B-162602, JAN. 8, 1968

B-162602: Jan 8, 1968

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ARMY OFFICER WHO WAS ASSIGNED TO TEMPORARY DUTY AS INSTRUCTOR AT FORT BRAGG. WHICH WAS 9 MILES FROM MEMBER'S PERMANENT DUTY STATION AT FAYETTEVILLE AND. WHO CLAIMS PER DIEM ON BASIS OF TEMPORARY DUTY FROM 0730 TO 1700 HOURS ALTHOUGH RECORD OF DEPARTURE AND ARRIVAL TIME IS DIFFERENT NEED NOT HAVE PER DIEM PAYMENTS QUESTIONED ON BASIS OF CONTEMPORANEOUS DETERMINATION BY POST FINANCE OFFICE OF ENTITLEMENT TO PER DIEM UNDER 10 HOUR RULE. THERE IS NO BASIS TO CONCLUDE THAT NECESSARY TRAVEL TIME PLUS TEMPORARY DUTY EXCEEDED 10 HOURS TO ENTITLE MEMBER TO PER DIEM. RET.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. ADVISED YOU THAT YOU WERE INDEBTED TO THE UNITED STATES FOR PER DIEM RECEIVED BY YOU FOR A PRIOR PERIOD.

B-162602, JAN. 8, 1968

PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY NEAR PERMANENT STATION DECISION TO RETIRED ARMY OFFICER DENYING CLAIM FOR PER DIEM FOR TEMPORARY DUTY NEAR PERMANENT STATION. ARMY OFFICER WHO WAS ASSIGNED TO TEMPORARY DUTY AS INSTRUCTOR AT FORT BRAGG, N.C. WHICH WAS 9 MILES FROM MEMBER'S PERMANENT DUTY STATION AT FAYETTEVILLE AND, WHO CLAIMS PER DIEM ON BASIS OF TEMPORARY DUTY FROM 0730 TO 1700 HOURS ALTHOUGH RECORD OF DEPARTURE AND ARRIVAL TIME IS DIFFERENT NEED NOT HAVE PER DIEM PAYMENTS QUESTIONED ON BASIS OF CONTEMPORANEOUS DETERMINATION BY POST FINANCE OFFICE OF ENTITLEMENT TO PER DIEM UNDER 10 HOUR RULE. HOWEVER, FOR THE OTHER PERIOD OF THE CLAIM, THERE IS NO BASIS TO CONCLUDE THAT NECESSARY TRAVEL TIME PLUS TEMPORARY DUTY EXCEEDED 10 HOURS TO ENTITLE MEMBER TO PER DIEM.

TO LIEUTENANT COLONEL CHARLES D. STEVENS, AUS, RET.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1967, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED SEPTEMBER 7, 1967, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM JUNE 25 THROUGH AUGUST 8, 1962, AND ADVISED YOU THAT YOU WERE INDEBTED TO THE UNITED STATES FOR PER DIEM RECEIVED BY YOU FOR A PRIOR PERIOD.

BY ORDERS DATED FEBRUARY 9, 1962, YOU WERE DIRECTED TO REPORT FOR TEMPORARY DUTY OF APPROXIMATELY 60 DAYS AS INSTRUCTOR AT SPECIAL WARFARE SCHOOL, FORT BRAGG, NORTH CAROLINA, LOCATED APPROXIMATELY 9 MILES FROM YOUR PERMANENT DUTY STATION AT FAYETTEVILLE, NORTH CAROLINA. SUBSEQUENT AMENDMENTS TO THE ORDERS EXTENDED THE PERIOD OF TEMPORARY DUTY TO A TOTAL OF 290 DAYS. BY ORDERS DATED AUGUST 8, 1962, YOUR TEMPORARY DUTY ASSIGNMENT AT FORT BRAGG WAS MADE PERMANENT EFFECTIVE AUGUST 9, 1962.

AS A BASIS FOR ALLOWANCE OF YOUR CLAIM YOU STATED THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE OR UTILIZED THROUGH THE PERIOD OF YOUR TEMPORARY DUTY AND THAT YOU COMMUTED DAILY FROM FAYETTEVILLE TO THE NEARBY TEMPORARY DUTY STATION. ALSO, YOU STATED THAT YOUR NORMAL HOURS AS AN INSTRUCTOR WERE FROM 0730 TO 1700 HOURS, THAT THE DUTY REQUIRED YOUR AVAILABILITY AND PRESENCE DURING WEEKENDS AND HOLIDAYS AND THAT YOU WERE PAID PER DIEM FOR THE TEMPORARY DUTY THROUGH APRIL 30, 1962.

COPIES OF VOUCHERS SHOW THAT YOU WERE PAID PER DIEM AT $6 FOR A PERIOD OF 124 DAYS THROUGH JUNE 19, 1962, FOR A TOTAL OF $744. THE RECORD SHOWS FURTHER THAT YOU WERE ON TEMPORARY DUTY AT WASHINGTON, D.C., DURING THE PERIOD FROM JUNE 20 TO 24, 1962, FOR WHICH YOU HAVE BEEN PAID PER DIEM.

IN A REPORT DATED JUNE 2, 1967, THE FINANCE AND ACCOUNTING OFFICER AT FORT BRAGG, NORTH CAROLINA, EXPRESSED THE OPINION THAT THE PAYMENTS OF PER DIEM WHICH HAD BEEN MADE TO YOU FOR THE PERFORMANCE OF TEMPORARY DUTY IN THE VICINITY OF YOUR PERMANENT DUTY STATION WERE ERRONEOUS. IN A REPORT DATED JULY 14, 1967, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, STATED THAT OFFICIAL INFORMATION AS TO THE LENGTH OF TIME YOU WERE REQUIRED DAILY TO BE AWAY FROM YOUR OFFICIAL DUTY STATION WAS UNAVAILABLE AT FORT BRAGG. YOUR CLAIM WAS TRANSMITTED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND SETTLEMENT AND BY SETTLEMENT DATED SEPTEMBER 7, 1967, IT WAS DISALLOWED FOR THE REASONS STATED. THE SETTLEMENT ADVISED YOU THAT THE MATTER HAD BEEN REFERRED TO THE FINANCE CENTER, U.S. ARMY, FOR APPROPRIATE ACTION TO EFFECT COLLECTION OF THE ERRONEOUS PAYMENTS REFERRED TO IN THE REPORT OF JUNE 2, 1967.

WITH YOUR LETTER DATED SEPTEMBER 15, 1967, YOU SUBMITTED A COPY OF A STATEMENT DATED APRIL 16, 1962, IN WHICH IT IS REPORTED THAT THE POST FINANCE OFFICE, FORT BRAGG, HAD DETERMINED THAT SINCE YOUR ASSIGNMENT TO TEMPORARY DUTY AT FORT BRAGG WAS OUTSIDE THE CORPORATE LIMITS OF THE CITY OF FAYETTEVILLE, NORTH CAROLINA, YOU WERE ENTITLED TO PER DIEM IN ACCORDANCE WITH THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS. IN YOUR LETTER YOU REFER TO OUR DECISIONS, 41 COMP. GEN. 588 AND 44 ID. 445, AND TO THE PROVISIONS OF PARAGRAPH M1150-10 OF THE JOINT TRAVEL REGULATIONS TO SUBSTANTIATE THE FACT THAT FAYETTEVILLE, YOUR PERMANENT DUTY STATION, AND FORT BRAGG, YOUR TEMPORARY DUTY STATION, ARE TWO ENTIRELY SEPARATE AREAS. IN SUCH CIRCUMSTANCES AND ON THE BASIS THAT UNDER THE PROVISIONS OF PARAGRAPH M3003-2 OF THE REGULATIONS, TEMPORARY DUTY ORDERS WERE REQUIRED, YOU URGE THAT YOU WERE ENTITLED TO THE PER DIEM WHICH YOU RECEIVED AND SHOULD BE PAID PER DIEM FOR THE BALANCE OF THE ORDERED TEMPORARY DUTY.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES, A MEMBER IS ENTITLED TO ALLOWANCES FOR ORDERED TRAVEL PERFORMED AWAY FROM HIS DESIGNATED POST OF DUTY, REGARDLESS OF THE LENGTH OF TIME HE IS AWAY FROM THAT POST. PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT NO PER DIEM ALLOWANCE IS AUTHORIZED FOR A ROUND TRIP PERFORMED AWAY FROM THE DESIGNATED POST OF DUTY WITHIN A 10- HOUR PERIOD OF THE SAME CALENDAR DAY. PARAGRAPH M3050-2 OF THE REGULATIONS PROVIDES THAT A TRAVEL STATUS WILL COMMENCE WITH THE MEMBER'S DEPARTURE FROM THE PERMANENT DUTY STATION. PARAGRAPH M3003-2A PROVIDES GENERALLY THAT THE TERM "TEMPORARY DUTY" MEANS DUTY AT A LOCATION OTHER THAN A PERMANENT STATION UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR RETURN TO THE OLD PERMANENT STATION. PARAGRAPH M1150-10A DEFINES A PERMANENT STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED.

IN 44 COMP. GEN. 445-448 WE REAFFIRMED OUR VIEW THAT THE LIMITS OF A MEMBER'S DUTY STATION ARE PROPERLY DEFINED IN PARAGRAPH M1150-10 OF THE JOINT TRAVEL REGULATIONS AND IT APPEARS THAT FORT BRAGG IS OUTSIDE THE CORPORATE LIMITS OF FAYETTEVILLE, NORTH CAROLINA. HOWEVER, WHERE UNDER PROPER ORDERS A MEMBER PERFORMS TRAVEL DAILY TO AND FROM A TEMPORARY DUTY STATION WHICH IS LOCATED WITHIN COMMUTING DISTANCE FROM HIS PERMANENT DUTY STATION, PER DIEM IS PROPERLY PAYABLE ONLY WHERE THE ORDERED TEMPORARY DUTY IS PERFORMED UNDER THE CIRCUMSTANCES WHERE THE REQUIRED TEMPORARY DUTY INVOLVED, PLUS THE NECESSARY TRAVEL TIME TO AND FROM THE TEMPORARY DUTY STATION, EXCEEDS 10 HOURS EACH CALENDAR DAY. SEE 34 COMP. GEN. 549; 35 ID. 548.

IN YOUR CLAIM, YOU STATED THAT THE NORMAL HOURS REQUIRED FOR THE PERFORMANCE OF YOUR REQUIRED TEMPORARY DUTY AT FORT BRAGG WAS FROM 0730 TO 1700 HOURS, AND THAT THE DUTY REQUIRED YOUR AVAILABILITY AND PRESENCE DURING THE WEEKEND AND HOLIDAYS. YOUR STATEMENT AS TO YOUR NORMAL TEMPORARY DUTY HOURS APPEARS TO BE QUESTIONABLE SINCE THE ITINERARY ON VOUCHER NO. 416328, MAY 1962 ACCOUNTS OF H. A. MINER, LT. COL., F.C., COVERING PAYMENT OF PER DIEM FOR THE PERIOD FEBRUARY 15 TO APRIL 30, 1962, SHOWS THAT YOU DEPARTED FAYETTEVILLE AT 8:30 A.M. AND ARRIVED AT FORT BRAGG AT 9:00 A.M. HOWEVER, WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, THE RECORD SHOWS THAT AN HOUR A DAY WAS REQUIRED FOR THE TRAVEL TO AND FROM FORT BRAGG AND THAT THE PAYMENTS OF PER DIEM FOR THE PERIOD FROM FEBRUARY 15 THROUGH JUNE 19, 1962, WERE MADE ON THE BASIS OF A CONTEMPORANEOUS DETERMINATION BY THE POST FINANCE OFFICE THAT YOU WERE ENTITLED TO PER DIEM UNDER THE 10-HOUR RULE SET OUT IN THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, IT IS CONCLUDED THAT THE PER DIEM PAYMENTS FOR THE PERIOD FEBRUARY 15 TO JUNE 19, 1962, SHOULD NOT BE FURTHER QUESTIONED. WE ARE ADVISING THE FINANCE CENTER, U.S. ARMY, OF THIS DECISION.

HOWEVER, WITH RESPECT TO THE PERIOD COVERED BY YOUR CLAIM, THERE IS NOTHING IN THE RECORD TO SHOW WHY THE FINANCE OFFICER AT FORT BRAGG DID NOT PAY YOU PER DIEM FOR THIS PERIOD. THIS ACTION MAY HAVE BEEN THE RESULT OF A CHANGE IN YOUR DUTY HOURS OR A SAVINGS IN COMMUTING TIME. SUCH CIRCUMSTANCES AND AS IT IS REPORTED THAT OFFICIAL INFORMATION AS TO THE LENGTH OF TIME YOU WERE REQUIRED TO BE AWAY FROM YOUR OFFICIAL DUTY STATION IS UNAVAILABLE, THERE IS NO BASIS FOR A CONCLUSION THAT THE REQUIRED TEMPORARY DUTY AFTER JUNE 19, 1962, PLUS THE NECESSARY TRAVEL TIME TO AND FROM YOUR TEMPORARY DUTY STATION, EXCEEDED 10 HOURS EACHCALENDAR DAY AS REQUIRED BY PARAGRAPH M4205-4 OF THE JOINT TRAVEL REGULATIONS FOR THE PAYMENT OF PER DIEM.

ACCORDINGLY, ON THE PRESENT RECORD THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PER DIEM CLAIMED. TO THAT EXTENT, THE SETTLEMENT OF SEPTEMBER 7, 1967, IS SUSTAINED.