B-138219, APRIL 2, 1959, 38 COMP. GEN. 656

B-138219: Apr 2, 1959

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MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - DUTY OVER A LARGE AREA - DESIGNATED POST OF DUTY PUBLIC HEALTH SERVICE RESERVE CORPS OFFICERS WHO ARE ORDERED TO LAS VEGAS. FOR ACTIVE DUTY TO PERFORM MONITORING DUTIES IN VARIOUS NEVADA DISTRICTS IN CONNECTION WITH NUCLEAR DETONATIONS AND WHO REMAIN AT LAS VEGAS FOR LESS THAN A DAY AND DO NOT PERFORM ANY DUTIES THERE MAY NOT HAVE LAS VEGAS REGARDED AS A POST OF DUTY FOR PERFORMANCE OF A BASIC DUTY ASSIGNMENT TO BE ENTITLED TO TRAVEL ALLOWANCES AWAY FROM SUCH DESIGNATED POST OF DUTY. EVEN THOUGH TRAVEL WAS PERFORMED OVER EXTENSIVE AREAS AND RESULTED IN THE INCURRENCE OF SUBSISTENCE EXPENSES. PAYMENTS HERETOFORE MADE ON THE BASIS THAT THE OFFICERS WERE IN A TRAVEL STATUS WILL NOT BE QUESTIONED.

B-138219, APRIL 2, 1959, 38 COMP. GEN. 656

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - DUTY OVER A LARGE AREA - DESIGNATED POST OF DUTY PUBLIC HEALTH SERVICE RESERVE CORPS OFFICERS WHO ARE ORDERED TO LAS VEGAS, NEVADA, FOR ACTIVE DUTY TO PERFORM MONITORING DUTIES IN VARIOUS NEVADA DISTRICTS IN CONNECTION WITH NUCLEAR DETONATIONS AND WHO REMAIN AT LAS VEGAS FOR LESS THAN A DAY AND DO NOT PERFORM ANY DUTIES THERE MAY NOT HAVE LAS VEGAS REGARDED AS A POST OF DUTY FOR PERFORMANCE OF A BASIC DUTY ASSIGNMENT TO BE ENTITLED TO TRAVEL ALLOWANCES AWAY FROM SUCH DESIGNATED POST OF DUTY, EVEN THOUGH TRAVEL WAS PERFORMED OVER EXTENSIVE AREAS AND RESULTED IN THE INCURRENCE OF SUBSISTENCE EXPENSES; HOWEVER, PAYMENTS HERETOFORE MADE ON THE BASIS THAT THE OFFICERS WERE IN A TRAVEL STATUS WILL NOT BE QUESTIONED, BUT FURTHER PER DIEM PAYMENTS SHOULD NOT BE MADE IN ABSENCE OF AN ADMINISTRATIVE DESIGNATION OF A DESIGNATED POST OF DUTY. FOR ENTITLEMENT TO TRAVEL ALLOWANCES UNDER SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), MEMBERS OF THE UNIFORMED SERVICES ARE REQUIRED TO TRAVEL AND TO PERFORM TEMPORARY DUTY AT A PLACE AWAY FROM THEIR DESIGNATED POST OF DUTY, AND WHAT CONSTITUTES SUCH DESIGNATED POST OF DUTY IS DETERMINED ON THE BASIS OF AVAILABLE EVIDENCE AT THE TIME THE ORDERS ARE ISSUED WHICH ESTABLISHES THE PLACE WITHIN WHICH THE MEMBER PERFORMS THE BASIC DUTY ASSIGNMENT AND, ALTHOUGH LENGTH OF TIME AT A PARTICULAR LOCATION AND ADMINISTRATIVE EVALUATION OF THE ASSIGNMENT ARE OF VALUE TO THE EXTENT OF ESTABLISHING THE BASIC DUTY ASSIGNMENT, THEY DO NOT ALONE ESTABLISH A TRAVEL STATUS IN THE ABSENCE OF AN ASSIGNMENT TO A DESIGNATED POST OF DUTY. MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED TO PERFORM A BASIC DUTY ASSIGNMENT OVER A WIDESPREAD AREA MAY HAVE SUCH AREA WITHIN WHICH A SUBSTANTIAL AMOUNT OF DUTY WILL BE PERFORMED ADMINISTRATIVELY ESTABLISHED AS A DESIGNATED POST OF DUTY SO THAT TRAVEL AND TEMPORARY DUTY PERFORMED AT PLACES REMOVED FROM SUCH AREA WILL ENTITLE THE MEMBERS TO TRAVEL ALLOWANCES; HOWEVER, IF IT IS NOT FEASIBLE TO MAKE SUCH A DESIGNATION, THE ENTIRE AREA OF ACTIVITY OF THE BASIC DUTY ASSIGNMENT MUST BE REGARDED AS THE MEMBER'S DUTY STATION AND TRAVEL ALLOWANCES WOULD NOT BE PROPER. PUBLIC HEALTH SERVICE RESERVE CORPS OFFICERS WHO ARE CALLED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF 120 DAYS OR LESS AND WHO PERFORM TEMPORARY DUTY AWAY FROM THE TRAINING STATION MAY HAVE THE TRAINING STATION REGARDED AS THE DESIGNATED POST OF DUTY AND, THEREFORE, PARAGRAPH 6001 OF THE JOINT TRAVEL REGULATIONS, WHICH PROHIBITS PER DIEM WHEN THE MEMBER IS AT THE TRAINING STATION PERFORMING THE BASIC DUTY ASSIGNMENT, DOES NOT PRECLUDE PAYMENT OF PER DIEM.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, APRIL 2, 1959:

IN YOUR LETTER OF DECEMBER 17, 1958, YOU REQUEST A DECISION ON QUESTIONS CONCERNING THE ELEMENTS AND CIRCUMSTANCES PROPERLY FOR CONSIDERATION IN THE DETERMINATION OF ENTITLEMENT TO TRAVEL ALLOWANCES OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE RESERVE CORPS INCIDENT TO DUTY PERFORMED ON CALL TO ACTIVE DUTY FOR PERIODS OF 120 DAYS OR LESS IN THE CIRCUMSTANCES SHOWN.

IT IS STATED THAT THE OFFICERS IN QUESTION ARE ORDERED TO REPORT FOR DUTY AT SPECIFIC DUTY STATIONS BUT THAT THEY FREQUENTLY ARE REQUIRED TO PERFORM TEMPORARY DUTY AWAY FROM SUCH STATIONS, AND THAT IN MANY INSTANCES THE TIME SPENT AWAY FROM THE STATIONS EQUALS OR EXCEEDS THE TIME SPENT AT THE STATIONS, AND OFTEN IS NOT CONFINED TO A SPECIFIC LOCATION. THE SITUATION OF RESERVE OFFICERS CALLED TO ACTIVE DUTY TO PERFORM OFF-SITE MONITORING ACTIVITIES IN CONNECTION WITH NUCLEAR DETONATIONS IN NEVADA IS DESCRIBED AS AN ILLUSTRATION IN POINT. IT IS STATED THAT SUCH OFFICERS ARE ASSIGNED TO LAS VEGAS, NEVADA, FOR ORIENTATION, SUPERVISION, AND DIRECTION WITH RESPECT TO THEIR ASSIGNMENTS, AND THAT WHEN EACH OFFICER LEAVES LAS VEGAS HE IS ASSIGNED TO AN AREA RATHER THAN TO A SPECIFIC LOCATION. ALSO, IT IS STATED THAT THE OFFICER GENERALLY IS REQUIRED TO TRAVEL CONSTANTLY WITHIN THAT AREA AND BETWEEN THAT AREA AND OTHER AREAS, DEPENDING ON SUCH FACTORS AS WIND DIRECTION, THE NUMBER OF NUCLEAR DETONATIONS, THE NUMBER OF ANTICIPATED NUCLEAR DETONATIONS WHICH ARE CANCELED AT THE LAST MOMENT, AND FOR VISITS TO FILM BADGE LOCATIONS, AND TO COLLECT WATER, AIR, AND MILK SAMPLES FOR ANALYSIS FOR RADIOACTIVITY. THEIR MOVEMENTS, IT IS INDICATED, ARE DIRECTED FROM A CONTROL CENTER BY TWO-WAY RADIO, DEPENDING ON METEOROLOGICAL CONDITIONS AND OTHER FACTORS INFLUENCING THE DEVELOPMENT OF THE SITUATION. ON THE BASIS OF THE INDICATED CIRCUMSTANCES, AND FOR USE IN DETERMINING ENTITLEMENT TO TRAVEL ALLOWANCES IN THE DISPOSITION OF BOTH EXISTING TRAVEL QUESTIONS AND QUESTIONS ANTICIPATED IN THE FUTURE, YOU REQUEST DECISION AS TO WHETHER THE DETERMINATION OF THE PERMANENT DUTY STATION OF AN OFFICER CALLED TO ACTIVE DUTY FOR 120 DAYS OR LESS IS DEPENDENT SOLELY OR PRIMARILY UPON THE LENGTH OF TIME SPENT AT EACH DUTY STATION, AND, IF NOT, WHAT FACTORS ARE TO BE CONSIDERED IN THE DETERMINATION AND WHAT WEIGHT SHOULD BE GIVEN TO THE ADMINISTRATIVE DETERMINATION OF WHAT CONSTITUTES THE OFFICER'S PERMANENT DUTY STATION.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES AUTHORITY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES OF TRAVEL AND TRANSPORTATION ALLOWANCES ONLY "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY," REGARDLESS OF THE LENGTH OF TIME INVOLVED, SECTION 303, 37 U.S.C. 253, PROVIDES FURTHER THAT THE SECRETARIES CONCERNED MAY PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES SHALL BE AUTHORIZED, THAT THEY SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS, AND THAT THEY SHALL PROMULGATE THE REGULATIONS REQUIRED BY THAT SECTION WHICH SHALL BE UNIFORM FOR ALL SERVICES INSOFAR AS IS PRACTICABLE. REGULATIONS PROMULGATED UNDER THOSE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150- 10A OF THOSE REGULATIONS DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION TO BE THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, THE LIMITATIONS OF WHICH "WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED.' IT IS THE PLACE WHERE THE OFFICER'S BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE AND THE PLACE TO WHICH HE MUST PROCEED OR RETURN UPON HIS NORMAL DUTY ASSIGNMENTS. THE QUOTED ADMINISTRATIVE REGULATIONS MUST BE INTERPRETED WITHIN THAT LIMITATION.

THE TERM "TEMPORARY DUTY," WHICH INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH 3003-2 OF THE REGULATIONS, FOR PURPOSES OF ESTABLISHING TRAVEL ALLOWANCE RIGHTS, TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. TEMPORARY DUTY IS DUTY OTHER THAN THAT OF THE BASIC DUTY ASSIGNMENT. TO QUALIFY UNDER SUCH REGULATIONS FOR TRAVEL ALLOWANCES, THEREFORE, TRAVEL AND TEMPORARY DUTY MUST BE PERFORMED UNDER DIRECTION OF COMPETENT TRAVEL ORDERS AT A POINT OR POINTS REMOVED FROM THE PLACE IN WHICH THE BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE. WHAT CONSTITUTES A MEMBER'S DESIGNATED POST OF DUTY, CONSEQUENTLY, IS A QUESTION OF FACT, THE DETERMINATION OF WHICH IS TO BE MADE WITH THE ASSISTANCE OF ANY COMPETENT AVAILABLE EVIDENCE TO ESTABLISH THE PLACE WITHIN WHICH HE MUST PERFORM HIS BASIC DUTY ASSIGNMENT. THAT DETERMINATION MUST BE MADE AS OF THE EFFECTIVE DATE OF THE ORDERS SINCE THE MEMBER'S RIGHTS COMMENCE TO ACCRUE ON THAT DATE. CONSIDERATIONS SUCH AS THE LENGTH OF TIME TO BE SPENT BY THE MEMBER AT A PARTICULAR LOCATION, ADMINISTRATIVE EVALUATION OF THE ASSIGNMENT, ETC., ARE OF VALUE TO THE EXTENT THAT THEY PROVIDE A BASIS FOR ESTABLISHING HIS BASIC DUTY ASSIGNMENT.

UNDER ORDINARY CIRCUMSTANCES THE DUTY STATION OF A MEMBER NOT ENGAGED IN FIELD ACTIVITIES IS CONFINED TO THE LIMITS OF A RELATIVELY SMALL AREA, A STATION OR CITY, BECAUSE THE DUTIES OF HIS SPECIFIC ASSIGNMENT ARE FOR PERFORMANCE WITHIN THAT AREA. IF, HOWEVER, THE NATURE OF HIS ASSIGNMENT IS SUCH THAT ITS DUTIES ARE FOR PERFORMANCE OVER A MORE WIDESPREAD AREA, IT WOULD NOT BE OBJECTIONABLE FOR THE ADMINISTRATIVE OFFICE TO DESIGNATE AN AREA WITHIN WHICH IT IS CONTEMPLATED THAT A SUBSTANTIAL AMOUNT OF DUTY WILL BE PERFORMED AS HIS DESIGNATED POST OF DUTY. ON THE OTHER HAND, IF IT IS NOT FEASIBLE TO MAKE SUCH A DESIGNATION THE ENTIRE SPHERE OF ACTIVITY OF THE BASIC ASSIGNMENT WOULD APPEAR TO CONSTITUTE THE MEMBER'S DUTY STATION, AND CONSEQUENTLY, SINCE TRAVEL ALLOWANCES MAY BE AUTHORIZED FOR MEMBERS UNDER THE CITED STATUTORY AUTHORITY ONLY "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY," IT IS DOUBTFUL THAT THERE WOULD EXIST SUFFICIENT BASIS TO CONCLUDE THAT SUCH ALLOWANCES COULD BE AUTHORIZED FOR TRAVEL OR DUTIES PERFORMED WITHIN THAT SPHERE, EITHER ON THE BASIS THAT THE PERFORMANCE OF THE BASIC DUTY REQUIRES SOME TRAVEL WITHIN THE AREA OR THAT SOME TEMPORARY DUTY, NOT A PART OF THE BASIC ASSIGNMENT, IS INVOLVED. COMPARE SECTION 303 (D) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253D.

A TEMPORARY DUTY TRAVEL STATUS CANNOT EXIST IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED. SEE CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58, DECIDED BY THE COURT OF CLAIMS ON MARCH 4, 1959. ORDERS DIRECTING A MEMBER OF A RESERVE COMPONENT TO REPORT FOR A TOUR OF ACTIVE DUTY, THE PARTICULAR TYPE OF DUTIES OF WHICH ARE ALL TO BE PERFORMED WITHIN ONE OF THE LIMITED AREAS SPECIFIED IN PARAGRAPH 1150-10A OF THE JOINT TRAVEL REGULATIONS OR IN A WIDER AREA REQUIRING MOVEMENT FROM PLACE TO PLACE, DO NOT GIVE RISE TO A RIGHT TO PER DIEM.

FROM THE INFORMATION FURNISHED IN YOUR LETTER, INFORMATION GAINED BY A STUDY OF EVIDENCE SUPPLIED WITH TRAVEL VOUCHERS SUBMITTED IN CONNECTION WITH THE ACTIVITIES OF RESERVE OFFICERS CALLED TO ACTIVE DUTY UNDER THE CIRCUMSTANCES YOU DESCRIBED AND ADDITIONAL DATA OBTAINED BY INVESTIGATION BY REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE, IT APPEARS THAT THERE IS NO BASIS FOR CONSIDERING LAS VEGAS TO BE THE OFFICERS' DUTY STATION. MANY OF THE OFFICERS INVOLVED REMAINED AT THAT PLACE FOR LESS THAN ONE DAY AND APPARENTLY HAD NO DUTIES TO PERFORM THERE WHICH WOULD PERMIT A CONCLUSION THAT THAT WAS THEIR BASIC DUTY ASSIGNMENT. THE BASIC DUTY ASSIGNMENT INVOLVED WAS THAT OF PERFORMING THE VARIOUS MONITORING ACTIVITIES REQUIRED IN THE DISTRICTS ASSIGNED. WHILE THE PERFORMANCE OF SUCH ACTIVITIES IN SOME CASES APPARENTLY REQUIRED CONSIDERABLE TRAVEL OVER RELATIVELY EXTENSIVE AREAS, AND POSSIBLY RESULTED IN THE ASSIGNED MEMBERS INCURRING MORE THAN ORDINARY SUBSISTENCE EXPENSES, SUCH FACTORS FURNISH NO BASIS TO CONCLUDE THAT A STATUS OF TRAVEL AWAY FROM A DESIGNATED POST OF DUTY EXISTS IN THE ABSENCE OF AN ASSIGNMENT TO SUCH A POST.

SINCE THE PERFORMANCE OF THE DUTY ASSIGNMENTS IN QUESTION APPARENTLY REQUIRED TRAVEL UNDER CIRCUMSTANCES NORMALLY INDICATING THE EXISTENCE OF A STATUS FOR WHICH TRAVEL ALLOWANCES ARE AUTHORIZED AND EXISTING REGULATIONS APPARENTLY WERE INTERPRETED AS AUTHORIZING SUCH ALLOWANCES, QUESTION WILL NOT BE RAISED IN THE AUDIT AGAINST PAYMENTS ALREADY MADE IN GOOD FAITH UNDER THAT INTERPRETATION. HOWEVER, FURTHER PAYMENTS SHOULD NOT BE MADE IN THE CIRCUMSTANCES IN THE ABSENCE OF AN ADMINISTRATIVE DESIGNATION OF A DESIGNATED POST OF DUTY AS INDICATED ABOVE OR ADDITIONAL LEGISLATIVE AUTHORIZATION IN THE MATTER.

WITH REFERENCE TO YOUR FURTHER QUESTION CONCERNING OFFICERS CALLED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF 120 DAYS OR LESS, THERE WOULD APPEAR TO BE NO STATUTORY BAR TO THE PAYMENT TO SUCH OFFICERS OF TRAVEL PER DIEM ALLOWANCES IF OTHERWISE QUALIFIED UNDER THE JOINT TRAVEL REGULATIONS. THE CITED PROVISION IN PARAGRAPH 6001 OF THOSE REGULATIONS DENIES PER DIEM FOR ANY PERIOD THE MEMBER IS AT HIS TRAINING STATION ON THE PROPER ASSUMPTION THAT THE BASIC DUTY ASSIGNMENT OF THE OFFICER CALLED TO TRAINING DUTY IS AT THE TRAINING STATION TO WHICH ORDERED AND THAT AS A CONSEQUENCE SUCH STATION IS HIS DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES. PER DIEM IS PAYABLE FOR TEMPORARY DUTY DIRECTED TO BE PERFORMED AWAY FROM THE PLACE OF SUCH BASIC DUTY ASSIGNMENT.

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