B-134568, JUN 2, 1959

B-134568, JUN 2, 1959

PRECIS-UNAVAILABLE

SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 20, 1959, PDTATAC CONTROL NO. 58- 5, FROM THE ASSISTANT SECRETARY OF THE NAVY RELATIVE TO CERTAIN NOTICES OF EXCEPTION ISSUED IN THE ACCOUNTS OF J.F. ELDER, SYMBOL A6101, AND RAY WOODS, SYMBOL A6796, MARINE CORPS DISBURSING OFFICERS, PURSUANT TO OUR DECISION OF FEBRUARY 12, 1958, B-134568.

THE EXCEPTIONS IN QUESTION WERE TO PAYMENTS OF PER DIEM MADE TO MARINE CORPS MEMBERS WHO PERFORMED TEMPORARY ADDITIONAL DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY FOR EXTENDED PERIODS OF TIME UNDER ORDERS WHICH DID NOT SPECIFY THE DURATION OF THE DUTY BUT WHICH PROVIDED ONLY THAT IT WOULD BE FOR AN INDEFINITE PERIOD. IN THE DECISION OF FEBRUARY 12, 1958, PURSUANT TO WHICH THESE EXCEPTIONS WERE TAKEN, WE HELD, CITING OUR DECISION OF MAY 3, 1957, 36 COMP. GEN. 757, THAT WHERE DUTY IS PERFORMED FOR A PROLONGED PERIOD UNDER ORDERS DIRECTING ITS PERFORMANCE FOR AN INDEFINITE PERIOD, A CONCLUSION THAT THE ASSIGNMENT IS NOT OF A PERMANENT NATURE, EVEN THOUGH DESCRIBED AS TEMPORARY ADDITIONAL DUTY, WOULD NOT BE WARRANTED IN THE ABSENCE OF FURTHER EVIDENCE TO SHOW THAT THE INITIAL ASSIGNMENT WAS INTENDED TO BE FOR A REASONABLY SHORT PERIOD AND THAT THE PERIOD WAS PROLONGED BECAUSE UNFORESEEABLE CIRCUMSTANCES SUBSEQUENTLY AROSE.

IN HIS LETTER THE ASSISTANT SECRETARY, IN QUOTING IN PERTINENT PART FROM SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, WHICH AUTHORIZES THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES CONCERNED, EMPHASIZES THE LANGUAGE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY" IN THE PROVISION THAT SUCH MEMBERS SHALL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. HE ALSO QUOTES IN PART THE REGULATIONS ISSUED JOINTLY BY THE SECRETARIES OF THE SEVERAL UNIFORMED SERVICES UNDER THE ABOVE AUTHORITY AND PUBLISHED AS PARAGRAPH 3050, JOINT TRAVEL REGULATIONS, WHICH REGULATIONS PROVIDE, WITHOUT FURTHER QUALIFICATION, THAT A TRAVEL STATUS ENTITLING MEMBERS TO TRAVEL AND TRANSPORTATION ALLOWANCES SHALL EXIST DURING PERIODS OF TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY, INCLUDING TIME SPENT AT A TEMPORARY DUTY STATION, OR A TEMPORARY ADDITIONAL DUTY STATION, "WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THE PERMANENT DUTY STATION." ON THE BASIS, APPARENTLY, THAT THE QUOTED STATUTE AND REGULATIONS APPEAR TO AUTHORIZE PAYMENT OF TEMPORARY DUTY ALLOWANCES FOR DUTY DESIGNATED IN ORDERS AS TEMPORARY DUTY PERFORMED AT A GIVEN STATION WITHOUT LIMIT AS TO THE DURATION, OR PROBABLE DURATION, OF SUCH DUTY, AND SINCE, AS A RESULT OF OUR DECISION OF FEBRUARY 12, 1958, THE MARINE CORPS HAS TAKEN ACTION TO PRECLUDE COMMANDING OFFICERS FROM ISSUING ORDERS TO MEMBERS FOR PERIODS OF TEMPORARY ADDITIONAL DUTY IN EXCESS OF 20 WEEKS BY PUBLISHING ON JUNE 12, 1958, A CHANGE TO MARINE CORPS ORDER 1000.1A, WHICH CONTAINS THE INSTRUCTIONS TO COMMANDING OFFICERS FOR PREPARATION OF TRAVEL ORDERS, REQUIRING PRIOR APPROVAL OF HEADQUARTERS, MARINE CORPS, BEFORE ISSUING ORDERS FOR PERIODS OF TEMPORARY ADDITIONAL DUTY IN EXCESS OF 20 WEEKS, THE ASSISTANT SECRETARY REQUESTS THAT THE DECISION BE APPLIED PROSPECTIVELY ONLY, AND THAT THE EXCEPTIONS HERE INVOLVED BE REMOVED.

ENTITLEMENT TO TEMPORARY DUTY PER DIEM ALLOWANCES CLEARLY IS DEPENDENT UPON PERFORMANCE OF DUTY AT A PLACE OTHER THAN THE MEMBER'S PERMANENT STATION PURSUANT TO COMPETENT ORDERS DIRECTING SUCH DUTY. IN OUR DECISION OF AUGUST 28, 1953, 33 COMP. GEN. 98, 99, IN WHICH THERE WAS CITED OUR DECISION OF MARCH 10, 1945, 24 COMP. GEN. 667, IT WAS STATED THAT WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT - PARTICULARLY AS TO THE DURATION THEREOF, NATURE OF THE DUTY ENJOINED, ETC. FURTHER, IN OUR DECISION OF MAY 3, 1957, 36 COMP. GEN. 757, WE POINTED OUT THAT, BY DEFINITION, THE WORD "TEMPORARY" IS A TERM OF LIMITATION WHICH INDICATES A PERIOD WHICH IS OF SHORT DURATION AND TRANSITORY IN NATURE, AND THAT IT HAS BEEN SO USED WITH REFERENCE TO TEMPORARY DUTY ASSIGNMENTS BOTH IN OUR DECISIONS AND ADMINISTRATIVELY, CITING BUPERS-BUSANDA JOINT LETTER 51-229, DATED MARCH 16, 1951, WHICH DIRECTED THAT CHANGE OF DUTY ORDERS NORMALLY SHOULD BE ISSUED WHEN IT IS EXPECTED THAT AN OFFICER WILL PERFORM DUTY AT ONE PLACE FOR A PERIOD OF FIVE MONTHS OR MORE, AND THAT TEMPORARY ADDITIONAL DUTY ORDERS WOULD NOT BE ISSUED FOR SUCH DUTY WITHOUT FIRST OBTAINING THE APPROVAL OF THE BUREAU OF NAVAL PERSONNEL.

THUS, WHILE THERE MAY BE SITUATIONS, AS WAS INDICATED IN OUR DECISION OF FEBRUARY 12, 1958, WHEN PER DIEM ALLOWANCES PROPERLY MAY BE PAID FOR A PROLONGED PERIOD, IT LONG HAS BEEN EVIDENT FROM OUR DECISIONS THAT THE LANGUAGE OF THE STATUTE "REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY" IS NOT, WITHOUT QUALIFICATION, CONTROLLING IN DETERMINING ENTITLEMENT TO PER DIEM ALLOWANCES. FURTHER, THE PROVISIONS OF THE REPORTED CHANGES IN MARINE CORPS ORDER 1000.1A DO NOT APPEAR TO DIFFER MATERIALLY FROM THE PROVISIONS IN PRE-EXISTING REGULATIONS OF THE DEPARTMENT OF THE NAVY. IN THESE CIRCUMSTANCES, THERE APPEARS NO BASIS TO CONSIDER THE DECISION OF FEBRUARY 12, 1958, AS EFFECTIVE ONLY ON AND AFTER THAT DATE. ACCORDINGLY, THE INVOLVED EXCEPTIONS WILL BE CONTINUED.