B-138900, JUN. 9, 1960

B-138900, JUN. 9, 1960

TO M. D. MALCOLM, DISBURSING OFFICER:

BY SECOND ENDORSEMENT DATED APRIL 14, 1960, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF NOVEMBER 18, 1959, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE SUBMITTED CLAIM OF ENSIGN ALAN B. LORD, USNR, FOR REFUND OF THE AMOUNT WITHHELD FROM HIS PAY IN PARTIAL LIQUIDATION OF PER DIEM RECEIVED BY HIM IN THE CIRCUMSTANCES SHOWN. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 60-17.

THE OFFICER STATES THAT ON NOVEMBER 3, 1958, HE ENTERED ACTIVE SERVICE AS AN ENLISTED MAN AT THE OFFICER CANDIDATE SCHOOL, NEWPORT, RHODE ISLAND. THE COURSE OF INSTRUCTION THERE WAS SCHEDULED FOR APPROXIMATELY 16 WEEKS. BY ORDERS OF FEBRUARY 27, 1959, ADDRESSED TO HIM AS ENSIGN, HE WAS DIRECTED, UPON GRADUATION AND ACCEPTANCE OF APPOINTMENT IN THE UNITED STATES NAVAL RESERVE, TO REPORT IMMEDIATELY TO HIS COMMANDING OFFICER FOR TEMPORARY DUTY FOR A PERIOD OF ABOUT TWO DAYS. SUCH ORDERS FURTHER STATED THAT UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED, HE WAS TO PROCEED TO JACKSONVILLE, FLORIDA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT EIGHT WEEKS. BY ORDERS DATED APRIL 17, 1959, HE WAS DETACHED FROM TEMPORARY DUTY AT JACKSONVILLE AND DIRECTED TO PROCEED TO ALAMEDA, CALIFORNIA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR ABOUT EIGHT WEEKS. SUCH ORDERS FURTHER STATED THAT UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED, HE WAS TO PROCEED TO SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY AND FOR FURTHER ASSIGNMENT. ENDORSEMENTS ON THESE ORDERS SHOW THAT HE WAS DETACHED FROM TEMPORARY DUTY AT JACKSONVILLE, FLORIDA, ON APRIL 24, 1959, AND THAT HE REPORTED AT ALAMEDA, CALIFORNIA, ON MAY 8, 1959. ORDERS OF JUNE 8, 1959, MODIFIED THE ORDERS OF APRIL 17, 1959, SO AS TO PROVIDE THAT UPON COMPLETION OF TEMPORARY DUTY AT ALAMEDA AND WHEN DIRECTED, THE OFFICER WAS TO PROCEED TO THE NAVAL AIR STATION, MIRAMAR, CALIFORNIA, AND REPORT TO THE COMMANDING OFFICER OF ATTACK SQUADRON 112 FOR DUTY. ENDORSEMENTS ON THE ORDERS OF APRIL 17, 1959, SHOW THAT HE WAS DETACHED AT ALAMEDA, CALIFORNIA, ON JUNE 26, 1959, AND THAT HE REPORTED FOR DUTY AS DIRECTED AT MIRAMAR ON JULY 1, 1959. IT APPEARS THAT ON JUNE 18, 1959, ENSIGN LORD WAS PAID PER DIEM OF $192 FOR THE PERIOD FROM MAY 8 TO JUNE 25, 1959, WHILE HE WAS ON DUTY AT ALAMEDA, CALIFORNIA, AND THAT $35 OF THAT AMOUNT HAS BEEN DEDUCTED IN HIS PAY ACCOUNT AS A PARTIAL REPAYMENT OF THE PER DIEM RECEIVED BY HIM. HIS CLAIM IS FOR REFUND OF THE AMOUNT SO DEDUCTED IN HIS PAY ACCOUNT.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED 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 PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING 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 PERMANENT STATION.

IN THE CASE OF CALIFANO V. UNITED STATES, C.CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR 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.

IN OUR DECISION OF JUNE 19, 1959, B-138900, 38 COMP. GEN. 849, WE STATED THAT 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, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. STATED FURTHER IN THAT DECISION THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, IF OTHERWISE PROPER.

IN OUR DECISION OF JANUARY 11, 1960, B-138900, TO THE SECRETARY OF THE AIR FORCE, WE HELD THAT, IN VIEW OF THE CIRCUMSTANCES THERE RELATED, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, WOULD NOT BE QUESTIONED, IF OTHERWISE PROPER. IT WAS FURTHER STATED THAT "SUCH CHANGE IN THE DECISION, HOWEVER, IS NOT TO BE CONSTRUED AS AUTHORIZING THE PAYMENT OF PER DIEM ADMINISTRATIVELY AFTER SEPTEMBER 30, 1959, COVERING PERIODS OF TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE.'

WHILE UNDER THE RULING IN THE CALIFANO CASE ENSIGN LORD WAS NOT ENTITLED TO THE PER DIEM PAYMENT OF $192 MADE TO HIM ON JUNE 18, 1959, SINCE SUCH PAYMENT WAS MADE ADMINISTRATIVELY PRIOR TO OCTOBER 1, 1959, FURTHER COLLECTION ACTION TO RECOVER THE BALANCE OF THE PAYMENT IS NOT REQUIRED UNDER OUR DECISIONS OF JUNE 19, 1959, AND JANUARY 11, 1960. THERE IS NO AUTHORITY, HOWEVER, TO REFUND TO HIM ANY PART OF THE AMOUNT DEDUCTED FROM HIS PAY IN PARTIAL LIQUIDATION OF THE PER DIEM PAYMENT RECEIVED BY HIM. HENCE, PAYMENT OF THE CLAIM OF ENSIGN LORD IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.

THE OFFICER'S ORIGINAL ORDERS DATED FEBRUARY 27 AND APRIL 17, 1959, WITH ENDORSEMENTS, ARE RETURNED HEREWITH.