B-162045, AUG. 29, 1967

B-162045: Aug 29, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OFFICER WHO WAS DISCHARGED FROM AN ENLISTED STATUS AND APPOINTED AS AN OFFICER FOR TEMPORARY DUTY AT SAME STATION MAY NOT BE PAID PER DIEM FOR TEMPORARY DUTY AT OLD PERMANENT STATION ON BASIS THAT THERE WAS BREAK IN SERVICE. MEMBER SHOULD NOT HAVE BEEN REQUIRED TO PAY QUARTERS SERVICE CHARGE. IF BECAUSE OF TEMPORARY DUTY MEMBER WAS CHARGED FOR MEALS AT HIGHER RATE THAN OTHER OFFICERS ASSIGNED FOR PERMANENT DUTY. USAR: REFERENCE IS MADE TO YOUR LETTER DATED JULY 3. THE RECORD SHOWS THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES AS AN ENLISTED MEMBER ON FEBRUARY 15. WHILE YOU WERE SERVING AS PRIVATE. ORDERS WERE ADDRESSED TO YOU AS SECOND LIEUTENANT. UPON COMPLETION OF WHICH YOU WERE TO REPORT TO U.S.

B-162045, AUG. 29, 1967

PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY AT OLD STATION DECISION TO ARMY RESERVE OFFICER CONCERNING CLAIM FOR PER DIEM FOR TEMPORARY DUTY AT PERMANENT STATION. OFFICER WHO WAS DISCHARGED FROM AN ENLISTED STATUS AND APPOINTED AS AN OFFICER FOR TEMPORARY DUTY AT SAME STATION MAY NOT BE PAID PER DIEM FOR TEMPORARY DUTY AT OLD PERMANENT STATION ON BASIS THAT THERE WAS BREAK IN SERVICE. ALTHOUGH ORDERS DIRECTED MEMBER TO REPORT FOR TEMPORARY DUTY ON MAY 23, THEY ORDERED MEMBER TO ACTIVE DUTY ON MAY 21, FOLLOWING DISCHARGE THE PRECEDING DAY. HENCE, NO BREAK IN SERVICE FOR PER DIEM. WITH RESPECT TO ADDITIONAL EXPENSES WHILE NOT IN PER DIEM STATUS, MEMBER SHOULD NOT HAVE BEEN REQUIRED TO PAY QUARTERS SERVICE CHARGE. IF BECAUSE OF TEMPORARY DUTY MEMBER WAS CHARGED FOR MEALS AT HIGHER RATE THAN OTHER OFFICERS ASSIGNED FOR PERMANENT DUTY, CLAIM FOR REFUND FOR SUCH EXCESS AMOUNTS SUPPORTED BY RECEIPTS MAY BE MADE.

TO FIRST LIEUTENANT GEORGE R. LACKEY, USAR:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1967, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED JUNE 28, 1967, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD FROM MAY 23 TO JULY 28, 1966.

THE RECORD SHOWS THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES AS AN ENLISTED MEMBER ON FEBRUARY 15, 1966. ON MAY 13, 1966, WHILE YOU WERE SERVING AS PRIVATE, E-2, ORDERS WERE ADDRESSED TO YOU AS SECOND LIEUTENANT, UNITED STATES ARMY RESERVE, ORDERING YOU TO ACTIVE DUTY AS A RESERVE OFFICER EFFECTIVE MAY 21, 1966, AND DIRECTING THAT YOU BE DISCHARGED FROM YOUR ENLISTED STATUS THE PRECEDING DAY. THE ORDERS ASSIGNED YOU TO THE MEDICAL FIELD SERVICE SCHOOL, BAMC, FORT SAM HOUSTON, TEXAS, FOR TEMPORARY DUTY OF APPROXIMATELY 9 WEEKS, UPON COMPLETION OF WHICH YOU WERE TO REPORT TO U.S. ARMY MEDICAL UNIT, FORT DETRICK, MARYLAND, FOR DUTY. YOU WERE DIRECTED TO REPORT FOR TEMPORARY DUTY ON MAY 23, 1966. THE RECORD SHOWS FURTHER THAT ON MAY 20, 1966, YOU WERE DISCHARGED AT FORT SAM HOUSTON WHICH IS REPORTED TO HAVE BEEN YOUR PERMANENT STATION AT TIME OF DISCHARGE.

IT APPEARS THAT AS A COMMISSIONED OFFICER YOU WERE AT FORT SAM HOUSTON FROM THE TIME YOU ENTERED ON ACTIVE DUTY THROUGH JULY 28, 1966, AND THAT YOU DEPARTED THAT STATION AT 0900 JULY 29, ARRIVING AT FORT DETRICK, MARYLAND, ON AUGUST 6, 1966. QUARTERS WERE AVAILABLE FROM MAY 23 THROUGH JUNE 30, 1966, AND FOR THAT PERIOD YOU WERE CHARGED A BACHELOR OFFICERS' QUARTERS FEE IN THE SUM OF $17. GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR THE PERIOD FROM JULY 1 TO 28, 1966.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JUNE 28, 1967, FOR THE REASON THAT THE ORDERS OF MAY 13, 1966, APPEARED TO EFFECT A PERMANENT CHANGE OF STATION FROM FORT SAM HOUSTON, TEXAS, WHERE YOU WERE ON DUTY AS AN ENLISTED MEMBER, TO FORT DETRICK, MARYLAND, AS AN OFFICER, WITH TEMPORARY DUTY EN ROUTE AT FORT SAM HOUSTON AND THAT PER DIEM ALLOWANCE WAS NOT PAYABLE PRIOR TO YOUR DEPARTURE FROM THE LIMITS OF FORT SAM HOUSTON, YOUR PERMANENT DUTY STATION.

IN YOUR LETTER OF JULY 3, 1967, YOU STATED THAT YOU WERE DISCHARGED ON MAY 20, 1966, AND REPORTED AT THE MEDICAL FIELD SERVICE SCHOOL, FORT SAM HOUSTON, TEXAS, ON MAY 23, 1966. YOU STATED FURTHER THAT YOU WERE NOT ABLE TO SECURE QUARTERS ON THE POST FOLLOWING YOUR DISCHARGE AND WERE COMPELLED TO LEAVE THE POST TO OBTAIN LODGING. FURTHER, YOU STATED THAT WHILE YOU WERE ON TEMPORARY DUTY YOU WERE NOT ALLOWED THE BENEFITS OF A PERMANENT CHANGE OF STATION WHICH INCLUDED REDUCED RATES IN THE MESS HALLS AND BACHELOR OFFICERS' QUARTERS. YOU THEREFORE CONTEND YOU SHOULD BE PAID PER DIEM OR BE REIMBURSED FOR THE ADDITIONAL EXPENSES INCURRED.

SECTION 404 (A), TITLE 37, U.S.C. PROVIDES IN PERTINENT PART 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 COMPETENT ORDERS WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH M3003-2A, JOINT TRAVEL REGULATIONS, PROMULGATED THEREUNDER AND IN EFFECT DURING THE PERIOD INVOLVED, DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT A LOCATION OTHER THAN A PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR RETURN TO THE OLD STATION. PARAGRAPH M3050-1, OF THE SAME REGULATIONS, PROVIDES THAT MEMBERS OF THE ARMED FORCES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, INCLUDING PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH M4201-4, OF THE REGULATIONS, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD PRIOR TO THE DAY OF DEPARTURE FROM THE LIMITS OF THE PERMANENT DUTY STATION AS DEFINED IN PARAGRAPH M1150-10, OR FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION OTHER THAN THAT AUTHORIZED FOR THE DAY OF RETURN TO THE PERMANENT DUTY STATION UNDER PARAGRAPH M4205, JOINT TRAVEL REGULATIONS.

AT THE TIME YOU WERE ORDERED TO EXTENDED ACTIVE DUTY AS AN OFFICER UNDER ORDERS OF MAY 13, 1966, YOU WERE IN THE SERVICE IN AN ENLISTED STATUS. YOUR DISCHARGE ON MAY 20, 1966, WAS AUTHORIZED FOR THE PURPOSE OF PERMITTING YOU TO CONTINUE IN THE SERVICE IN A COMMISSIONED OFFICER STATUS. THEREFORE, THE NET EFFECT OF THE ORDERS OF MAY 13, 1966, WAS TO TERMINATE YOUR ENLISTED STATUS AND CONTINUE YOU ON ACTIVE DUTY AS AN OFFICER AT FORT SAM HOUSTON, TEXAS, FORT DETRICK, MARYLAND, BEING ASSIGNED AS A NEW PERMANENT DUTY STATION, WITH TEMPORARY DUTY TO BE PERFORMED AT YOUR OLD STATION PRIOR TO DEPARTURE. SINCE YOU DID NOT DEPART FROM THE LIMITS OF YOUR OLD PERMANENT DUTY STATION PURSUANT TO ORDERS UNTIL JULY 29, 1966, AFTER YOU COMPLETED YOUR TEMPORARY DUTY ASSIGNMENT, NO RIGHT ACCRUED UNDER THE APPLICABLE STATUTE AND REGULATIONS FOR PAYMENT OF PER DIEM FOR TEMPORARY DUTY PERFORMED PRIOR TO YOUR DEPARTURE.

IT SEEMS TO BE YOUR VIEW THAT SINCE YOU WERE DISCHARGED ON FRIDAY, MAY 20, 1966, AND DID NOT REPORT FOR THE ASSIGNED TEMPORARY DUTY UNTIL THE FOLLOWING MONDAY, MAY 23, YOUR ACTIVE DUTY STATUS AT FORT SAM HOUSTON AS AN ENLISTED MAN AND RESERVE OFFICER WAS NOT CONTINUOUS. CONSEQUENTLY, YOU APPARENTLY FEEL THAT YOU SHOULD BE CONSIDERED AS SERVING ON TEMPORARY DUTY AT THE MEDICAL FIELD SERVICE SCHOOL AS AN OFFICER UNDER A SEPARATE ASSIGNMENT FOLLOWING A BREAK IN SERVICE ENTITLING YOU TO PER DIEM FOR SUCH PERIOD. WHILE THE ORDERS OF MAY 13, 1966, DIRECTED THAT YOU REPORT FOR THE ASSIGNED TEMPORARY DUTY ON MAY 23, THEY ALSO ORDERED YOU TO ACTIVE DUTY EFFECTIVE MAY 21 AND DIRECTED THAT YOU BE DISCHARGED THE PRECEDING DAY. UNDOUBTEDLY, YOUR ACTIVE DUTY STATUS AS AN OFFICER COMMENCED ON MAY 21 FOLLOWING YOUR DISCHARGE AND NO DOUBT YOU RECEIVED PAY ON THAT BASIS. THUS, THE FACT THAT YOU WERE NOT REQUIRED TO REPORT FOR THE ASSIGNED DUTY UNTIL THE MONDAY FOLLOWING YOUR DISCHARGE AFFORDS NO GROUNDS FOR THE VIEW THAT YOUR ACTIVE DUTY STATUS AS AN ENLISTED MAN AND AS AN OFFICER AT FORT SAM HOUSTON WAS NOT CONTINUOUS. ACCORDINGLY, THE SETTLEMENT DATED JUNE 28, 1967, INSOFAR AS IT PERTAINED TO YOUR RIGHT TO PER DIEM, IS SUSTAINED. SEE 34 COMP. GEN. 427; B-130840, APRIL 2, 1957, COPY ENCLOSED.

WITH RESPECT TO YOUR ENTITLEMENT TO REIMBURSEMENT FOR ADDITIONAL EXPENSES INCURRED, SINCE YOU WERE NOT IN A PER DIEM STATUS WHILE AT FORT SAM HOUSTON, YOU SHOULD NOT HAVE BEEN REQUIRED TO PAY THE $17 QUARTERS SERVICE CHARGE. FURTHER, IF NOT ALREADY CREDITED, YOU APPARENTLY ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM JULY 1 TO 28, 1966, WHEN YOU WERE NOT ASSIGNED QUARTERS. OFFICERS ARE ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE AT ALL TIMES ON A MONTHLY BASIS AND ARE REQUIRED TO PAY FOR MEALS FURNISHED. IF, HOWEVER, BECAUSE OF YOUR TEMPORARY DUTY ASSIGNMENT YOU WERE CHARGED FOR MEALS AT A RATE HIGHER THAN OTHER OFFICERS ASSIGNED THERE FOR PERMANENT DUTY, YOU MAY PRESENT A CLAIM FOR REFUND OF SUCH EXCESS AMOUNT SUPPORTED BY RECEIPTS OR OTHER EVIDENCE SHOWING THE AMOUNT YOU PAID FOR SUCH MEALS.

ANY CLAIM FOR REIMBURSEMENT ON THE BASIS INDICATED ABOVE SHOULD BE PRESENTED TO THE DEPARTMENT OF THE ARMY, BUT IF THE MATTER IS NOT SATISFACTORILY SETTLED A CLAIM WITH SUPPORTING EVIDENCE MAY BE FORWARDED THROUGH ADMINISTRATIVE CHANNELS TO OUR CLAIMS DIVISION FOR CONSIDERATION.