B-169678, JUL. 1, 1970

B-169678: Jul 1, 1970

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AIR FORCE MEMBER WHO WAS ISSUED ORDERS ASSIGNING HIM TO PERMANENT DUTY AT STATION TO BE PRECEDED BY TEMPORARY DUTY AT SAME STATION TO ATTEND COURSE OF INSTRUCTION MAY NOT HAVE ORDERS CONSIDERED TO HAVE BEEN ERRONEOUSLY ISSUED SO AS TO BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY. AMOUNT DUE MEMBER AS QUARTERS SERVICE CHARGES MAY BE PAID TO MEMBER SINCE HE HAS NOT CONSENTED TO HAVE IT APPLIED TO HIS DEBT ON A VA LOAN. THE SETTLEMENT ALSO STATED THAT SINCE PER DIEM IS NOT PAYABLE. YOU ARE ENTITLED TO REIMBURSEMENT IN THE SUM OF $110 REPRESENTING THE AMOUNT PAID BY YOU AS QUARTERS SERVICE CHARGES DURING THAT PERIOD. YOU WERE RELIEVED FROM DUTY AT FORBES AIR FORCE BASE. UPON COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE PAID $393.25 REPRESENTING PER DIEM FOR 55 DAYS AT THE RATE OF $5.15 ($283.25) AND REIMBURSEMENT FOR QUARTERS FEES ($110) FOR THE SAME PERIOD.

B-169678, JUL. 1, 1970

MILITARY -- PER DIEM -- TEMPORARY DUTY -- AT PERMANENT STATION DECISION TO RETIRED AIR FORCE OFFICER SUSTAINING THE DISALLOWANCE OF CLAIM FOR PER DIEM FOR TEMPORARY DUTY DURING THE PERIOD JANUARY 25 THRU 20 MARCH 1970. AIR FORCE MEMBER WHO WAS ISSUED ORDERS ASSIGNING HIM TO PERMANENT DUTY AT STATION TO BE PRECEDED BY TEMPORARY DUTY AT SAME STATION TO ATTEND COURSE OF INSTRUCTION MAY NOT HAVE ORDERS CONSIDERED TO HAVE BEEN ERRONEOUSLY ISSUED SO AS TO BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY. HOWEVER, AMOUNT DUE MEMBER AS QUARTERS SERVICE CHARGES MAY BE PAID TO MEMBER SINCE HE HAS NOT CONSENTED TO HAVE IT APPLIED TO HIS DEBT ON A VA LOAN.

TO LIEUTENANT COLONEL DONALD R. BOGGUSS:

YOUR LETTER OF APRIL 9, 1970, REQUESTS FURTHER CONSIDERATION OF THAT PART OF THE SETTLEMENT OF FEBRUARY 24, 1970, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR DUTY AT SEWART AIR FORCE BASE, TENNESSEE, DURING THE PERIOD JANUARY 25 THROUGH MARCH 20, 1967.

THE SETTLEMENT ALSO STATED THAT SINCE PER DIEM IS NOT PAYABLE, YOU ARE ENTITLED TO REIMBURSEMENT IN THE SUM OF $110 REPRESENTING THE AMOUNT PAID BY YOU AS QUARTERS SERVICE CHARGES DURING THAT PERIOD, AND REQUESTED YOUR CONSENT TO APPLY THAT AMOUNT IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES ON VETERANS ADMINISTRATION GUARANTEED LOAN NO. LH- 60102 FLA-MI.

BY SPECIAL ORDER NO. A-1495 DATED DECEMBER 22, 1966, YOU WERE RELIEVED FROM DUTY AT FORBES AIR FORCE BASE, KANSAS, WITH PERMANENT STATION AT BROOKLEY AIR FORCE BASE, ALABAMA, AND ASSIGNED TO PERMANENT DUTY AT SEWART AIR FORCE BASE, TENNESSEE, TO BE PRECEDED BY TEMPORARY DUTY AT THE SAME STATION FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION OF APPROXIMATELY 55 DAYS.

UPON COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE PAID $393.25 REPRESENTING PER DIEM FOR 55 DAYS AT THE RATE OF $5.15 ($283.25) AND REIMBURSEMENT FOR QUARTERS FEES ($110) FOR THE SAME PERIOD. THE AMOUNT PAID WAS SUBSEQUENTLY COLLECTED FROM YOU BY CHECK AGE FOR THE REASON THAT THE TEMPORARY DUTY WAS PERFORMED AT YOUR PERMANENT STATION. THE SETTLEMENT MENTIONED ABOVE DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE SAME REASON.

IN YOUR PRESENT LETTER YOU SAY THAT THE SETTLEMENT OVERLOOKED THE FACT THAT THE BASIS FOR YOUR CLAIM IS THAT THE ORDERS AS WRITTEN RESULTED FROM AN ADMINISTRATIVE ERROR, AND THAT THE PERSONNEL OFFICER AT FORBES AIR FORCE BASE ADMITTED THE ERROR BUT DUE TO THE FACT THAT THE FISCAL YEAR HAD PASSED HE WAS UNABLE TO ISSUE AMENDATORY ORDERS TO RECTIFY THE SITUATION. ALSO, YOU SAY THE SETTLEMENT MISSED THE FACT THAT YOU WERE ADVISED BY TACTICAL AIR COMMAND HEADQUARTERS THAT YOU WOULD BE SENT ON TEMPORARY DUTY AND THAT THIS WAS LATER CONFIRMED BY A MESSAGE DIRECTING THAT SUCH ACTION BE TAKEN. IN ADDITION, YOU SAY THAT IF THE DECISION OF THIS OFFICE IS FINAL AND WE CONCLUDE YOU ARE NOT ENTITLED TO PER DIEM, THE QUARTERS CHARGES SHOULD BE REMITTED TO YOU AND NOT APPLIED TO YOUR INDEBTEDNESS.

PARAGRAPH M3003-2A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TERM "TEMPORARY DUTY" MEANS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. PARAGRAPH M4209 OF THE REGULATIONS PROVIDES 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 ORDERS SPECIFICALLY DIRECT RETURN TO THE OLD PERMANENT STATION ON OFFICIAL BUSINESS.

IT LONG HAS BEEN THE VIEW OF THIS OFFICE 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 IS NOT AWAY FROM HIS STATION AND IS NOT ENTITLED TO TEMPORARY DUTY ALLOWANCES. 37 COMP. GEN. 140 (1957) AND 38 COMP. GEN. 656 (1959).

IN YOUR CASE THE ORDERS OF DECEMBER 22, 1966, CLEARLY DESIGNATED SEWART AIR FORCE BASE, TENNESSEE, AS YOUR PERMANENT STATION AND DIRECTED TEMPORARY DUTY AT THE SAME STATION. PER DIEM IS NOT PAYABLE UNDER SUCH CIRCUMSTANCES. THE SUBSTANCE OF YOUR CONTENTION IS THAT THE ORDERS AS ISSUED WERE ERRONEOUS AND THAT IT WAS ADMINISTRATIVELY INTENDED TO ISSUE ORDERS TO PLACE YOU ON TEMPORARY DUTY IN CIRCUMSTANCES THAT WOULD ENABLE YOU TO BE PAID PER DIEM. THE ORDERS WERE NOT SO ISSUED, HOWEVER, AND NO AMENDATORY ORDERS WERE ISSUED TO EXPRESS AN ADMINISTRATIVE INTENT OTHER THAN SHOWN BY THE ORDERS OF DECEMBER 22, 1966.

AS FAR AS THE RECORD SHOWS, IT WAS CLEARLY INTENDED AT THE TIME THE ORDERS OF DECEMBER 22, 1966, WERE ISSUED THAT SEWART AIR FORCE BASE WAS TO BE YOUR PERMANENT STATION. HENCE, ANY ADVICE YOU RECEIVED THAT YOU WOULD BE ENTITLED TO TEMPORARY DUTY ALLOWANCES WHILE ATTENDING A COURSE OF INSTRUCTION AT THAT BASE WAS ERRONEOUS AND PROVIDES NO BASIS TO ALLOW YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 24, 1970, IS CORRECT AND IS SUSTAINED.

THE ACTION OF THIS OFFICE ON CLAIMS PRESENTED HERE FOR SETTLEMENT IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. ASIDE FROM THE JURISDICTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF MEMBERS OF THE UNIFORMED SERVICES IF FILED WITHIN SIX YEARS AFTER THEY FIRST ACCRUED. 28 U.S.C. 1346(2), 1491, 2401 AND 2501.

SINCE FAVORABLE ACTION ON YOUR CLAIM FOR PER DIEM CANNOT BE TAKEN BY THIS OFFICE AND SINCE YOU HAVE NOT CONSENTED TO THE APPLICATION OF THE SUM OF $110 DUE YOU AS REIMBURSEMENT OF QUARTERS FEES IN REDUCTION OF YOUR INDEBTEDNESS ON YOUR VETERANS LOAN, A SETTLEMENT FOR THAT AMOUNT WILL ISSUE IN DUE COURSE.