B-165911, APRIL 4, 1969, 48 COMP. GEN. 655

B-165911, APRIL 4, 1969, 48 COMP. GEN. 655

MILITARY PERSONNEL--RESERVISTS--TEMPORARY DUTY--TWO SUCCESSIVE ORDERS A NAVAL RESERVIST WHO TRAVELS FROM AND TO HIS HOME UNDER ORDERS PROVIDING FOR A 63-DAY RECRUITING ASSIGNMENT AT A TEMPORARY DUTY STATION AND THEN UNDER SUBSEQUENT ORDERS AFTER A 1-DAY BREAK IN SERVICE RETURNS TO THE TEMPORARY DUTY STATION FOR A 150-DAY SIMILAR ASSIGNMENT IS CONSIDERED TO HAVE HAD ONE CONTINUOUS PERIOD OF SERVICE FOR DETERMINING ENTITLEMENT TO A TEMPORARY DUTY ALLOWANCE -- PER DIEM AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION -- AND UNDER 37 U.S.C. 404 (A) PERMITTING PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO RESERVISTS ORDERED FROM HOME FOR SHORT PERIODS OF ACTIVE DUTY -- LESS THAN 20 WEEKS -- WHERE MESS AND QUARTERS ARE NOT PROVIDED, THE MEMBER MAY NOT BE PAID ON THE BASIS THAT TWO PERIODS OF DUTY WERE AUTHORIZED BY THE SEPARATE ORDERS.

TO E. B. JONES, DEPARTMENT OF THE NAVY, APRIL 4, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1968, FILE REFERENCE (FO-1/DR), REQUESTING A DECISION AS TO WHETHER MILEAGE ALLOWANCE AND PER DIEM ARE PAYABLE TO CHIEF PETTY OFFICER LEE J. LEWIS, 4763919, USNR-R, INCIDENT TO TEMPORARY ACTIVE DUTY ORDERS OF MARCH 29, 1968. THE REQUEST WAS ASSIGNED CONTROL NO. 68-41 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED MARCH 29, 1968, HEADQUARTERS, EIGHTH NAVAL DISTRICT, NEW ORLEANS, LOUISIANA, THE MEMBER WAS ORDERED TO REPORT TO THE COMMANDING OFFICER, NAVAL AND MARINE CORPS RESERVE TRAINING CENTER, DALLAS, TEXAS, FOR TEMPORARY ACTIVE DUTY IN CONNECTION WITH NAVAL RESERVE RECRUITING FOR 63 DAYS COMMENCING APRIL 29, 1968. FIRST ENDORSEMENT DATED JUNE 30, 1968, TO THESE ORDERS SHOWS THAT HE COMPLETED HIS TEMPORARY DUTY ON JUNE 30, 1968, AND WAS DETACHED ON THAT DAY.

HIS ITINERARY SHOWS THAT ON APRIL 29, 1968, HE DEPARTED FROM HIS HOME, COPPELL, TEXAS, AND ARRIVED AT HIS DUTY STATION, DALLAS, TEXAS, THE SAME DAY. ON JUNE 30, 1968, HE DEPARTED FROM HIS DUTY STATION, DALLAS, AND ARRIVED AT HIS HOME, COPPELL, 12 MILES FROM DALLAS, THE NEXT DAY. SUBSEQUENT ORDERS HE WAS ORDERED TO RETURN TO DALLAS, FOR 150 DAYS' TEMPORARY ACTIVE DUTY COMMENCING JULY 2, 1968. A COPY OF THESE ORDERS WAS NOT RECEIVED WITH YOUR LETTER, BUT ACCOMPANYING ENDORSEMENTS INDICATE THAT THESE ORDERS WERE ISSUED ON JUNE 14, 1968.

IN YOUR LETTER IT IS STATED THAT IT WAS THE INTENT OF THE ORDER ISSUING ACTIVITY TO ORDER MEMBERS TO TEMPORARY ACTIVE DUTY FOR PERIODS IN EXCESS OF 20 WEEKS BUT THAT, IN THE CASE OF CHIEF LEWIS AND NUMEROUS SIMILAR CASES, THERE WAS NO AUTHORITY AT THE TIME OF ISSUANCE OF ORDERS TO ORDER THE MEMBER TO TEMPORARY ACTIVE DUTY FOR A PERIOD EXTENDING BEYOND JUNE 30, 1968. ALSO, IT IS STATED THAT IT IS PRESUMED THAT PAYMENT OF PER DIEM IS PRECLUDED FOR THE PERIOD OF 150 DAYS' TEMPORARY ACTIVE DUTY COMMENCING JULY 2, 1968.

YOUR QUESTION IS WHETHER THE MEMBER IS ENTITLED TO PAYMENT OF TEMPORARY DUTY ALLOWANCES (PER DIEM AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION) FOR THE 63 DAYS' TEMPORARY ADDITIONAL ACTIVE DUTY DURING THE PERIOD APRIL 29 TO JUNE 30, 1968. IN THIS CONNECTION YOU SAY THAT WHILE IT WAS THE ORIGINAL INTENT TO ORDER THE MEMBER TO TEMPORARY ACTIVE DUTY BEYOND JUNE 30, 1968, THE TEMPORARY ACTIVE DUTY COMMENCING JULY 2, 1968, WAS AUTHORIZED BY SEPARATE ORDERS AND, BEING SEPARATED BY A 1-DAY BREAK IN SERVICE, MIGHT BE CONSIDERED A SEPARATE PERIOD OF ACTIVE DUTY SO AS TO ENTITLED THE MEMBER TO PER DIEM AND MILEAGE ALLOWANCE FOR THE PRIOR 63-DAY PERIOD.

SECTION 404 (A) (2) AND (3) OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS, INCLUDING UPON CALL TO ACTIVE DUTY FROM HIS HOME OR FROM THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY, TO HIS FIRST STATION AND RETURN TO THAT PLACE.

SECTION 404 (A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OR TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE:

* * * WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE.

WE HAVE CONSISTENTLY HELD THAT CLAUSE 4 PERMITS THE PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS (LESS THAN 20 WEEKS) OF ACTIVE DUTY WHILE AT THE ACTIVE DUTY STATION IN CASES WHERE A MESS AND QUARTERS ARE NOT PROVIDED FOR THEM ON THE SAME BASIS THAT PER DIEM WOULD BE PAYABLE TO MEMBERS ON CONTINUOUS ACTIVE DUTY WHO ARE ORDERED THERE FROM THEIR PERMANENT DUTY STATIONS FOR THE PERFORMANCE OF TEMPORARY DUTY. WE HELD THAT CLAUSE 4 PROVIDES FOR THE PAYMENT OF PER DIEM ON THAT BASIS EVEN THOUGH SUCH ACTIVE DUTY STATIONS IN FACT ARE THE MEMBERS' PERMANENT DUTY STATIONS. SEE 48 COMP. GEN. 301; ID. 517; ID. 553.

PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE RESERVE COMPONENTS CALLED (OR ORDERED) TO ACTIVE DUTY (OR ACTIVE DUTY FOR TRAINING) WITH OR WITHOUT PAY WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4 OF THE REGULATIONS, AS APPROPRIATE, FOR TRAVEL TO AND FROM THE ACTIVE DUTY STATION.

IMPLEMENTING REGULATIONS CONTAINED IN PARAGRAPH 3, SECNAV INSTRUCTION 7220.62 DATED FEBRUARY 26, 1968, PROVIDE FOR PER DIEM ENTITLEMENT IN THE CASE OF A RESERVE MEMBER ORDERED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 20 WEEKS AT A LOCATION AWAY FROM THE PLACE FROM WHICH HE IS ORDERED TO SUCH DUTY. THE REGULATIONS FURTHER PROVIDE THAT WHEN A RESERVE MEMBER IS CALLED TO ACTIVE DUTY FOR A PERIOD OF 20 WEEKS OR MORE HE IS NOT ENTITLED TO PER DIEM WHILE AT HIS PRIMARY DUTY STATION.

GENERALLY THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT IS ONE FOR WHICH PER DIEM IS AUTHORIZED IS A QUESTION OF FACT TO BE DETERMINED BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, THE CHARACTER OF THE SERVICE AND THE CIRCUMSTANCES UNDER WHICH IT IS PERFORMED. 24 COMP. GEN. 667, 670. WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT, AS REFLECTED IN THE ORDERS DIRECTING ITS PERFORMANCE, ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH DETERMINATION, IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A CONTRARY FACTUAL SITUATION. 139112, MAY 27, 1959.

AS INDICATED ABOVE, YOU STATE THAT IT WAS THE INTENT OF THE ORDER ISSUING AUTHORITY TO ORDER THE MEMBER TO TEMPORARY ACTIVE DUTY FOR A PERIOD IN EXCESS OF 20 WEEKS. HOWEVER, YOU SAY THAT AT THE TIME HIS ORDERS OF MARCH 29, 1968, WERE ISSUED THERE WAS NO AUTHORITY TO ORDER HIM TO TEMPORARY ACTIVE DUTY FOR A PERIOD EXTENDING BEYOND JUNE 30, 1968.

IN A THIRD ENDORSEMENT OF SEPTEMBER 5, 1968, FROM THE COMMANDER, NAVAL RESERVE TRAINING COMMAND, TO THE CHIEF OF NAVAL PERSONNEL, IT WAS EXPLAINED THAT THE ORDERS OF MARCH 29, 1968, WERE ISSUED ONLY FOR 63 DAYS OF TEMPORARY ACTIVE DUTY ON THE BASIS OF A LETTER OF MAY 10, 1967, TO THE COMMANDANT, EIGHTH NAVAL DISTRICT, AUTHORIZING TEMPORARY ACTIVE DUTY BILLETS FOR TWO OFFICERS AND FIFTY-SEVEN ENLISTED MEN IN SUPPORT OF NAVAL RESERVE RECRUITING DURING THE FISCAL YEAR 1968, THE AUTHORIZATION FOR FISCAL YEAR 1969 NOT HAVING BEEN ISSUED AT THAT TIME.

AN AUTHORIZATION OF THE SAME NUMBER OF ACTIVE DUTY BILLETS FOR FISCAL YEAR 1969, HOWEVER, WAS CONTAINED IN A LETTER OF APRIL 1, 1968, TO THE COMMANDANT, EIGHTH NAVAL DISTRICT. THAT OFFICIAL HAS REPORTED THAT IT CLEARLY WAS THE INTENT TO RETAIN YNC LEWIS ON ACTIVE DUTY FOR NOT LESS THAN 140 DAYS WHEN THE ORDERS OF MARCH 29, 1968, WERE ISSUED.

SINCE THE COMMANDANT, EIGHTH NAVAL DISTRICT, WAS NOTIFIED BY THE ABOVE- MENTIONED LETTER OF APRIL 1, 1968, OF THE TEMPORARY ACTIVE DUTY BILLETS AUTHORIZED FOR FISCAL YEAR 1969 -- THE SAME NUMBER AS FOR FISCAL YEAR 1968 -- BEFORE LEWIS REPORTED FOR DUTY ON APRIL 29, 1968, IT WOULD APPEAR THAT HIS ORDERS SHOULD HAVE BEEN MODIFIED BEFORE HE REPORTED FOR ACTIVE DUTY TO PROVIDE FOR A PERIOD OF NOT LESS THAN 140 DAYS, AS INTENDED, RATHER THAN ISSUING SEPARATE ORDERS FOR A FURTHER PERIOD OF ACTIVE DUTY AFTER A 1-DAY BREAK IN ACTIVE SERVICE. THUS, LEWIS'S ADDITIONAL ACTIVE DUTY UNDER HIS ORDERS OF JUNE 14, 1968, EFFECTIVE JULY 2, 1968, DID NOT ARISE FROM CIRCUMSTANCES NOT FORESEEN AT THE TIME HE REPORTED FOR DUTY ON APRIL 29, BUT WAS MERELY AN ASSIGNMENT TO FURTHER ACTIVE DUTY UNDER THE SAME CIRCUMSTANCES, AS ORIGINALLY INTENDED. CF. 37 COMP. GEN. 637.

IN THESE CIRCUMSTANCES AND SINCE IT IS CLEAR THAT IN CHIEF LEWIS'S CASE THE ASSIGNMENT WAS INTENDED TO BE FOR A PERIOD IN EXCESS OF 20 WEEKS WHEN HE REPORTED FOR DUTY AND THAT ORDERS PROPERLY SHOULD HAVE BEEN ISSUED TO ACCOMPLISH THIS, IT IS OUR VIEW THAT IN HIS CASE AND THE OTHER SIMILAR CASES, THE PERIODS OF DUTY AUTHORIZED BY THE SEPARATE SETS OF ORDERS SHOULD BE CONSIDERED AS ONE CONTINUOUS PERIOD IN DETERMINING ENTITLEMENT TO PER DIEM AND MILEAGE ALLOWANCE.