B-138900, JUNE 19, 1959, 38 COMP. GEN. 849

B-138900, JUNE 19, 1959, 38 COMP. GEN. 849

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - PERMANENT OR TEMPORARY STATION THE HOLDING IN THE CASE OF CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58, DECIDED MARCH 4, 1959, THAT A TRAVEL STATUS DOES NOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS PERFORMED AND THAT ORDERS WHICH DIRECT A MEMBER TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT UPON COMPLETION DID NOT PLACE THE MEMBER IN A TRAVEL STATUS FOR ENTITLEMENT TO PER DIEM, WILL BE FOLLOWED FROM JUNE 19, 1959--- THE DATE OF THIS DECISION--- IN ALL CASES WHERE MEMBERS ARE ORDERED TO ACTIVE DUTY FROM HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE FURTHER ASSIGNMENT, PAYMENT OF PER DIEM MADE ADMINISTRATIVELY PRIOR TO JULY 1, 1959, WILL NOT BE QUESTIONED; HOWEVER, THE DECISION WILL NOT BE CONSTRUED AS PROHIBITING PER DIEM WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HOME, ASSIGNED TO TEMPORARY DUTY, AND THE ORDERS DESIGNATE A DUTY STATION TO WHICH TRAVEL IS REQUIRED UPON COMPLETION OF TEMPORARY DUTY. 33 COMP. GEN. 103, OVERRULED.

TO THE SECRETARY OF DEFENSE, JUNE 19, 1959:

IN THE CASE OF CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY, DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. FROM THE DATE OF THIS DECISION WE WILL FOLLOW THE RULING IN THE CALIFANO CASE IN ANY CASE WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY. SUCH STATION WILL BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. THIS DECISION, HOWEVER, IS NOT TO BE CONSTRUED AS PROHIBITING THE PAYMENT OF PER DIEM, IN OTHERWISE PROPER CASES, WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO TEMPORARY DUTY, AND THE ORDERS DESIGNATE A SPECIFIC DUTY STATION TO WHICH HE IS TO TRAVEL TO AND REPORT FOR DUTY UPON COMPLETION OF THE TEMPORARY DUTY.

THE HOLDING IN THE CALIFANO CASE DOES NOT APPEAR TO BE IN AGREEMENT WITH THE VIEWS WHICH WE HERETOFORE HAVE EXPRESSED IN SOME OF OUR DECISIONS SUCH AS B-115213, 33 COMP. GEN. 103. TO THE EXTENT THAT ANY OF OUR PRIOR DECISIONS ARE IN CONFLICT WITH THE RULING IN THE CALIFANO CASE, SUCH DECISIONS NO LONGER WILL BE FOLLOWED.

WHILE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT, WE WILL FOLLOW THE RULING IN THE CALIFANO CASE BEGINNING WITH THE DATE OF THIS DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, ON THE BASIS OF OUR PRIOR DECISIONS WILL NOT BE QUESTIONED, IF OTHERWISE PROPER.