B-157864, MAR. 10, 1966

B-157864: Mar 10, 1966

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PEPPE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9. IS REGRETTED. YOUR CLAIM WAS REFERRED TO AS FOR THE PERIOD NOVEMBER 1963 TO APRIL 1964 WHILE AT SAIGON. WAS NOT FOR PER DIEM WHILE AT SAIGON DURING THAT PERIOD BUT RATHER WAS DIRECTED TO THE QUESTION OF WHETHER YOU WERE ENTITLED TO PER DIEM WHILE AT DA NANG. WHILE YOU WERE AT DA NANG. THERE WAS INCLUDED YOUR LETTER DATED APRIL 22. IN WHICH YOU STATED THAT YOU WERE NOT SPECIFICALLY MAKING A CLAIM FOR PER DIEM FOR THE TIME SPENT AT DA NANG. THAT YOU WERE CLAIMING WHATEVER MONIES YOU MIGHT BE ENTITLED TO. OR IN THE EVENT OF A CONSIDERATION THAT YOU WERE PROPERLY ASSIGNED TO DA NANG IN A PERMANENT DUTY STATUS. YOU INQUIRED AS TO YOUR RIGHT TO PER DIEM DURING THE PERIOD FROM NOVEMBER TO APRIL WHILE YOU WERE AT SAIGON.

B-157864, MAR. 10, 1966

TO RICHARD R. PEPPE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1965, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED OCTOBER 6, 1965, WHICH DISAPPROVED YOUR CLAIM FOR PER DIEM WHILE SERVING WITH THE ARMED FORCES IN VIETNAM. THE DELAY IN OUR REPLY TO YOUR REQUEST, OCCASIONED BY OUR EFFORTS TO OBTAIN ADDITIONAL PERTINENT INFORMATION IN THE MATTER, IS REGRETTED.

IN THE SETTLEMENT OF OCTOBER 6, 1965, YOUR CLAIM WAS REFERRED TO AS FOR THE PERIOD NOVEMBER 1963 TO APRIL 1964 WHILE AT SAIGON. YOU STATE, HOWEVER, THAT YOUR CLAIM, OR INQUIRY, WAS NOT FOR PER DIEM WHILE AT SAIGON DURING THAT PERIOD BUT RATHER WAS DIRECTED TO THE QUESTION OF WHETHER YOU WERE ENTITLED TO PER DIEM WHILE AT DA NANG, VIETNAM, OR IN THE ALTERNATIVE, WHILE AT SAIGON.

PAPERS FORWARDED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER AS CONSTITUTING YOUR CLAIM INCLUDED A VOUCHER IN YOUR FAVOR, BUT UNSIGNED BY YOU, FOR PER DIEM COVERING THE PERIOD AUGUST 12 TO NOVEMBER 5, 1963, WHILE YOU WERE AT DA NANG. ALSO, THERE WAS INCLUDED YOUR LETTER DATED APRIL 22, 1965, IN WHICH YOU STATED THAT YOU WERE NOT SPECIFICALLY MAKING A CLAIM FOR PER DIEM FOR THE TIME SPENT AT DA NANG, BUT THAT YOU WERE CLAIMING WHATEVER MONIES YOU MIGHT BE ENTITLED TO, IF ANY, OR IN THE EVENT OF A CONSIDERATION THAT YOU WERE PROPERLY ASSIGNED TO DA NANG IN A PERMANENT DUTY STATUS, YOU INQUIRED AS TO YOUR RIGHT TO PER DIEM DURING THE PERIOD FROM NOVEMBER TO APRIL WHILE YOU WERE AT SAIGON. IN VIEW OF SUCH INDECISIVE REPRESENTATION YOUR CLAIM WAS CONSIDERED ON THE BASIS THAT YOU REQUESTED A RULING AS TO ENTITLEMENT TO PER DIEM ONLY FOR THAT PERIOD (NOVEMBER 1963 TO APRIL 1964) WHILE AT SAIGON.

BY SPECIAL ORDER AA-479, HEADQUARTERS, 1005TH SPECIAL INVESTIGATIONS GROUP (IG) (HG COMD, USAF), WASHINGTON, D.C., DATED MAY 3, 1963, YOU WERE RELIEVED FROM ASSIGNMENT AT SUITLAND, MARYLAND, AND ASSIGNED TO DUTY AT APO 143, SAN FRANCISCO, CALIFORNIA. THIS ORDER WAS DESIGNATED AS A PERMANENT CHANGE OF STATION. IT APPEARS THAT YOU ARRIVED AT TAN SON NHUT (SAIGON, APO 143) ON JULY 18, 1963.

THE RECORD INDICATES THAT THE ACTING DISTRICT COMMANDER AT TAN SON NHUT, LIEUTENANT COLONEL ROBERT C. JOLLIFF, ASSIGNED YOU TO THE DA NANG AIR BASE, APO 137, WITH THE UNDERSTANDING THAT ORDERS WOULD BE CUT TO MAKE YOU RESIDENT AGENT THERE, AND THAT AF FORM 1098 WAS SUBMITTED REQUESTING THIS CHANGE OF YOUR DUTY ASSIGNMENT TO DA NANG, TO BE EFFECTIVE AUGUST 12, 1963. APPARENTLY THE REQUEST WAS NOT ACTED UPON. IN A LETTER DATED AUGUST 2, 1965, LIEUTENANT COLONEL THOMAS W. SHARPE, USAF, REFERRED TO THAT FACT AND STATED THAT WHEN ORDERS TO EFFECT YOUR ASSIGNMENT TO DA NANG WERE NOT FORTHCOMING HE ORDERED YOUR RETURN TO SAIGON. IT APPEARS THAT YOU RETURNED TO SAIGON ON NOVEMBER 5, 1963, AND REMAINED THERE UNTIL YOUR RETURN TO THE UNITED STATES. SPECIAL ORDER THH-28, DATED JULY 15, 1963, BY THE SAME COMMAND THAT ISSUED YOUR ORDERS OF MAY 3, 1963, SHOWED YOUR PERMANENT DUTY STATION TO BE "RA OSI DIST 50, APO 137, SF, CALIF," AND AUTHORIZED YOU TO PROCEED AT SUCH TIME AS MAY BE NECESSARY DURING THE PERIOD JULY 1 TO SEPTEMBER 30, 1963, FROM THAT STATION TO PLACES IN THE REPUBLIC OF VIETNAM AND THAILAND ON TEMPORARY DUTY FOR THE PURPOSE OF COORDINATING OSI ACTIVITIES, AND RETURN TO YOUR PERMANENT DUTY STATION. BY SPECIAL ORDER THH-31, OF THE SAME HEADQUARTERS, DATED SEPTEMBER 25, 1963, YOUR ASSIGNMENT UNDER THE ORDERS OF JULY 15, 1963, WAS EXTENDED TO INCLUDE THE PERIOD OCTOBER 1 TO DECEMBER 31, 1963. IN LETTER DATED AUGUST 12, 1965, FROM THE PERSONNEL MANAGEMENT DIVISION, DIRECTORATE OF SPECIAL INVESTIGATIONS, DEPARTMENT OF THE AIR FORCE, CONCERNING YOUR CLAIM, IT IS STATED THAT AF FORM 1098 REQUESTING YOUR ASSIGNMENT TO DA NANG EFFECTIVE AUGUST 12, 1963, WAS INVALIDATED BY A MESSAGE FROM OSI DISTRICT 50, DATED OCTOBER 25, 1963, WHICH REQUESTED THAT THE PREVIOUS REQUEST BE DISREGARDED AND STATED THAT YOU WOULD BE RETAINED AT APO 143.

IT APPEARS TO BE YOUR BELIEF THAT AIR FORCE REGULATIONS PROHIBIT THE MOVEMENT OF OFFICERS ON PERMANENT CHANGE OF STATION MORE OFTEN THAN ONCE EVERY YEAR OF 18 MONTHS UNLESS SPECIAL APPELLATE PROCEDURES ARE TAKEN AND CONSEQUENTLY THAT A PERMANENT ASSIGNMENT TO SAIGON, DA NANG, AND BACK TO SAIGON DURING THE INDICATED PERIOD WOULD BE IMPROPER. YOU APPARENTLY HAVE REFERENCE TO PROVISIONS CONTAINED IN PARAGRAPH 11.2 OF THE MILITARY PERSONNEL ASSIGNMENT MANUAL, AFM 35-11, DATED JULY 19, 1963, AND AUGUST 15, 1963, WHICH, WITH SOME EXCEPTIONS, PROVIDES THAT OFFICERS WILL NOT BE ELIGIBLE FOR PERMANENT CHANGE OF STATION UNTIL THEY HAVE COMPLETED A MINIMUM OF 18 MONTHS ON-STATION SUBSEQUENT TO A PERMANENT CHANGE OF STATION ACTION.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR PAYMENT, UNDER REGULATIONS OF THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES (INCLUDING PER DIEM) TO MEMBERS OF THE UNIFORMED SERVICES ONLY WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. A MEMBER'S DESIGNATED POST OF DUTY (HIS PERMANENT DUTY STATION) IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS TO BE PERFORMED AND THE PLACE TO WHICH HE MUST PROCEED OR RETURN UPON THE COMPLETION OF TEMPORARY DUTY ASSIGNMENT OR OTHER ABSENCES FROM HIS NORMAL DUTIES AND, EXCEPT AS MAY BE OTHERWISE AUTHORIZED BY STATUTE, ADMINISTRATIVE REGULATIONS ISSUED UNDER THE CITED STATUTORY PROVISION MUST BE APPLIED WITHIN THAT LIMITATION. 38 COMP. GEN. 656; 43 COMP. GEN. 73. CONSEQUENTLY, ADMINISTRATIVE REGULATIONS PURPORTING TO CHARACTERIZE, RESTRICT, OR OTHERWISE DEFINE DUTY SITUATIONS AT VARIANCE WITH THE FACTUAL CIRCUMSTANCES INVOLVED MAY NOT BE RECOGNIZED AS AFFECTING RIGHTS TO TRAVEL ALLOWANCES.

WHETHER A PARTICULAR DUTY ASSIGNMENT IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT FOR DETERMINATION UPON CONSIDERATION OF SUCH FACTORS AS THE NATURE OF THE DUTY ASSIGNED, ITS ANTICIPATED DURATION, AND WHETHER THERE EXISTS OR HAS BEEN ASSIGNED ANOTHER STATION AT WHICH THE MEMBER MUST PROCEED UPON ITS COMPLETION. 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, 145 CT.CL. 245, 1959. THEREFORE, IN THE CIRCUMSTANCES INVOLVED IN YOUR CASE, AND IRRESPECTIVE OF ADMINISTRATIVE REGULATIONS THAT MIGHT BE CONSIDERED AS RESTRICTING THE INCIDENCE OF CHANGE OF DUTY ASSIGNMENTS, IT MAY NOT BE CONSIDERED THAT YOU WERE IN A TRAVEL STATUS AWAY FROM THE LOCALE OF YOUR BASIC DUTY ASSIGNMENT FOR PER DIEM PURPOSES DURING THE PERIOD YOU WERE AT DA NANG UNLESS AT THAT TIME YOUR BASIC DUTY ASSIGNMENT, IN FACT, WAS AT SAIGON; NOR DURING THE PERIOD WHILE AT SAIGON COULD IT BE CONSIDERED THAT YOU WERE IN A TRAVEL STATUS UNLESS YOUR BASIC ASSIGNMENT THEN WAS AT DA NANG.

WHILE UNDER THE ORDERS OF MAY 3, 1963, YOU WERE ASSIGNED TO DUTY AT APO 143, LOCATED AT SAIGON, YOU WERE SENT FROM APO 143 TO DA NANG (APO 137) WITH THE INTENTION THAT YOU SHOULD SERVE AS A RESIDENT AGENT ON A PERMANENT BASIS UNDER CIRCUMSTANCES NOT ANTICIPATING THAT AT THE SAME TIME THERE EXISTED A BASIC DUTY ASSIGNMENT AT SAIGON. THE ORDERS OF JULY 15 AND SEPTEMBER 25, 1963, INDICATE THAT SUCH WAS THE CASE. THE RECORD ALSO INDICATES THAT YOUR RETURN TO SAIGON ON NOVEMBER 5, 1963, WAS DIRECTED WITH THE CLEAR INTENTION THAT YOUR DUTY ASSIGNMENT WAS THEN TO BE AT SAIGON WITH NO ANTICIPATED RETURN TO A BASIC DUTY ASSIGNMENT AT DA NANG. IN SUCH CIRCUMSTANCES WE ARE OF THE OPINION THAT DURING THE PERIODS YOU WERE AT SAIGON AND DA NANG YOU WERE IN FACT AT YOUR DESIGNATED POSTS OF DUTY WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS GOVERNING ENTITLEMENT TO TRAVEL ALLOWANCES. THAT VIEW FINDS SUPPORT IN THE FACT THAT YOUR PAY RECORDS, COVERING PERIODS WHILE YOU WERE AT SAIGON AND DA NANG, SHOW THAT YOU WERE CREDITED WITH BASIC QUARTERS AND COST OF LIVING ALLOWANCES--- ALLOWANCES AUTHORIZED INCIDENT TO THE PERFORMANCE OF DUTY AT THE RECIPIENT'S DESIGNATED POST OF DUTY--- WHILE AT BOTH STATIONS. SUCH FACT WOULD APPEAR TO REFLECT ADMINISTRATIVE DETERMINATIONS, MADE CONTEMPORANEOUSLY WITH THE PERFORMANCE OF THE DUTIES, THAT SUCH DUTIES WERE PERFORMED IN EACH INSTANCE AT YOUR DESIGNATED POST OF DUTY. IN SUCH CIRCUMSTANCES WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT YOU WERE AWAY FROM YOUR DESIGNATED POST OF DUTY DURING THE PERIODS INVOLVED FOR PURPOSES OF ENTITLEMENT TO TRAVEL ALLOWANCES WHILE YOU WERE AT EITHER SAIGON OR DA NANG. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF OCTOBER 6, 1965, IS SUSTAINED.

CONCERNING YOUR INQUIRY AS TO ADMINISTRATIVE OR JUDICIAL APPEAL, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE ON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. THE COURT OF CLAIMS OF THE UNITED STATES, HOWEVER, HAS INDEPENDENT JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF ..END :

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