B-241214, Sep 12, 1991

B-241214, Sep 12, 1991

DIGEST: When a member is ordered to attend training courses in excess of 20 weeks at an installation, such installation constitutes a permanent change of station and when such orders were fully executed, they may not be changed by subsequent orders.

Chief Warrant Officer Henry R. Connor:

This matter is a request for reconsideration of our Claims Group's denial of per diem expenses incurred by Chief Warrant Officer Henry R. Connor while he was stationed at Fort Rucker, Alabama, for training which was expected to take place over the course of 20 weeks or more. For the reasons stated, we sustain our Claims Group's denial.

Mr. Connor participated in the Homebase Advanced Assignment Program pursuant to Army Regulation 614-30 and was given an assignment to Korea in addition to a negotiated follow-on assignment to Fort Benning, Georgia. Beginning in December 1984, the Army issued orders to facilitate Mr. Connor's relocation to the continental United States.

In July 1985 the Army issued a permanent change of station (PCS) order ordering the member to Fort Rucker, Alabama, to attend two classes over a period of 21 weeks. In December 1985, after the member arrived at Fort Rucker but prior to the commencement of classes, the Army issued a request for orders converting Fort Rucker to a temporary duty location (TDY) and designated Fort Benning as the member's permanent duty station. This request for orders was amended in January 1986, ordering the member to attend additional classes at Fort Bliss, Texas, during the first part of his training at Fort Rucker; the new orders provided for a 17-week course of training. Finally, on February 12, 1986, the Army confirmed the amended request for orders by issuing a PCS to Fort Benning with TDY at Fort Rucker.

We conclude that the initial PCS order correctly identified Fort Rucker as the member's permanent duty station and therefore the member is not eligible for per diem.

We have consistently held that a determination of permanent duty station is a question of fact to be based on surrounding circumstances. The facts presented show the Army initially intended Fort Benning as the member's permanent duty station. The facts are equally clear that the Army intended that the member undergo a course of study at a single installation for a period in excess of 20 weeks. Our long standing rule mandates that administrative actions may not circumvent the law. Lynn C. Willis et al., 59 Comp.Gen. 619 (1980). Therefore, Fort Rucker was designated the member's permanent duty station because of the expected duration of the two courses. The definition of permanent duty station in appendix J of the Joint Travel Regulations (JTR) and our decisions clearly state that training assignments with an expected duration of 20 weeks or more result in a permanent change of station. See Warrant Officer John W. Snapp, 63 Comp.Gen. 4 (1983). Therefore, the July 15, 1985, PCS order to Fort Rucker was correct.

We have held that orders may be amended at anytime before they are completely executed. 63 Comp.Gen. 4, 5 supra. When the member traveled on authority of the July PCS orders and arrived at Fort Rucker with his wife on December 10, 1985, he fully executed these orders. Orders may not be retroactively modified to increase or decrease benefits absent administrative error. B-223537, May 21, 1987. Since we find that there was no administrative error these orders may not be retroactively modified. While the Army issued a series of subsequent orders changing Fort Rucker to the members temporary duty station, these orders were ineffective to make Fort Rucker anything other than the member's permanent duty station. We have also held that once a member completes travel under a PCS order to a station, that station may not later be converted to a temporary duty location. 36 Comp.Gen. 569 (1975). to warrant waiving application of this rule.

We sustain our Claims Group's denial of per diem.

Director, Claims Group/GGD - Sharon S. Green

General Counsel - James F. Hinchman

Subject: Henry R. Connor - Request for Reconsideration (B-241214) - (Z- 2866285)

Returned is Claims File No. Z-2866285 and a copy of decision

B-241214 of today's date, affirming the Claims Group's action.

This matter is a request for reconsideration of our Claims Group's denial of per diem expenses incurred by Chief Warrant Officer Henry R. Connor while he was stationed at Fort Rucker, Alabama for training. For the reasons stated, we reverse our Claims Group's denial.

Mr. Connor participated in the Homebase Advanced Assignment Program pursuant to Army Regulation 614-30 and was given an assignment to Korea in addition to a negotiated follow-on assignment to Fort Benning, Georgia. Beginning in December 1984, the Army issued orders to facilitate Mr. Connor's relocation to the continental United States.

In July 1985 the Army issued a permanent change of station (PCS) order ordering the member to Fort Rucker, Alabama to attend two classes over a period of 21 weeks. In December 1985, the Army issued a request for orders that converted Fort Rucker to a temporary duty location (TDY) and designated Fort Benning as the member's permanent duty station consistent with his participation in the Homebase Advanced Assignment Program. This request for orders was amended in January 1986, ordering the member to attend additional classes at Fort Bliss during the first part of his training at Fort Rucker; the new orders provided for a 17 week course of training. Finally, on February 12, 1986, the Army confirmed the amended RFO by issuing a PCS to Fort Benning with TDY at Fort Rucker.

Our Claims Group denied per diem expenses for the member because he was scheduled to be at Fort Rucker for training in excess of 20 weeks which would constitute a permanent duty station where per diem is not payable. 63 Comp.Gen. 4 (1983). In addition, the 1983 decision states that orders may not be canceled or modified retroactively to increase or decrease the rights which have become fixed under the applicable statutes and regulations unless error is apparent on the face of the orders, or all the facts and circumstances clearly demonstrate that some provision previously determined B-241214 and definitely intended had been omitted though error or inadvertence in the preparation of the orders.

We find that the Army corrected the erroneous orders such that Fort Rucker should have been considered a TDY assignment with Fort Benning the permanent duty station.

While the July 1985 orders showed Fort Rucker as the permanent duty station, this was clearly inconsistent with the member's Advanced Assignment Agreement. Prior to the scheduled reporting date at Fort Rucker, a new RFO was issued in December 1985 which showed Fort Benning as the permanent duty station and Fort Rucker as a TDY assignment for 18 weeks.

We find the issuance of this RFO to have properly demonstrates the intent to modify the prior orders which were subsequently amended because, as set forth in 63 Comp.Gen. 4, all facts and circumstances clearly demonstrate that some provision previously determined (i.e. next permanent duty station to be Fort Benning) had been omitted through error or inadvertence.

We reverse our Claims Group's denial.

Where member's initial travel orders showed Fort Rucker as permanent duty station rather than Fort Benning which was to be member's next station under Homebase Advanced Assignment Program, new request for orders, issued before scheduled arrival date at Fort Rucker, properly corrected erroneous orders so that per diem is payable for temporary duty at Fort Rucker followed by permanent change of station move to Fort Benning.

Director, Claims Group/GGD - Sharon S. Green Comptroller General

Subject: Henry R. Connor - Request for Reconsideration B-241214) - (Z- 2866285)

Returned is Claims File No. Z-2866285 and a copy of decision B-241214 of today's date, reversing the Claims Group's action.