B-167788, DEC. 2, 1969

B-167788: Dec 2, 1969

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ARE NOT ENTITLED TO PER DIEM FOR SUCH DUTY PERFORMED PRIOR TO ISSUANCE OF PERMANENT SEA DUTY ASSIGNMENT TO SEATTLE. CONSIDERING THAT TRAINING AT NORFOLK FOR LESS THAN 20 WEEKS WAS ADMINISTRATIVELY CONTEMPLATED AND ORDERS FAILED TO DESIGNATE NORFOLK AS OFFICERS' STATION AFTER TRAINING COMPLETION. WAS TEMPORARY DUTY ASSIGNMENT NOTWITHSTANDING DESIGNATION OF PERMANENT SHORE DUTY IN ORDERS. RULE IN CALIFANO CASE IS FOR APPLICATION. WERE NOT IN TRAVEL STATUS WHILE PERFORMING DUTIES IN NEW YORK OFFICE AND MAY NOT BE ALLOWED REIMBURSEMENT FOR LOCAL MILEAGE UNDER RULE TRAVEL EXPENSES BETWEEN HOME AND DUTY STATION IS PERSONAL OBLIGATION NOT REIMBURSABLE FROM PUBLIC FUNDS. OFFICERS ARE ENTITLED TO MILEAGE ALLOWANCE TO NORFOLK UNDER JOINT TRAVEL REGULATIONS PAR.

B-167788, DEC. 2, 1969

SUBSISTENCE--PER DIEM--TEMPORARY DUTY--TRAINING OR SCHOOL ASSIGNMENT- CALIFANO CASE ENSIGNS APPOINTED IN NEW YORK AND PERFORMING DUTIES IN NEW YORK AND NORFOLK UNDER ORDERS DESIGNATING NORFOLK ASSIGNMENT AS "PERMANENT SHORE DUTY," AUTHORIZING TEMPORARY DUTY WEIGHT ALLOWANCE, AND EXPRESSLY DENYING DEPENDENTS' TRAVEL AUTHORIZATION, ARE NOT ENTITLED TO PER DIEM FOR SUCH DUTY PERFORMED PRIOR TO ISSUANCE OF PERMANENT SEA DUTY ASSIGNMENT TO SEATTLE. CONSIDERING THAT TRAINING AT NORFOLK FOR LESS THAN 20 WEEKS WAS ADMINISTRATIVELY CONTEMPLATED AND ORDERS FAILED TO DESIGNATE NORFOLK AS OFFICERS' STATION AFTER TRAINING COMPLETION, NORFOLK ASSIGNMENT MAY NOT BE CONSIDERED ASSIGNMENT FOR PERMANENT SHORE DUTY WITHIN PURVIEW OF M1150- 10B, JOINT TRAVEL REGULATIONS, BUT WAS TEMPORARY DUTY ASSIGNMENT NOTWITHSTANDING DESIGNATION OF PERMANENT SHORE DUTY IN ORDERS, AND RULE IN CALIFANO CASE IS FOR APPLICATION. TRAVEL EXPENSES--LOCAL TRAVEL--HOME OR LODGINGS AND PLACE OF DUTY ENSIGNS APPOINTED IN NEW YORK AND PERFORMING DUTIES IN NEW YORK AND NORFOLK UNDER ORDERS DESIGNATING NORFOLK ASSIGNMENT AS "PERMANENT SHORE DUTY," WHICH IN FACT CONSTITUTED TRAINING FOR LESS THAN 20 WEEKS PRIOR TO ISSUANCE OF ORDERS ASSIGNING OFFICERS TO PERMANENT DUTY STATION IN SEATTLE, WERE NOT IN TRAVEL STATUS WHILE PERFORMING DUTIES IN NEW YORK OFFICE AND MAY NOT BE ALLOWED REIMBURSEMENT FOR LOCAL MILEAGE UNDER RULE TRAVEL EXPENSES BETWEEN HOME AND DUTY STATION IS PERSONAL OBLIGATION NOT REIMBURSABLE FROM PUBLIC FUNDS. OFFICERS ARE ENTITLED TO MILEAGE ALLOWANCE TO NORFOLK UNDER JOINT TRAVEL REGULATIONS PAR. M4151, BUT NOT TO REIMBURSEMENT OF BRIDGE AND TURNPIKE TOLLS IN VIEW OF LIMITATIONS CONTAINED IN PARS. M4400 AND M4407.

TO MR. JOHN L. SMITH:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 22, 1969, FILE REFERENCE AD571X12, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT TWO VOUCHERS SUBMITTED BY ARTHUR N. FLIOR AND RICHARD K. MULLER, ENSIGNS, USESSA, RESPECTIVELY, TO COVER PER DIEM AND REIMBURSEMENT OF EXPENSES INCIDENT TO DAILY TRAVEL BETWEEN THEIR HOMES AND PLACE OF FIRST DUTY DURING THE PERIOD JUNE 3 TO JULY 6, 1969, AND REIMBURSEMENT OF EXPENSES INCIDENT TO TRAVEL PERFORMED ON JULY 7, 1969, IN REPORTING TO A FURTHER DUTY STATION.

BY TRAVEL ORDERS NOS. 69-AD45-221 AND 69-AD45-222, DATED MAY 22, 1969, ENSIGNS FLIOR AND MULLER WERE DIRECTED, AFTER THEIR APPOINTMENT IN THE COMMISSIONED CORPS OF THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, TO REPORT TO THE NEW YORK FIELD OFFICE FOR TEMPORARY DUTY EN ROUTE TO NORFOLK, VIRGINIA. THEY WERE FURTHER DIRECTED TO REPORT TO THE DIRECTOR, ATLANTIC MARINE CENTER, NORFOLK, VIRGINIA, WHEN SO ORDERED BUT IN ANY EVENT NOT LATER THAN 0800 HOURS, JULY 11, 1969, FOR ASSIGNMENT TO THE 30TH ESSA OFFICER TRAINING CLASS FOR DUTY.

THOSE ORDERS WHICH ALSO SHOWED THE TEMPORARY DUTY IN NEW YORK AS BEGINNING JUNE 4 AND ENDING JULY 10, 1969, SPECIFIED THE TYPE OF DUTY ASSIGNMENT AT NORFOLK AS PERMANENT SHORE DUTY, BUT STIPULATED THAT TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED AND THAT SHIPMENT OF PERSONAL EFFECTS NOT EXCEEDING 600 POUNDS WAS AUTHORIZED. IT IS INDICATED IN THE ORDERS THAT NEW YORK (BRONX), NEW YORK, WAS PLACE OF APPOINTMENT.

THE TRAVEL CLAIM VOUCHER SUBMITTED BY EACH OFFICER SHOWS THAT HE REPORTED TO THE NEW YORK FIELD OFFICE ON JUNE 3, 1969, AND REMAINED ON DUTY THERE UNTIL 0830 HOURS, JULY 7, 1969, AT WHICH TIME HE PROCEEDED TO NORFOLK, VIRGINIA, BY PRIVATELY OWNED AUTOMOBILE, ARRIVING THERE AT 1500 HOURS THAT DATE. PER DIEM AT THE RATE OF $16 PER DAY WAS CLAIMED FOR 34 DAYS ($544) AND ALSO MILEAGE TO AND FROM RESIDENCE FOR 15 DAYS AT THE RATE OF $0.10 PER MILE ($90 BY ENSIGN MULLER FOR 900 MILES AND $45 BY ENSIGN FLIOR FOR 450 MILES) PLUS TOLLS ($15 BY ENSIGN MULLER AND $7.50 BY ENSIGN FLIOR). MILEAGE IN THE AMOUNT OF $21.60 WAS ALSO CLAIMED FOR THE TRAVEL TO NORFOLK (360 MILES $0.06 PER MILE) PLUS ITEMIZED BRIDGE AND TURNPIKE TOLLS AGGREGATING $7.60.

IN YOUR LETTER OF AUGUST 22, 1969, YOU EXPLAIN THAT THE AREA OF DOUBT IN THIS MATTER IS PREMISED ON YOUR VIEW THAT SINCE BRONX, NEW YORK, WAS THE PLACE OF THEIR APPOINTMENT AND THE PLACE WHERE THEY PERFORMED TEMPORARY DUTY EN ROUTE TO NORFOLK, THEIR FIRST PERMANENT DUTY STATION, NO TRAVEL WAS INVOLVED IN THE EXECUTION OF THE TEMPORARY DUTY PORTION OF THE ORDERS, EXCEPT FOR THE DAILY TRAVEL PERFORMED BETWEEN THEIR HOMES AND THE FIELD OFFICE AS SHOWN IN THEIR CLAIMS. IN THIS RESPECT YOU SAY THAT PRESUMABLY THE OFFICERS' PLACES OF ABODE DURING THE PERIOD AND FROM WHICH THEY COMMUTED DAILY TO WORK WERE THE PERMANENT RESIDENCES OCCUPIED BY THEM PRIOR TO APPOINTMENT TO THE COMMISSIONED CORPS. YOU FURTHER STATE THAT IN VIEW OF THE RULING IN 38 COMP. GEN. 849 IT IS QUESTIONABLE WHETHER A TRAVEL STATUS EXISTED FOR THESE OFFICERS WHILE ON DUTY IN NEW YORK ENTITLING THEM TO PER DIEM AND LOCAL MILEAGE AS CLAIMED.

THE CONTROLLING STATUTORY PROVISION, 37 U.S.C. 404 (A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED UNDER THAT AUTHORITY, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS.

PARAGRAPH M3003-2A OF THE REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT ONE OR MORE LOCATIONS, OTHER THAN THE PERMANENT STATION, AT WHICH A MEMBER PERFORMS TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT, OR PENDING FURTHER ASSIGNMENT, TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION UPON COMPLETION OF THE TEMPORARY DUTY. ALSO, PARAGRAPH M1150-10B OF THE REGULATIONS PROVIDES THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE-OF- STATION ORDERS TO A SCHOOL OR INSTALLATION AS A STUDENT TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS 20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION.

IN THE DECISION MENTIONED BY YOU, 38 COMP. GEN. 849 (1959), WE SAID THAT WE WOULD FOLLOW THE RULING OF THE COURT OF CLAIMS IN THE CASE OF CALIFANO V UNITED STATES, 145 CT. CL. 245 (1959), HOLDING THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS OF INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. WE SAID FURTHER THAT THE DECISION WAS NOT TO BE CONSTRUED AS PROHIBITING THE PAYMENT OF PER DIEM, IN OTHERWISE PROPER CASES, WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO TEMPORARY DUTY, AND THE ORDERS DESIGNATE A SPECIFIC DUTY STATION TO WHICH HE IS TO TRAVEL AND REPORT FOR DUTY UPON COMPLETION OF THE TEMPORARY DUTY.

IN A LATER INTERPRETATION AND APPLICATION OF THE CALIFANO CASE WE SAID IN 39 COMP. GEN. 511 (1960) THAT THE PRINCIPLE IN THAT CASE IS APPLICABLE TO SUBSEQUENT TEMPORARY DUTY ASSIGNMENTS, THAT IS, IN CASES WHERE THE MEMBER IS ORDERED TO ACTIVE DUTY AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON THE COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT. IN SUPPORT OF THAT HOLDING, WE STATED THAT IN SUCH CIRCUMSTANCES AND IRRESPECTIVE OF ANY EARLIER TEMPORARY DUTY PERFORMED AT ANOTHER PLACE, THE PLACE AT WHICH HE IS CURRENTLY PERFORMING TEMPORARY DUTY CONSTITUTES HIS ONLY DESIGNATED POST OF DUTY AND, HENCE, WHILE SO SERVING HE WOULD NOT BE IN A TRAVEL STATUS AWAY FROM A PERMANENT STATION.

AS INDICATED ABOVE, THE TRAVEL ORDERS OF MAY 22, 1969, DESIGNATED THE ASSIGNMENT AT NORFOLK, THE PLACE WHERE ENSIGNS MULLER AND FLIOR WERE TO REPORT UPON COMPLETION OF TEMPORARY DUTY AT THE NEW YORK FIELD OFFICE, AS PERMANENT SHORE DUTY. HOWEVER, OTHER THAN THAT DESIGNATION, THERE IS NOTHING IN THOSE ORDERS TO INDICATE THAT NORFOLK WAS INTENDED TO BE THE OFFICERS' FIRST PERMANENT DUTY STATION UPON THEIR APPOINTMENT AS ENSIGNS. UNDER THE TERMS OF THE ORDERS, THE ASSIGNMENT AT NORFOLK WAS TO ATTEND THE 30TH ESSA OFFICER TRAINING CLASS, AND APPARENTLY THAT WAS THE ONLY DUTY CONTEMPLATED THERE. WHILE THE ORDERS DID NOT SPECIFY THE DURATION OF THE TRAINING CLASS, SUCH ORDERS EXPRESSLY STIPULATED THAT TRAVEL OF DEPENDENTS TO NORFOLK WAS NOT AUTHORIZED AND THAT SHIPMENT OF ONLY THE TEMPORARY DUTY WEIGHT ALLOWANCE OF 600 POUNDS OF PERSONAL EFFECTS WAS AUTHORIZED.

WE HAVE BEEN INFORMALLY ADVISED BY THE CHIEF, COMMISSIONED PERSONNEL BRANCH, OF YOUR ADMINISTRATION THAT THE SCHEDULED DURATION OF THE 30TH ESSA OFFICER TRAINING CLASS WAS 8 WEEKS AND THAT AT NO TIME IN THE PAST WAS THERE SCHEDULED A TRAINING CLASS FOR A PERIOD OF 20 WEEKS OR MORE. ADDITIONALLY, WE HAVE BEEN FURNISHED COPIES OF THE TRAVEL ORDERS WHICH WERE ISSUED TO THE OFFICERS UPON THEIR COMPLETION OF THE TRAINING COURSES. THOSE ORDERS, NOS. 70-AD45-28 AND 70-AD45-38, DATED AUGUST 25, 1969, DIRECTED THE OFFICERS, WHEN DETACHED BY THE TRAINING OFFICER AT NORFOLK, TO REPORT TO THE DIRECTOR, PACIFIC MARINE CENTER, SEATTLE, WASHINGTON, FOR ASSIGNMENT TO THE USC-AND-GSS OCEANOGRAPHER AND USC-AND GSS SURVEYOR, RESPECTIVELY, FOR PERMANENT SEA DUTY, THE PERIOD OF TRAVEL TO BEGIN SEPTEMBER 5, 1969. PROVISION WAS ALSO MADE IN THOSE ORDERS FOR THE SHIPMENT OF PERMANENT CHANGE-OF-STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS AND TRAVEL OF DEPENDENTS FROM HOME OF RECORD (NEW HYDE PARK, NEW YORK, IN THE CASE OF ENSIGN FLIOR, AND DARIEN, CONNECTICUT, IN THE CASE OF ENSIGN MULLER) OR PLACE OF APPOINTMENT, NEW YORK, NEW YORK.

SINCE IT WAS CONTEMPLATED BY THE ORDER-ISSUING AUTHORITY THAT THE OFFICERS WOULD ATTEND A COURSE OF INSTRUCTION AT NORFOLK FOR LESS THAN 20 WEEKS AND SINCE THE ORDERS DID NOT DESIGNATE NORFOLK AS THE STATION WHERE THEY WOULD BE ASSIGNED OR REMAIN FOR DUTY UPON COMPLETION OF THE COURSE, THE ASSIGNMENT AT NORFOLK MAY NOT BE CONSIDERED AS AN ASSIGNMENT FOR PERMANENT SHORE DUTY WITHIN THE PURVIEW OF PARAGRAPH M1150-10B OF THE JOINT TRAVEL REGULATIONS, BUT WAS A TEMPORARY DUTY ASSIGNMENT NOTWITHSTANDING THE DESIGNATION OF THE ASSIGNMENT AS "PERMANENT SHORE" DUTY. 34 COMP. GEN. 260 (1954).

INASMUCH AS THE OFFICERS PERFORMED TEMPORARY DUTY AT THE NEW YORK FIELD OFFICE AND NORFOLK PRIOR TO THEIR RECEIPT OF THE PERMANENT CHANGE OF- STATION ORDERS OF AUGUST 25, 1969, THE RULE IN 39 COMP. GEN. 511, MENTIONED ABOVE, IS FOR APPLICATION IN THEIR CASES. IN OTHER WORDS, PRIOR TO RECEIPT OF THE ORDERS OF AUGUST 25, 1969, THE OFFICERS HAD NO ASSIGNED PERMANENT DUTY STATION WHILE PERFORMING THE DUTY AT NEW YORK AND AT NORFOLK, AND SINCE THOSE PLACES CONSTITUTED THE OFFICERS' ONLY DESIGNATED POSTS OF DUTY WHILE AT SUCH LOCATIONS, THEY WERE NOT IN A TRAVEL STATUS AWAY FROM A PERMANENT DUTY STATION AND WERE NOT ENTITLED TO PER DIEM.

UPON RECEIPT OF THE ORDERS OF AUGUST 25, 1969, HOWEVER, THE OFFICERS THEN HAD AN ASSIGNED PERMANENT DUTY STATION AND, CONSEQUENTLY, THE DUTY THEREAFTER PERFORMED AT NORFOLK WAS IN A TRAVEL STATUS. WE ARE OF THE OPINION THAT, FOR THAT PORTION OF THE PERIOD WHILE ON DUTY AT NORFOLK, THEY WERE ENTITLED, UPON A DETERMINATION AS TO THE UTILIZATION OR AVAILABILITY OF GOVERNMENT QUARTERS AND MESS, TO THE PER DIEM OTHERWISE AUTHORIZED FOR SUCH TEMPORARY DUTY. 39 COMP. GEN. 507 (1960).

CONCERNING THAT PORTION OF THE OFFICERS' CLAIMS PERTAINING TO REIMBURSEMENT OF TOLLS AND PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR DAILY COMMUTING BETWEEN HOME AND THE NEW YORK FIELD OFFICE DURING THE 34-DAY PERIOD PRIOR TO REPORTING TO NORFOLK, THE OFFICERS WERE NOT IN A TRAVEL STATUS AND IT HAS LONG BEEN THE RULE THAT THE EXPENSE OF TRAVEL BETWEEN HOME AND DUTY STATION IS A PERSONAL OBLIGATION NOT REIMBURSABLE FROM PUBLIC FUNDS. SEE B-152420, DATED FEBRUARY 7, 1969, 48 COMP. GEN. ---- (ANSWERS TO QUESTIONS 7 AND 8); 45 COMP. GEN. 30 (1965); AND 42 COMP. GEN. 612 (1963). THEREFORE THESE ITEMS MAY NOT BE CERTIFIED FOR PAYMENT.

UNDER THE TRAVEL ORDERS OF MAY 22, 1969, AND PURSUANT TO THE PROVISIONS OF PARAGRAPH M4151 OF THE JOINT TRAVEL REGULATIONS THE OFFICERS ARE ENTITLED TO A MILEAGE ALLOWANCE FOR THE TRAVEL PERFORMED IN REPORTING TO NORFOLK. THE AMOUNTS CLAIMED AS BRIDGE AND TURNPIKE TOLLS, HOWEVER, SHOULD NOT BE CERTIFIED FOR PAYMENT IN VIEW OF THE LIMITATIONS SPECIFIED IN PARAGRAPHS M4400 AND M4407 OF THE REGULATIONS.

ACCORDINGLY, THE VOUCHERS ARE RETURNED HEREWITH, CERTIFICATION THEREON BEING AUTHORIZED ON THE BASIS INDICATED ABOVE.