Skip to main content

B-130765, DEC. 23, 1957

B-130765 Dec 23, 1957
Jump To:
Skip to Highlights

Highlights

TO THE SECRETARY OF THE NAVY: FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 2. IN WHICH IT WAS HELD THAT ENSIGN HUGH J. WERE NOT ENTITLED TO PER DIEM UNDER THEIR ORDERS AS WRITTEN WHILE ATTENDING OFFICER CANDIDATE SCHOOL AT NEWPORT. PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 (A) (B). AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED FOR DUTY OTHER THAN TEMPORARY DUTY. WHICH INCLUDES A SCHOOL OR INSTALLATION TO WHICH A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS "20 WEEKS OR MORE.'. TEMPORARY DUTY IS DEFINED IN PARAGRAPH 3003-2. AS DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION.

View Decision

B-130765, DEC. 23, 1957

TO THE SECRETARY OF THE NAVY:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 2, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), TOGETHER WITH A MEMORANDUM OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 9, 1957, B-130765, IN WHICH IT WAS HELD THAT ENSIGN HUGH J. COURTNEY, USNR, AND OTHER OFFICERS, WERE NOT ENTITLED TO PER DIEM UNDER THEIR ORDERS AS WRITTEN WHILE ATTENDING OFFICER CANDIDATE SCHOOL AT NEWPORT, RHODE ISLAND, AND WHILE PERFORMING FURTHER DUTY THERE UNDER INSTRUCTION. YOU ALSO REQUEST ANSWERS TO THE ADDITIONAL QUESTIONS PRESENTED IN THE JUDGE ADVOCATE GENERAL'S MEMORANDUM.

AS POINTED OUT IN THE DECISION OF JULY 9, 1957, PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 (A) (B), JOINT TRAVEL REGULATIONS, AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED FOR DUTY OTHER THAN TEMPORARY DUTY, OR TEMPORARY ADDITIONAL DUTY, WHICH INCLUDES A SCHOOL OR INSTALLATION TO WHICH A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS "20 WEEKS OR MORE.' TEMPORARY DUTY IS DEFINED IN PARAGRAPH 3003-2, JOINT TRAVEL REGULATIONS, AS DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION, OR FOR RETURN TO THE OLD STATION.

THE DECISION STATED THAT THE ORDERS ASSIGNING OFFICER CANDIDATES TO THE U.S. NAVAL SCHOOLS COMMAND AT NEWPORT FOR FOUR MONTHS (APPROXIMATELY 18 WEEKS) INDOCTRINATION APPARENTLY CONTEMPLATED FURTHER INSTRUCTION AT NEWPORT IN AN OFFICER STATUS FOR A PERIOD OF ABOUT EIGHT WEEKS. IT WAS CONCLUDED THAT THE NATURE OF THESE ASSIGNMENTS IS SUCH AS NOT TO ENTITLE THE MEMBERS TO PAYMENT OF PER DIEM. IT WAS CONCLUDED ALSO, HOWEVER, THAT MEMBERS ARE NOT PRECLUDED FROM RECEIVING PER DIEM AT THE APPROPRIATE RATE FOR ANY INTERVENING TEMPORARY DUTY AWAY FROM NEWPORT PERFORMED UNDER TEMPORARY DUTY ORDERS WHICH FALL WITHIN PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS.

THE JUDGE ADVOCATE GENERAL'S MEMORANDUM ATTACHED TO THE LETTER OF THE ASSISTANT SECRETARY DATED OCTOBER 2, 1957, CONCERNING OUR DECISION OF JULY 9, 1957, IS IN PART AS FOLLOWS:

"2. CONTRARY TO THE ASSUMPTION OF THE COMPTROLLER GENERAL IN SUBJECT DECISION, ENCLOSURE (1) INDICATES THAT THE VAST MAJORITY (AT LEAST 75 PERCENT) OF OFFICER CANDIDATES WHO GRADUATE FROM OCS AT NEWPORT DO NOT REMAIN THERE FOR FURTHER INSTRUCTION. SINCE THE BASIS FOR THE COMPTROLLER GENERAL'S DENIAL OF PER DIEM TO THESE MEMBERS IS A FACTUAL MISAPPREHENSION, I AM SUBMITTING THE ATTACHED LETTER WHICH REQUESTS HIM TO RECONSIDER HIS DECISION OF 9 JULY 1957. IN ADDITION TO THE QUESTION OF ENTITLEMENT OF THOSE FEW OFFICER CANDIDATES WHO REMAIN AT NEWPORT FOR FURTHER INSTRUCTION TO PER DIEM BOTH AT OCS AND DURING ANY SUBSEQUENT SCHOOLING, THE CORRECT FACTUAL SITUATION PRESENTS THE QUESTION WHETHER OFFICER CANDIDATES WHO REMAIN AT NEWPORT ONLY FOR THE EIGHTEEN WEEK COURSE AT OCS ARE ENTITLED TO PER DIEM.

"3. THE ADDITION TO PARAGRAPH 4201 (11) OF THE JOINT TRAVEL REGULATIONS, MADE ON 1 JULY 1957, APPEARS SUFFICIENT TO DISENTITLE OFFICER CANDIDATES TO PER DIEM IF THEY ARE NEWLY INDUCTED OR ENLISTED MEMBERS. HOWEVER, PRIOR TO THAT DATE NO SUCH PROVISION EXISTED AND CASES PENDING IN THIS OFFICE PRESENT THE QUESTION OF ENTITLEMENT PRIOR TO THE TIME OF THE CHANGE. EVEN AFTER 1 JULY 1957 THERE IS A QUESTION WHETHER OFFICER CANDIDATES WHO ATTEND SCHOOLS IN NEWPORT SUBSEQUENT TO COMMISSIONING ARE ENTITLED TO PER DIEM AT THESE SCHOOLS SINCE THEY DO NOT APPEAR AT THAT TIME TO BE EITHER INDUCTED OR ENLISTED MEMBERS AND HENCE PARAGRAPH 4201 (11) SEEMS INSUFFICIENT TO DISENTITLE THEM TO PER DIEM.

"4. BECAUSE OF THE POSSIBILITY OF CONFUSION IN REGARD TO CASES ARISING IN THE FUTURE, AND BECAUSE SUBJECT DECISION (IN REGARD TO CASES PRIOR TO 1 JULY 1957) WAS BASED ON AN ERRONEOUS FACTUAL ASSUMPTION, IT IS RECOMMENDED THAT YOU SIGN THE ATTACHED LETTER WHICH FORWARDS THIS MEMORANDUM AND ENCLOSURE (1) TO THE COMPTROLLER GENERAL REQUESTING THAT HE RECONSIDER THE QUESTIONS PRESENTED IN SUBJECT DECISION AND THIS MEMORANDUM.'

OUR DECISION OF JULY 9, 1957, WAS BASED ON THE ORDERS AS WRITTEN IN THE CASES OF ENSIGN COURTNEY AND THE OTHER OFFICERS INVOLVED. THESE ORDERS ASSIGNED THOSE MEMBERS TO NEWPORT FOR INDOCTRINATION FOR A PERIOD OF FOUR MONTHS. THAT ASSIGNMENT, WITHOUT MORE, MIGHT HAVE BEEN CONSIDERED AN ASSIGNMENT TO TEMPORARY DUTY WITHIN PARAGRAPH 4200, JOINT TRAVEL REGULATIONS, SO AS TO GIVE RISE TO A RIGHT TO PER DIEM. THE ORDERS, HOWEVER, FURTHER PROVIDED THAT UPON COMPLETION OF THE INDOCTRINATION THE MEMBER WOULD BE COMMISSIONED AND ORDERED TO FURTHER ACTIVE DUTY. THERE WAS NO INDICATION IN THE ORDERS THAT THE ACTIVE DUTY FOLLOWING INDOCTRINATION WAS TO BE TEMPORARY OR THAT IT WAS TO BE AT ANY PLACE OTHER THAN NEWPORT. IT WAS ON THAT BASIS THAT IT WAS CONCLUDED THAT THE MEMBERS WERE NOT IN A TRAVEL STATUS ENTITLING THEM TO PER DIEM WHILE THEY WERE IN NEWPORT. IT IS OUR VIEW THAT THE ORDERS CLEARLY SUPPORT THAT CONCLUSION AND, HENCE, WE FIND NO BASIS FOR MODIFYING THE DECISION OF JULY 9, 1957.

PARAGRAPH 4201 (11), JOINT TRAVEL REGULATIONS, CHANGE 60, DATED JULY 1, 1957, CITED IN THE JUDGE ADVOCATE GENERAL'S MEMORANDUM, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE TO 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. SINCE THIS PROVISION OF THE REGULATIONS BECAME EFFECTIVE JULY 1, 1957, IT WOULD NOT BE FOR APPLICATION IN CASES ARISING PRIOR TO THAT DATE. THE EFFECT OF THE REGULATION IS TO BAR THE PAYMENT OF PER DIEM TO "NEWLY INDUCTED OR ENLISTED MEMBERS" IN THE CIRCUMSTANCES SPECIFICALLY PRESCRIBED. SUCH REGULATION, HOWEVER, DOES NOT APPEAR TO AFFECT THE ENTITLEMENT OF OFFICERS TO PER DIEM FOR TEMPORARY DUTY PERFORMED UNDER PROPER ORDERS WHILE IN A TRAVEL STATUS. THE ADDITIONAL QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.

GAO Contacts

Office of Public Affairs