B-175528, AUG 17, 1972

B-175528: Aug 17, 1972

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IT IS IMMATERIAL WHETHER CLAIMANT WAS OR WAS NOT TIMELY INFORMED OF THE TERMINATION OF THESE ALLOWANCES. WE ALSO HAVE YOUR LETTER OF JUNE 26. YOU WERE ORDERED WITH YOUR CONSENT TO ACTIVE DUTY FOR A PERIOD OF 2 YEARS AND DIRECTED TO REPORT NOT LATER THAN AUGUST 2. ARMY ORDNANCE CENTER AND SCHOOL YOU WERE ISSUED SPECIAL ORDERS NO. 198. THIS ORDER WAS AMENDED TO SHOW REPORTING DATE AS OCTOBER 30. WERE ISSUED BY HEADQUARTERS. THAT IS. YOUR CLAIM WAS FORWARDED BY THE FINANCE CENTER. THE CLAIM WAS DISALLOWED ON THE BASIS THAT ABERDEEN PROVING GROUND BECAME YOUR PERMANENT DUTY STATION UPON THE RECEIPT OF THE ORDERS OF SEPTEMBER 14. WHICH WERE CITED IN THE SETTLEMENT. THAT YOU WERE NOT INFORMED THAT THE PER DIEM ALLOWANCE AND TRAVEL ALLOWANCE WOULD BE TERMINATED WHEN YOU APPLIED FOR ACTIVE DUTY FOR TRAINING AND FURTHER THAT PARAGRAPH 42 OF THE ORDERS OF SEPTEMBER 14.

B-175528, AUG 17, 1972

MILITARY PERSONNEL - CHANGE OF STATION - COMPENSATION DECISION DISALLOWING RECONSIDERATION OF CLAIM OF JAMES S. KOCHAN, FORMERLY SECOND LIEUTENANT, U.S. ARMY RESERVE, FOR PER DIEM AND MILEAGE ALLOWANCE FOR THE PERIOD SEPTEMBER 15 TO OCTOBER 30, 1970, WHILE ATTENDING SCHOOL AT ABERDEEN PROVING GROUND, MD. UNDER 37 U.S.C., SECTION 404 AND PARAGRAPH M4209, JTR, CLAIMANT'S ENTITLEMENT TO PER DIEM AND MILEAGE ALLOWANCE FOR TEMPORARY DUTY AT APG CEASED SEPTEMBER 14, 1970, UPON RECEIPT OF ORDERS DESIGNATING ABERDEEN AS HIS PERMANENT DUTY STATION. IT IS IMMATERIAL WHETHER CLAIMANT WAS OR WAS NOT TIMELY INFORMED OF THE TERMINATION OF THESE ALLOWANCES.

TO MR. JAMES S. KOCHAN:

WE AGAIN REFER TO YOUR LETTER OF JANUARY 14, 1972, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PER DIEM AND MILEAGE ALLOWANCE FOR THE PERIOD SEPTEMBER 15 TO OCTOBER 30, 1970, WHILE SERVING ON ACTIVE DUTY AS A SECOND LIEUTENANT, UNITED STATES ARMY RESERVE, AT ABERDEEN PROVING GROUND, MARYLAND. WE ALSO HAVE YOUR LETTER OF JUNE 26, 1972, CONCERNING THE STATUS OF YOUR CLAIM.

BY LETTER ORDERS NO. A-07-1607, DATED JULY 1, 1970, HEADQUARTERS FIFTH UNITED STATES ARMY, FORT SHERIDAN, ILLINOIS, YOU WERE ORDERED WITH YOUR CONSENT TO ACTIVE DUTY FOR A PERIOD OF 2 YEARS AND DIRECTED TO REPORT NOT LATER THAN AUGUST 2, 1970, TO THE U.S. ARMY ORDNANCE CENTER AND SCHOOL, ABERDEEN PROVING GROUND, MARYLAND, FOR TEMPORARY DUTY OF APPROXIMATELY 9 WEEKS TO ATTEND THE ORDNANCE OFFICER BASIC BRANCH COURSE AND FURTHER TEMPORARY DUTY FOR APPROXIMATELY 10 WEEKS TO ATTEND A COURSE OF INSTRUCTION AS DETERMINED BY OFFICE OF PERSONNEL OPERATIONS, OFFICER PERSONNEL DIRECTORATE, WASHINGTON, D.C. THE ORDERS PROVIDED FURTHER FOR ASSIGNMENT TO III CORPS, FORT HOOD, TEXAS, WITH REPORTING DATE NOT LATER THAN DECEMBER 20, 1970, AND ULTIMATE ASSIGNMENT TO A SHORT TOUR AREA WITH PORT AVAILABILITY DATE ON OR ABOUT AUGUST 1971.

WHILE ON TEMPORARY DUTY AT THE U.S. ARMY ORDNANCE CENTER AND SCHOOL YOU WERE ISSUED SPECIAL ORDERS NO. 198, DATED SEPTEMBER 14, 1970. PARAGRAPH 42 THEREOF ASSIGNED YOU ON A PERMANENT CHANGE OF STATION TO U.S. ARMY TRANSFER POINT, ABERDEEN PROVING GROUND, AND DIRECTED YOU TO REPORT ON OCTOBER 29, 1970, FOR THE PURPOSE OF SEPARATION PROCESSING. SUBSEQUENTLY, THIS ORDER WAS AMENDED TO SHOW REPORTING DATE AS OCTOBER 30, 1970. OCTOBER 8, 1970, SPECIAL ORDERS NO. 201, WERE ISSUED BY HEADQUARTERS, ABERDEEN PROVING GROUND, RELIEVING YOU FROM ACTIVE DUTY EFFECTIVE OCTOBER 31, 1970.

OUR FILE FURTHER SHOWS THAT THE ARMY PAID YOU A MILEAGE ALLOWANCE COVERING YOUR TRAVEL TO AND FROM ABERDEEN PROVING GROUND PLUS PER DIEM AT THE RATE OF $18.20 PER DAY FOR THE PERIOD AUGUST 2 TO SEPTEMBER 14, 1970, THE DATE OF THE ORDERS WHICH REASSIGNED YOU TO ABERDEEN PROVING GROUND AS YOUR PERMANENT STATION FOR SEPARATION PROCESSING. ON DECEMBER 9, 1970, YOU CLAIMED ADDITIONAL PER DIEM AND MILEAGE ALLOWANCE TO COVER THE PERIOD BEYOND SEPTEMBER 14, 1970, THAT IS, FROM SEPTEMBER 15 TO OCTOBER 30, 1970, THE DATE PRIOR TO THE DATE OF YOUR RELIEF FROM ACTIVE DUTY.

YOUR CLAIM WAS FORWARDED BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION. BY SETTLEMENT DATED OCTOBER 20, 1971, THE CLAIM WAS DISALLOWED ON THE BASIS THAT ABERDEEN PROVING GROUND BECAME YOUR PERMANENT DUTY STATION UPON THE RECEIPT OF THE ORDERS OF SEPTEMBER 14, 1970, AND, THEREFORE, UNDER REGULATIONS, WHICH WERE CITED IN THE SETTLEMENT, NO AUTHORITY EXISTS FOR PAYMENT OF PER DIEM OR REIMBURSEMENT OF EXPENSES INCURRED FOR TRAVEL TO AND FROM THAT POST WHILE ON DUTY AT SUCH STATION.

YOU SAY IN YOUR LETTER OF JANUARY 14, 1972, THAT YOU WERE NOT INFORMED THAT THE PER DIEM ALLOWANCE AND TRAVEL ALLOWANCE WOULD BE TERMINATED WHEN YOU APPLIED FOR ACTIVE DUTY FOR TRAINING AND FURTHER THAT PARAGRAPH 42 OF THE ORDERS OF SEPTEMBER 14, 1970, SHOULD NOT HAVE BEEN PUBLISHED UNTIL THE END OF SCHOOL.

THE PERTINENT PROVISION OF LAW, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED A MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. IMPLEMENTING REGULATIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M3050-1 THEREOF PROVIDES THAT MEMBERS SHALL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A "TRAVEL STATUS" AND THEY SHALL BE DEEMED TO BE IN SUCH STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS.

PARAGRAPH M1150-10A DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY." PARAGRAPH M4209 PROVIDES THAT A MEMBER WHO RECEIVES PERMANENT CHANGE-OF STATION ORDERS AT A TEMPORARY DUTY STATION WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY, WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE-OF- STATION ORDERS.

THERE ALSO IS FOR CONSIDERATION PARAGRAPH M4413-4, ITEM 1, OF THE JOINT TRAVEL REGULATIONS (CHANGE 213, DATED OCTOBER 1, 1970), WHICH PROVIDES THAT REIMBURSEMENT OF TRAVEL BY PRIVATELY OWNED CONVEYANCE BETWEEN PLACE OF LODGING AND PLACE WHERE TEMPORARY DUTY IS BEING PERFORMED WILL BE PAID AT THE RATE OF $0.10 PER MILE FOR NECESSARY TRAVEL WITHIN THE TEMPORARY DUTY STATION AND SURROUNDING AREAS AS DESCRIBED IN PARAGRAPH M4500-2, WHEN SUITABLE FACILITIES FOR MEALS AND/OR LODGING ARE NOT AVAILABLE.

IN A DECISION DATED APRIL 15, 1959, 38 COMP. GEN. 697, INVOLVING THE ENTITLEMENTS OF NAVAL PERSONNEL TO PER DIEM AND/OR STATION PER DIEM ALLOWANCES INCIDENT TO "TEMPORARY DUTY" PERFORMED DURING THE PERIOD APRIL 30 TO JULY 31, 1958, AT A STATION WHICH BECAME THEIR PERMANENT DUTY STATION ON AUGUST 1, 1958, WE SAID, IN PERTINENT PART, AS FOLLOWS

"IT CONSISTENTLY HAS BEEN HELD THAT WHEN A MEMBER IS DIRECTED TO REPORT FOR PERMANENT DUTY AT A STATION FOLLOWING COMPLETION OF TEMPORARY DUTY AT THE SAME PLACE THE STATION TO WHICH HE WAS ORDERED BECOMES HIS DESIGNATED PLACE OF DUTY AND, IN EFFECT, HIS PERMANENT STATION, AND THAT NO RIGHT TO PER DIEM ACCRUES DURING THE PERIOD HE PERFORMS 'TEMPORARY DUTY' BECAUSE HE IS NOT TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 303(A) OF THE CAREER COMPENSATION ACT, 34 COMP. GEN. 427. *** HENCE, REFERRING TO QUESTION 1, IT MUST BE CONCLUDED THAT THE PRINCIPLES OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS ARE APPLICABLE TO THE PRESENT CASE."

UNDER THE PROVISIONS OF PARAGRAPH M4209 OF THE JOINT TRAVEL REGULATIONS ABERDEEN PROVING GROUND BECAME YOUR PERMANENT DUTY STATION UPON THE RECEIPT OF THE ORDERS OF SEPTEMBER 14, 1970, AND, THEREFORE, YOUR ENTITLEMENT TO PER DIEM WHICH COMMENCED AFTER YOUR ARRIVAL AT THAT STATION CEASED UPON THE RECEIPT OF THOSE ORDERS. SIMILARLY SINCE YOU HAD NO TEMPORARY DUTY STATUS YOU WERE NOT ENTITLED TO A MILEAGE ALLOWANCE FOR THE USE OF YOUR PRIVATELY OWNED VEHICLE FROM YOUR PLACE OF ABODE TO THE PLACE OF DUTY, AS PROVIDED FOR IN PARAGRAPH M4413-4, ITEM 1, OF THE JOINT TRAVEL REGULATIONS.

SINCE ABERDEEN PROVING GROUND BECAME YOUR PERMANENT DUTY STATION AFTER SEPTEMBER 14, 1970, YOU MAY BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD SEPTEMBER 15 TO OCTOBER 31, 1970. IN THE EVENT YOU DID NOT RECEIVE SUCH ALLOWANCE, YOU MAY PRESENT A CLAIM THROUGH ADMINISTRATIVE CHANNELS TO OUR CLAIMS DIVISION, REFERRING TO CLAIM NO. Z-2452508 IN YOUR CORRESPONDENCE.

IT IS IMMATERIAL WHETHER YOU WERE OR WERE NOT TIMELY INFORMED OF THE TERMINATION OF THE PER DIEM AND TRAVEL ALLOWANCE. YOUR ENTITLEMENT TO SUCH ALLOWANCES IS GOVERNED BY THE ABOVE CITED LAW AND REGULATIONS AS THEY RELATE TO THE PARTICULAR FACTS IN YOUR CASE. ALSO, THE ISSUANCE OF THE ORDERS OF SEPTEMBER 14, 1970, PRIOR TO THE END OF THE COURSE WAS A MATTER FOR ADMINISTRATIVE DETERMINATION AND THEY APPARENTLY WERE PROPERLY ISSUED WHEN IT WAS DETERMINED THAT ABERDEEN PROVING GROUND WAS TO BECOME YOUR PERMANENT STATION.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 20, 1971, IS SUSTAINED.

CONCERNING YOUR QUESTION AS TO FURTHER PROCEEDINGS ON YOUR CLAIM, DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES RENDERED ON CLAIMS SETTLED BY THE GENERAL ACCOUNTING OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF GOVERNMENT. SEE 31 U.S.C. 74. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346(A)(2), 1491, 2401 AND 2501.

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