B-167060, JUL. 18, 1969

B-167060, JUL. 18, 1969

MILITARY - PER DIEM DECISION TO NAVY ACCOUNTABLE OFFICER HOLDING THAT COLLECTION OF ERRONEOUS PAYMENT OF PER DIEM TO NAVY OFFICER IS REQUIRED. MEMBER WHO WHILE ON TEMPORARY TRAINING DUTY WAS ASSIGNED TO SAME DUTY STATION BUT CONTINUED TO RECEIVE PER DIEM HAS NO RIGHT TO RETAIN PER DIEM SINCE MEMBER MAY NOT BE VIEWED AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES AFTER DETACHMENT FROM HIS OLD PERMANENT STATION.

TO MR. G. T. TAMAI:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 3, 1968, AND ENCLOSURES, RECEIVED HERE ON MAY 27, 1969, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE LEGALITY OF PAYING PER DIEM TO LIEUTENANT (JG) CARL E. CONRAD, 688542, USNR, UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 69-12.

BY ORDERS PREPARED APRIL 27, 1967, FROM THE BUREAU OF NAVAL PERSONNEL, THE MEMBER WAS DIRECTED TO PROCEED IN NOVEMBER 1967 FROM HIS DUTY STATION OVERSEAS TO THE UNITED STATES AND REPORT TO THE NAVAL AMPHIBIOUS SCHOOL, CORONADO, CALIFORNIA, FOR TEMPORARY DUTY UNDER INSTRUCTION INVOLVING DEMOLITION OF EXPLOSIVES FOR APPROXIMATELY 18 WEEKS. UPON COMPLETION OF THE TEMPORARY DUTY, THE MEMBER WAS DIRECTED TO REPORT FOR DUTY INVOLVING DEMOLITION OF EXPLOSIVES WITH UDT TWELVE, CORONADO, CALIFORNIA.

THE MEMBER REPORTED TO HIS TEMPORARY DUTY STATION AT CORONADO ON JANUARY 1, 1968. HE WAS PAID TRAVEL PER DIEM IN THE SUM OF $73.50 AT THE RATE OF $3,50 PER DAY FOR THE PERIOD JANUARY 1 TO 21, 1968. ON JANUARY 22, 1968, HE WAS DETACHED FROM THIS COURSE OF INSTRUCTION. THEREAFTER, HE ATTENDED A TWO-WEEK INTELLIGENCE COURSE AT CORONADO WHICH COMMENCED ON JANUARY 22, 1968, AND WAS COMPLETED ON FEBRUARY 11, 1968. HE WAS PAID THE SUM OF $336 REPRESENTING PER DIEM ALLOWANCE AT THE RATE OF $16 PER DAY FOR THE PERIOD JANUARY 22 TO FEBRUARY 11, 1968.

BY THIRD ENDORSEMENT DATED FEBRUARY 12, 1968, TO HIS BASIC ORDERS OF APRIL 27, 1967, AS MODIFIED BY MESSAGE FROM THE BUREAU OF NAVAL PERSONNEL, THE UNEXECUTED PORTION OF THOSE ORDERS WAS CANCELLED AND THE MEMBER WAS DIRECTED TO PROCEED AND REPORT TO COMMANDER NAVAL FORCES JAPAN AT YOKOSUKA, JAPAN.

UPON HIS ARRIVAL AT HIS OVERSEAS DUTY STATION, IT WAS ADMINISTRATIVELY DETERMINED THAT THERE WAS NO AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE PERIOD JANUARY 22 TO FEBRUARY 11, 1968, FOR THE REASON THAT THE TEMPORARY DUTY WAS PERFORMED AT THE PERMANENT DUTY STATION, CORONADO, CALIFORNIA, AND THE MEMBER WAS REQUIRED TO REFUND THE SUM OF $336. YOUR QUESTION IS WHETHER UNDER THE CIRCUMSTANCES, THE PER DIEM PAYMENTS TO THE MEMBER MAY BE CONSIDERED LEGALLY PROPER. APPARENTLY, YOUR QUESTION RELATES ONLY TO THE PER DIEM FOR THE PERIOD JANUARY 22 TO FEBRUARY 11, 1968 ($336), WHICH LIEUTENANT CONRAD HAS REFUNDED.

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 "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.' CONSEQUENTLY, REGARDLESS OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF THOSE ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH TEMPORARY DUTY IS PERFORMED AT A POINT REMOVED FROM THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT STATION.

IT HAS LONG BEEN HELD THAT A MEMBER WHO, AFTER DETACHMENT FROM HIS OLD PERMANENT DUTY STATION, PERFORMS TEMPORARY DUTY AT HIS NEW PERMANENT STATION WHICH IS THEN HIS DESIGNATED POST OF DUTY MAY NOT BE VIEWED AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE CONTEMPLATION OF 37 U.S.C. 404, DURING THE PERIOD OF SUCH TEMPORARY DUTY. 37 COMP. GEN. 140 AND 38 COMP. GEN. 656, 658, AND 38 COMP. GEN. 697, 699.

IN THIS CONNECTION PARAGRAPH M3003-2A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TERM ,TEMPORARY DUTY" MEANS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION; AND, PARAGRAPH M4209 OF THESE REGULATIONS PROVIDES FURTHER THAT A MEMBER WILL NOT BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY WHEN PERMANENT CHANGE-OF-STATION ORDERS ARE ISSUED DESIGNATING THE TEMPORARY DUTY STATION AS HIS PERMANENT STATION, EFFECTIVE EITHER IMMEDIATELY OR ON A LATER DATE, UNLESS THE CHANGE-OF-STATION ORDERS SPECIFICALLY DIRECT HIS RETURN TO THE OLD PERMANENT STATION ON OFFICIAL BUSINESS. 34 COMP. GEN. 427. SEE, ALSO, B-121605, OCTOBER 25, 1954, COPY HEREWITH.

SINCE THE MEMBER'S ORDERS ASSIGNED HIM TO DUTY AT CORONADO, CORONADO WAS HIS DESIGNATED POST OF DUTY DURING THE PERIOD OF HIS TEMPORARY DUTY, JANUARY 1 TO FEBRUARY 11, 1968. HENCE, NO RIGHT TO PER DIEM COULD ACCRUE TO HIM DURING THAT PERIOD UNDER THE PROVISIONS OF 37 U.S.C. 404. SEE B- 161267, AUGUST 30, 1967, COPY HEREWITH. THEREFORE, THE PER DIEM PAYMENTS HE RECEIVED WHILE AT CORONADO WERE UNAUTHORIZED.

IT IS RECOGNIZED THAT AN ERROR WAS MADE IN PAYING THE MEMBER FOR PER DIEM FOR THE PERIOD HE WAS AT HIS PERMANENT STATION, THAT HE RECEIVED THE PAYMENTS IN GOOD FAITH AND FINANCIAL HARDSHIP MIGHT RESULT FROM COLLECTION. SUCH CIRCUMSTANCES, HOWEVER, AFFORD NO BASIS FOR PERMITTING A PERSON TO KEEP PAYMENTS THAT NEVER RIGHTFULLY BELONGED TO HIM. SEE WISCONSIN CENTRAL RAILROAD CO. V UNITED STATES, 164 U.S. 190, AND UNITED STATES V BENTLEY, 107 F.2D 382, 384.

IN VIEW OF THE FOREGOING THERE IS NO BASIS UNDER WHICH THE PER DIEM PAYMENTS MAY BE CONSIDERED LEGALLY PROPER. ACCORDINGLY, THE COLLECTION OF $336 WAS PROPER AND SINCE THE PAYMENT OF $73.50 LIKEWISE WAS ERRONEOUS, THAT AMOUNT, TOO, SHOULD BE COLLECTED.