B-155430, NOVEMBER 24, 1964, 44 COMP. GEN. 310

B-155430: Nov 24, 1964

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THE OFFICER NOT HAVING BEEN FURNISHED THE QUARTERS AND MESSING FACILITIES CONTEMPLATED BY PARAGRAPH 4201 OF THE JOINT TRAVEL REGULATIONS FOR THE PERIOD OF TEMPORARY DUTY BECAUSE THE STAFF TO WHICH HE HAD BEEN ATTACHED WAS PHYSICALLY LOCATED ASHORE IS ENTITLED TO PER DIEM FOR THE DURATION OF THE TEMPORARY DUTY. THE STATION FROM WHICH HE WAS DETACHED TO COMPLY WITH HIS TEMPORARY DUTY ORDERS HAVING REMAINED HIS PERMANENT DUTY STATION FOR THE PERIOD OF TEMPORARY DUTY PERFORMED PRIOR TO DISCHARGE. SUCH DUTY HAVING BEEN LIMITED TO THE PERIOD NECESSARY TO EFFECT A FURTHER ASSIGNMENT IS NOT CONSIDERED OF INDETERMINATE DURATION. 1964: FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 6. FROM THE UNDER SECRETARY OF THE NAVY IN EFFECT REQUESTING A DECISION WHETHER AN OFFICER OF THE NAVY WHO IS DETACHED FROM HIS PERMANENT STATION UNDER ORDERS DIRECTING HIM TO PROCEED TO A STATION FOR TEMPORARY DUTY AWAITING FURTHER ASSIGNMENT BY THE BUREAU OF NAVAL PERSONNEL IS IN A STATUS ENTITLING HIM TO PER DIEM AT THE TEMPORARY DUTY LOCATION.

B-155430, NOVEMBER 24, 1964, 44 COMP. GEN. 310

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - SUBSEQUENT PERMANENT STATION REQUIREMENT ALTHOUGH ORDERS DETACHING A NAVY OFFICER FROM HIS PERMANENT DUTY STATION DIRECTED "TEMPORARY DUTY AFLOAT" AWAITING FURTHER ASSIGNMENT, THE OFFICER NOT HAVING BEEN FURNISHED THE QUARTERS AND MESSING FACILITIES CONTEMPLATED BY PARAGRAPH 4201 OF THE JOINT TRAVEL REGULATIONS FOR THE PERIOD OF TEMPORARY DUTY BECAUSE THE STAFF TO WHICH HE HAD BEEN ATTACHED WAS PHYSICALLY LOCATED ASHORE IS ENTITLED TO PER DIEM FOR THE DURATION OF THE TEMPORARY DUTY, THE STATION FROM WHICH HE WAS DETACHED TO COMPLY WITH HIS TEMPORARY DUTY ORDERS HAVING REMAINED HIS PERMANENT DUTY STATION FOR THE PERIOD OF TEMPORARY DUTY PERFORMED PRIOR TO DISCHARGE, EVEN THOUGH HIS ORDERS CONTEMPLATED ANOTHER PERMANENT ASSIGNMENT AT THE EXPIRATION OF THE TEMPORARY DUTY, AND SUCH DUTY HAVING BEEN LIMITED TO THE PERIOD NECESSARY TO EFFECT A FURTHER ASSIGNMENT IS NOT CONSIDERED OF INDETERMINATE DURATION.

TO THE SECRETARY OF THE NAVY, NOVEMBER 24, 1964:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 6, 1964, FROM THE UNDER SECRETARY OF THE NAVY IN EFFECT REQUESTING A DECISION WHETHER AN OFFICER OF THE NAVY WHO IS DETACHED FROM HIS PERMANENT STATION UNDER ORDERS DIRECTING HIM TO PROCEED TO A STATION FOR TEMPORARY DUTY AWAITING FURTHER ASSIGNMENT BY THE BUREAU OF NAVAL PERSONNEL IS IN A STATUS ENTITLING HIM TO PER DIEM AT THE TEMPORARY DUTY LOCATION. TO ILLUSTRATE THE PROBLEM YOU CITE THE CASE OF ENSIGN JAMES D. PENCE, USNR, 645957. THE REQUEST WAS ASSIGNED CONTROL NO. 64-32 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

ORDERS ISSUED ON JANUARY 28, 1963, BY THE COMMANDING OFFICER, U.S.S. MONTROSE (APA 212) BASED ON A BUREAU OF NAVAL PERSONNEL MESSAGE, DETACHED ENSIGN PENCE FROM DUTY ON BOARD THAT VESSEL AND DIRECTED HIM TO PROCEED AND REPORT TO COMPHIBPAC AT SAN DIEGO FOR "TEMPORARY DUTY AFLOAT" AWAITING FURTHER ASSIGNMENT BY BUREAU OF NAVAL PERSONNEL. IT APPEARS THAT SINCE, UNDER THE PROVISIONS OF ITEM 8 OF PARAGRAPH 4201 OF THE JOINT TRAVEL REGULATIONS, PER DIEM IS NOT PAYABLE FOR ANY PERIOD OF TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL WHEN BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES ARE AVAILABLE, AND SINCE THE ORDERS DESIGNATED TEMPORARY DUTY AFLOAT, THE LOCAL DISBURSING OFFICER REFUSED TO PAY ENSIGN PENCE'S CLAIM FOR PER DIEM. HOWEVER, INFORMATION SUBSEQUENTLY WAS RECEIVED FROM THE COMMANDER AMPHIBIOUS FORCE, U.S. PACIFIC FLEET, THAT DURING THE PERIOD ENSIGN PENCE WAS ASSIGNED TO THE STAFF IN A TEMPORARY DUTY AFLOAT STATUS, COMPHIBPAC STAFF WAS PHYSICALLY LOCATED ASHORE AT U.S. NAVAL AMPHIBIOUS BASE, CORONADO, SAN DIEGO, CALIFORNIA. THUS, THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS MENTIONED ABOVE ARE NOT APPLICABLE.

A CLAIM FOR THE PER DIEM WAS SUBMITTED TO OUR CLAIMS DIVISION BY ENSIGN PENCE AND WAS DISALLOWED BY SETTLEMENT DATED JUNE 2, 1964, IN PERTINENT PART, AS FOLLOWS:

YOUR ORDERS OF 28 JANUARY 1963, SHOW YOUR ASSIGNMENT TO COMPHIBPAC AS TEMPORARY DUTY. HOWEVER, THE PERIOD OF SUCH DUTY IS NOT INDICATED AND NEITHER DID SUCH ORDERS DIRECT YOUR RETURN TO THE USS MONTROSE TO RESUME YOUR PERMANENT DUTIES, NOR DID THEY DIRECT AN ASSIGNMENT TO A NEW PERMANENT DUTY STATION, UPON COMPLETION OF THE "TEMPORARY DUTY" THEREIN DIRECTED.

UNDER THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT COMPHIBPAC WAS YOUR DESIGNATED POST OF DUTY WHILE YOU WERE AT THAT PLACE AND THAT NO RIGHT TO PER DIEM ACCRUED FOR THE DUTY PERFORMED UNDER THE ORDERS OF 23 (28 JANUARY 1963. ACCORDINGLY, NO PAYMENT MAY BE MADE IN CONNECTION WITH YOUR CLAIM.

THE UNDER SECRETARY EXPRESSES THE BELIEF THAT THE DISALLOWANCE WAS PREDICATED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245. HE SAYS THAT SUCH DECISION IS NOT APPLICABLE TO THE PRESENT CASE SINCE IT WAS CONCERNED ONLY WITH TEMPORARY DUTY INCIDENT TO ORDERS CALLING A MEMBER TO ACTIVE DUTY FROM HIS HOME WITHOUT DESIGNATING A SUBSEQUENT PERMANENT STATION, THE COURT HOLDING IN THOSE CIRCUMSTANCES THAT INASMUCH AS THE MEMBER'S HOME WAS NOT A PERMANENT DUTY STATION, HIS TEMPORARY DUTY STATION WAS HIS ONLY DESIGNATED POST OF DUTY AND, THEREFORE, HE COULD NOT BE IN A TRAVEL STATUS WHILE AT SUCH TEMPORARY DUTY STATION. THE UNDER SECRETARY STATES THAT IN THE PRESENT CASE, ENSIGN PENCE DID HAVE A PERMANENT STATION HE WAS AWAY FROM--- THE U.S.S. MONTROSE--- AND THAT HE WAS, THEREFORE, IN A TRAVEL STATUS WHILE ON TEMPORARY DUTY WITH COMMANDER AMPHIBIOUS FORCE, U.S. PACIFIC FLEET. ALSO, THERE HAS BEEN FURNISHED A COPY OF HONORABLE DISCHARGE ORDERS DATED APRIL 29, 1963, WITH ENDORSEMENTS, SHOWING THAT ENSIGN PENCE REMAINED ON TEMPORARY DUTY WITH COMMANDER AMPHIBIOUS FORCE, U.S. PACIFIC FLEET, UNTIL HIS DISCHARGE ON MAY 10, 1963.

THE PERTINENT STATUTE, 37 U.S.C. 404 (A), PROVIDES 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 PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS 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 THAT 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 REGULATION 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 A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.'

THE U.S.S. MONTROSE WAS ENSIGN PENCE'S PERMANENT STATION AND WE SEE NO SOUND BASIS FOR A CONCLUSION THAT UPON HIS DETACHMENT FROM DUTY AT THAT STATION TO PERMIT HIM TO COMPLY WITH HIM TEMPORARY DUTY ORDERS, IT CEASED TO BE HIS PERMANENT STATION, EVEN THOUGH HIS ORDERS CONTEMPLATED THAT HE WOULD BE ASSIGNED ANOTHER PERMANENT STATION AT THE EXPIRATION OF HIS TEMPORARY DUTY. APPARENTLY BECAUSE IT WAS DETERMINED THAT HE WOULD NOT BE AT HIS INTERIM STATION FOR MORE THAN SIX MONTHS, HIS ORDERS PROVIDED FOR TEMPORARY DUTY UNDER THE NAVY PRACTICE DISCUSSED IN DECISION OF AUGUST 21, 1963, B-151951, 43 COMP. GEN. 185, AFFIRMED UNDER B-151951, JANUARY 31, 1964. ALSO, SINCE HIS ORDERS PROVIDED FOR FURTHER ASSIGNMENT BY THE BUREAU OF NAVAL PERSONNEL THE NATURE OF THE TEMPORARY DUTY ASSIGNMENT WAS ANALOGOUS TO THAT CONSIDERED IN THE AUGUST 21, 1963, DECISION IN THAT THE DURATION OF THE DUTY WAS LIMITED TO THE PERIOD NECESSARY TO EFFECT SUCH FURTHER ASSIGNMENT AND, THEREFORE, WAS NOT INDETERMINATE. SEE DECISION OF DECEMBER 4, 1963, B-152690, 43 COMP. GEN. 474.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE. APPROPRIATE INSTRUCTIONS HAVE BEEN ISSUED FOR ALLOWANCE OF THE CLAIM OF ENSIGN PENCE IN THE AMOUNT PROPERLY DUE.