B-167858, OCTOBER 23, 1969, 49 COMP. GEN. 269

B-167858: Oct 23, 1969

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REQUIREMENT AN ARMY OFFICER TRANSFERRED FROM A STAFF COLLEGE DETACHMENT TO A TRUCK BATTALION WHO WHEN HIS ORDERS WERE AMENDED TO PROVIDE FOR THE UNIT'S MOVEMENT TO A RESTRICTED AREA OVERSEAS WITHIN 90 DAYS. IS NOT ENTITLED TO PER DIEM UPON CANCELLATION OF THE DEPLOYMENT FOR THE 5 MONTH PERIOD BETWEEN HIS BATTALION ASSIGNMENT AND REASSIGNMENT UNDER PERMANENT CHANGE OF STATION ORDERS. 1969: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. YOUR REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 69-33 BY THE PER DIEM. COLONEL MIDDLETON WAS TRANSFERRED FROM THE STUDENT DETACHMENT. HIS ORDER WAS TO BE AMENDED IN ACCORDANCE WITH PARAGRAPH 38A(9) OF ARMY REGULATIONS 310-10 TO INCLUDE THE APPROPRIATE RESTRICTIVE CLAUSE CONTAINED IN PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR 614-8.

B-167858, OCTOBER 23, 1969, 49 COMP. GEN. 269

SUBSISTENCE -- PER DIEM -- MILITARY PERSONNEL -- TRAVEL STATUS -- REQUIREMENT AN ARMY OFFICER TRANSFERRED FROM A STAFF COLLEGE DETACHMENT TO A TRUCK BATTALION WHO WHEN HIS ORDERS WERE AMENDED TO PROVIDE FOR THE UNIT'S MOVEMENT TO A RESTRICTED AREA OVERSEAS WITHIN 90 DAYS, ELECTED TO MOVE HIS DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED LOCATION, IS NOT ENTITLED TO PER DIEM UPON CANCELLATION OF THE DEPLOYMENT FOR THE 5 MONTH PERIOD BETWEEN HIS BATTALION ASSIGNMENT AND REASSIGNMENT UNDER PERMANENT CHANGE OF STATION ORDERS. THE AMENDMENT TO THE OFFICER'S INITIAL ORDERS TO MOVE HIS DEPENDENTS TO A DESIGNATED PLACE AS REQUIRED BY PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR NO. 614-8, DID NOT CHANGE THE CHARACTER OF HIS INTERIM ASSIGNMENT TO TEMPORARY DUTY OR HIS PLACE OF DUTY TO A TEMPORARY DUTY STATION, AND THE OFFICER'S TRAVEL STATUS HAVING ENDED WHEN HE REPORTED TO THE BATTALION LOCATION, THAT LOCATION BECAME HIS PERMANENT DUTY STATION.

TO LIEUTENANT COLONEL R. J. PREUSS, DEPARTMENT OF THE ARMY, OCTOBER 23, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1969, (REF: FINFA- F), WITH ENCLOSURES, FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING A DECISION OF THE COMPTROLLER GENERAL AS TO THE ENTITLEMENT OF LIEUTENANT COLONEL HARRY F. MIDDLETON, 078980, TO PER DIEM UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 69-33 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER 76 DATED APRIL 11, 1966, COLONEL MIDDLETON WAS TRANSFERRED FROM THE STUDENT DETACHMENT, ARMED FORCES STAFF COLLEGE, NORFOLK, VIRGINIA, TO THE 519TH TRANSPORTATION BATTALION (TRUCK), FORT GEORGE G. MEADE, MARYLAND, TO REPORT NOT LATER THAN JULY 10, 1966. THE ORDER GAVE HIM THE OPTION OF MOVING HIS DEPENDENTS TO THE NEW DUTY STATION ON A NORMAL PERMANENT CHANGE OF STATION OR MOVING THEM TO A DESIGNATED LOCATION. IN THE EVENT HE MOVED THEM TO A DESIGNATED LOCATION, HIS ORDER WAS TO BE AMENDED IN ACCORDANCE WITH PARAGRAPH 38A(9) OF ARMY REGULATIONS 310-10 TO INCLUDE THE APPROPRIATE RESTRICTIVE CLAUSE CONTAINED IN PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR 614-8.

FIRST INDORSEMENT DATED MAY 20, 1966, AMENDED SPECIAL ORDER 76 TO PROVIDE THAT THE OFFICER WAS RELIEVED FROM DUTY AT THE ARMED FORCES STAFF COLLEGE, NORFOLK, VIRGINIA, AND ASSIGNED TO THE 519TH TRANSPORTATION BATTALION (TRUCK), FORT GEORGE G. MEADE, MARYLAND, FOR FURTHER MOVE TO A RESTRICTED AREA OVERSEAS. TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS WAS AUTHORIZED TO A DESIGNATED LOCATION WITH ADVICE THAT THEY COULD BE MOVED TO THE VICINITY OF FORT MEADE ONLY AS A MOVE TO A DESIGNATED LOCATION.

YOU SAY IN YOUR LETTER OF AUGUST 11, 1969, THAT COLONEL MIDDLETON MOVED HIS DEPENDENTS TO A DESIGNATED LOCATION, ANNANDALE, VIRGINIA, AND RECEIVED PAYMENT OF DEPENDENT TRAVEL ALLOWANCES AND DISLOCATION ALLOWANCE. ALSO YOU SAY THAT ON JULY 11, 1966, HE ARRIVED AT FORT MEADE FOR DUTY ALSO YOU SAY THAT ON JULY 11, 1966, HE ARRIVED AT FORT MEADE FOR DUTY WITH THE 519TH TRANSPORTATION BATTALION AND THROUGH NO FAULT OF HIS OWN, THE UNIT WAS NOT DEPLOYED TO A RESTRICTED OVERSEAS AREA WITHIN 90 DAYS BUT DEPARTED FROM FORT MEADE ON A PERMANENT CHANGE OF STATION ON DECEMBER 10, 1966.

ON A VOUCHER ENCLOSED WITH YOUR LETTER COLONEL MIDDLETON CLAIMS PER DIEM FOR THE PERIOD JULY 11 THROUGH DECEMBER 10, 1966, LESS THE TIME HE WAS IN AN AUTHORIZED LEAVE STATUS AND REFUND OF BOQ FEES. AS A BASIS FOR HIS CLAIM HE SAYS IN A LETTER OF MAY 29, 1969, THAT HE HAS BEEN INFORMED THAT ORDERS SUCH AS HIS, WHICH PROVIDE FOR FURTHER MOVEMENT TO A RESTRICTIVE AREA AND LIMIT THE MOVEMENT OF DEPENDENTS TO A DESIGNATED PLACE, MAY PROVIDE FOR TEMPORARY DUTY AT THE INTERMEDIATE STATION, IN HIS CASE FORT MEADE. HE SAYS HE UNDERSTANDS THAT PER DIEM HAS BEEN PAID TO TWO OTHERS WITH SIMILAR ORDERS.

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 UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY REGARDLESS OF THE LENGTH OF TIME HE IS AWAY FROM THAT POST.

PARAGRAPH M3050 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE 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, INCLUDING PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH M3003-2A AND C OF THE REGULATIONS PROVIDED DURING THE PERIOD INVOLVED THAT THE TERM "TEMPORARY DUTY" MEANT DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER WAS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDED FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION, AND THAT EXCEPT WHEN SPECIFICALLY AUTHORIZED A TEMPORARY DUTY ASSIGNMENT WAS LIMITED TO 6 MONTHS.

PARAGRAPH 38A(9) OF ARMY REGULATION 310-10 AUTHORIZES FIELD COMMANDERS TO PUBLISH AMENDMENTS TO ORDERS AS MAY BE SPECIFICALLY AUTHORIZED BY OTHER ARMY REGULATIONS AND DIRECTIVES.

PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR NO. 614-8 DATED NOVEMBER 3, 1965, IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED:

ORDERS ASSIGNING PERSONNEL TO UNITS THAT ARE DEPLOYING TO SHORT TOUR UNACCOMPANIED AREAS WILL INCLUDE A STATEMENT AS FOLLOWS: (NAME) IS RELIEVED FROM DUTY AT CURRENT UNIT AND STATION AND IS ASSIGNED TO (UNIT) (NEW STATION) FOR FURTHER MOVE TO A RESTRICTED AREA OVERSEAS. TRANSPORTATION OF DEPENDENTS AND MOVEMENT OF HOUSEHOLD GOODS AUTHORIZED TO DESIGNATED LOCATION. MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS TO VICINITY OF (NEW STATION) IS NOT AUTHORIZED EXCEPT AS A MOVE TO A DESIGNATED PLACE." INDIVIDUAL ORDERS WILL NOT BE CLASSIFIED BECAUSE OF THIS STATEMENT.

THOSE PROVISIONS AND THE PROVISIONS OF PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR NO. 614-8 DATED MAY 26, 1967, RELATE TO THE PROVISIONS TO BE INCLUDED IN ORDERS ASSIGNING PERSONNEL TO UNITS THAT ARE SCHEDULED FOR DEPLOYMENT TO TOURS IN UNACCOMPANIED AREAS AND DO NOT AFFECT THE TEMPORARY OR PERMANENT CHARACTER OF THE MEMBER'S DUTY ASSIGNMENT.

WITH RESPECT TO THIS CASE A PERMANENT STATION IS DEFINED IN PARAGRAPH M1150-10A OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, THE LIMITS OF THE STATION BEING THE RESERVATION, STATION, ETC., WITHIN WHICH THE POST OF DUTY IS LOCATED. SINCE COLONEL MIDDLETON'S BASIC ORDERS ASSIGNED HIM TO THE 519TH TRANSPORTATION BATTALION (TRUCK) FOR DUTY, THAT UNIT WAS HIS POST OF DUTY AND THE ORDERS WERE PERMANENT CHANGE OF STATION ORDERS TO FORT MEADE. HE WAS ADVISED IN THE ORDERS HE WAS ENTITLED TO NORMAL PERMANENT CHANGE OF STATION DEPENDENT AND HOUSEHOLD EFFECTS TRANSPORTATION ALLOWANCES TO FORT MEADE ON THE BASIS OF SUCH ORDERS.

SINCE, HOWEVER, THE UNIT TO WHICH COLONEL MIDDLETON WAS ASSIGNED HAD BEEN ALERTED FOR OVERSEAS MOVEMENT TO A RESTRICTED AREA WITHIN 90 DAYS IT WAS CONCLUDED THAT, IN ADDITION TO THE NORMAL CHANGE OF PERMANENT STATION DEPENDENT AND HOUSEHOLD EFFECTS TRANSPORTATION ALLOWANCES, HE WAS ENTITLED, IF HE SO DESIRED, TO MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO A DESIGNATED PLACE ON THE BASIS OF THE UNIT ALERT NOTICE. SEE 45 COMP. GEN. 208. HE WAS ALSO ADVISED OF THIS ENTITLEMENT IN THE BASIC ORDERS AND AFFORDED THE OPPORTUNITY TO ELECT EITHER THE NORMAL CHANGE OF PERMANENT STATION ENTITLEMENT OR THE DESIGNATED PLACE ENTITLEMENT.

UPON HIS ELECTION TO MOVE HIS DEPENDENTS TO A DESIGNATED PLACE IT WAS NECESSARY TO AMEND HIS BASIC ORDERS TO MAKE THEM AGREE WITH THE REQUIREMENTS OF PARAGRAPH 7 OF DEPARTMENT OF THE ARMY CIRCULAR NO. 614 8. THIS AMENDMENT, HOWEVER, DID NOT CHANGE HIS ASSIGNMENT TO THE 519TH TRANSPORTATION BATTALION (TRUCK) TO A TEMPORARY DUTY ASSIGNMENT OR CONSTITUTE FORT MEADE A TEMPORARY DUTY STATION.

THE 519TH TRANSPORTATION BATTALION (TRUCK) WAS COLONEL MIDDLETON'S BASIC POST OF DUTY UNDER HIS ORDERS OF APRIL 11, 1966, AND WHEN HE REPORTED THERE HIS TRAVEL STATUS UNDER THOSE ORDERS ENDED. UPON REPORTING FOR DUTY WITH THE UNIT FORT MEADE BECAME HIS PERMANENT STATION. ANY SUBSEQUENT TRAVEL FROM THERE TO VIETNAM WOULD BE INCIDENT TO THE UNIT MOVEMENT ORDERS AND NOT PURSUANT TO HIS ORDERS TO FORT MEADE. SINCE HE WAS NOT AWAY FROM HIS BASIC POST OF DUTY DURING THE PERIOD COVERED BY HIS CLAIM HE IS NOT ENTITLED TO PER DIEM FOR ANY OF THAT PERIOD UNDER THE LAW AND REGULATIONS.

ACCORDINGLY, PAYMENT ON THE VOUCHER ENCLOSED WITH YOUR LETTER IS NOT AUTHORIZED AND THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE.

ANY PAYMENTS OF PER DIEM THAT MAY HAVE BEEN MADE IN CIRCUMSTANCES LIKE THOSE OF COLONEL MIDDLETON'S WERE ERRONEOUS AND STEPS SHOULD BE TAKEN TO RECOUP SUCH PAYMENTS.