B-174951, APR 14, 1972

B-174951, APR 14, 1972

MILITARY PERSONNEL - PERMANENT CHANGE-OF-STATION - REDUCTION IN TRAINING PERIOD - TEMPORARY DUTY ALLOWANCES - ENTITLEMENT CONCERNING THE PROPRIETY OF PAYMENT OF TEMPORARY DUTY ALLOWANCES TO MAJOR NORMAN K. PETERSON INCIDENT TO HIS ATTENDANCE AT THE AIR INTELLIGENCE OFFICER COURSE, LOWRY AFB, COLO., AS A MEMBER OF THE SOUTH DAKOTA AIR NATIONAL GUARD. ALTHOUGH MAJOR PETERSON'S ORIGINAL ORDERS CONTEMPLATED A PERMANENT CHANGE -OF-STATION, HIS CLAIM IS BASED ON THE SUBSEQUENT ISSUANCE OF SPECIAL ORDERS WHICH REDUCED HIS ACTIVE DUTY FOR TRAINING PERIOD. AS A GENERAL RULE, AFTER A MEMBER HAS REPORTED TO A PERMANENT DUTY STATION PURSUANT TO COMPETENT ORDERS, ANY ORDERS THEREAFTER ISSUED PURPORTING TO CONVERT THE STATION TO A TEMPORARY DUTY STATION ARE WITHOUT EFFECT TO ENTITLE HIM TO TEMPORARY DUTY ALLOWANCES WHILE HE REMAINS AT THAT STATION. 36 COMP. GEN. 569 (1957). ACCORDINGLY, THE PROPOSED PAYMENT IS NOT AUTHORIZED SINCE THE SPECIAL ORDERS ARE WITHOUT EFFECT TO ENTITLE CLAIMANT TO PER DIEM FOR ANY PORTION OF THE PERIOD OF DUTY AT SUCH STATION.

TO FIRST LIEUTENANT TIMOTHY K. SMITH:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 9, 1971 (FILE REFERENCE ACFFT/7220), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,129.11 IN FAVOR OF MAJOR NORMAN K. PETERSON, REPRESENTING TEMPORARY DUTY TRAVEL ALLOWANCES IN THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE OF THE AIR FORCE, DATED DECEMBER 9, 1971, AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 71-60 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT BY PERMANENT CHANGE-OF-STATION SPECIAL ORDERS NO. T -137, DATED AUGUST 6, 1970, MAJOR PETERSON, A MEMBER OF THE SOUTH DAKOTA AIR NATIONAL GUARD, WAS ORDERED TO ACTIVE DUTY FOR TRAINING BY THE GOVERNOR OF SOUTH DAKOTA TO ATTEND THE AIR INTELLIGENCE OFFICER COURSE, COURSE NO. 30BR 8051-1, AT LOWRY AFB, COLORADO, COMMENCING AUGUST 12, 1970. THE ORDERS STATED THAT THE ASSIGNMENT WAS FOR 154 DAYS OR 22 WEEKS, DIRECTED THE OFFICER TO REPORT AT THE TRAINING STATION ON AUGUST 11 AND PROVIDED FOR HIS RELEASE FROM THE ASSIGNMENT ON DECEMBER 29, 1970, UNLESS SOONER RELIEVED BY PROPER AUTHORITY. THE ORDERS ALSO PROVIDED THAT "TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS WILL BE IN ACCORDANCE WITH CHAPTERS 7 AND 8, JTR'S."

THE RECORD ALSO SHOWS THAT SPECIAL ORDERS NO. T-213, DATED NOVEMBER 8, 1970, WERE ISSUED TO MAJOR PETERSON CHANGING HIS ACTIVE DUTY FOR TRAINING PERIOD FROM 154 DAYS TO 129 DAYS BEGINNING AUGUST 11, 1970, AND ENDING DECEMBER 17, 1970, DESIGNATING THE ASSIGNMENT AS TEMPORARY DUTY AND STATING THAT THE ORDERS WERE ISSUED IN CONFIRMATION OF VERBAL ORDERS OF THE GOVERNOR DATED AUGUST 7, 1970, CITING AS AUTHORITY FOR THE ACTION, AIR FORCE MANUAL 177-103 AND A LETTER FROM THE SCHOOL UNIT AT LOWRY AFB, DATED NOVEMBER 5, 1970.

YOU STATE THAT AT THE TIME SPECIAL ORDERS NO. T-137 WERE ISSUED, AIR FORCE MANUAL 50-5 LISTED THE LENGTH OF COURSE NO. 30BR 8051-1 AS 28 WEEKS AND THAT, IN OCTOBER 1970, ANOTHER COURSE, COURSE NO. 30BR 8051-2 WAS INITIATED WITH A COURSE LENGTH OF 20 WEEKS. YOU FURTHER STATE THAT WHILE SPECIAL ORDERS NO. T-213 SEEMS TO INDICATE THAT COURSE NO. 30BR 8051-1 WAS REDUCED TO A LESS THAN 20 WEEK COURSE, AIR FORCE MANUAL 50 5, CHANGE 6, DATED JANUARY 1971 STILL LISTS COURSE NO. 30BR 8051-1 AS BEING 28 WEEKS IN LENGTH.

YOU POINT OUT THAT IF THE COURSE TO BE ATTENDED BY THE MEMBER WAS ORIGINALLY TO BE LESS THAN 20 WEEKS, HE WOULD BE ENTITLED TO TDY TRAVEL ALLOWANCES. HOWEVER, YOU QUESTION WHETHER IN THE DESCRIBED CIRCUMSTANCES THE MEMBER IS AUTHORIZED TDY TRAVEL ALLOWANCES FOR THE PERIOD UNDER SPECIAL ORDERS NO. T-137, AS AMENDED AND SUPPLEMENTED BY SPECIAL ORDERS NO. T-213 OR WHETHER THE ORIGINAL INTENT OF SPECIAL ORDERS NO. T-137, CONTINUES TO CONTROL HIS ENTITLEMENT, CITING PARAGRAPHS M1150-10B AND M6001-1C(1) AND (3) OF THE JOINT TRAVEL REGULATIONS AS HAVING APPLICATION IN THIS CASE.

SECTION 404(A) OF TITLE 37, U.S.C. AS AMENDED, PROVIDES IN CLAUSE (4) FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE,

" *** WHEN AWAY FROM HOME TO PERFORM DUTY; INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO OR HAS WAIVED PAY UNDER THIS TITLE."

PARAGRAPH M1150-10B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS ASSIGNED UNDER PERMANENT CHANGE-OF-STATION ORDERS TO A SCHOOL OR INSTALLATION AS A STUDENT TO PURSUE A COURSE (OR COURSES) OF INSTRUCTION, THE CUMULATIVE DURATION OF WHICH IS 20 WEEKS OR MORE AT ONE LOCATION, SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION. SINCE THE ORIGINAL ORDERS ISSUED TO THE MEMBER WERE DESIGNATED PCS AND THE COURSES OF INSTRUCTION AVAILABLE TO THE MEMBER DURING THAT TIME (30BR 8051 -1 AND 2), HAD A SCHEDULED LENGTH OF AT LEAST 20 WEEKS, LOWRY AIR FORCE BASE BECAME A PERMANENT DUTY STATION FOR HIM.

PARAGRAPH M6001-1C OF THE JTR'S, ENTITLED "PER DIEM WHILE AT THE PERMANENT DUTY STATION," PROVIDES IN SUBPARAGRAPH (1) THAT WHEN THE PERIOD OF ACTIVE DUTY CONTEMPLATED BY THE ORDERS IS FOR LESS THAN 20 WEEKS, PER DIEM ALLOWANCES ARE PAYABLE, AND IN SUBPARAGRAPH (3) WHEN THE PERIOD OF ACTIVE DUTY CONTEMPLATED BY THE ORDERS IS FOR 20 WEEKS OR MORE, NO PER DIEM ALLOWANCES ARE PAYABLE.

THE AMENDATORY SPECIAL ORDERS OF NOVEMBER 8, 1970, ISSUED WELL AFTER THE COURSE OF INSTRUCTION BEGAN, WERE ISSUED PURPORTING TO CONFIRM VERBAL ORDERS OF AUGUST 7, 1970. IT APPEARS FROM THE RECORD THAT THE ONLY MATTER OF SIGNIFICANCE THAT WAS BEING CHANGED BY THE AMENDATORY ORDERS WAS THE DATE OF THE MEMBER'S GRADUATION AND THAT SUCH CHANGE APPEARS TO BE BASED SOLELY ON THE LETTER DATED NOVEMBER 5, 1970, FROM HEADQUARTERS, 3415TH TECHNICAL SCHOOL, USAF (ATC) LOWRY AIR FORCE BASE, TO MAJOR PETERSON'S AIR NATIONAL GUARD UNIT, CERTIFYING THAT HE WOULD GRADUATE ON DECEMBER 17, 1970, INSTEAD OF DECEMBER 29, 1970.

AS A GENERAL RULE, AFTER A MEMBER HAS REPORTED TO A PERMANENT DUTY STATION PURSUANT TO COMPETENT ORDERS, ANY ORDERS THEREAFTER ISSUED PURPORTING TO CONVERT THE STATION TO A TEMPORARY DUTY STATION OR ASSIGN HIM TO TEMPORARY DUTY AT THAT STATION ARE WITHOUT EFFECT TO ENTITLE HIM TO TEMPORARY DUTY ALLOWANCES WHILE HE REMAINS AT THAT STATION. 36 COMP. GEN. 569 (1957).

MAJOR PETERSON'S ASSIGNMENT TO ACTIVE TRAINING DUTY AT LOWRY AIR FORCE BASE UNDER THE ORDERS OF AUGUST 6, 1970, CONTEMPLATED A PERIOD OF DUTY AT THAT STATION FOR MORE THAN 20 WEEKS FOR WHICH PER DIEM WAS NOT AUTHORIZED. THE FACT THAT THE ASSIGNMENT WAS LATER SHORTENED BY THE ORDERS OF NOVEMBER 8, 1970, TO A PERIOD OF LESS THAN 20 WEEKS DID NOT CHANGE THE CHARACTER OF THE ORIGINAL ASSIGNMENT AS ONE FOR WHICH PER DIEM WAS NOT AUTHORIZED. THEREFORE, WE ARE OF THE OPINION THAT THE ORDERS OF NOVEMBER 8, 1970, ARE WITHOUT EFFECT TO ENTITLE HIM TO PER ..END :