B-151902, JUL. 18, 1963

B-151902: Jul 18, 1963

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER POSTMARKED JUNE 17. YOU WERE DIRECTED TO PROCEED FROM THE U.S. THE ORDERS PROVIDED THAT "NO EXPENSES TO THE GOVERNMENT INVOLVED IN THE EXECUTION OF THESE (THIS) ORDER AND NONE IS AUTH.'. EXCEPT THAT YOU WERE ORDERED TO TEMPORARY ADDITIONAL DUTY "FOR MORE THAN 20 WEEKS.'. YOUR CLAIM FOR PER DIEM FOR DUTY WHILE AT MANILA WAS ADMINISTRATIVELY DENIED SUBSTANTIALLY FOR THE REASON THAT YOUR IMMEDIATE ASSIGNMENT AT THAT STATION EXTENDED BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS (MORE THAN 20 WEEKS' DURATION) AND HENCE MUST BE CONSIDERED YOUR BASIC PERMANENT DUTY ASSIGNMENT. IN REQUESTING REVIEW OF YOUR CLAIM THERE WAS ENCLOSED A PORTION OF A MAP SHOWING THE MANILA AREA AND SANGLEY POINT AND YOU SAY THAT THE JURISDICTIONAL COMMAND OF THE COMMANDING OFFICER OF SANGLEY POINT DID NOT INCLUDE THE MANILA AREA.

B-151902, JUL. 18, 1963

TO MR. MANFRED C. WILLIAMS, C/O MR. JAMES M. BLACKBURN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED JUNE 17, 1963, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF JUNE 13, 1963, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN STATION ALLOWANCES AND PER DIEM FOR TEMPORARY DUTY AT MANILA DURING THE PERIOD APRIL 1, 1959, TO JANUARY 31, 1960, INCIDENT TO YOUR SERVICE IN THE U.S. NAVY. THERE HAS ALSO BEEN RECEIVED HERE LETTER DATED JUNE 27, 1963, WITH ENCLOSURES, FROM YOUR ATTORNEY, MR. JAMES M. BLACKBURN, 1400 MICHIGAN NATIONAL TOWER, LANSING, MICHIGAN, CONCERNING YOUR CLAIM.

BY STANDARD TRANSFER ORDER DATED MARCH 25, 1959, YOU WERE DIRECTED TO PROCEED FROM THE U.S. NAVAL STATION, SANGLEY POINT, PHILIPPINE ISLANDS, AND REPORT TO THE MANILA PORT AREA FOR RESUMPTION OF DUTIES FOR TEMPORARY ADDITIONAL DUTY "FOR AN INDEFINITE PERIOD OF TIME," TO REPORT NOT LATER THAN APRIL 1, 1959. THE ORDERS PROVIDED THAT "NO EXPENSES TO THE GOVERNMENT INVOLVED IN THE EXECUTION OF THESE (THIS) ORDER AND NONE IS AUTH.' ANOTHER SET OF ORDERS PREPARED APRIL 1, 1959, CONTAINS SUBSTANTIALLY THE SAME INFORMATION AS THE ORDERS OF MARCH 25, 1959, EXCEPT THAT YOU WERE ORDERED TO TEMPORARY ADDITIONAL DUTY "FOR MORE THAN 20 WEEKS.' THE LATTER ORDERS ALSO PROVIDED "YOU SHALL BE ENTITLED TO ALL ALLOWANCES AS APPLICABLE.' IT APPEARS FROM THE RECORD THAT YOU REPORTED AT MANILA ON APRIL 1, 1959, AND RETURNED TO SANGLEY POINT ON FEBRUARY 1, 1960.

YOUR CLAIM FOR PER DIEM FOR DUTY WHILE AT MANILA WAS ADMINISTRATIVELY DENIED SUBSTANTIALLY FOR THE REASON THAT YOUR IMMEDIATE ASSIGNMENT AT THAT STATION EXTENDED BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS (MORE THAN 20 WEEKS' DURATION) AND HENCE MUST BE CONSIDERED YOUR BASIC PERMANENT DUTY ASSIGNMENT. THE ADMINISTRATIVE OFFICE ON APRIL 28, 1961, HOWEVER, ALLOWED YOUR CLAIM FOR COST-OF-LIVING AND HOUSING ALLOWANCES IN THE AMOUNT OF $828.70, FOR THE PERIOD APRIL 1, 1959, TO JANUARY 31, 1960, INCIDENT TO YOUR DUTY ASSIGNMENT AT MANILA.

IN REQUESTING REVIEW OF YOUR CLAIM THERE WAS ENCLOSED A PORTION OF A MAP SHOWING THE MANILA AREA AND SANGLEY POINT AND YOU SAY THAT THE JURISDICTIONAL COMMAND OF THE COMMANDING OFFICER OF SANGLEY POINT DID NOT INCLUDE THE MANILA AREA. YOU FURTHER SAY THAT AFTER BEING ON DUTY IN MANILA FOR APPROXIMATELY ONE MONTH AND BECAUSE OF THE ADDITIONAL EXPENSE BEING INCURRED BY YOU, YOU CHALLENGED THE ABOVE ORDERS OF MARCH 25, 1959, AND CONSEQUENTLY THE NAVY ISSUED ORDERS BACK-DATED TO APRIL 1, 1959, TO PROVIDE FOR TEMPORARY ADDITIONAL DUTY OF MORE THAN 20 WEEKS. YOU STATE THAT SINCE THE NAVY KNEW YOU WERE BEING ASSIGNED FOR MORE THAN 20 WEEKS THEY SHOULD HAVE ISSUED A STANDARD PERMANENT TRANSFER ORDER. ALSO, YOU SAY THAT SINCE THE NATURE OF YOUR DUTIES IN MANILA REQUIRED YOU TO WEAR CIVILIAN CLOTHING, YOU ARE OF THE OPINION THAT YOU SHOULD RECEIVE A CIVILIAN CLOTHING ALLOWANCE FOR THE PERIOD OF THE TEMPORARY DUTY.

THE CONTROLLING STATUTE, 37 U.S.C. 404 (A), PROVIDES, IN PERTINENT PART, THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE IS ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.' PARAGRAPH 1150- 10A OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. IT IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE. THE TERM "TEMPORARY DUTY" WHICH INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH 3003-2 OF THE REGULATIONS, FOR TRAVEL ALLOWANCE PURPOSES, TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. TO QUALIFY FOR TRAVEL ALLOWANCES UNDER SUCH PROVISIONS, TRAVEL AND TEMPORARY DUTY MUST BE PERFORMED AT A POINT OR POINTS REMOVED FROM THE PLACE AT WHICH THE BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE.

WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, THE CHARACTER OF THE ASSIGNMENT-- - PARTICULARLY AS TO THE DURATION THEREOF, NATURE OF DUTY ENJOINED, ETC. 24 COMP. GEN. 667; 27 ID. 253; 33 ID. 103, AND 36 ID. 757. IN LETTER OF APRIL 17, 1959, FROM THE COMMANDING OFFICER, U.S. NAVAL STATION, SANGLEY POINT, TO THE COMPTROLLER OF THE NAVY, CONSIDERING YOUR ENTITLEMENT TO HOUSING AND COST-OF-LIVING ALLOWANCES, IT WAS STATED THAT THE ACTIVITY IS REQUIRED TO FURNISH PERSONNEL FOR LIAISON PURPOSES AT THE VARIOUS MILITARY INSTALLATIONS IN MANILA; THAT THE NATURE OF THESE DUTIES REQUIRES THE DESIGNATED PERSONNEL TO RESIDE IN THE MANILA, QUESTION CITY OR RIZAL PROVINCE AREA; AND THAT "THESE PERSONNEL ARE ASSIGNED ON AN INDEFINITE TIME BASIS, USUALLY FROM SIX MONTHS TO TWO YEARS * * *.' IN RECOMMENDING FAVORABLE CONSIDERATION OF YOUR CLAIM FOR HOUSING AND COST-OF-LIVING ALLOWANCES, IT WAS STATED IN LETTER OF MARCH 14, 1961, FROM THE COMPTROLLER OF THE NAVY TO THE COMMANDING OFFICER, NAVY FINANCE CENTER, THAT "RECORDS OF THE BUREAU OF NAVAL PERSONNEL INDICATE THAT WILLIAMS WAS THE NAVY LIAISON MAN IN MANILA UNTIL FEBRUARY 1960 WHERE HIS PRIMARY TASK WAS IN CUSTOM CLEARANCE. WHILE HIS RECORDS WERE MAINTAINED AT NAVSTA SANGLEY POINT, HIS DUTIES REQUIRED HIM TO RESIDE IN MANILA DURING THE PERIOD INVOLVED.'

WHETHER SANGLEY POINT AND MANILA ARE TWO DIFFERENT AREAS IS IMMATERIAL FOR PER DIEM PURPOSES UNDER THE CIRCUMSTANCES STATED. YOUR IMMEDIATE TEMPORARY ADDITIONAL DUTY ASSIGNMENT FOR AN INDEFINITE PERIOD AND SUBSEQUENTLY CHANGED TO MORE THAN 20 WEEKS CONTEMPLATED THAT SUCH DUTY WOULD BE FOR A PROLONGED PERIOD, USUALLY FROM SIX MONTHS TO TWO YEARS AS ADMINISTRATIVELY REPORTED, EVEN THOUGH THE ORDERS DESCRIBED THE DUTY AS TEMPORARY. SUCH ASSIGNMENT EXTENDED BEYOND WHAT IS CONSIDERED TO BE A REASONABLE TEMPORARY DUTY LIMITATION OF NOT TO EXCEED FIVE OR SIX MONTHS. 38 COMP. GEN. 853. THE FACT THAT THE ORDER ISSUING AUTHORITY MAY NOT HAVE STRICTLY COMPLIED WITH PROCEDURES DESIGNATING YOUR DUTY AS TEMPORARY ADDITIONAL DUTY AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IN THIS CONNECTION, IT MAY BE STATED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE UNITED STATES MAY NOT BE BOUND BY THE ERRONEOUS ACTS OF ITS OFFICERS AND EMPLOYEES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. THE CIRCUMSTANCES, THE DUTY PERFORMED BY YOU UNDER THE ABOVE-MENTIONED ORDERS (WHICH CONTINUED FOR 10 MONTHS) MUST BE CONSIDERED AS CONSTITUTING YOUR BASIC DUTY ASSIGNMENT DURING THE PERIOD IN QUESTION AND THAT AS A CONSEQUENCE YOUR DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES WAS IN FACT AT MANILA. ON THE PRESENT RECORD, THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JUNE 13, 1963, IS SUSTAINED.

WITH RESPECT TO YOUR CLAIM FOR A CIVILIAN CLOTHING ALLOWANCE FOR THE PERIOD OF YOUR DUTY IN MANILA, PARAGRAPH 044155-3B (TABLE ITEM 5) OF THE NAVY COMPTROLLER MANUAL AUTHORIZES A SPECIAL INITIAL CLOTHING ALLOWANCE TO ENLISTED MEMBERS UPON ASSIGNMENT TO DUTY IN WHICH THE WEARING OF CIVILIAN CLOTHING IS REQUIRED BY WRITTEN ORDER OF THE CHIEF OF NAVAL OPERATIONS. IN THE ABSENCE OF A WRITTEN ORDER EXPRESSLY AUTHORIZING YOU TO WEAR CIVILIAN CLOTHING--- THE RECORD BEFORE US DOES NOT CONTAIN SUCH AN AUTHORIZATION--- THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLOTHING ALLOWANCE CLAIM.