B-173498, NOV 30, 1971

B-173498: Nov 30, 1971

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CLAIMANT WAS ASSIGNED TO TEMPORARY DUTY IN THE DOMINICAN REPUBLIC FOR APPROXIMATELY 180 DAYS. CLAIMANT WAS ASSIGNED TO PERMANENT DUTY IN SANTO DOMINGO. CLAIM IS FOR PERIOD BETWEEN EXPIRATION OF THE 180 DAYS AND MARCH 1. BASED ON CONTENTION THE PERIOD WAS CONTINUED TEMPORARY DUTY. ALTHOUGH AN EXTENSION OF TEMPORARY DUTY BEYOND THE NORMAL 180-DAY LIMIT IS POSSIBLE. SUCH EXTENSIONS MUST HAVE PRIOR APPROVAL OF HEADQUARTERS. AS NO PRIOR APPROVAL WAS OBTAINED AND NO SHOWING OF EMERGENCY HAS BEEN MADE PREVENTING PRIOR APPROVAL. CLAIMANT IS TO BE CONSIDERED IN A PERMANENT DUTY STATUS DURING THAT TIME. CLAIMED PER DIEM IS NOT ALLOWABLE. WERE CHANGED TO PROVIDE FOR APPROXIMATELY 256 DAYS' TEMPORARY DUTY INSTEAD OF APPROXIMATELY 180 DAYS' TEMPORARY DUTY.

B-173498, NOV 30, 1971

MILITARY PERSONNEL - PER DIEM - EXTENSIONS BEYOND 180 DAYS DECISION DENYING CLAIM OF MR. JAMES J. TODD FOR ADDITIONAL PER DIEM FOR ALLEGED TEMPORARY DUTY IN THE DOMINICAN REPUBLIC, WHILE SERVING IN THE UNITED STATES ARMY. ON MAY 14, 1965 BY LETTER ORDERS, CLAIMANT WAS ASSIGNED TO TEMPORARY DUTY IN THE DOMINICAN REPUBLIC FOR APPROXIMATELY 180 DAYS. BY SPECIAL ORDERS, DATED MARCH 23, 1966, WHICH CONFIRMED VERBAL ORDERS OF MARCH 1, 1966, CLAIMANT WAS ASSIGNED TO PERMANENT DUTY IN SANTO DOMINGO. CLAIM IS FOR PERIOD BETWEEN EXPIRATION OF THE 180 DAYS AND MARCH 1, 1966, BASED ON CONTENTION THE PERIOD WAS CONTINUED TEMPORARY DUTY. ALTHOUGH AN EXTENSION OF TEMPORARY DUTY BEYOND THE NORMAL 180-DAY LIMIT IS POSSIBLE, SUCH EXTENSIONS MUST HAVE PRIOR APPROVAL OF HEADQUARTERS, DEPARTMENT OF THE ARMY. AS NO PRIOR APPROVAL WAS OBTAINED AND NO SHOWING OF EMERGENCY HAS BEEN MADE PREVENTING PRIOR APPROVAL, NO LEGAL BASIS EXISTS FOR CONSIDERING THE DISPUTED PERIOD TEMPORARY DUTY TIME. ACCORDINGLY, CLAIMANT IS TO BE CONSIDERED IN A PERMANENT DUTY STATUS DURING THAT TIME. THEREFORE, CLAIMED PER DIEM IS NOT ALLOWABLE.

TO MR. JAMES J. TODD, JR.:

WE REFER FURTHER TO YOUR LETTER OF JUNE 1, 1971, REGARDING YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TEMPORARY DUTY IN THE DOMINICAN REPUBLIC FROM MAY 14, 1965, TO MARCH 1, 1966, WHILE SERVING IN THE UNITED STATES ARMY.

LETTER ORDERS 1229, MAY 14, 1965, HEADQUARTERS UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA 31905, ASSIGNED YOU FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS WITH XVII AIRBORNE CORPS, FORT BRAGG, NORTH CAROLINA, FOR DUTY WITH HEADQUARTERS, UNITED STATES FORCES DOMINICAN REPUBLIC.

SPECIAL ORDERS NUMBER 82, MARCH 23, 1966, HEADQUARTERS, UNITED STATES FORCES DOMINICAN REPUBLIC, CONFIRMED A VERBAL ORDER OF THE COMMANDING GENERAL GIVEN MARCH 1, 1966, WHICH AUTHORIZED YOUR PERMANENT CHANGE OF STATION WITH ASSIGNMENT TO 13TH PUBLIC INFORMATION DETACHMENT (FIELD SERVICE) APO NEW YORK, NEW YORK 09478 (SANTO DOMINGO), EFFECTIVE MARCH 1, 1966.

LETTER ORDERS 2612, JULY 29, 1966, HEADQUARTERS UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA 31905, STATED THAT LETTER ORDERS 1229 PREVIOUSLY ISSUED BY THAT COMMAND ON MAY 14, 1965, WERE CHANGED TO PROVIDE FOR APPROXIMATELY 256 DAYS' TEMPORARY DUTY INSTEAD OF APPROXIMATELY 180 DAYS' TEMPORARY DUTY. THE ORDER STATED THAT IT CONFIRMED A VERBAL ORDER OF THE COMMANDING GENERAL, DATED MAY 15, 1965. CITED AUTHORITY WAS MESSAGE OF COMMANDER-IN-CHIEF, UNITED STATES FORCES, ATLANTIC/UNITED STATES CONTINENTAL ARMY COMMAND, DATED JANUARY 3, 1966.

YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY SUBSEQUENT TO THE ORIGINAL PERIOD OF 180 DAYS' TEMPORARY DUTY WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF MARCH 9, 1971.

IN YOUR LETTER OF JUNE 1, 1971, WHICH IN EFFECT REQUESTS REVIEW OF THE SETTLEMENT, YOU SAY THAT IMMEDIATELY PRIOR TO EXPIRATION OF YOUR ORIGINAL ORDERS ASSIGNING YOU TO APPROXIMATELY 180 DAYS' TEMPORARY DUTY, EFFORTS WERE BEGUN TO SECURE WRITTEN ORDERS EITHER EXTENDING YOUR TEMPORARY DUTY OR RELIEVING YOU FROM THAT DUTY, BUT THAT ORDERS WERE ISSUED ONLY AFTER SUBSTANTIAL ADMINISTRATIVE DELAY. YOU SAY ALSO THAT YOU WERE VERBALLY ORDERED NOT TO RETURN TO YOUR REGULAR DUTY AT FORT BENNING, AND THAT, IN YOUR OPINION, YOU WERE ORDERED TO REMAIN ON TEMPORARY DUTY, EITHER BY VIRTUE OF THE SUBSEQUENT WRITTEN ORDERS YOU RECEIVED, OR BECAUSE OF THE LACK OF WRITTEN ORDERS RELIEVING YOU FROM SUCH DUTY PRIOR TO MARCH 1, 1966. THEREFORE, YOU CONCLUDE THAT YOU ARE ENTITLED TO PER DIEM FROM MAY 14, 1965, TO MARCH 1, 1966, THE EFFECTIVE DATE OF YOUR PERMANENT ASSIGNMENT TO 13TH PUBLIC INFORMATION DETACHMENT (FIELD SERVICE).

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH 3003-2C OF THE JOINT TRAVEL REGULATIONS (CHANGE 143, DECEMBER 1, 1964) PROVIDES THAT EXCEPT WHEN AUTHORIZED IN ACCORDANCE WITH SUBPARAGRAPH D, TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) WILL BE LIMITED TO PERIODS NOT IN EXCESS OF 6 MONTHS. THIS LIMITATION DOES NOT PRECLUDE BONA FIDE EXTENSIONS OF SUCH ASSIGNMENTS WHICH, WHEN ADDED TO THE ORIGINALLY AUTHORIZED PERIOD, TOTAL MORE THAN 6 MONTHS. SUCH EXTENSIONS ARE LIMITED TO THOSE CASES IN WHICH THERE HAS BEEN A DEFINITE CHANGE OR UNFORESEEN EXPANSION IN THE DUTY, OR UNFORESEEN DELAYS WERE ENCOUNTERED, REQUIRING AN EXTENSION OF THE TEMPORARY DUTY PERIOD.

SUBPARAGRAPH 2D PROVIDES THAT WHEN UNUSUAL OR EMERGENCY CIRCUMSTANCES OR THE EXIGENCIES OF THE SERVICE APPEAR TO REQUIRE THE ASSIGNMENT OF MEMBERS TO TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) FOR PERIODS OF MORE THAN 6 MONTHS UNDER CONDITIONS WHERE IT WOULD BE IMPRACTICABLE OR UNECONOMICAL TO EFFECT A PERMANENT CHANGE OF STATION, SUCH CASES WILL BE FORWARDED WITH A FULL STATEMENT OF THE FACTS IN THE CASE TO THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED FOR AUTHORIZATION. NORMALLY, IT STATES, THIS AUTHORIZATION WILL BE SECURED IN ADVANCE OF ISSUANCE OF ORDERS, BUT IF THE UNUSUAL OR EMERGENCY NATURE OF THE CASE WILL NOT PERMIT SUCH DELAY, ORDERS MAY BE ISSUED DIRECTING PERFORMANCE OF THE TEMPORARY DUTY AND THE CASE WILL BE SUBMITTED IMMEDIATELY WITH A FULL STATEMENT OF THE FACTS IN THE CASE TO THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED FOR APPROVAL OF THE ORDERS OR SUCH OTHER ACTION AS HE MAY DIRECT.

IN CONCLUSION, SUBPARAGRAPH 2C STATES THAT THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED WILL BE THE SECRETARY OF THE SERVICE CONCERNED OR THE CHIEF OF AN APPROPRIATE BUREAU OR STAFF AGENCY SPECIFICALLY DESIGNATED FOR THAT PURPOSE, AND THAT THIS AUTHORITY MAY NOT BE REDELEGATED.

PARAGRAPH 37A, ARMY REGULATION NO. 310-10, IN EFFECT AT THE TIME IN QUESTION, STATES THAT TEMPORARY DUTY AWAY FROM HOME STATION, INCLUDING TEMPORARY CHANGE OF STATION OR UNITS, WILL BE HELD TO A MINIMUM CONSISTENT WITH MILITARY NECESSITY. THE POLICY OF HEADQUARTERS, DEPARTMENT OF THE ARMY, IS THAT AN INDIVIDUAL OR ORGANIZATION WILL NOT BE PLACED ON TEMPORARY DUTY AWAY FROM HOME STATION FOR A PERIOD IN EXCESS OF 6 MONTHS DURING ANY 12-MONTH PERIOD. PARAGRAPH 37C OF THE REGULATION PROVIDES THAT NO INDIVIDUAL OR ORGANIZATION WILL BE PLACED ON CONTINUOUS TEMPORARY DUTY IN ONE LOCATION FOR A PERIOD IN EXCESS OF 180 DAYS WITHOUT PRIOR APPROVAL OF HEADQUARTERS, DEPARTMENT OF THE ARMY. REQUESTS FOR SUCH DUTY WILL BE FORWARDED THROUGH COMMAND CHANNELS TO THE ADJUTANT GENERAL. EACH REQUEST IS TO CONTAIN COMPLETE JUSTIFICATION AS OUTLINED IN PARAGRAPH M3003-2 OF THE JOINT TRAVEL REGULATIONS.

WRITTEN ORDERS ISSUED AT FORT BENNING ON JULY 29, 1966, PURPORTED TO EXTEND YOUR PREVIOUSLY AUTHORIZED 180-DAY PERIOD OF TEMPORARY DUTY IN SANTO DOMINGO BY CONFIRMING A VERBAL ORDER OF THE COMMANDING GENERAL. AUTHORITY FOR THIS ACTION WAS SAID TO BE A MESSAGE RECEIVED FROM THE COMMANDER-IN-CHIEF, UNITED STATES FORCES, ATLANTIC/UNITED STATES CONTINENTAL ARMY COMMAND. HOWEVER, IN THE ABSENCE OF INDICATION OF PRIOR APPROVAL OF THE EXTENSION BY HEADQUARTERS, DEPARTMENT OF THE ARMY, AS REQUIRED BY PARAGRAPH 37C, ARMY REGULATION NO. 310-10, THESE ORDERS WERE NOT VALIDLY AUTHORIZED AND DID NOT SERVE TO CONTINUE YOUR TEMPORARY DUTY STATUS BEYOND THE 180-DAY PERIOD INITIALLY AUTHORIZED. SEE DECISION B- 155932, MARCH 17, 1965, COPY ENCLOSED.

IN FURTHER REGARD TO WRITTEN ORDERS ISSUED JULY 29, 1966, WHICH STATE THAT THEY CONFIRM A VERBAL ORDER GIVEN MAY 15, 1965, IT MAY BE STATED THAT WE HAVE ACCEPTED WRITTEN ORDERS CONFIRMING VERBAL ORDERS IF THEY ARE ISSUED WITHIN A REASONABLE TIME AFTER THE VERBAL ORDERS ARE GIVEN AND ARE SUBSTANTIATED BY EVIDENCE THAT AN EMERGENCY PREVENTED THE ISSUANCE OF WRITTEN ORDERS. HERE, CONFIRMING ORDERS WERE ISSUED OVER 14 MONTHS AFTER THE VERBAL ORDER IN QUESTION. THERE HAS BEEN NO OFFICIAL EXPLANATION OR SHOWING THAT AN EMERGENCY PRECLUDED WRITTEN ORDERS.

WHILE YOU HAVE SAID THAT YOU WERE VERBALLY ORDERED NOT TO RETURN TO FORT BENNING, IT APPEARS THAT THIS ORDER WAS GIVEN ABOUT THE TIME OF TERMINATION OF YOUR ORIGINAL PERIOD OF TEMPORARY DUTY AND NOT ON MAY 15, 1965, THE DAY AFTER YOUR ORIGINAL ORDERS. ADDITIONALLY, THE ORDER YOU DESCRIBE, BY ITS TERMS, DID NOT ASSIGN YOU TO ADDITIONAL TEMPORARY DUTY. IT MERELY PREVENTED YOUR RETURN TO YOUR OLD DUTY STATION; A PERMANENT DUTY ASSIGNMENT IN SAN DOMINGO WAS NOT PRECLUDED BY THE ORDER. IN THE CIRCUMSTANCES, THE ORDERS OF JULY 29, 1966, MAY NOT BE ACCEPTED AS CONFIRMING PRIOR VERBAL ORDERS FOR ADDITIONAL TEMPORARY DUTY. SEE DECISION B-163290, MARCH 13, 1968, COPY ENCLOSED.

ACCORDINGLY, AS THERE WAS LEGAL AUTHORITY ONLY FOR ASSIGNMENT TO TEMPORARY DUTY OF APPROXIMATELY 180 DAYS, AT THE CONCLUSION OF THIS PERIOD YOU ARE CONSIDERED TO HAVE BEEN IN A PERMANENT STATUS AT YOUR DUTY STATION IN SANTO DOMINGO. SINCE UNDER THE PROVISIONS OF 37 U.S.C. 404 AND PARAGRAPH M3050 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO, A MEMBER'S ENTITLEMENT TO TRAVEL ALLOWANCES IS DEPENDENT UPON HIS BEING IN A TRAVEL STATUS AWAY FROM HIS PERMANENT STATION, PER DIEM IS NOT PAYABLE WHERE A MEMBER IS PRESENT AT HIS PERMANENT DUTY STATION. THEREFORE, YOUR ENTITLEMENT TO PER DIEM IS LIMITED TO THE TEMPORARY DUTY PERIOD ESTABLISHED IN YOUR ORIGINAL ORDERS OF MAY 14, 1965. SEE DECISIONS B-155932 AND B-163290, SUPRA.

WHILE IT APPEARS THAT THERE MAY HAVE BEEN ADMINISTRATIVE DELAY OR ERROR IN THE MANNER OF YOUR ASSIGNMENT, SUCH CIRCUMSTANCES, IN OUR OPINION, AFFORD NO BASIS FOR ESTABLISHMENT OF A TEMPORARY DUTY STATUS OR FOR THE PAYMENT OF PER DIEM NOT OTHERWISE AUTHORIZED UNDER THE APPLICABLE LAW AND REGULATIONS.

TRAVEL VOUCHER 401527, APRIL 21, 1966, 104TH FINANCE SECTION, APO NEW YORK, NEW YORK 09478, INDICATES THAT ON APRIL 25, 1966, YOU ACKNOWLEDGED RECEIPT OF A CASH PAYMENT OF $188.51. THIS AMOUNT INCLUDED PER DIEM OF $9.51 FOR TRAVEL EN ROUTE TO THE DOMINICAN REPUBLIC AS WELL AS $179 PER DIEM AT THE RATE OF $1 DAILY FOR 179 DAYS, FOR THE PERIOD FROM MAY 16, 1965, TO NOVEMBER 11, 1965. AS ENTITLEMENT TO PER DIEM SUBSEQUENT TO NOVEMBER 11, 1965, IS NOT SHOWN, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL PER DIEM IS SUSTAINED.