMENT WILL BE CONTEMPLATED TO BE OF LESS THAN 6 MONTHS' DURATION, BUT BONA FIDE EXTENSIONS WILL CAUSE THE ACTUAL DURATION TO EXTEND BEYOND 6 MONTHS, SPECIFIC APPROVAL IS NOT REQUIRED UNLESS ANY REQUIRED EXTENSION IS OF ITSELF CONTEMPLATED TO BE IN EXCESS OF 6 MONTHS. THESE EXTENSIONS OF DURATION, AS DISCUSSED IN THE JOINT TRAVEL REGULATIONS, PAR. 3003-2C, INCLUDE SUCH OCCURRENCES AS SLIPPAGES IN A SHIP'S CONSTRUCTION SCHEDULE.

IT APPEARS THAT THE CLAIMANTS RELY ON THE WORDING OF THE ABOVE QUOTED PARAGRAPH FOR MAIN SUPPORT OF THEIR CONTENTIONS AS THE DUTY EXTENSION REQUIRED BY RESCHEDULING THE COMMISSIONING DATE OF THE U.S.S. ALBANY TO NOVEMBER 1, 1962, WAS NOT "OF ITSELF" IN EXCESS OF 6 MONTHS BEYOND THE PREVIOUSLY SCHEDULED DATE OF JUNE 30, 1962. WHILE SUCH PROVISION DOES NOT REQUIRE APPROVAL BY THE SECRETARY OR HIS DESIGNEE FOR EXTENSIONS OF LESS THAN 6 MONTHS, IT SEEMS APPARENT THAT SUCH APPROVAL IS CONTEMPLATED IF IT IS DECIDED THAT A REQUIRED EXTENSION WILL EXCEED 6 MONTHS, SUCH PERIOD TO BE COMPUTED FROM THE DATE OF THE DECISION TO ORDER THE EXTENSION. ANY DOUBT THAT MIGHT EXIST WITH RESPECT TO COMPUTING SUCH PERIOD ON THAT BASIS IS CLEARLY RESOLVED BY THE PROVISIONS OF SUBPARAGRAPH 4 OF PARAGRAPH 3002 OF THE NAVY TRAVEL INSTRUCTIONS AS FOLLOWS:

4. MODIFICATION OF ORDERS REQUIRED. AS INDICATED IN SUBPAR. TEMPORARY DUTY ORDERS ARE ISSUED WHEN THE CONTEMPLATED PERIOD WILL BE 6 MONTHS OR LESS. HOWEVER, IF AT ANY TIME DURING A TEMPORARY ASSIGNMENT IT IS DETERMINED THAT AN EXTENSION OF SIX OR MORE REMAINING MONTHS IS NECESSARY FROM THE DATE OF DETERMINATION, EITHER APPROVAL OF THE ADDITIONAL PERIOD OR MODIFICATION OF ORDERS TO "DUTY" VICE "TEMPORARY DUTY" IS NECESSARY. ALL SUCH CASES WILL BE REFERRED TO THE CHIEF OF NAVAL PERSONNEL OR COMMANDANT OF THE MARINE CORPS (CODE DF), AS APPROPRIATE, FOR RESOLUTION.

IT IS CLEAR THAT SUCH PROVISION REQUIRES THE MODIFICATION OF TEMPORARY DUTY ORDERS TO PERMANENT DUTY WHEN, DURING A PERIOD OF TEMPORARY DUTY, IT IS DETERMINED THAT THE DUTY WILL BE INCREASED TO MORE THAN 6 REMAINING MONTHS FROM THE DATE OF DETERMINATION, UNLESS OTHERWISE APPROVED BY THE CHIEF OF NAVAL PERSONNEL PURSUANT TO THE AUTHORITY DELEGATED TO HIM BY THE SECRETARY OF THE NAVY UNDER THE PROVISIONS OF PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS, SUPRA.

THE PURPOSE OF SUBPARAGRAPH 4 IS TO PREVENT TEMPORARY DUTY ASSIGNMENTS FROM PROSPECTIVELY EXCEEDING 6 MONTHS AND IT IS CONSISTENT WITH THE WELL- ESTABLISHED PRINCIPLE THAT THE APPLICABLE LAW AND REGULATIONS AUTHORIZE TRAVEL ALLOWANCES ONLY FOR PERIODS MEMBERS ARE IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY AND DO NOT CONTEMPLATE THE PAYMENT OF PER DIEM FOR DUTY WHOSE FORESEEABLE DURATION EXTENDS BEYOND REASONABLE TEMPORARY DUTY TIME LIMITATIONS, SUCH DUTY THEN BEING CONSIDERED AS PERFORMED, IN FACT, AT THE MEMBER'S PERMANENT DUTY STATION. SEE 36 COMP. GEN. 757. IN OUR DECISION OF JUNE 22, 1959, 38 COMP. GEN. 853, IT WAS STATED THAT THE STATUTORY AUTHORITY (NOW CODIFIED IN 37 U.S.C. 404) WHILE EXPRESSLY PROVIDING FOR PERIODS OF ABSENCE FROM THE DESIGNATED POSTS OF DUTY REGARDLESS OF LENGTH OF TIME AWAY FROM SUCH DUTY POSTS, DOES NOT CONTEMPLATE A CONTINUATION OF PAYMENTS FOR LONG PERIODS OF TIME. IT WAS FURTHER OBSERVED THAT THERE MUST BE SOME REASONABLE TIME LIMITATION FOR TEMPORARY DUTY ASSIGNMENTS, AND THAT THE TIME LIMITATION OF 6 MONTHS IS A REASONABLE CRITERION TO FOLLOW UNDER ORDINARY CIRCUMSTANCES.

THE ORIGINAL BASIC ORDERS ASSIGNING THE CLAIMANTS TO TEMPORARY DUTY WERE ISSUED ON THE ASSUMPTION THAT THE FITTING OUT PERIOD OF THE U.S.S. ALBANY WOULD NOT BE OF PROLONGED DURATION. SUCH ASSUMPTION PROVED TO BE ERRONEOUS AND IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 3002-4 OF THE NAVY TRAVEL INSTRUCTIONS ORDERS WERE ISSUED TERMINATING THE TEMPORARY DUTY ASSIGNMENTS WHEN IT WAS DETERMINED FROM THE BEST INFORMATION THEN AVAILABLE THAT MORE THAN 6 MONTHS WOULD BE REQUIRED TO READY THE SHIP FOR COMMISSIONING. THE PRESENT RECORD DOES NOT INDICATE THAT THE PERMANENT CHANGES OF STATION WERE IMPRACTICABLE OR UNECONOMICAL BUT ON THE CONTRARY, IN VIEW OF THE FACT THAT THE HOMEPORT OF THE U.S.S. ALBANY HAD BEEN ANNOUNCED AS BOSTON, MASSACHUSETTS, THE SAME LOCATION WHERE THE SHIP WAS BEING FITTED OUT, IT SEEMS CLEAR THAT THE CHANGES OF STATION WERE IN THE BEST INTERESTS OF THE GOVERNMENT.

IN SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT THE CLAIMANTS' ASSIGNMENTS TO THE BOSTON NAVAL SHIPYARD FOR TEMPORARY DUTY WERE PROPERLY TERMINATED EFFECTIVE MAY 3, 1962, WHEN THEY WERE NOTIFIED THAT THEIR ORDERS WERE CHANGED OR MODIFIED TO SPECIFY FOR "DUTY" AT THAT LOCATION. ACCORDINGLY, NO RIGHT TO PER DIEM ACCRUED TO THE CLAIMANTS FOR THE DUTY PERFORMED AT BOSTON DURING THE PERIODS CLAIMED AND THE CLAIMS TOGETHER WITH SUPPORTING PAPERS WILL BE RETAINED HERE.