B-153696, JUN. 1, 1964

B-153696, JUN. 1, 1964

TO CAPTAIN DOUGLAS C. MORROW:

BY LETTER DATED FEBRUARY 24, 1964, HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF FINANCE, WASHINGTON, D.C., FORWARDED YOUR LETTER DATED FEBRUARY 5, 1964, WITH ENCLOSURES, IN WHICH YOU REQUEST AN ADVANCE DECISION ON THE ENTITLEMENT OF SECOND LIEUTENANT WILLIAM A. HIGERD TO PER DIEM INCIDENT TO HIS ORDERS OF SEPTEMBER 18, 1962, AS AMENDED, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 64-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ACTIVE DUTY ORDERS DATED SEPTEMBER 18, 1962, LIEUTENANT HIGERD WAS DIRECTED TO REPORT ON OCTOBER 17, 1962, TO THE UNITED STATES ARMY ARTILLERY AND MISSILE SCHOOL, FORT SILL, OKLAHOMA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A PERIOD OF 9 WEEKS. UPON COMPLETION OF THE COURSE, WHICH WAS SCHEDULED FOR DECEMBER 20, 1962, AND EXPIRATION OF 30 DAYS' LEAVE HE WAS TO REPORT TO THE UNITED STATES ARMY PERSONNEL CENTER, FORT DIX, NEW JERSEY, NOT LATER THAN JANUARY 26, 1963, FOR FURTHER ASSIGNMENT TO HIS PERMANENT DUTY STATION, UNITED STATES ARMY, EUROPE--- GERMANY.

THE RECORD SHOWS THAT ON NOVEMBER 29, 1962, THE MEMBER REQUESTED A 45-DAY DEFERMENT OF REPORTING DATE TO FORT DIX, NEW JERSEY, DUE TO THE PREGNANCY OF HIS WIFE. HIS REQUEST FOR DEFERMENT WAS APPROVED ON DECEMBER 5, 1962, PURSUANT TO THE AUTHORITY CONTAINED IN PARAGRAPH 11A (1) C, ARMY REGULATIONS 614-30, DATED APRIL 24, 1961, WHICH PROVIDES FOR TEMPORARY DEFERMENT OF PERSONNEL ALERTED FOR OR ON ORDERS TO OVERSEA COMMANDS WHEN THE LEGAL WIFE OF THE INDIVIDUAL IS THEN OR WILL BE IN HER SEVENTH MONTH OF PREGNANCY ON THE DATE THE INDIVIDUAL IS SCHEDULED TO REPORT TO THE OVERSEA REPLACEMENT STATION OR PORT OF EMBARKATION. ON FEBRUARY 14, 1963, HE REQUESTED AN ADDITIONAL DEFERMENT OF 30 DAYS, WHICH WAS APPROVED. COMPLETED HIS COURSE OF INSTRUCTION ON DECEMBER 20, 1962, AND REMAINED AT FORT SILL, OKLAHOMA, IN A CASUAL DUTY STATUS UNTIL MARCH 22, 1963. APPEARS THAT HE WAS PAID PER DIEM FOR THE PERIOD OCTOBER 18, 1962, TO MARCH 18, 1963.

YOUR QUESTION IS WHETHER THE MEMBER WAS IN A TEMPORARY DUTY STATUS ENTITLING HIM TO PER DIEM DURING THE ENTIRE PERIOD HE REMAINED AT FORT SILL, OR WHETHER HIS TEMPORARY DUTY STATUS TERMINATED ON DECEMBER 20, 1962, IN WHICH CASE HE IS INDEBTED TO THE UNITED STATED FOR OVERPAYMENT OF PER DIEM IN THE SUM OF $572.92.

THE PAYMENT OF PER DIEM ALLOWANCES TO WHICH MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED IS LIMITED TO THAT AUTHORIZED BY THE 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 ALLOWANCES 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 6454 OF THE REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH DUTY IS PERFORMED ON PUBLIC BUSINESS. IN THE SOMEWHAT SIMILAR SITUATION OF A MEMBER'S REQUEST FOR ASSIGNMENT TO A PARTICULAR STATION FOR COMPASSIONATE OR OTHER PERSONAL REASONS, IT HAS BEEN HELD THAT, WHILE THE MEMBER'S REQUEST DOES NOT LESSEN HIS RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES IF HIS REASSIGNMENT IS NECESSARY IN THE SERVICE, IT IS NOT ENOUGH THAT THE REASSIGNMENT IS MERELY NOT INCONSISTENT WITH THE NEEDS OF THE SERVICE. SHOULD APPEAR THAT MILITARY CONSIDERATIONS INDUCED THE REASSIGNMENT AND HENCE THAT THE TRAVEL WAS PERFORMED ON PUBLIC BUSINESS, SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. SEE B 146432, SEPTEMBER 13, 1961; PERRIMOND V. UNITED STATES, 19 CT.CL. 509; AND DAY V. UNITED STATES, 123 CT.CL. 10, 18.

ALSO IT HAS BEEN HELD THAT THE CHARACTER OF THE SERVICE PERFORMED IS TO BE DETERMINED FROM THE FACTS IN EACH CASE, AND IF FROM THE FACTS OF RECORD IT APPEARS THAT THE TRAVEL WAS PERFORMED NOT ON PUBLIC BUSINESS, BUT FOR THE CONVENIENCE OF THE MEMBER OR ON PRIVATE BUSINESS, THERE IS NO AUTHORITY FOR PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES. SEE 9 COMP. GEN. 414; 30 ID. 19; AND 36 ID. 257. THAT RULE IS FOR APPLICATION IN SITUATIONS COVERED BY ARMY REGULATIONS 614 30, APRIL 24, 1961, IN WHICH A MEMBER IN A TEMPORARY DUTY STATUS IS ON ORDERS TO AN OVERSEA COMMAND AND IS GRANTED A TEMPORARY DEFERMENT NOT BECAUSE OF THE NEEDS OF THE SERVICE BUT BECAUSE COMPLIANCE WITH SUCH ORDERS WILL IMPOSE HARDSHIP ON HIM OR HIS FAMILY.

SINCE THE DEFERMENT RESULTS IN A TEMPORARY UNDERSTRENGTH IN THE OVERSEA COMMAND INVOLVED, WHICH DECREASES TO SOME EXTENT THE OPERATIONAL READINESS OF THAT COMMAND, UNLESS IT APPEARS FROM THE RECORD THAT THE RETENTION OF THE MEMBER WAS NECESSARY ALSO TO FILL THE MILITARY NEEDS OF THE SERVICE, IT MUST BE CONCLUDED THAT THE DEFERMENT WAS AUTHORIZED SOLELY FOR THE CONSIDERATION OF THE MEMBER AND HIS FAMILY AND NOT TO MEET THE NEEDS OF THE SERVICE. CLEARLY PUBLIC BUSINESS IS NOT INVOLVED IS SUCH A SITUATION AND, THEREFORE, THERE IS NO AUTHORITY FOR THE PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES.

THE CLAIMANT WAS ORDERED TO FORT SILL, OKLAHOMA, FOR TEMPORARY DUTY UNDER INSTRUCTION WHICH HE COMPLETED ON DECEMBER 20, 1962, AFTER WHICH HE WAS TO TAKE LEAVE AND REPORT TO FORT DIX, NEW JERSEY, FOR TRANSPORTATION TO HIS PERMANENT DUTY STATION OVERSEAS. THE RECORD SHOWS THAT AS A RESULT OF HIS REQUEST FOR DEFERMENT HE WAS RETAINED AT FORT SILL IN A CASUAL DUTY STATUS. THERE IS NO SHOWING THAT MILITARY CONSIDERATIONS WERE INVOLVED IN THE EXTENSION OF HIS ASSIGNMENT AT FORT SILL OR THAT HE WAS HELD THERE FOR THE MILITARY NEEDS OF THE SERVICE. IN THESE CIRCUMSTANCES WE MUST CONCLUDE ON THE RECORD PRESENTED THAT HE WAS HELD THERE FOR NO REASON OTHER THAN HIS REQUEST FOR DEFERMENT. SINCE THE CLAIMANT WAS MERELY HELD IN A CASUAL DUTY STATUS AND MILITARY CONSIDERATIONS DO NOT APPEAR TO HAVE BEEN INVOLVED IN HIS EXTENDED ASSIGNMENT, IT IS NOT ESTABLISHED THAT HE WAS IN A TRAVEL STATUS DURING THE PERIOD IN QUESTION WITHIN THE CONTEMPLATION OF THE GOVERNING REGULATIONS FOR PURPOSES OF ENTITLEMENT TO THE TRAVEL AND TRANSPORTATION ALLOWANCES CLAIMED. SEE 33 COMP. GEN. 196. THUS THE MODIFICATION OF THE ORDERS OF SEPTEMBER 18, 1962, PURPORTING TO AUTHORIZE PER DIEM AFTER DECEMBER 20, 1962, ARE WITHOUT LEGAL EFFECT. ACCORDINGLY THE PAYMENTS OF PER DIEM LIEUTENANT HIGERD RECEIVED FOR THE PERIOD WHILE AT FORT SILL AFTER DECEMBER 20, 1962, WERE IMPROPER, AND A FURTHER PAYMENT FOR SUCH PERIOD IS NOT AUTHORIZED. APPROPRIATE ACTION TO COLLECT THE IMPROPER PAYMENTS SHOULD BE TAKEN.