B-161174, JUN. 7, 1967

B-161174: Jun 7, 1967

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MILITARY PAY DEPARTMENT: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 9. THE OFFICER WAS TO REGARD HIMSELF DETACHED FROM DUTY WITH FLEET TACTICAL SUPPORT SQUADRON TWENTY-FOUR AND TO PROCEED TO A PORT IN THE CONTINENTAL UNITED STATES WHERE HE WAS TO REPORT. HE WAS TO REGARD HIMSELF DETACHED FROM ALL DUTIES AND TO PROCEED TO HIS HOME OF SELECTION. COMMANDER KELLOGG WAS DIRECTED TO REGARD HIMSELF RELEASED FROM ACTIVE DUTY IN THE NAVY EFFECTIVE AUGUST 31. HE WAS TO BE TRANSFERRED TO INACTIVE DUTY ON THE RETIRED LIST OF THE U.S. THAT COMMANDER KELLOGG WAS PAID TRAVEL ALLOWANCES FROM ROTA. THAT HE WAS NOT PAID ANY PER DIEM WHILE ON TEMPORARY DUTY AT COMTHREE. IN VIEW OF THE FACT THAT THE SEPARATION CENTER AT NEW YORK WAS LOCATED NEAR HIS HOME OF RECORD.

B-161174, JUN. 7, 1967

TO DISBURSING OFFICER, MILITARY PAY DEPARTMENT:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 9, 1966, AND ENCLOSURES, FORWARDED HERE ON MARCH 29, 1967, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 67 12) REQUESTING A DECISION AS TO THE LEGALITY OF PAYING ADDITIONAL PER DIEM TO LIEUTENANT COMMANDER EDWARD P. KELLOGG, JR., USN (RET), UNDER THE CIRCUMSTANCES DESCRIBED.

ORDERS DATED JULY 28, 1966, AS MODIFIED, FROM THE CHIEF OF NAVAL PERSONNEL ADVISED COMMANDER KELLOGG THAT REQUEST FOR RETIREMENT HAD BEEN APPROVED BY THE SECRETARY OF THE NAVY, EFFECTIVE SEPTEMBER 1, 1966. THESE ORDERS PROVIDED THAT WHEN DIRECTED BY HIS COMMANDING OFFICER, IN JULY OR AUGUST 1966, THE OFFICER WAS TO REGARD HIMSELF DETACHED FROM DUTY WITH FLEET TACTICAL SUPPORT SQUADRON TWENTY-FOUR AND TO PROCEED TO A PORT IN THE CONTINENTAL UNITED STATES WHERE HE WAS TO REPORT, NOT LATER THAN AUGUST 23 OR EARLIER THAN AUGUST 22, 1966, SUCH DELAY TO COUNT AS LEAVE, TO THE COMMANDING OFFICER FOR TEMPORARY DUTY IN A FLYING STATUS AWAITING HIS RETIREMENT. THESE ORDERS FURTHER PROVIDED THAT UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED BY THE COMMANDING OFFICER ON AUGUST 31, 1966, HE WAS TO REGARD HIMSELF DETACHED FROM ALL DUTIES AND TO PROCEED TO HIS HOME OF SELECTION.

BY SECOND ENDORSEMENT DATED AUGUST 31, 1966, TO THE ORDERS OF JULY 28, 1966, COMMANDER KELLOGG WAS DIRECTED TO REGARD HIMSELF RELEASED FROM ACTIVE DUTY IN THE NAVY EFFECTIVE AUGUST 31, 1966, AND ON SEPTEMBER 1, 1966, HE WAS TO BE TRANSFERRED TO INACTIVE DUTY ON THE RETIRED LIST OF THE U.S. NAVY. THE SECOND ENDORSEMENT STATED THAT HE HAD CHOSEN SAN ANSELMO, CALIFORNIA, AS HIS PERMANENT PLACE OF RESIDENCE AT THE TIME OF HIS RETIREMENT.

YOU SAY IN YOUR LETTER OF DECEMBER 9, 1966, THAT COMMANDER KELLOGG WAS PAID TRAVEL ALLOWANCES FROM ROTA, SPAIN, TO NEW YORK, NEW YORK, INCLUDING TRAVEL PER DIEM TO AUGUST 5, 1966, BUT THAT HE WAS NOT PAID ANY PER DIEM WHILE ON TEMPORARY DUTY AT COMTHREE, NEW YORK, IN VIEW OF THE FACT THAT THE SEPARATION CENTER AT NEW YORK WAS LOCATED NEAR HIS HOME OF RECORD, RICHMOND HILL, QUEENS COUNTY, NEW YORK, WHICH EXISTED AT THE TIME HE WAS CALLED TO ACTIVE DUTY. YOU REQUEST AN ADVANCE DECISION AS TO WHETHER THE PROHIBITION OF PAYMENT OF PER DIEM IN A SEPARATION CASE AS STATED IN THE DECISION OF AUGUST 5, 1953, B-115096, 33 COMP. GEN. 55, IS APPLICABLE IN CONNECTION WITH RETIREMENT ORDERS.

WE HELD IN THE DECISION OF AUGUST 5, 1953, THAT A MEMBER WHO WAS DETACHED FROM ASSIGNED DUTIES AND DIRECTED TO PROCEED FROM HIS OLD STATION TO A NEW STATION WITHIN THE SAME METROPOLITAN AREA AS HIS OFFICIAL RESIDENCE (HOME) FOR TEMPORARY DUTY IN CONNECTION WITH SEPARATION PROCESSING, AND WHO UPON COMPLETION OF THE PROCESSING WAS TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY, IS NOT ENTITLED TO PAYMENT OF PER DIEM INCIDENT TO THE PERFORMANCE OF THE TEMPORARY DUTY.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY AND, ALSO, FOR TRAVEL FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY. THIS SECTION ALSO PROVIDES THAT A MEMBER WHO IS RETIRED UNDER THE CONDITIONS THERE STATED MAY, NOT LATER THAN ONE YEAR FROM THE DATE HE IS SO RETIRED, EXCEPT AS PRESCRIBED IN REGULATIONS BY THE SECRETARIES CONCERNED, SELECT HIS HOME FOR THE PURPOSES OF THE AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS. A MEMBER IS DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM HIS PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING PERIODS OF NECESSARY TEMPORARY DUTY. THE TERM "TEMPORARY DUTY" IS CONSTRUED TO MEAN DUTY AT A LOCATION OTHER THAN A PERMANENT STATION UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. PARAGRAPH M3003 OF THE REGULATIONS DEFINES THE TERM PERMANENT CHANGE OF STATION AS THE TRANSFER OR ASSIGNMENT FROM ONE PERMANENT STATION TO ANOTHER, INCLUDING THE CHANGE FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON RELEASE FROM ACTIVE DUTY.

THE DECISION OF AUGUST 5, 1953, CITED BY YOU, INVOLVED A MEMBER WHOSE HOME AND LAST DUTY STATION, THE PLACE WHERE HE WAS SEPARATED FROM THE SERVICE, WERE IN THE SAME METROPOLITAN AREA AND ON THE RECORD HIS TRAVEL STATUS FOR THE PURPOSES OF TRAVEL ALLOWANCES TERMINATED WHEN HE ARRIVED AT HIS LAST DUTY STATION. THE HOME SELECTED BY COMMANDER KELLOGG INCIDENT TO HIS RETIREMENT, SAN ANSELMO, CALIFORNIA, AND HIS LAST DUTY STATION, NEW YORK, NEW YORK, HOWEVER, ARE NOT SO SITUATED. CONSEQUENTLY, THAT DECISION IS NOT FOR APPLICATION IN HIS CASE.

SINCE UNDER THE LAW AND REGULATIONS, COMMANDER KELLOGG'S TRAVEL STATUS DID NOT TERMINATE UNTIL HE ARRIVED AT HIS HOME, HE IS ENTITLED TO PER DIEM FOR THE PERIOD OF HIS TEMPORARY DUTY AT NEW YORK.

THE ENCLOSURES TO YOUR LETTER OF DECEMBER 9, 1966, INCLUDING THE ORIGINAL ORDERS OF COMMANDING KELLOGG, ARE RETURNED HEREWITH.