B-171983, APR 9, 1971, 50 COMP GEN 723

B-171983, APR 9, 1971, 50 COMP GEN 723

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - AT HOME PORT OF SUBMARINE OFF-DUTY CREW A NAVAL OFFICER DETACHED FROM DUTY ABOARD A VESSEL WHO PENDING SEPARATION IS PLACED ON TEMPORARY DUTY WITH A COMMANDER, SUBMARINE FLOTILLA TWO, WHICH ALTHOUGH AT HOME BASE HAS A FLAGSHIP, AND ASSIGNED TO AN ASHORE STAFF POSITION AT THE HOME PORT OF THE OFF-CREW OF THE SUBMARINE MAY BE PAID PER DIEM SINCE THE TEMPORARY DUTY WAS NOT PERFORMED ABOARD A GOVERNMENT VESSEL WITHIN THE MEANING OF PARAGRAPH M4250-8 OF THE JOINT TRAVEL REGULATIONS. THE ASSIGNMENT OF THE FLAGSHIP IS OF NO CONSEQUENCE SINCE THE TEMPORARY DUTY WAS PERFORMED ASHORE, AND THE FACT THAT THE TEMPORARY DUTY LOCATION WAS AT THE HOME PORT OF THE OFF-CREW, OR THAT NO ADDITIONAL SUBSISTENCE COST WAS INCURRED BY THE MEMBER, DOES NOT AFFECT HIS ENTITLEMENT AS THE TEMPORARY DUTY WAS NOT IN CONNECTION WITH THE TRAINING AND REHABILITATION OF THE CREW, AND PER DIEM IS A COMMUTATION OF EXPENSES PAYABLE REGARDLESS OF EXPENSES INCURRED.

TO LIEUTENANT J. COLLINS, DEPARTMENT OF THE NAVY, APRIL 9, 1971:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1970, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF PER DIEM TO LIEUTENANT FREDERICK H. FLOR, JR., USN, FOR PERIODS OF TEMPORARY DUTY AT COMMANDER, SUBMARINE FLOTILLA TWO, UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 71-2 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED MARCH 6, 1970, THE COMMANDING OFFICER, USS WILL ROGERS (SSBN 659), GOLD, ADVISED LIEUTENANT FLOR OF BUREAU OF NAVAL PERSONNEL ORDER NO. 050896, DETACHING HIM FROM DUTY ON BOARD THAT VESSEL AND DIRECTING HIM TO REPORT TO THE COMMANDER, SUBMARINE FLOTILLA TWO, FOR TEMPORARY DUTY AND FOR FURTHER ASSIGNMENT TO DUTY BY THE CHIEF OF NAVAL PERSONNEL. ENDORSEMENT TO THE ORDERS SHOWS THAT THE OFFICER WAS DETACHED MARCH 6, 1970, FROM DUTY ABOARD THE VESSEL AND REPORTED AT 0800 HOURS ON THAT DATE FOR TEMPORARY DUTY TO COMMANDER, SUBMARINE FLOTILLA TWO.

BUREAU OF NAVAL PERSONNEL ORDER NO. 048220, DATED MARCH 9, 1970, ADVISED LIEUTENANT FLOR THAT HIS RESIGNATION OF HIS COMMISSION HAD BEEN ACCEPTED; THAT WHEN DIRECTED IN JUNE 1970 HE WAS DETACHED FROM THE ORDERED TEMPORARY DUTY AND SHOULD PROCEED AND REPORT TO THE APPROPRIATE ACTIVITY FOR TEMPORARY DUTY IN CONNECTION WITH HIS SEPARATION PROCESSING. MEMORANDUM ENDORSEMENT DATED JUNE 10, 1970, STATED THAT HIS TEMPORARY DUTY WAS COMPLETED THAT DATE AND DIRECTED HIM TO CARRY OUT THE REMAINDER OF HIS BASIC ORDERS.

THE OFFICER SAYS THAT WHILE ON THE INVOLVED TEMPORARY DUTY HE WAS ASSIGNED AN ASHORE STAFF POSITION REQUIRING NO SEA DUTY. HE SAYS FURTHER THAT HE WAS ON LEAVE FROM 0800 MAY 10 TO 0800 MAY 13, 1970, AND CLAIMS PER DIEM AT THE RATE OF $4.50 FOR THE PERIOD FROM MARCH 7 TO MAY 9 AND FROM MAY 13 TO JUNE 9, 1970.

AS A BASIS FOR DOUBT IN THE MATTER YOU SAY THAT THE TEMPORARY DUTY STATION, ALTHOUGH LOCATED ABOARD THE SUBMARINE BASE, NEW LONDON, HAD BEEN ASSIGNED A FLAGSHIP AND DOUBT ARISES AS TO WHETHER PER DIEM IS PAYABLE FOR PERIODS OF TEMPORARY DUTY IN SUCH CIRCUMSTANCES WITHIN THE MEANING OF PARAGRAPH M4250-8, JOINT TRAVEL REGULATIONS, WHICH PRECLUDES PER DIEM FOR TEMPORARY DUTY ABOARD A GOVERNMENT VESSEL. THE DIRECTOR, NAVY MILITARY PAY SYSTEM, EXPRESSES DOUBT ABOUT THE LEGALITY OF PAYMENT BECAUSE PART OF THE STAFF OF SUBMARINE FLOTILLA TWO WAS ABOARD VARIOUS SUBMARINES AFLOAT AND PART WAS STATIONED ASHORE.

THE COMMANDER, SUBMARINE FLOTILLA TWO, SAYS THAT THE TEMPORARY ADDITIONAL DUTY PERFORMED BY LIEUTENANT FLOR WAS AT THE SAME LOCATION AS THE HOME PORT OF THE OFF-CREW OF THE SUBMARINE FROM WHICH HE WAS DETACHED AND THERE SHOULD BE NO INCREASE IN THE COST OF SUBSISTENCE TO THE MEMBER. THE CHIEF OF NAVAL PERSONNEL EXPRESSES THE OPINION THAT SINCE NO INCREASE IN SUBSISTENCE COST SHOULD HAVE BEEN INCURRED BY THE MEMBER WHILE PERFORMING THE TEMPORARY DUTY, PAYMENT OF A PER DIEM SHOULD BE PRECLUDED.

THE EXECUTIVE OFFICER OF THE PER DIEM, TRAVEL AND TRANSPORTATION COMMITTEE, HOWEVER, TAKES THE POSITION THAT THE FACT THAT THE TEMPORARY DUTY STATION HAD AN ASSIGNED FLAGSHIP IS OF NO CONSEQUENCE, SINCE THE TEMPORARY DUTY WAS PERFORMED ASHORE. WITH RESPECT TO THE LOCATION BEING THAT OF THE HOME PORT OF THE OFF-CREW OF THE SUBMARINE, IT IS THE COMMITTEE EXECUTIVE'S VIEW THAT SINCE THE TEMPORARY DUTY WAS NOT IN CONNECTION WITH TRAINING AND REHABILITATION OF THE OFF-CREW AS PROVIDED IN PARAGRAPH 4061, NAVY TRAVEL INSTRUCTIONS, THAT PARAGRAPH DID NOT BAR THE PAYMENT OF A PER DIEM AT THE HOME PORT OF THE VESSEL. IN THIS REGARD HE POINTS OUT THAT THERE ARE NUMEROUS DECISIONS OF OUR OFFICE HOLDING THAT PER DIEM IS PAYABLE FOR TEMPORARY DUTY AT THE HOME PORT OF A VESSEL, EVEN IN CASES WHERE THE MEMBER IS STILL ATTACHED TO THE VESSEL.

PARAGRAPH M1150-10A, OF THE JOINT TRAVEL REGULATIONS DEFINES A PERMANENT STATION AS THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME PORT OR HOME YARD OF A VESSEL OR OF A SHIP-BASED STAFF INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY." AND, WE HELD IN 46 COMP. GEN. 263 THAT MEMBERS ASSIGNED ON CHANGE OF PERMANENT STATION TO A SHIPBASED STAFF MUST BE VIEWED AS ATTACHED TO A VESSEL FOR THE PURPOSE OF SUCH TRANSPORTATION ALLOWANCES. THIS CASE, HOWEVER, IS NOT CONCERNED WITH CHANGE OF PERMANENT STATION TRANSPORTATION ALLOWANCES AND THAT DECISION IS NOT FOR APPLICATION.

UNDER THE PROVISIONS OF 37 U.S.C. 404(A) AND IMPLEMENTING REGULATIONS CONTAINED IN PART E, CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS MEMBERS ARE ENTITLED, WITH 14 SPECIFIC EXCEPTIONS, TO A PER DIEM WHILE PERFORMING TEMPORARY DUTY AND, TEMPORARY DUTY SO FAR AS HERE CONCERNED, IS DEFINED IN PARAGRAPH M3003-2A OF THE REGULATIONS 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. PARAGRAPH M4201, ITEM 8, ONE OF THE SPECIFIC EXCEPTIONS, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL, WHEN BOTH GOVERNMENT QUARTERS AND MESS ARE AVAILABLE. PARAGRAPH M4250, ITEM 8, MAKES SIMILAR EXCEPTIONS FOR TEMPORARY DUTY PERFORMED OUTSIDE THE UNITED STATES.

THE ORDERS IN THIS CASE DO NOT DIRECT THE PERFORMANCE OF DUTY ON BOARD A VESSEL AND IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THE STAFF TO WHICH LIEUTENANT FLOR WAS ASSIGNED WHEN HE REPORTED FOR TEMPORARY DUTY AT COMMANDER, SUBMARINE FLOTILLA TWO, WAS PHYSICALLY LOCATED ASHORE AT THE SUBMARINE BASE, NEW LONDON, CONNECTICUT. ALSO, THE TEMPORARY DUTY WAS PERFORMED AT A LOCATION OTHER THAN THE PERMANENT STATION AND SINCE THE OFFICER HAD BEEN DETACHED FROM DUTY ON BOARD THE VESSEL, IT IS CLEAR THAT THE TEMPORARY DUTY DIRECTED BY THE ORDERS WAS NOT IN THE NATURE OF TRAINING AND REHABILITATION AS A MEMBER OF AN OFF CREW GROUP. UNDER THOSE CIRCUMSTANCES, WE CONCUR WITH THE VIEWS EXPRESSED BY THE EXECUTIVE OFFICER OF THE PER DIEM COMMITTEE, THAT THE FACT COMMANDER SUBMARINE FLOTILLA TWO HAD AN ASSIGNED FLAGSHIP, IS OF NO CONSEQUENCE IN DETERMINING ENTITLEMENT TO PER DIEM TO THE EXTENT THAT THE TEMPORARY DUTY WAS NOT PERFORMED ON BOARD A VESSEL. PER DIEM IS A COMMUTATION OF EXPENSES AND IS PAYABLE WITHOUT REGARD TO WHETHER THE EXPENSES WHICH IT IS DESIGNED TO REIMBURSE ARE ACTUALLY INCURRED. HENCE, THE FACT, IF ESTABLISHED, THAT THE COSTS INVOLVED MAY NOT HAVE BEEN MORE THAN THOSE INCURRED BY MEMBERS OF AN OFFCREW OF A TWO-CREW SUBMARINE ON TEMPORARY DUTY FOR TRAINING AND REHABILITATION AT THE HOME PORT OF THAT SUBMARINE DOES NOT PRECLUDE PAYMENT OF PER DIEM IN THIS CASE.

ACCORDINGLY, THE TRAVEL VOUCHER, WITH SUPPORTING PAPERS, IS RETURNED FOR PAYMENT IN THE AMOUNT PROPERLY DUE, IF OTHERWISE CORRECT.