B-125037, SEP 10, 1969

B-125037, SEP 10, 1969

MILITARY - PER DIEM - INDUCTEES PRIOR TO PERMANENT STATION ASSIGNMENT DECISION TO SECRETARY OF DEFENSE CONCERNING PER DIEM PAYMENTS TO NEWLY ENLISTED MEMBERS BETWEEN DATE OF COMPLETION OF BASIC TRAINING AND DATE OF ARRIVAL AT THEIR FIRST DUTY STATION. UNDER THE REGULATIONS PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD THAT ENLISTED MEMBERS AFTER INDUCTION OR FIRST ENLISTMENT ARE ASSIGNED BASIC TRAINING OR AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION WHERE GOVERNMENT QUARTERS AND SUBSISTENCE ARE AVAILABLE PRIOR TO REPORTING TO FIRST DUTY STATION. AUDIT ACTION WILL BE TAKEN TO PER DIEM PAYMENTS TO MEMBERS WHILE IN A "PIPELINE" OR WHEN A TRANSIENT STATUS AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF MAY 8, 1969, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE CONCERNING PER DIEM PAYMENTS MADE TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHICH WAS THE SUBJECT OF LETTER REPORT OF FEBRUARY 12, 1969, B-125037, TO YOU, ISSUED BY THE DEFENSE DIVISION OF THIS OFFICE,

IN THE LETTER REPORT IT IS STATED THAT AUDITS OF THE ACCOUNTS OF MILITARY DISBURSING OFFICERS DISCLOSED THAT CONTRARY TO PARAGRAPHS M4201-12 AND M4250-11 OF THE JOINT TRAVEL REGULATIONS, ARMY DISBURSING OFFICERS WERE MAKING PAYMENTS OF PER DIEM TO NEWLY ENLISTED OR INDUCTED MEMBERS BETWEEN THE DATE THEY COMPLETE BASIC TRAINING AND THE DATE THEY ARRIVE AT THEIR FIRST PERMANENT DUTY STATION.

PARAGRAPHS M4201-12 AND M4250-11 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD THAT ENLISTED MEMBERS AFTER INDUCTION OR FIRST ENLISTMENT ARE ASSIGNED BASIC TRAINING, PROCESSING, INDOCTRINATION, INSTRUCTION, OR ARE AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION AT PLACES WHERE BOTH GOVERNMENT QUARTERS AND SUBSISTENCE ARE AVAILABLE PRIOR TO REPORTING TO THEIR FIRST PERMANENT DUTY STATION.

THE ASSISTANT SECRETARY SAYS THAT UNDER THE REGULATIONS ARRIVAL AT A FIRST DUTY STATION IS NOT GERMANE TO THE ISSUE. HE EXPRESSES THE VIEW THAT WHEN THE MEMBER RECEIVES ORDERS ASSIGNING HIM TO A PERMANENT DUTY STATION HE IS NO LONGER AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION AND THE PROVISIONS OF THE REGULATIONS DO NOT APPLY.

THE REGULATIONS PRECLUDING THE PAYMENT OF PER DIEM ALLOWANCES UNDER THE PROVISIONS OF PARAGRAPHS M4201-12 AND M4250-11 WERE ORIGINALLY PROMULGATED BY CHANGE 60 DATED JULY 1, 1957, AS PARAGRAPHS M4201-11 AND M4250-11 AND WERE AS FOLLOWS:

"FOR NEWLY INDUCTED OR ENLISTED MEMBERS WHO, PRIOR TO REPORTING TO THEIR FIRST PERMANENT STATION, ARE PARTICIPATING IN PERIODS OF BASIC TRAINING, PROCESSING, INDOCTRINATION, OR INSTRUCTION AT PLACES WHERE BOTH GOVERNMENT QUARTERS AND SUBSISTENCE ARE AVAILABLE."

UNDER THE REGULATIONS IN EFFECT AT THAT TIME LOCATIONS TO WHICH MEMBERS WERE ASSIGNED FOR COURSES OF INSTRUCTION OF LESS THAN 20 WEEKS WERE TEMPORARY STATIONS AND THE APPARENT PURPOSE OF THESE REGULATIONS WAS TO PROHIBIT THE PAYMENT OF OTHERWISE AUTHORIZED PER DIEM TO NEWLY INDUCTED OR ENLISTED MEMBERS DURING PERIODS OF RECRUIT TRAINING FOR A SHORT PERIOD OF A FEW WEEKS, FOLLOWED PERHAPS BY AN ADDITIONAL SHORT TRAINING COURSE OF INSTRUCTION OR INDOCTRINATION FOR AN ADDITIONAL FEW WEEKS WHILE IN A "PIPELINE" STATUS BEFORE ENTERING ON A PERMANENT DUTY ASSIGNMENT.

THE TERM "PIPELINE" IS UNDERSTOOD TO INDICATE A STATUS WHEREIN A MEMBER IS UNDERGOING TRAINING TO QUALIFY HIM FOR A PARTICULAR DUTY ASSIGNMENT ELSEWHERE OR IS IN THE PROCESS OF BEING TRANSFERRED TO SUCH DUTY STATION. REASONABLY, THEREFORE, THE INTENT OF THE REGULATION WAS TO PROHIBIT THE PAYMENT OF PER DIEM TO NEWLY INDUCTED OR ENLISTED MEMBERS FOR THE ENUMERATED PERIODS PRIOR TO THE DATE OF THEIR ARRIVAL AT THEIR FIRST DUTY STATION AT PLACES WHERE QUARTERS AND SUBSISTENCE ARE AVAILABLE.

BY CHANGE 95, DATED AUGUST 1, 1960, THE REGULATIONS PROMULGATED BY CHANGE 60 AND QUOTED ABOVE WERE AMENDED TO INCLUDE AMONG THE TYPES OF DUTY FOR WHICH PER DIEM WAS NOT PAYABLE PERIODS WHILE THE MEMBERS WERE "AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION."

SINCE LITERALLY THE INITIAL PROVISIONS APPLIED TO PER DIEM ONLY DURING THE ENUMERATED PERIODS AND, OTHER THAN FOR PERIODS OF PROCESSING, DID NOT PRECLUDE THE PAYMENT OF PER DIEM AFTER THOSE PERIODS HAD TERMINATED, IT SEEMED CLEAR THAT THE PURPOSE OF THE CHANGE IN THE REGULATIONS WAS TO RESOLVE ANY DOUBT THAT NEWLY INDUCTED OR ENLISTED MEMBERS CONTINUE IN A "PIPELINE" STATUS UNTIL THEY ACTUALLY REPORT TO THEIR FIRST PERMANENT DUTY STATION.

IN THIS RESPECT, WE SEE LITTLE JUSTIFICATION FROM THE STANDPOINT OF THE MEMBERS' NEED, IN DENYING THEM PER DIEM DURING THE ENTIRE PERIOD OF TRAINING, ETC., AT PLACES WHERE MESS AND QUARTERS ARE AVAILABLE PRIOR TO REPORTING TO THEIR FIRST PERMANENT DUTY STATION AND AUTHORIZING THE PAYMENT OF PER DIEM IN ESSENTIALLY SIMILAR CIRCUMSTANCES WHILE THEY ARE EN ROUTE TO THAT STATION.

HOWEVER THAT MAY BE, IT DOES NOT APPEAR FROM THE ORDERS INVOLVED THAT, AS THE ASSISTANT SECRETARY APPEARS TO BELIEVE UNDER HIS INTERPRETATION OF THE REGULATIONS, THE MEMBERS HAD IN FACT BEEN ASSIGNED TO A PERMANENT DUTY STATION - LEGALLY THE PLACE WHERE A MEMBER IS ASSIGNED FOR THE PERFORMANCE OF DUTY - WHEN THEY RECEIVED THE QUESTIONED PER DIEM PAYMENTS.

REPRESENTATIVE OF THE CASES ARE THOSE OF SANTO A. BARBALACE, E-2, U.S. 51592035 AND MONTE K. ARLEDGE, E-1, U.S. 51873823. IN EACH OF THESE CASES PER DIEM WAS PAID WHILE THE MEMBERS WERE AT THE UNITED STATES PORTS OF EMBARKATION.

BY SPECIAL ORDER NO. 79, DATED APRIL 24, 1967, HEADQUARTERS, U.S. ARMY TRANSPORTATION SCHOOL, FORT EUSTIS, VIRGINIA 23604, BARBALACE WAS ASSIGNED TO U.S. ARMY OVERSEAS REPLACEMENT STATION, FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO 21ST REPLACEMENT BATTALION, APO NEW YORK 09757. THE ORDERED TRAVEL WAS PERFORMED DURING THE PERIOD APRIL 28 TO MAY 17, 1967.

THESE ORDERS ASSIGNED BARBALACE TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO A REPLACEMENT BATTALION OVERSEAS. SINCE AN OVERSEAS REPLACEMENT BATTALION IS A SPECIFIC UNIT THE DEPUTY ASSISTANT SECRETARY APPEARS TO BELIEVE THAT THE PROVISION FOR FURTHER ASSIGNMENT TO THE BATTALION CONSTITUTED AN ASSIGNMENT TO A PERMANENT DUTY STATION. ON ITS FACE, HOWEVER, THE ASSIGNMENT TO A REPLACEMENT BATTALION IS NOT AN ASSIGNMENT FOR DUTY BUT CONTEMPLATES A FURTHER ASSIGNMENT. IN THIS REGARD, WHEN THE MEMBER RECEIVED PAYMENT FOR THE TRAVEL ON MAY 29, 1967, HIS ORGANIZATION AND STATION WERE SHOWN ON THE VOUCHER AS B COMPANY, 1136 INFANTRY, APO 09039. THUS, HIS FINAL COMMITMENT TO A PERMANENT DUTY ASSIGNMENT WAS NOT ACCOMPLISHED BY THE ORDERS REFERRED TO ABOVE. THEREFORE, UNDER THE ORDERS AS WE UNDERSTAND THEM HE WAS AWAITING ASSIGNMENT TO A PERMANENT DUTY STATION WHILE AT FORT DIX AND WOULD CONTINUE IN THAT STATUS WITH THE OVERSEAS REPLACEMENT BATTALION UNTIL HE RECEIVED ORDERS TO HIS ULTIMATE STATION.

BY SPECIAL ORDERS NO. 21 DATED JANUARY 27, 1967, HEADQUARTERS U.S. ARMY SOUTHEASTERN SIGNAL SCHOOL, FORT GORDON, GEORGIA 30905, ARLEDGE WAS RELIEVED FROM HIS STUDENT ASSIGNMENT AT THAT STATION AND ASSIGNED TO I FIELD FORCE APO SAN FRANCISCO 96240. THE TRAVEL WAS PERFORMED DURING THE PERIOD FEBRUARY 3 TO MARCH 2, 1967. THE ASSIGNMENT TO I FIELD FORCE WITHOUT SPECIFICATION OF COMPONENT WAS NOT AN ASSIGNMENT FOR THE PERFORMANCE OF DUTY AND CONTEMPLATED A FURTHER ASSIGNMENT. BY SPECIAL ORDERS NO. 62 DATED MARCH 3, 1967, HEADQUARTERS I FIELD FORCE VIETNAM, APO 96350 AND NOT THE ASSIGNMENT TO I FIELD FORCE APO 96240 WAS HIS PERMANENT DUTY ASSIGNMENT AND THAT HE WAS AWAITING ASSIGNMENT TO HIS FIRST PERMANENT DUTY STATION UNTIL HE RECEIVED THE ORDERS OF MARCH 3, 1967.

THUS, THE ORDERS ON WHICH THE PER DIEM PAYMENTS WERE BASED REFLECT ONLY ASSIGNMENTS OF A TRANSIENT NATURE AND DO NOT AS WE UNDERSTAND THEM FINALLY ASSIGN THE MEMBERS TO A PARTICULAR STATION FOR PERMANENT DUTY. IN OUR OPINION, THEREFORE, UNDER THE CURRENT REGULATIONS PER DIEM IS NOT PAYABLE IN SUCH CASES REGARDLESS OF WHETHER OUR INTERPRETATION OF THE REGULATIONS OR THE ASSISTANT SECRETARY'S INTERPRETATION OF THOSE REGULATIONS IS PROPER. AUDIT ACTION WILL BE TAKEN ACCORDINGLY.

IT IS OUR UNDERSTANDING THAT THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IS NOW CONSIDERING A CLARIFICATION OF PARAGRAPHS M4201 -12 AND M4250-11 OF THE REGULATIONS WHICH WILL CLARIFY THE PER DIEM ENTITLEMENT OF NEWLY INDUCTED OR ENLISTED MEMBERS FOR PERIODS PRIOR TO REPORTING TO A PERMANENT DUTY STATION AS DEFINED IN PARAGRAPH M1150-10A OF THE REGULATIONS.