B-130446, AUG. 21, 1964

B-130446, AUG. 21, 1964

TO MR. EDWARD MATTLER, C/O JACOBS, JACOBS, JACOBS AND JACOBS, ATTORNEYS AT LAW:

REFERENCE IS MADE TO LETTER OF MAY 15, 1964, FROM YOUR ATTORNEY MR. THOMAS D. CLIFFORD OF THE FIRM OF JACOBS, JACOBS, JACOBS AND JACOBS, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 27, 1957, B- 130446, TO YOU, WHICH SUSTAINED OFFICE SETTLEMENT OF JULY 8, 1953, DISALLOWING YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD SEPTEMBER 10, 1951, TO JULY 31, 1952, WHILE YOU WERE STATIONED AT FORT GEORGE G. MEADE, MARYLAND.

WE HELD IN THE DECISION OF MAY 27, 1957, THAT THE EFFECT OF SPECIAL ORDERS NO. 153, HEADQUARTERS, 729TH TRANSPORTATION RAILWAY OPERATING BATTALION, FORT GEORGE G. MEADE, DATED SEPTEMBER 10, 1951, WAS TO CHANGE YOUR PERMANENT DUTY STATION FROM FORT EUSTIS, VIRGINIA, TO FORT GEORGE G. MEADE AND THAT ANY DUTY PERFORMED BY YOU UNDER SPECIAL ORDERS NO. 250, HEADQUARTERS, THE TRANSPORTATION CENTER AND FORT EUSTIS, FORT EUSTIS, VIRGINIA, DATED SEPTEMBER 7, 1951, WAS TEMPORARY DUTY PERFORMED AT YOUR PERMANENT STATION FOR WHICH NO PER DIEM COULD ACCRUE BECAUSE AFTER SEPTEMBER 10, 1951, YOU WERE NOT TRAVELING AWAY FROM YOUR DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND HENCE YOU WERE NOT IN A TRAVEL STATUS DURING SUCH DUTY.

IN HIS LETTER OF MAY 15, 1964, YOUR ATTORNEY HAS QUOTED FROM PARAGRAPHS 3001 AND 3003-2 OF THE JOINT TRAVEL REGULATIONS, DEFINING THE TERMS "COMPETENT ORDERS" AND "TEMPORARY DUTY," AS WELL AS EXCERPTS FROM PAGES 7, 9, AND 20 OF THE 729TH TRANSPORTATION RAILWAY OPERATING BATTALION UNIT HISTORY, SEPTEMBER 3, 1950, TO JULY 3, 1952, AND HAS STATED THAT IN VIEW THEREOF IT IS YOUR CONTENTION THAT SPECIAL ORDERS NO. 153 WERE NOT ISSUED BY COMPETENT AUTHORITY SUFFICIENT TO EFFECT A PERMANENT CHANGE OF STATION FOR THE REASONS THAT PERMANENT CHANGE OF STATION ORDERS COULD BE ISSUED ONLY BY HEADQUARTERS, FORT EUSTIS AND THAT THE BATTALION WAS ON TRAINING DUTY FOR AN INDEFINITE PERIOD AT FORT GEORGE G. MEADE; HENCE, A TRANSFER OF A MEMBER FROM ONE COMPANY TO ANOTHER OF THE SAME UNIT CONSTITUTED ONLY A CONTINUATION OF TEMPORARY DUTY.

SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES THAT UNDER REGULATIONS ISSUED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. UNDER SUCH PROVISIONS NO AUTHORITY EXISTED FOR THE PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCE FOR ANY PERIOD THE MEMBER WAS NOT AWAY FROM HIS DESIGNATED POST OF DUTY. THE DESIGNATED POST OF DUTY IS THE PLACE WHERE THE MEMBER'S BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE AND THE PLACE TO WHICH HE MUST REPORT UPON THE COMPLETION OF TEMPORARY DUTY ASSIGNMENTS OR OTHER ABSENCES FROM HIS NORMAL DUTY ASSIGNMENT. 38 COMP. GEN. 656, 658.

THE ORDERS OF SEPTEMBER 7, 1951, THE VALIDITY OF WHICH YOU APPARENTLY DO NOT QUESTION, DIRECTED YOU TO PROCEED FROM YOUR THEN DESIGNATED POST OF DUTY, FORT EUSTIS, TO FORT MEADE FOR THE PERFORMANCE OF TEMPORARY DUTY. UNDER THOSE ORDERS YOU WERE TO RETURN, UPON THE COMPLETION OF THE TEMPORARY DUTY, TO YOUR DUTY ASSIGNMENT WITH THE 729TH TRANSPORTATION RAILWAY OPERATING BATTALION AT FORT EUSTIS. THE EFFECT OF THE ORDERS OF SEPTEMBER 10, 1951, WAS NOT TO DIRECT A PERMANENT CHANGE OF STATION IN THE ORDINARY SENSE BUT MERELY TO CHANGE YOUR ASSIGNMENT WITHIN THE ORGANIZATION OF THE 729TH TRANSPORTATION RAILWAY OPERATING BATTALION FROM COMPANY A TO COMPANY C. THEREAFTER THE LOCATION OF YOUR BASIC DUTY ASSIGNMENT, AND THEREFORE THE PLACE THAT YOU WERE TO REPORT UPON THE COMPLETION OF TEMPORARY DUTY UNDER THE ORDERS OF SEPTEMBER 7, 1951, WAS FORT MEADE RATHER THAN FORT EUSTIS. THE PAYMENT OF PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY PERFORMED WITHIN THE LIMITS OF THE PERMANENT DUTY STATION WAS PROHIBITED DURING THE PERIOD IN QUESTION BY THE PROVISIONS OF PARAGRAPH 4201-4 OF THE JOINT TRAVEL REGULATIONS, CONSISTENT WITH THE CITED STATUTORY LIMITATIONS.

WE FIND NOTHING IN THE QUOTED EXCERPTS OF THE 729TH TRANSPORTATION RAILWAY OPERATING BATTALION HISTORY TO UNEQUIVOCALLY SHOW THAT THIS ORGANIZATION LACKED JURISDICTION AND AUTHORITY AFTER FEBRUARY 9, 1951, TO ISSUE COMPETENT ORDERS FOR THE WITHIN ORGANIZATION TRANSFER OF ITS MEMBERS FROM FORT EUSTIS TO FORT GEORGE G. MEADE. WHILE IT APPEARS THAT INITIALLY THE ORGANIZATION POSSIBLY WAS NOT AUTONOMOUS FOR THE PURPOSE OF ISSUING SUCH ORDERS AND NECESSARILY HAD TO RELY ON FORT EUSTIS THEREFOR, IT APPEARS THAT THE ORGANIZATION LATER WAS GRANTED AUTHORITY TO PUBLISH ORDERS IN CONNECTION WITH THE TRANSFER OF OFFICERS WITHIN ITS COMMAND. THAT PREMISE IS SUPPORTED BY THE EXCERPT APPEARING ON PAGE 9, AS FOLLOWS:

"A LETTER FROM THE 7TH TRANSPORTATION REGIMENT AT FORT EUSTIS DATED 9 FEBRUARY 1951 BROADENED THE SCOPE OF THE UNIT'S SPECIAL ORDERS, EASING TIE -UPS CAUSED WHEN IT HAD TO WAIT UNTIL LESS SIGNIFICANT MATTERS WERE PUBLISHED ON ORDERS AT FORT EUSTIS, AND GIVING PROMISE THAT THE 729TH WOULD BE BETTER ABLE TO ADMINISTER ITS AFFAIRS. IT MEANT THE UNIT COULD CUT ITS OWN ORDERS ON TRANSFER AND CHANGE OF PRIMARY DUTIES FOR OFFICERS WITHIN THE COMMAND * * *.'

ASIDE FROM THE FOREGOING, IT MUST BE POINTED OUT THAT THE VALIDITY AND COMPETENCY OF TRAVEL ORDERS ISSUED BY AN ORGANIZATION IS A MATTER FOR DETERMINATION BY COMMAND AUTHORITY, THAT IS, BY THE HIGHER ECHELONS IN THE CHAIN OF COMMAND. THE DEPARTMENT OF THE ARMY, WHEN REPORTING THE CLAIM TO THIS OFFICE ON FEBRUARY 27, 1953, FOR APPROPRIATE ACTION DID NOT QUESTION THE PROPRIETY OF ANY OF THE ORDERS ISSUED TO YOU DURING THE YEARS 1951 AND 1952 AND IT IS NOT WITHIN THE PROVINCE OF THIS OFFICE TO REFUSE TO ACCEPT AS VALID TRAVEL ORDERS WHICH APPEAR TO BE REGULAR ON THEIR FACE.

FURTHERMORE, EVEN IF SPECIAL ORDERS NO. 153 WERE OPEN TO QUESTION ON JURISDICTIONAL GROUNDS, YOU DID NOT RAISE THIS ISSUE AT THE TIME YOU RECEIVED THE ORDERS IN 1951 BUT PERFORMED DUTIES AND RECEIVED PAY AND ALLOWANCES BY VIRTUE OF THOSE ORDERS. HENCE, IN OUR VIEW YOU WOULD NOW BE ESTOPPED TO DENY THE COMPETENCY THEREOF. SEE HAYWARD V. ELIOT NATIONAL BANK, 96 U.S. 611, 615, 24 L.ED. 855 (1878); UNITED STATES V. SHREWSBURY, 90 U.S. 508, 517, 23 L.ED. 78 (1874); HARVEY RADIO LABORATORIES, INC. V. UNITED STATES, 126 CT.CL. 383, 391 (1953); AND JOSEPH BEHR AND SONS, INC. V. UNITED STATES, 137 CT.CL. 688, 690 (1957).

IN VIEW OF THE FOREGOING THERE APPEARS TO BE NO BASIS FOR MODIFYING OUR DECISION OF MAY 27, 1957, AND ACCORDINGLY THERE IS NO FURTHER ACTION THAT WE MAY TAKE ON YOUR CLAIM.