B-174602, SEP 29, 1972

B-174602: Sep 29, 1972

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SINCE THE NORTH ISLAND BASE IS NOT WITHIN THE CORPORATE LIMITS OF SAN DIEGO. WAS NOT IN PORT WHEN HE ARRIVED. HE WAS PERFORMING TEMPORARY DUTY AWAY FROM HIS OLD PERMANENT DUTY STATION (NAVAL TRAINING CENTER. SAN DIEGO) AND IS ENTITLED TO PER DIEM EVEN THOUGH HE MAY HAVE CONTINUED TO OCCUPY THE SAME QUARTERS DURING THIS PERIOD. WAS NOT PROVIDED. IT MUST BE ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AND MR. CALL AWAY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 19. JAVIER WAS DETACHED FROM THE NAVAL TRAINING CENTER. TO THE USS CONSTELLATION (CVA-64) THE HOME PORT OF WHICH WAS THE NAVAL AIR STATION AT NORTH ISLAND. JAVIER'S ORDERS WERE ENDORSED TO SHOW THAT HE REPORTED TO THE "FLAG ADMINISTRATIVE UNIT.

B-174602, SEP 29, 1972

MILITARY PERSONNEL - "TEMPORARY DUTY" AT HOME PORT - PER DIEM DECISION ALLOWING IN PART A CLAIM OF MM1 BENEDICTO M. JAVIER, USN, FOR PER DIEM WHILE PERFORMING TEMPORARY DUTY AT NAS NORTH ISLAND, SAN DIEGO, CALIF. SINCE THE NORTH ISLAND BASE IS NOT WITHIN THE CORPORATE LIMITS OF SAN DIEGO, AND MR. JAVIER'S ASSIGNED VESSEL, THE CONSTELLATION, WAS NOT IN PORT WHEN HE ARRIVED, HE WAS PERFORMING TEMPORARY DUTY AWAY FROM HIS OLD PERMANENT DUTY STATION (NAVAL TRAINING CENTER, SAN DIEGO) AND IS ENTITLED TO PER DIEM EVEN THOUGH HE MAY HAVE CONTINUED TO OCCUPY THE SAME QUARTERS DURING THIS PERIOD. SEE 50 COMP. GEN. 729 (1971). HOWEVER, SINCE THE STATEMENT REQUIRED UNDER PARAGRAPH M4451-2, JTR, WAS NOT PROVIDED, IT MUST BE ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE AND MR. JAVIER SHOULD BE REIMBURSED ACCORDINGLY.

TO ENSIGN P. CALL AWAY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 19, 1971, WITH ENCLOSURES, FILE REFERENCE PC:CSC, FORWARDED HERE VIA THE COMMANDING OFFICER, NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., BY LETTER FROM THE DIRECTOR, NAVY MILITARY PAY SYSTEM DATED FEBRUARY 10, 1972, FILE REFERENCE OW-11, 7220/20-6. YOU REQUEST AN ADVANCE DECISION AS TO THE ENTITLEMENT OF MM1 BENEDICTO M. JAVIER, USN, 589 73 86, TO PER DIEM WHILE PERFORMING TEMPORARY DUTY WITH THE FLAG ADMINISTRATIVE UNIT, COMMANDER U.S. NAVAL AIR FORCES PACIFIC, NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA, DURING THE PERIOD MARCH 16 TO APRIL 15, 1971.

BY PERMANENT CHANGE-OF-STATION ORDER NO. 612-71, DATED FEBRUARY 17, 1971, MR. JAVIER WAS DETACHED FROM THE NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, AND DIRECTED TO REPORT NOT LATER THAN APRIL 3, 1971, TO THE USS CONSTELLATION (CVA-64) THE HOME PORT OF WHICH WAS THE NAVAL AIR STATION AT NORTH ISLAND, CALIFORNIA. THE ORDERS AUTHORIZED A DELAY OF 30 DAYS TO BE COUNTED AS LEAVE AND 4 DAYS' PROCEED TIME. MR. JAVIER'S ORDERS WERE ENDORSED TO SHOW THAT HE REPORTED TO THE "FLAG ADMINISTRATIVE UNIT, COMNAVAIRPAC" (COMMANDER U.S. NAVAL AIR FORCES PACIFIC, NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA) ON MARCH 16, 1971, WHERE IT IS STATED HE PERFORMED TEMPORARY DUTY WHILE AWAITING THE ARRIVAL OF THE CONSTELLATION, TO WHICH HE REPORTED ON APRIL 15, 1971.

MR. JAVIER CLAIMS PER DIEM FOR THE PERIOD OF HIS TEMPORARY DUTY, MARCH 16 TO APRIL 15, 1971, WHICH CLAIM YOU CONSIDER DOUBTFUL SINCE THE TEMPORARY DUTY WAS PERFORMED WITHIN THE SAME AREA AS MR. JAVIER'S OLD DUTY STATION.

THE PERTINENT STATUTE, 37 U.S.C. 404(A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES IN PERTINENT PART THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS. PARAGRAPH M3050-3 PROVIDES IN PART THAT WHEN A MEMBER IS ORDERED TO REPORT DIRECTLY TO A VESSEL FOR DUTY UPON HIS ARRIVAL AT THE PORT AT WHICH HE IS TO BOARD THE VESSEL, HIS TRAVEL STATUS TERMINATES UPON HIS ARRIVAL AT THAT PORT IF THE VESSEL IS LOCATED THEREAT ON THE TIME OF HIS ARRIVAL. IN THIS CASE THE CONSTELLATION WAS APPARENTLY NOT AT THE PORT (NORTH ISLAND) WHEN MR. JAVIER REPORTED THERE AND, CONSEQUENTLY, HE PERFORMED TEMPORARY DUTY WITH THE FLAG ADMINISTRATIVE UNIT UNTIL THAT VESSEL'S ARRIVAL.

A PERMANENT DUTY STATION IS DEFINED IN PERTINENT PART BY PARAGRAPH M1150- 10A OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN FOR "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED. PARAGRAPH M4201-4 PROVIDES IN PERTINENT PART THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY TRAVEL OR TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE. IN ADDITION PARAGRAPH 4005-2 OF THE U.S. NAVY TRAVEL INSTRUCTIONS PROVIDES IN PERTINENT PART THAT PER DIEM IS NOT PAYABLE "WHEN TEMPORARY DUTY INCIDENT TO A PERMANENT CHANGE OF STATION IS PERFORMED WITHIN THE LIMITS OF THE OLD PERMANENT DUTY STATION."

WE HAVE DETERMINED THAT ALTHOUGH THE MAILING ADDRESS OF THE NAVAL AIR STATION AT NORTH ISLAND IS SAN DIEGO, CALIFORNIA, THAT STATION IS NOT WITHIN THE CORPORATE LIMITS OF SAN DIEGO. THEREFORE, DURING HIS PERFORMANCE OF TEMPORARY DUTY AT NORTH ISLAND WHILE HE WAS AWAITING THE ARRIVAL OF THE USS CONSTELLATION, MR. JAVIER WAS PERFORMING SUCH DUTY AWAY FROM HIS OLD PERMANENT DUTY STATION (SAN DIEGO) AND IS ENTITLED TO PER DIEM FOR THE PERIOD OF THAT DUTY. AND, UNDER THE REGULATIONS IN EFFECT AT THE TIME MR. JAVIER PERFORMED SUCH DUTY, IN THE ABSENCE OF A STATEMENT FROM HIS COMMANDING OFFICER IN MR. JAVIER'S ORDERS THAT MR. JAVIER WOULD INCUR NO ADDITIONAL SUBSISTENCE EXPENSES (PARAGRAPH M4201 14, JOINT TRAVEL REGULATIONS) HE IS ENTITLED TO PER DIEM EVEN THOUGH HE MAY HAVE CONTINUED TO OCCUPY THE SAME QUARTERS HE OCCUPIED WHILE PERFORMING DUTY AT HIS OLD STATION AND TRAVELED TO AND FROM SUCH QUARTERS DAILY TO HIS TEMPORARY DUTY STATION. SEE 50 COMP. GEN. 729 (1971).

WE NOTE, HOWEVER, THAT ALTHOUGH THE RECORD INCLUDES A STATEMENT OF THE CHIEF MASTER AT ARMS OF THE FLAG ADMINISTRATIVE UNIT THAT THE MEMBER DID NOT USE NAVY BERTHING OR MESSING WHILE HE WAS "IN TRANSIENT" THERE, THE RECORD INCLUDES NO STATEMENT OF THE TYPE CONTEMPLATED BY PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS. CONSEQUENTLY, IN ACCORDANCE WITH PARAGRAPH M4451-2 OF THE REGULATIONS, IT MUST BE ASSUMED THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO MR. JAVIER, WHETHER OR NOT HE CHOSE TO USE THEM. THEREFORE, HIS PER DIEM SHOULD BE COMPUTED AT THE RATE OF $2 PER DAY IN ACCORDANCE WITH ITEM D(4) OF THE "TABLE OF PER DIEM RATES WITHIN THE UNITED STATES" CONTAINED IN PARAGRAPH M4205-5 OF THE JOINT TRAVEL REGULATIONS (CHANGES 218 AND 219 EFFECTIVE MARCH 1 AND APRIL 1, 1971, RESPECTIVELY).

ACCORDINGLY, MR. JAVIER'S VOUCHER IS RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED ON THE BASIS INDICATED ABOVE.