B-196728.OM, DEC 19, 1979

B-196728.OM, DEC 19, 1979

LIEUTENANT (JUNIOR GRADE) BRUCE E. ALEXANDER, USN -- CLAIM FOR PER DIEM FOR PERIOD OF NECESSARY DELAY AWAITING TRANSPORTATION -- B-196728 O.M.:

DIRECTOR, CLAIMS DIVISION:

RETURNED IS CLAIM FILE Z-2802366 PERTAINING TO THE CLAIM OF LIEUTENANT JUNIOR GRADE BRUCE E. ALEXANDER, USN, FOR PER DIEM FOR A PERIOD OF TEMPORARY DUTY FOR A PERIOD OF NECESSARY DELAY AWAITING TRANSPORTATION.

THE RECORD SHOWS THAT MR. ALEXANDER WHILE STATIONED AT THE NAVAL AIR FACILITY (NAF) AT ANDREWS AIR FORCE BASE, MARYLAND, RECEIVED ORDERS FOR A PERMANENT CHANGE OF STATION (PCS) DATED AUGUST 19, 1976, ORDERING HIM FIRST TO TEMPORARY DUTY IN VIRGINIA BEACH, VIRGINIA, TO REPORT NO LATER THAN OCTOBER 4, 1976, FOR TRAINING OF 6 WEEKS. UPON COMPLETION OF THAT TRAINING HE WAS ORDERED TO REPORT NO LATER THAN NOVEMBER 15, 1976, FOR FURTHER TRAINING OF ABOUT 1 WEEK AT THE NAVAL AIR STATION, NORFOLK, VIRGINIA, AND UPON COMPLETION OF TRAINING PROCEED TO THE PORT IN WHICH THE U.S.S. ROOSEVELT (CV-42) MAY BE. BY ORDERS DATED NOVEMBER 2, 1976, HE WAS ORDERED TO PROCEED TO PHILADELPHIA INTERNATIONAL AIRPORT NO LATER THAN 12:30 P.M. ON DECEMBER 8, 1976, FOR TRANSPORTATION TO ROTA, SPAIN, THE LOCATION OF THE U.S.S. ROOSEVELT. THE ORDERS WERE ENDORSED ON NOVEMBER 26, 1976, TO SHOW THAT QUARTERS WERE NOT AVAILABLE IN PHILADELPHIA BUT THAT OPEN MESS WAS AVAILABLE.

MR. ALEXANDER DETACHED NORFOLK ON NOVEMBER 19, 1976, TOOK ANNUAL LEAVE AND REPORTED TO PHILADELPHIA ON NOVEMBER 27, 1976. HIS CLAIM FOR PER DIEM FOR THE PERIOD NOVEMBER 27, 1976, THROUGH DECEMBER 7, 1976, WAS DENIED UPON THE BASIS OF PARAGRAPH 4006 OF THE NAVY TRAVEL REGULATIONS WHICH STATES AS FOLLOWS:

"4006 MEMBER ARRIVES EARLY AT TEMPORARY DUTY STATION

"WHEN A MEMBER'S PERMANENT CHANGE-OF-STATION ORDERS DIRECT THE PERFORMANCE OF TEMPORARY DUTY EN ROUTE AT AN INTERMEDIATE STATION AND REQUIRE HIM 'TO REPORT NOT EARLIER THAN' OR 'ON' A SPECIFIED DATE AT THE TEMPORARY DUTY STATION AND HE REPORTS BEFORE THAT DATE, HE WILL, IN ACCORDANCE WITH BUPERSMAN 1810540 OR MARINE CORPS ORDER P1000.6, BE GIVEN THE OPTION OF GOING ON LEAVE UNTIL THE REQUIRED REPORTING DATE OR OF REPORTING IN AND RECEIVING NO PER DIEM AT THE TEMPORARY DUTY STATION UNTIL THE REQUIRED REPORTING DATE."

IT IS OUR VIEW THAT THE NAVY TRAVEL REGULATIONS SET FORTH ABOVE IS NOT FOR APPLICATION IN THIS CASE. PHILADELPHIA WAS NOT A TEMPORARY DUTY STATION BUT MERELY A TRANSFER POINT FROM THE TEMPORARY DUTY IN NORFOLK TO THE OFFICER'S PERMANENT DUTY STATION, THE U.S.S. ROOSEVELT.

THE PERTINENT REGULATION IN THIS CASE, PARAGRAPH M4200-1 OF VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), PROVIDES THAT UNLESS SPECIFICALLY PROVIDED FOR OR RESTRICTED IN THE REGULATIONS, PER DIEM IS APPLICABLE FOR ALL PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION WITH:

"1. PERIODS OF NECESSARY DELAY AWAITING FURTHER TRANSPORTATION,

"2. PERIODS OF DELAY AT PORTS OF EMBARKATION AND DEBARKATION IN CONNECTION WITH A PCS,

"3. PERIODS OF TEMPORARY DUTY DIRECTED IN A PCS ORDER."

MR. ALEXANDER'S TEMPORARY DUTY EXTENDED FROM THE DATE OF HIS DETACHMENT AT NAF, ANDREWS AIR FORCE BASE, UNTIL HIS REPORTING ABOARD THE U.S.S. ROOSEVELT, HIS NEXT PERMANENT DUTY STATION. HE WAS THEREFORE ENTITLED TO BE PAID PER DIEM, IF OTHERWISE QUALIFIED, FOR THE ENTIRE TIME THAT HE WAS ON TEMPORARY DUTY EXCLUDING ANY PERIODS WHILE ON LEAVE. THIS INCLUDED PERIODS OF TEMPORARY DUTY AT VIRGINIA BEACH AND NORFOLK (M4200-1-3) AND PERIODS OF NECESSARY DELAY AWAITING FURTHER TRANSPORTATION IN PHILADELPHIA (M4200-1-1) OR PERIODS OF DELAY AT THE PORT OF EMBARKATION, AGAIN IN PHILADELPHIA, IN CONNECTION WITH A PERMANENT CHANGE OF STATION (M4200-1-2).

PARAGRAPH M3050, 1 JTR. PROVIDES THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL. 58 COMP. GEN. , AUGUST 7, 1979, B-194858.

IT HAS BEEN OUR VIEW THAT, GENERALLY, A MEMBER WHO IS AUTHORIZED LEAVE IN CONNECTION WITH A PCS AND WHO IS DIRECTED TO REPORT NOT LATER THAN A DESIGNATED DATE, IS NOT REQUIRED TO USE ALL OF THE LEAVE AUTHORIZED BEFORE SO REPORTING UNLESS HE IS DIRECTED TO REPORT NOT EARLIER THAN A SPECIFIED DATE. 43 COMP.GEN. 833 (1964); B-174245, FEBRUARY 25, 1972; B-128835, SEPTEMBER 4, 1956.

ACCORDINGLY, SETTLEMENT SHOULD ISSUE TO MR. ALEXANDER FOR PER DIEM FROM NOVEMBER 26, 1976, THROUGH DECEMBER 7, 1976, IF OTHERWISE CORRECT.