B-130765, APR. 12, 1965, 44 COMP. GEN. 621

B-130765, APR. 12, 1965, 44 COMP. GEN. 621

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENT - EXCESS OF TWENTY WEEKS ENLISTED MEMBERS IN THE NAVAL RESERVE ORDERED FROM CIVILIAN LIFE TO COMBINED COURSES OF INSTRUCTION APPROXIMATING 25 WEEKS, 18 WEEKS AT AN OFFICER CANDIDATE SCHOOL AND UPON GRADUATION AS A COMMISSIONED OFFICER TO 7 WEEKS OF CONTINUED INSTRUCTION AT THE SAME LOCATION UNDER ORDERS PROVIDING FOR SUBSEQUENT PERMANENT DUTY ABOARD SHIP, ARE NOT ENTITLED TO PER DIEM PAYMENTS AS THOUGH ASSIGNED TO TEMPORARY DUTY BY VIRTUE OF THE FACT THAT DUE TO THE LENGTH OF THE COMBINED COURSES OF INSTRUCTION, THE DUTY STATION AT WHICH THE INSTRUCTIONS WERE GIVEN IS REGARDED AS THE PERMANENT STATION OF THE MEMBERS INCIDENT TO WHICH NO PER DIEM IS PAYABLE.

TO THE SECRETARY OF THE NAVY, APRIL 12, 1965:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 3, 1965, FROM THE ASSISTANT SECRETARY OF THE NAVY REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF PER DIEM TO GRADUATES OF THE U.S. NAVAL OFFICER CANDIDATE SCHOOL AT NEWPORT, RHODE ISLAND, WHO HAVE BEEN COMMISSIONED AS OFFICERS, FOR TEMPORARY DUTY UNDER INSTRUCTION AT THE U.S. NAVAL JUSTICE SCHOOL AT NEWPORT PURSUANT TO ORDERS WHICH NAME A SUBSEQUENT PERMANENT DUTY STATION AWAY FROM NEWPORT, THE MEMBERS INVOLVED HAVING BEEN ORDERED AS ENLISTED MEMBERS IN THE U.S. NAVAL RESERVE TO THE U.S. NAVAL OFFICER SCHOOL FROM CIVILIAN LIFE. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT APPEARS THAT PAYMENTS OF PER DIEM FOR THE TEMPORARY DUTY AT NEWPORT HAVE BEEN MADE AND, SUBSEQUENTLY, PAY AUTHORIZATIONS HAVE BEEN ISSUED TO RECOVER THE AMOUNTS PAID. AS AN EXAMPLE, THE ASSISTANT SECRETARY FURNISHED PAPERS COVERING PAYMENT TO AND RECOVERY OF SUCH PAYMENT IN THE CASE OF ENSIGN JOSEPH M. SAXTON, USNR, SERIAL NO. 665551.

WHILE ORDERS DIRECTING THE MEMBER TO REPORT AT NEWPORT, RHODE ISLAND,FOR A COURSE OF INSTRUCTION AS AN OFFICER CANDIDATE HAVE NOT BEEN FURNISHED, THE RECORD SHOWS THAT BY ORDERS DATED SEPTEMBER 28, 1962, ENSIGN SAXTON, IF FOUND PHYSICALLY QUALIFIED FOR APPOINTMENT, WAS TO REPORT TO THE COMMANDING OFFICER, NAVAL JUSTICE SCHOOL, NAVAL BASE, NEWPORT, RHODE ISLAND, FOR TEMPORARY DUTY UNDER INSTRUCTION IN THE NAVAL JUSTICE (OFFICER) COURSE, FOR ABOUT 7 WEEKS, UPON COMPLETION OF WHICH HE WAS TO PROCEED TO THE PORT IN WHICH THE U.S.S. ZELLARS (DD 777) WAS AND REPORT FOR DUTY. THE SECOND INDORSEMENT ON THE ORDERS SHOWS THAT THE SCHEDULED LENGTH OF THE COURSE OF INSTRUCTION AS OFFICER CANDIDATE WAS 16 WEEKS. THIRD INDORSEMENT SHOWS THAT ENSIGN SAXTON REPORTED FOR TEMPORARY DUTY UNDER INSTRUCTION ON OCTOBER 26, 1962, AND THAT HE COMPLETED SUCH DUTY ON DECEMBER 14, 1962. ON THE LATTER DATE HE DEPARTED NEWPORT FOR HIS PERMANENT STATION. HE WAS PAID PER DIEM FOR 49 DAYS (7 WEEKS) AT NEWPORT, OCTOBER 26 THROUGH DECEMBER 13, 1962. THE PAY ADJUSTMENT AUTHORIZATION ISSUED TO EFFECT RECOVERY CITES PARAGRAPHS 1150-10 AND 4201-4 OF THE JOINT TRAVEL REGULATIONS WHICH, IN EFFECT, PROHIBIT PAYMENT OF PER DIEM FOR TEMPORARY DUTY AT THE PERMANENT DUTY STATION.

THE ASSISTANT SECRETARY STATES THAT THE DETERMINATION THAT THE DUTY AT THE OFFICER CANDIDATE SCHOOL WAS IN EFFECT PERMANENT ALTHOUGH THE SCHEDULED PERIOD OF SUCH DUTY WAS ONLY "EIGHTEEN" WEEKS WAS PREDICATED ON DECISION B-130765 OF JULY 9, 1957, AFFIRMED DECEMBER 23, 1957. THE ASSISTANT SECRETARY ALSO REFERS TO THE DECISION OF THE COURT OF CLAIMS IN CALIFANO V. UNITED STATES, 145 CT.CL. 245, AND OUR DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, RELATING THERETO.

THE DECISION OF JULY 9, 1957, AFFIRMED DECEMBER 23, 1957, INVOLVED OFFICER CANDIDATES ASSIGNED TO THE U.S. NAVAL SCHOOLS COMMAND AT NEWPORT FOR 4 MONTHS (APPROXIMATELY 18 WEEKS) INDOCTRINATION UPON COMPLETION OF WHICH THEY WERE TO BE COMMISSIONED AND ORDERED TO FURTHER ACTIVE DUTY. SINCE THE ORDERS DIRECTING THAT ASSIGNMENT CONTEMPLATED FURTHER INSTRUCTION OF THE CANDIDATES AT NEWPORT FOR ABOUT 8 WEEKS IN THEIR OFFICER STATUS UPON THE COMPLETION OF THE INDOCTRINATION, THUS INVOLVING A CONTINUOUS DUTY ASSIGNMENT AT NEWPORT OF APPROXIMATELY 26 WEEKS' DURATION, IT WAS HELD THAT PER DIEM WAS NOT PAYABLE FOR THE DUTY AT NEWPORT SINCE IT WAS IN EFFECT A PERMANENT STATION.

IN THE CALIFANO CASE, THE COURT HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICE 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 4 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. WE HELD THAT FROM THE DATE OF THAT DECISION, WE WOULD 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. 38 COMP. GEN. 849. WE RECOGNIZED, HOWEVER, IN DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, CITED BY THE ASSISTANT SECRETARY, THAT WHERE ORDERS ARE ISSUED IN SUCH CIRCUMSTANCES PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY DESIGNATING A FINAL PERMANENT DUTY STATION, THE MEMBER IS ENTITLED TO PER DIEM, TO THE EXTENT OTHERWISE AUTHORIZED, FROM THE DATE OF RECEIPT OF SUCH ORDERS FOR THE REMAINDER OF THE TEMPORARY DUTY PERIOD. THAT RULING, HOWEVER, COULD HAVE NO APPLICATION IN A CASE WITH FACTS SIMILAR TO THOSE INVOLVED IN THE CITED DECISION OF JULY 9, 1957, SINCE IN THAT CASE NEWPORT WAS THE MEMBER'S PERMANENT DUTY STATION BY VIRTUE OF THE DURATION OF THE DUTY ASSIGNMENT THERE.

IN THE CIRCUMSTANCES OF ENSIGN SAXTON'S CASE, AND IN SIMILAR CASES, SINCE BOTH COURSES OF INSTRUCTION WERE AT NEWPORT AND SINCE THE LENGTH OF THE COMBINED COURSES COVERED A PERIOD OF APPROXIMATELY 25 WEEKS, NEWPORT MUST BE REGARDED AS A PERMANENT STATION INCIDENT TO WHICH NO PER DIEM WAS PAYABLE FOR THE REASONS STATED IN THE DECISIONS OF JULY 9, 1957, AFFIRMED DECEMBER 23, 1957. OUR DECISION OF JANUARY 11, 1960, IN THE CALIFANO CASE RELATING TO A TEMPORARY DUTY ASSIGNMENT HAS, OF COURSE, NO APPLICATION TO SUCH SITUATIONS.

ACCORDINGLY, IN ENSIGN SAXTON'S CASE AND LIKE CASES THE PER DIEM PAYMENTS WERE NOT AUTHORIZED.