B-129119, OCT. 12, 1956

B-129119: Oct 12, 1956

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NAVAL RETRAINING COMMAND: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. WHICH WAS DISALLOWED IN OUR SETTLEMENT DATED JUNE 21. WAS REVIEWED AND IN DECISION OF SEPTEMBER 14. YOU WERE ADVISED THAT THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED ON THE BASIS THAT IT WAS NOT CONSIDERED THAT DURING THE PERIOD IN QUESTION YOU WERE IN THE STATUS OF A PERSON PERFORMING TRAVEL OR TEMPORARY DUTY ON OFFICIAL BUSINESS AWAY FROM YOUR PERMANENT DUTY STATION. WAS IN ERROR SINCE SUCH ORDERS DID NOT AFFIRMATIVELY STATE THAT YOU WERE NOT TO RETURN THERE AND SINCE YOU WERE CARRIED ON THE ROLLS OF SUCH STATION AND PAID BY ITS DISBURSING OFFICER THROUGH THE PERIOD IN QUESTION. THE TERM "TEMPORARY DUTY" IS DEFINED TO MEAN "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.'.

B-129119, OCT. 12, 1956

TO LEO L. MIMNO, LIEUTENANT (JG), USCOR, U.S. NAVAL RETRAINING COMMAND:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM NOVEMBER 17, 1955, TO JANUARY 21, 1956, INCIDENT TO YOUR SERVICE AS A COMMISSIONED OFFICER OF THE U.S. COAST GUARD RESERVE, WHICH WAS DISALLOWED IN OUR SETTLEMENT DATED JUNE 21, 1956.

AT YOUR REQUEST THE SETTLEMENT OF JUNE 21, 1956, WAS REVIEWED AND IN DECISION OF SEPTEMBER 14, 1956, B-129119, YOU WERE ADVISED THAT THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED ON THE BASIS THAT IT WAS NOT CONSIDERED THAT DURING THE PERIOD IN QUESTION YOU WERE IN THE STATUS OF A PERSON PERFORMING TRAVEL OR TEMPORARY DUTY ON OFFICIAL BUSINESS AWAY FROM YOUR PERMANENT DUTY STATION--- THE ONLY CIRCUMSTANCE UNDER WHICH THE CLAIMED ALLOWANCE LEGALLY COULD BE PAID. IT APPEARS TO BE YOUR BELIEF, HOWEVER, THAT THAT CONCLUSION, BASED ON THE PREMISE THAT THE ORDERS OF NOVEMBER 17, 1955, EFFECTED A COMPLETE DETACHMENT FROM YOUR DUTY STATION AT THE COAST GUARD AIR STATION, SOUTH SAN FRANCISCO, CALIFORNIA, WAS IN ERROR SINCE SUCH ORDERS DID NOT AFFIRMATIVELY STATE THAT YOU WERE NOT TO RETURN THERE AND SINCE YOU WERE CARRIED ON THE ROLLS OF SUCH STATION AND PAID BY ITS DISBURSING OFFICER THROUGH THE PERIOD IN QUESTION.

UNDER THE PROVISIONS OF PARAGRAPH 3003 OF THE JOINT TRAVEL REGULATIONS, CITED IN THE DECISION OF SEPTEMBER 14, 1956, THE TERM "TEMPORARY DUTY" IS DEFINED TO MEAN "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.' FOR PURPOSES OF ESTABLISHING A RIGHT TO PER DIEM THE REGULATIONS ANTICIPATE AND REQUIRE THAT SUCH PROVISIONS, AS APPLICABLE, BE EXPRESSLY INCLUDED N THE ORDERS TO INDICATE THE TEMPORARY NATURE OF THE DUTY ASSIGNMENT. IN THEIR ABSENCE ONLY THE CLEAREST EVIDENCE THAT AN ASSIGNMENT WAS IN FACT TEMPORARY IN NATURE AND FOR PERFORMANCE AWAY FROM THE PERSON'S PERMANENT DUTY STATION COULD BE CONSIDERED TO ESTABLISH A PER DIEM STATUS.

THE ORDERS OF NOVEMBER 17, 1955, DID NOT PROVIDE EITHER A FURTHER PERMANENT ASSIGNMENT OR FOR YOUR RETURN TO YOUR OLD STATION AT SOUTH SAN FRANCISCO, BUT DIRECTED ONLY THAT YOU REPORT TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, WHICH OFFICIAL, IT WAS CONTEMPLATED, THEN WOULD ASSIGN YOU TO THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY. PARAGRAPH 3003-3 OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY ADDITIONAL DUTY AS INVOLVING ONE JOURNEY AWAY FROM THE INDIVIDUAL'S DUTY STATION, IN THE PERFORMANCE OF PRESCRIBED DUTIES AND DIRECT RETURN TO THE STARTING POINT UPON THE COMPLETION OF SUCH DUTIES. SINCE TEMPORARY ADDITIONAL DUTY UNDER THOSE REGULATIONS ORIGINATES ONLY AT THE PERMANENT DUTY STATION, IT SEEMS APPARENT THAT HEADQUARTERS, TWELFTH NAVAL DISTRICT, THE PLACE FROM WHICH YOU WERE TO BE DIRECTED TO TEMPORARY ADDITIONAL DUTY, WAS YOUR DUTY STATION UPON YOUR REPORTING THERE UNDER THE ORDERS OF NOVEMBER 17, 1955. PRESUMABLY, THE RETENTION OF YOUR RECORDS AT THE COAST GUARD AIR STATION AT SOUTH SAN FRANCISCO WAS DONE AS A MATTER OF ADMINISTRATIVE CONVENIENCE IN VIEW OF THE FACT THAT YOUR DUTY ASSIGNMENT UNDER THE ORDERS WAS AT A NAVAL INSTALLATION. SUCH FACTOR COULD, HOWEVER, HAVE NO BEARING ON A DETERMINATION OF YOUR DUTY STATUS.

THE CONCLUSION IN THE DECISION OF SEPTEMBER 14, 1956, APPEARS TO HAVE BEEN CORRECT AND REQUIRED UNDER THE LAW AND CONSEQUENTLY UPON FURTHER CONSIDERATION IT IS AFFIRMED.

YOUR ORIGINAL ORDERS OF NOVEMBER 17, 1955, WITH ENDORSEMENTS, ARE RETURNED.

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