B-161259, JUN. 21, 1967

B-161259, JUN. 21, 1967

TO THE SECRETARY OF THE NAVY:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 3, 1967, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION WHETHER TEMPORARY LODGING ALLOWANCES FROM FEBRUARY 4 TO 8, 1966, INCLUSIVE, OR PER DIEM FROM FEBRUARY 1 TO 8, 1966, INCLUSIVE, MAY BE PAID TO CHIEF PETTY OFFICER JOSEPH GUTIERREZ IN THE CIRCUMSTANCES OF HIS CASE. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 67-14, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

CHIEF PETTY OFFICER GUTIERREZ, WHILE ON PERMANENT DUTY WITH PATROL SQUADRON 28, WHICH HAS A PERMANENT DUTY STATION AT BARBER'S POINT, HAWAII, WAS DEPLOYED ON OR ABOUT OCTOBER 28, 1965, ON TEMPORARY ADDITIONAL DUTY WITH THE SQUADRON TO SANGLEY POINT, PHILIPPINES, FOR A PERIOD OF ABOUT 180 DAYS. WHILE ON THIS TEMPORARY ADDITIONAL DUTY, HE WAS DIRECTED BY STANDARD TRANSFER ORDER NO. 146-65 ON NOVEMBER 29, 1965, TO REPORT TO COMMANDER PATROL SQUADRON 30 AT ITS PERMANENT DUTY STATION AT PATUXENT RIVER, MARYLAND, WITH INTERVENING TEMPORARY DUTY WITH FLEET AIR WING TWO, WHOSE PERMANENT DUTY STATION IS ALSO BARBER'S POINT, HAWAII. THE ORDERS AUTHORIZED 10 DAYS' TRAVEL TIME, 4 DAYS' PROCEED TIME AND 30 DAYS' DELAY TO COUNT AS LEAVE. EF THE UNDER SECRETARY SAYS CHIEF GUTIERREZ REPORTED TO COMMANDER FLEET AIR WING TWO ON FEBRUARY 2, 1966, AND ON FEBRUARY 4, 1966, HE AND HIS WIFE MOVED INTO HOTEL ACCOMMODATIONS WHICH THEY OCCUPIED UNTIL FEBRUARY 9, 1966, WHEN THEY DEPARTED BARBER'S POINT. ALSO, HE SAYS THAT CHIEF GUTIERREZ ARRIVED AT AND DEPARTED FROM TRAVIS AIR FORCE BASE, CALIFORNIA, ON FEBRUARY 10, 1966, THAT HE USED AUTHORIZED LEAVE, PROCEED AND ADDITIONAL TRAVEL TIME AFTER ARRIVAL AT TRAVIS AIR FORCE BASE AND REPORTED TO PATROL SQUADRON 30 ON MARCH 24, 1966, AT PATUXENT RIVER, MARYLAND.

THE UNDER SECRETARY STATES THAT INASMUCH AS CHIEF GUTIERREZ WAS DETACHED FROM PATROL SQUADRON 28 WHILE ON TEMPORARY ADDITIONAL DUTY AWAY FROM THE PERMANENT DUTY STATION OF HIS SQUADRON AND WAS DIRECTED BY PERMANENT CHANGE OF STATION ORDERS TO PERFORM TEMPORARY DUTY WITH ANOTHER COMMAND AT THE LOCATION OF THE SQUADRON'S PERMANENT DUTY STATION, DOUBT ARISES AS TO WHETHER HE IS ENTITLED TO TEMPORARY LODGING ALLOWANCES FOR THE PERIOD FROM FEBRUARY 4 TO 8, INCLUSIVE, OR TO PER DIEM FOR THE PERIOD FEBRUARY 1 TO 8 INCLUSIVE.

THE UNDER SECRETARY FURTHER SAYS THAT IF IT IS DETERMINED THAT TEMPORARY LODGING ALLOWANCES ARE NOT PAYABLE TO THE MEMBER BUT THAT PER DIEM IS PAYABLE, QUESTION ARISES AS TO WHETHER OR NOT PER DIEM MAY BE PAID ON THE BASIS OF THE NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESSING FACILITIES TO BOTH CHIEF GUTIERREZ AND HIS WIFE UNDER THE PROVISIONS OF PARAGRAPH M4451-1, ITEM 3, OF THE JOINT TRAVEL REGULATIONS. IN THIS CONNECTION HE ADDS THAT COMMANDER FLEET AIR WING TWO ENDORSED THE ORDERS OF NOVEMBER 29, 1965: "GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO YOU BUT NOT YOUR DEPENDENTS WHILE ATTACHED TO THIS COMMAND.'

AS TO REGULATIONS BEARING ON THE MATTER THE UNDER SECRETARY POINTS OUT THAT PARAGRAPH M4303-2D OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE PERIOD OF TEMPORARY LODGING ALLOWANCES UPON DEPARTURE FROM A PERMANENT DUTY STATION WILL BE THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER IN COMPLIANCE WITH PERMANENT CHANGE OF STATION ORDERS; ALSO, THAT PARAGRAPH M4250, ITEM 6, OF THE REGULATIONS PROVIDES THAT THE PER DIEM IS NOT PAYABLE FOR ANY PERIOD PRIOR TO DEPARTURE FROM A SHIP OR PRIOR TO THE DAY OF DEPARTURE FROM THE LIMITS OF THE PERMANENT DUTY STATION.

PARAGRAPH M4156, CASE 12, OF THE JOINT TRAVEL REGULATIONS, PROVIDES IN PART THAT A MEMBER WHO RECEIVES ORDERS AT HIS TEMPORARY STATION DIRECTING A PERMANENT CHANGE OF STATION TO A PLACE OTHER THAN THE TEMPORARY DUTY STATION EFFECTIVE DURING THE PERIOD OF THE TEMPORARY DUTY, WILL BE ENTITLED TO PERMANENT CHANGE OF STATION ALLOWANCES FROM THE PLACE OF RECEIPT OF ORDERS TO HIS NEW PERMANENT STATION NOT TO EXCEED THAT PAYABLE FROM THE TEMPORARY STATION TO THE NEW PERMANENT STATION. THE ORDERS OF NOVEMBER 29, 1965, WERE RECEIVED BY THE MEMBER AT HIS TEMPORARY STATION, SANGLEY POINT, AND DIRECTED A PERMANENT CHANGE OF STATION TO A PLACE OTHER THAN THE TEMPORARY DUTY STATION EFFECTIVE DURING THE PERIOD OF TEMPORARY ADDITIONAL DUTY. HENCE, UNDER THE PROVISIONS OF CASE 12, CHIEF GUTIERREZ BECAME ENTITLED TO PERMANENT CHANGE OF STATION ALLOWANCES UPON DEPARTURE FROM SANGLEY POINT. IT FOLLOWS THAT HE IS TO BE REGARDED AS HAVING BEEN DETACHED FROM THE OLD PERMANENT STATION WHEN HE DEPARTED SANGLEY POINT IN COMPLIANCE WITH HIS ORDERS.

A MEMBER WHO IS DETACHED FROM HIS OLD PERMANENT STATION UNDER ORDERS DIRECTING A PERMANENT CHANGE OF STATION AND WHILE IN A TRAVEL STATUS AWAY FROM THE OLD PERMANENT STATION IS REQUIRED TO RETURN TO THE OLD PERMANENT STATION FOR TEMPORARY DUTY EN ROUTE TO THE NEW PERMANENT STATION IS ENTITLED TO PER DIEM FOR TEMPORARY DUTY AT THAT PLACE. SEE B-127359 OF MARCH 29, 1956, COPY ENCLOSED. COMPARE 43 COMP. GEN. 185, AFFIRMED BY B- 151951 OF JANUARY 31, 1964, COPY ENCLOSED, AND 44 COMP. GEN. 310. ACCORDINGLY, IT IS OUR VIEW THAT CHIEF GUTIERREZ IS ENTITLED TO PER DIEM FOR THE PERIOD OF TEMPORARY DUTY AT BARBER'S POINT.

PARAGRAPH 4451-1, ITEM 3, OF THE JOINT TRAVEL REGULATIONS (CHANGE 130, OCTOBER 1, 1963), PROVIDES THAT WHEN, IN CONNECTION WITH A PERMANENT CHANGE OF STATION TO OR FROM STATIONS OUTSIDE THE UNITED STATES, THE MEMBER IS ACCOMPANIED BY HIS DEPENDENTS WHO HAVE BEEN AUTHORIZED TO TRAVEL WITH HIM, THE FAMILY UNIT SHOULD BE KEPT TOGETHER AND AT PORTS OF EMBARKATION OR DEBARKATION WHEN GOVERNMENT QUARTERS OR GOVERNMENT MESS OR BOTH ARE NOT AVAILABLE TO BOTH THE MEMBER AND HIS DEPENDENTS, THE COMMANDING OFFICER WILL FURNISH THE MEMBER A STATEMENT THAT SUCH FACILITIES WERE NOT AVAILABLE.

BY ITS OWN TERMS, THAT REGULATION RELATES TO QUARTERS AND MESSING FACILITIES AT PORTS OF EMBARKATION OR DEBARKATION AND HAS NO APPLICATION TO PERIODS OF TEMPORARY DUTY AT INTERVENING TEMPORARY DUTY STATIONS WHEN THE MEMBER IS ACCOMPANIED BY HIS DEPENDENTS. SINCE IN THE PRESENT CASE BARBER'S POINT WAS A TEMPORARY DUTY STATION, THERE APPEARS TO BE NO BASIS FOR THE VIEW THAT THE ENDORSEMENT ON THE ORDER OF NOVEMBER 29, 1965, THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO THE MEMBER BUT NOT HIS DEPENDENT IS IN CONFLICT WITH THE REGULATIONS. THE MEMBER'S PER DIEM SHOULD BE COMPUTED ACCORDINGLY.

PARAGRAPH M4303-2D OF THE JOINT TRAVEL REGULATIONS AUTHORIZES PAYMENT OF TEMPORARY LODGING ALLOWANCE FOR THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE FROM THE PERMANENT DUTY STATION, EXCEPT WHEN DEPENDENTS REMAIN AFTER THE DEPARTURE OF THE MEMBER, THE PERIOD OF ENTITLEMENT WILL BE THE LAST 10 DAYS PRIOR TO DEPARTURE OF THE LAST DEPENDENT IF NOT LATER THAN 60 DAYS AFTER THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION ORDERS. EVEN THOUGH THE MEMBER MUST BE CONSIDERED TO HAVE DEPARTED THE PERMANENT STATION NO LATER THAN THE DATE ON WHICH HE DEPARTED SANGLEY POINT, THE LEAVE AND TRAVEL TIME AUTHORIZED IN HIS ORDERS HAD THE EFFECT OF DELAYING THEIR EFFECTIVE DATE UNTIL AFTER FEBRUARY 9, THE DATE OF DEPARTURE OF HIS WIFE, AND, WE HAVE HELD THAT A MEMBER MAY BE PAID OTHERWISE PROPER STATION ALLOWANCES WHERE TEMPORARY DUTY IS PERFORMED AT THE PERMANENT DUTY STATION. 40 COMP. GEN. 271, 275. SINCE THE MEMBER AND HIS WIFE MOVED INTO A HOTEL AT BARBER'S POINT, THE LOCATION OF THE OLD PERMANENT STATION, ON FEBRUARY 4 AND DEPARTED FEBRUARY 9, 1966, TEMPORARY LODGING ALLOWANCE MAY BE PAID FOR THE PERIOD FEBRUARY 4 TO 8, 1966, INCLUSIVE.

WITH REGARD TO COMPUTING THE TEMPORARY LODGING ALLOWANCE, PARAGRAPH 4303- 3A OF THE JOINT TRAVEL REGULATIONS CURRENTLY PROVIDES THAT THE MEMBER HIMSELF WILL NOT BE COUNTED FOR ANY DAY DURING WHICH HE IS ENTITLED TO A PER DIEM ALLOWANCE, WITH NO DEDUCTION FOR QUARTERS. THAT PROVISION APPEARS TO HAVE BEEN INCORPORATED IN THE REGULATIONS AFTER THE PERIOD HERE INVOLVED. SINCE, HOWEVER, THE TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION ALLOWANCE, THE PROVISION CAN HAVE NO APPLICATION IN THE CASE OF DUTY AT A TEMPORARY DUTY STATION AFTER DEPARTURE FROM THE PERMANENT STATION, NOTWITHSTANDING THE TEMPORARY DUTY STATION IS THE SAME AS THE OLD PERMANENT STATION OF THE MEMBER AND, BY VIRTUE OF THE REGULATIONS, A RIGHT TO TEMPORARY LODGING ALLOWANCE FOR DEPENDENTS AT THE OLD PERMANENT STATION CONTINUES. CONSEQUENTLY, THE MEMBER MAY NOT BE COUNTED IN COMPUTING THE TEMPORARY LODGING ALLOWANCE. SEE 41 COMP. GEN. 144.