B-62094, FEBRUARY 4, 1947, 26 COMP. GEN. 557

B-62094, FEBRUARY 4, 1947, 26 COMP. GEN. 557

SUBSISTENCE - PER DIEMS - RETIRED OR RESERVE NAVY OFFICERS ORDERED FROM THEIR HOMES TO TEMPORARY ACTIVE DUTY RETIRED NAVY OFFICERS AND NAVAL RESERVE OFFICERS RECALLED FROM THEIR HOMES TO ACTIVE DUTY AT PLACES WHICH CONSTITUTED THEIR ONLY POSTS OF DUTY ARE NOT TO BE REGARDED AS HAVING BEEN "AWAY FROM THEIR DESIGNATED POSTS OF DUTY" WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SO AS TO BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OF SUCH DUTY, EVEN THOUGH THEIR ORDERS PROVIDED FOR SUCH PER DIEM AND NOMINATED THEIR ACTIVE DUTY AND THEIR DESIGNATED POSTS OF DUTY AS TEMPORARY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, FEBRUARY 4, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 19, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE DEPUTY CHIEF OF NAVY PERSONNEL, DATED OCTOBER 8, 1946, WITH ENCLOSURES THEREIN LISTED AND ACCOMPANYING ENDORSEMENT, RELATIVE TO THE PAYMENT OF PER DIEM ALLOWANCE TO RETIRED OFFICERS OR RESERVE OFFICERS WHILE ON TEMPORARY ACTIVE DUTY UNDER ORDERS WHICH RECALL SUCH OFFICERS TO DUTY FOR SHORT PERIODS OF TIME.

IT APPEARS THAT THE NAVAL RESERVE OFFICERS REFERRED TO IN PARAGRAPH 1 OF THE ENCLOSED LETTER FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL WERE RECALLED TO TEMPORARY ACTIVE DUTY; THAT THE ORDERS FOR SUCH TEMPORARY ACTIVE DUTY PROVIDED THAT REIMBURSEMENT WOULD BE ON A BASIS OF $7.00 PER DIEM, AND THAT THE BUREAU OF NAVY PERSONNEL, IN ACCORDANCE WITH THE PROVISIONS OF NAVY TRAVEL INSTRUCTIONS, DETERMINED THAT "THESE OFFICERS WILL BE ENTITLED TO A PER DIEM AT EACH TEMPORARY DUTY STATION FOR A PERIOD NOT EXCEEDING 90 DAYS, EXCEPT IN THE CASE OF LIEUTENANT MCINTYRE, IN WHICH CASE THE SECRETARY OF THE NAVY HAS DIRECTED THAT THE 90 DAYS LIMITATION SHALL NOT APPLY.'

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT, IN VIEW OF THE CONCLUSION REACHED IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION B 56672 OF APRIL 4, 1946, THE GENERAL ACCOUNTING OFFICE WILL FIND IT NECESSARY TO OBJECT TO PER DIEM REIMBURSEMENT TO RETIRED OFFICERS OR RESERVE OFFICERS RECALLED TO TEMPORARY ACTIVE DUTY FOR THE TIME REQUIRED FOR THE ACTUAL PERFORMANCE OF THE TEMPORARY DUTY, EXCLUSIVE OF ACTUAL TRAVEL TIME, WITH PARTICULAR REFERENCE OF THE SPECIFIC CASES MENTIONED IN THE ENCLOSURE.

THE LETTER FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL IS, IN PERTINENT PART, AS FOLLOWS:

1. THE FOLLOWING NAMED OFFICERS OF THE NAVAL RESERVE WERE CALLED TO ACTIVE DUTY DURING THE PRESENT WAR AND UPON COMPLETION WERE DETACHED, GRANTED ACCUMULATED LEAVE AND RELEASED FROM ACTIVE DUTY. SOME TIME AFTER THE EXPIRATION OF THEIR TERMINAL LEAVE AND THEIR FORMAL RELEASE FROM ACTIVE DUTY IT WAS FOUND NECESSARY TO RECALL THEM TO TEMPORARY ACTIVE DUTY AS FOLLOWS:

(A) COMMANDER EDWARD T. FARLEY, USNR, 76712, AT KENT, CONN., BY DESPATCH ORDERS OF 7 MAY 1946, VIA COMMANDANT, THIRD NAVAL DISTRICT, NEW YORK, N.Y., WAS RECALLED TO TEMPORARY ACTIVE DUTY IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL, NAVY DEPARTMENT, WASHINGTON, D.C. ON COMPLETION TO HOME AND RELIEVED ALL ACTIVE DUTY.

THE RECORDS INDICATE HE COMPLETED THIS DUTY IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL ON 23 MAY 1946.

(B) LT. JOSEPH A. OSBORN, USNR, 124157, KANSAS CITY, MO., AND LT. CONRAD J. LEONARD, USNR, 250798, CARLYLE, ILL., BY DESPATCH ORDERS OF 19 JULY 1946, WERE RECALLED TO TEMPORARY ACTIVE DUTY AS WITNESSES AT GENERAL COURT MARTIAL IN THE TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIF. ON COMPLETION TO HOME AND RELIEVED ALL ACTIVE DUTY.

THE RECORDS INDICATE LIEUT. LEONARD COMPLETED HIS DUTY ON 1 AUGUST 1946.

(C) LIEUTENANT HOWARD A. MCINTYRE, JR., USNR, 254981, WASHINGTON, D.C., BY ORDERS OF 24 MAY 1946, WAS RECALLED TO ACTIVE DUTY AND DIRECTED TO PROCEED TO DENVER, COLO., FOR TEMPORARY DUTY WITH THE AREA OFFICER IN CHARGE, BITUMINOUS COAL PRODUCING DISTRICTS 16, 17, 18, 19, 20, 22 AND 23, AT GENERAL LAND OFFICE, C/O SUPERVISOR OF SURVEYS, 520 U.S. NATIONAL BANK BUILDING, DENVER, COLO. THIS DUTY IS BEING PERFORMED UNDER THE COAL MINES ADMINISTRATOR, WHO TOOK OVER THE COAL MINES AT THE PRESIDENT'S DIRECTION.

THE RECORDS INDICATE LIEUT. MCINTYRE IS STILL ON THIS DUTY.

DUE TO THE TEMPORARY NATURE OF THE DUTY TO BE PERFORMED IT WAS CONSIDERED APPROPRIATE TO PROVIDE FOR REIMBURSEMENT FOR TRAVEL ON A PER DIEM BASIS, INCLUDING THE TIME REQUIRED FOR THE PERFORMANCE OF THE TEMPORARY DUTY.

IN AN ENDORSEMENT DATED NOVEMBER 4, 1946, ON THE LETTER QUOTED NEXT ABOVE, THE BUREAU OF SUPPLIES AND ACCOUNTS "CONCURS WITH THE OPINION OF THE BUREAU OF NAVAL PERSONNEL" THAT IT WOULD BE ,APPROPRIATE" TO PROVIDE FOR REIMBURSEMENT ON A PER DIEM BASIS IN THE CASES HERE INVOLVED AND INVITES ATTENTION TO PARAGRAPHS 3003-3A, 3050-2 AND 8001 2A, U.S. NAVY TRAVEL INSTRUCTIONS. THE SAID PARAGRAPHS 3003-3A AND 8001-2A PROVIDE, RESPECTIVELY, AS FOLLOWS:

A. TRAVEL INVOLVED. TEMPORARY ADDITIONAL DUTY ORDERS INVOLVE ONE JOURNEY AWAY FROM THE INDIVIDUAL'S DUTY STATION, IN THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY AT ONE OR MORE PLACES, THE ORDERS DIRECTING RETURN TO THE STARTING POINT UPON COMPLETION OF SUCH DUTY. PERSONNEL ON TEMPORARY ADDITIONAL DUTY REMAIN ATTACHED TO THE STATION FROM WHICH THEY PROCEEDED ON TEMPORARY ADDITIONAL DUTY.

A. IN GENERAL. FOR THE PURPOSE OF TRANSPORTATION FOR DEPENDENTS, THE TERM "DUTY STATION" MEANS THE OFFICIAL RESIDENCE OF RECORD IN THE CASE OF RESERVE AND RETIRED PERSONNEL, OR THE CITY IN WHICH THE HOME YARD, HOME PORT, OR IN THE CASE OF SHORE DUTY THE SHORE STATION IS LOCATED. THE TERM "CITY" MEANS THE COMMUNITY CONSTITUTING THE "DUTY STATION," INCLUDING ITS SUBURBS AND ADJACENT COMMUNITIES WITHIN A REASONABLE RADIUS (MAXIMUM OF 35 MILES EXCEPT IN UNUSUAL CASES) WHERE PERSONS EMPLOYED IN THE CITY RESIDE. (ITALICS SUPPLIED.)

THE ONLY PARTS OF THE ABOVE-MENTIONED PARAGRAPH 3050-2 WHICH MIGHT HAVE SOME BEARING ON YOUR QUESTION ARE AS FOLLOWS:

2. CONDITIONS UNDER WHICH TRAVEL STATUS EXISTS. "TRAVEL STATUS," WHETHER TRAVEL/IS PERFORMED BY LAND, AIR, OR SEA (EXCEPT AS A MEMBER OF SHIP'S COMPLEMENT), WILL COMMENCE WITH THE DAY OF DEPARTURE FROM A SHIP OR WITH ACTUAL TRAVEL AWAY FROM A SHORE STATION, AND WILL INCLUDE ANY OF THE FOLLOWING CONDITIONS:

1. TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, INCLUDING TIME SPENT AT A TEMPORARY DUTY STATION OR A TEMPORARY ADDITIONAL DUTY STATION, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THE DESIGNATED POST OF DUTY;

2. TRAVEL FROM ONE PERMANENT DUTY STATION TO ANOTHER PERMANENT DUTY STATION;

10. SPECIAL CIRCUMSTANCES, NOT HERETOFORE DEFINED, WHICH MAY BE DETERMINED BY THE SECRETARY OF THE NAVY TO CONSTITUTE A TRAVEL STATUS. (ITALICS SUPPLIED.)

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C., SUPP. V, 112, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING ACTIVE AND RETIRED PERSONNEL OF THE REGULAR ESTABLISHMENTS AND MEMBERS OF THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, INCLUDING TRAVEL FROM HOME TO FIRST STATION IN CONNECTION WITH THEIR APPOINTMENT OR CALL TO ACTIVE DUTY AND FROM LAST STATION TO HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY OR DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE * * *.

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. * *

THE HEAD OF THE DEPARTMENT CONCERNED MAY DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS AND TRAVEL WITHOUT TROOPS WITHIN THE MEANING OF THE LAWS GOVERNING THE PAYMENT OF MILEAGE OR OTHER TRAVEL EXPENSES. (ITALICS SUPPLIED.)

SECTION 212 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, 59 STAT. 134, IS AS FOLLOWS:

THE FUNDS APPROPRIATED IN THE APPROPRIATION ACTS FOR THE FISCAL YEAR 1946 OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT OF JUNE 16, 1942 ( PUBLIC LAW 607, SEVENTY-SEVENTH CONGRESS), SHALL BE AVAILABLE FOR, AND THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE, PER DIEM RATES OF ALLOWANCE, AT RATES NOT TO EXCEED $7 PER DAY, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, AND TO MEMBERS OF THE SERVICES CONCERNED (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED PERSONNEL, AVIATION CADETS, AND MEMBERS OF THE NURSE CORPS) WHEN TRAVELING BY AIR UNDER COMPETENT ORDERS AND ON DUTY WITHOUT TROOPS; AND FOR THE PAYMENT IN ADVANCE, OR OTHERWISE, OF MONEY ALLOWANCES IN LIEU OF TRANSPORTATION, AT THE RATE OF 3 CENTS PER MILE TO ENLISTED MEN, REGARDLESS OF THE MODE OF TRAVEL. (ITALICS SUPPLIED.)

SIMILAR PROVISIONS RELATING TO APPROPRIATIONS FOR THE FISCAL YEAR 1947 APPEAR IN SECTION 211 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1947, 60 STAT. 81. SEE, ALSO, THE PROVISO UNDER THE HEADING TRANSPORTATION AND RECRUITING OF NAVAL PERSONNEL" IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1947, 60 STAT. 488, AND SIMILAR PROVISIONS IN PRIOR NAVAL APPROPRIATIONS ACTS.

IN THE DECISION TO WHICH YOU REFER, B-56672, DATED APRIL 4, 1946, THE OFFICER INVOLVED WAS DETACHED FROM DUTY AT A STATION IN ALASKA, ORDERED TO WASHINGTON, D.C., FOR "TEMPORARY DUTY" AND RELEASED FROM ACTIVE DUTY, GRANTED TERMINAL LEAVE UNDER ORDERS RELEASING HIM FROM ACTIVE DUTY (EFFECTIVE FEBRUARY 9, 1946) AND THEN ORDERED TO DUTY BY ORDERS DATED JANUARY 30, 1946, WHICH CANCELLED THE UNEXECUTED PORTION OF HIS RELEASE FROM ACTIVE DUTY ORDERS AND DIRECTED HIM TO REPORT TO THE NAVY DEPARTMENT FOR DUTY ON THE STAFF OF THE COMMANDER, JOINT TASK FORCE ONE. SUBSEQUENTLY, ON MARCH 11, 1946, CORRECTING ORDERS WERE ISSUED WHICH DESIGNATED THE OFFICER'S DUTY WITH JOINT TASK FORCE ONE AS TEMPORARY DUTY, PRESCRIBED A PER DIEM, AND STATED THAT:

SINCE JOINT TASK FORCE ONE IS TEMPORARILY BASED IN WASHINGTON, D.C., AND WILL SHORTLY BE ESTABLISHED ON BOARD THE U.S.S. MOUNT MCKINLEY ( AGC 7), YOUR ORDERS OF 30 JANUARY WERE ERRONEOUS IN DIRECTING YOU TO REPORT FOR DUTY INSTEAD OF TEMPORARY DUTY.

THE SAID DECISION HELD THAT UNDER SUCH CIRCUMSTANCES THE OFFICER COULD NOT BE CONSIDERED AS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM HIS DESIGNATED POST OF DUTY WHILE ON DUTY IN WASHINGTON WITH JOINT TASK FORCE ONE AND, HENCE, THAT HE WAS NOT ENTITLED TO PER DIEM WHILE SERVING ON SUCH DUTY.

WHILE THE CIRCUMSTANCES IN THE CASE CONSIDERED IN THE ABOVE MENTIONED DECISION DIFFER SOMEWHAT FROM THOSE IN THE CASES YOU NOW PRESENT THE FOLLOWING LANGUAGE OF THAT DECISION IS PERTINENT TO YOUR PRESENT INQUIRY:

THE PRESCRIBING OF A PER DIEM ALLOWANCE IS EXPRESSLY LIMITED TO PERIODS DURING WHICH AN OFFICER IS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM HIS DESIGNATED POST OF DUTY.

THE TERM "DESIGNATED POSTS OF DUTY" REFERS TO THE PLACE WHERE THE USUAL OFFICIAL DUTIES OF OFFICERS ARE REQUIRED TO BE PERFORMED, AND THE AUTHORIZATION FOR THE PAYMENT OF PER DIEM FOR PERIODS WHILE "ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY" PRESUPPOSES THE EXISTENCE OF A TRAVEL STATUS AWAY FROM THAT PLACE OCCASIONED BY REASON OF AN OFFICIAL NECESSITY FOR THE PERFORMANCE OF DUTIES AWAY FROM AND IN ADDITION TO THOSE NORMALLY FOR PERFORMANCE AT SUCH DESIGNATED POST OF DUTY. * * *

FOLLOWING THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. PHISTERER, 94 U.S. 219, HOLDING THAT THE HOME OF AN OFFICER OF THE ARMY IS NOT A MILITARY STATION, THE ACCOUNTING OFFICERS CONSISTENTLY HAVE HELD THAT, GENERALLY, THE HOME OF AN OFFICER OF THE MILITARY OR NAVAL SERVICE IS NOT AN OFFICIAL STATION. SEE 20 COMP. DEC. 619; 27 ID. 61; ID. 391; 2 COMP. GEN. 458; 3 ID. 358; 18 ID. 921; 20 ID. 71; ID. 363; 26 ID. 18. ALSO, IT HAS BEEN HELD THAT THE TERMS "OFFICIAL STATION" AND "DESIGNATED POST OF DUTY" ARE SYNONYMOUS. 13 COMP. GEN. 178.

THOSE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, RELATING TO TRANSPORTATION FOR DEPENDENTS AND FORMING THE BASIS FOR THE PROVISIONS OF PARAGRAPH 8001-2A, U.S. NAVY TRAVEL INSTRUCTIONS, QUOTED ABOVE, DO NOT REQUIRE OR JUSTIFY A CONCLUSION THAT THE HOME OF AN OFFICER IS A DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE STATUTORY AUTHORITY FOR PRESCRIBING "PER DIEM RATES OF ALLOWANCE * * * IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' CF. 20 COMP. GEN. 71; ID. 363; 26 ID. 18. MOREOVER, THE AUTHORITY CONFERRED UPON THE HEADS OF DEPARTMENTS BY THE LAST PARAGRAPH OF THE SAID SECTION 12 (QUOTED ABOVE) MUST BE CONSIDERED AS LIMITED BY THE BASIC STATUTORY PROVISIONS FOR AUTHORIZING PAYMENT OF PER DIEM AND MAY NOT BE EXERCISED SO AS TO CONFER ON AN OFFICER A RIGHT TO PAYMENT OF PER DIEM FOR ANY PERIOD WHEN HE IS NOT TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM HIS DESIGNATED POST OF DUTY. IT APPEARS THAT EACH OF THE OFFICERS INVOLVED IN THE CASES SET FORTH IN THE LETTER OF THE BUREAU OF NAVAL PERSONNEL, QUOTED ABOVE, WAS ORDERED TO ACTIVE DUTY FROM HIS HOME AND HAD NO DESIGNATED POST OF DUTY EXCEPT THE ONE PLACE TO WHICH HE WAS ORDERED FOR PERFORMANCE OF THE DUTY DENOMINATED AS TEMPORARY ACTIVE DUTY. SEEMS CLEAR, THEREFORE, THAT NONE OF THE SAID OFFICERS WAS AWAY FROM HIS DESIGNATED POST OF DUTY WHILE PERFORMING HIS ASSIGNED DUTIES AT THE ONLY POST OF DUTY HE HAD.

ACCORDINGLY, ANSWERING YOUR QUESTION AND REFERRING PARTICULARLY TO THE CASES SET FORTH IN THE ABOVE-QUOTED LETTER OF THE BUREAU OF NAVAL PERSONNEL, THIS OFFICE WOULD BE REQUIRED TO OBJECT TO PAYMENT OF PER DIEM TO ANY RETIRED OR RESERVE OFFICER ON ACTIVE DUTY FOR ANY PERIOD DURING WHICH HE WAS PERFORMING HIS ASSIGNED DUTIES AT HIS ONLY DESIGNATED POST OF DUTY EVEN THOUGH HIS ACTIVE DUTY ORDERS PURPORTED TO PROVIDE FOR PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE AND DENOMINATED HIS ACTIVE DUTY AS TEMPORARY ACTIVE DUTY AND HIS DESIGNATED POST OF DUTY AS A TEMPORARY DUTY STATION.