B-152811, NOV. 19, 1963

B-152811, NOV. 19, 1963

TO LIEUTENANT JAY M. FISHMAN, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 17, 1963, REQUESTING REVIEW OF SETTLEMENT OF APRIL 16, 1963, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD SEPTEMBER 4 TO DECEMBER 4, 1961, INCIDENT TO YOUR ORDERS OF AUGUST 29, 1961.

BY THOSE ORDERS YOU WERE ORDERED TO ACTIVE DUTY FROM NEW YORK, NEW YORK, AND PERMANENTLY ASSIGNED TO THE U.S. ARMY TRANSPORTATION TRAINING COMMAND (7600) FORT EUSTIS, VIRGINIA, AFTER SATISFACTORY COMPLETION OF A COURSE OF INSTRUCTION LASTING APPROXIMATELY EIGHT WEEKS AT THE U.S. ARMY TRANSPORTATION SCHOOL (7601) FORT EUSTIS, VIRGINIA. BY ORDERS DATED NOVEMBER 29, 1961, YOU WERE TRANSFERRED TO FORT TOTTEN, NEW YORK, FOR PERMANENT DUTY.

THE ITINERARY SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS YOU DEPARTED FROM NEW YORK, NEW YORK, ON SEPTEMBER 3, 1961, AND ARRIVED AT FORT EUSTIS, VIRGINIA, THE SAME DAY. YOU DEPARTED FROM THERE ON DECEMBER 5, 1961, AND ARRIVED AT FORT TOTTEN, NEW YORK, THE NEXT DAY. THE RECORD INDICATES THAT YOUR CLAIM FOR PER DIEM FOR THE PERIOD SEPTEMBER 4 TO DECEMBER 4, 1961, WAS DENIED BY THE FINANCE AND ACCOUNTING OFFICER, FORT TOTTEN, NEW YORK, ON INSTRUCTIONS FROM THE CHIEF FIELD SERVICES DIVISION, OFFICE, CHIEF OF FINANCE, FOR THE REASON THAT IT WAS CONSIDERED THAT YOU WERE NOT IN A TRAVEL STATUS WHILE AT FORT EUSTIS, VIRGINIA, SINCE THAT PLACE WAS YOUR FIRST PERMANENT DUTY STATION IN ACCORDANCE WITH YOUR ORDERS OF AUGUST 29, 1961. ALSO, THE RECORD SHOWS THAT THE ARMY FINANCE CENTER HAD DETERMINED THAT YOU WERE ENTITLED TO PAYMENT OF DISLOCATION ALLOWANCE UPON YOUR ASSIGNMENT TO DUTY AT FORT TOTTEN, NEW YORK, BUT THAT YOU REFUSED TO ACCEPT PAYMENT OF SUCH ALLOWANCE AND THE VOUCHER WAS WITHDRAWN AND RETAINED BY THE FINANCE AND ACCOUNTING OFFICE AT FORT TOTTEN, NEW YORK, PENDING DISPOSITION OF YOUR PER DIEM CLAIM.

YOUR CLAIM FOR PER DIEM WAS DISALLOWED BY OFFICE SETTLEMENT DATED APRIL 16, 1963, FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS PROHIBIT PAYMENT OF PER DIEM ALLOWANCES FOR ANY PERIOD OF TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION.

IN YOUR PRESENT LETTER YOU SAY THAT THE FINANCE AND ACCOUNTING OFFICER AT FORT TOTTEN, NEW YORK, HAS NOT PAID YOU DISLOCATION ALLOWANCE BECAUSE IT WAS THEIR CONSIDERED OPINION THAT FORT TOTTEN WAS YOUR FIRST PERMANENT DUTY STATION UPON YOUR ENTRY ON ACTIVE DUTY. THEREFORE, YOU BELIEVE THAT YOU ARE ENTITLED TO THE PER DIEM ALLOWANCE DURING THE PERIOD YOU WERE ASSIGNED TO DUTY AT FORT EUSTIS, VIRGINIA.

THE PAYMENT OF PER DIEM ALLOWANCES TO WHICH MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED IS LIMITED TO THAT AUTHORIZED BY APPLICABLE LAW AND REGULATIONS. UNDER THE PERTINENT STATUTE, 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 PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCE ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH DUTY IS PERFORMED IN A TRAVEL STATUS AT A POINT REMOVED FROM THE MEMBER'S PERMANENT STATION. A MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT STATION IS THE LOCATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE IS TO RETURN OR TO PROCEED UPON COMPLETION OF A TEMPORARY DUTY ASSIGNMENT. IF THE LOCATION OF A MEMBER'S PERMANENT STATION IS THE STATION WHERE TEMPORARY DUTY IS BEING PERFORMED, NO TRAVEL IS REQUIRED TO COMPLY WITH THE ORDERS AND THE MEMBER IS NOT IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY.

IN YOUR CASE, ALTHOUGH YOUR ORDERS OF AUGUST 29, 1961, DIRECTED THE PERFORMANCE OF TEMPORARY DUTY AT FORT EUSTIS, VIRGINIA, THE ORDERS ALSO REMOVED THE NECESSITY FOR FURTHER TRAVEL ON YOUR PART SINCE THEY DESIGNATED FORT EUSTIS AS YOUR PERMANENT DUTY STATION. THEREFORE,YOU WERE NOT IN A TRAVEL STATUS AWAY FROM YOUR DESIGNATED POST OF DUTY AND NO RIGHT TO PER DIEM COULD ACCRUE TO YOU SINCE SUCH DUTY WAS BEING PERFORMED AT YOUR DESIGNATED POST OF DUTY. SEE 34 COMP. GEN. 427; CALIFANO V. UNITED STATES, 145 CT.CL. 245.

WITH RESPECT TO YOUR ENTITLEMENT TO A DISLOCATION ALLOWANCE, THE RECORD SHOWS, AS STATED ABOVE, THAT THE ARMY FINANCE CENTER HAD DETERMINED THAT YOU WERE ENTITLED TO THE PAYMENT OF THE DISLOCATION ALLOWANCE UPON YOUR ASSIGNMENT TO FORT TOTTEN, NEW YORK, BUT THAT YOU REFUSED TO ACCEPT THE PAYMENT. SINCE THE RECORD INDICATES THAT PAYMENT OF YOUR CLAIM FOR A DISLOCATION ALLOWANCE IS BEING HELD IN ABEYANCE IN THE FINANCE AND ACCOUNTING OFFICE AT FORT TOTTEN PENDING THE DISPOSITION OF YOUR CLAIM FOR PER DIEM, WE SUGGEST THAT YOU NOW CONTACT THAT OFFICE.

CONCERNING YOUR REQUEST THAT WE FORWARD YOUR CLAIM FOR PER DIEM TO THE CHIEF OF FINANCE, UNITED STATES ARMY, FOR FURTHER ADMINISTRATIVE REVIEW OF YOUR CLAIM, THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM FOR PER DIEM ALLOWANCES WHILE AT FORT EUSTIS, VIRGINIA.