B-153892, MAY 26, 1964

B-153892, MAY 26, 1964

TO LIEUTENANT COLONEL ROLAND H. JENSEN (RETIRED):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1964, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED OCTOBER 22, 1963, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCES AND PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED DURING THE PERIOD NOVEMBER 5, 1962, TO FEBRUARY 4, 1963.

BY LETTER ORDERS 533 DATED NOVEMBER 2, 1962, ISSUED BY HEADQUARTERS, 7TH REGION, U.S. ARMY AIR DEFENSE COMMAND, MCCHORD AIR FORCE BASE, WASHINGTON, YOU WERE DIRECTED TO PROCEED ON OR ABOUT NOVEMBER 5, 1962, TO HEADQUARTERS, 26TH ARTILLERY GROUP, FORT LAWTON, WASHINGTON, FOR TEMPORARY DUTY FOR 90 DAYS. THE ORDERS EXPRESSLY PROVIDED THAT NO TRAVEL ALLOWANCES OR PER DIEM WERE AUTHORIZED INCIDENT TO THE ASSIGNMENT. LETTER ORDERS 235 DATED APRIL 26, 1963, AMENDED YOUR ORDERS OF NOVEMBER 2, 1962, TO DESIGNATE FUNDS FOR THE PAYMENT OF TRAVEL ALLOWANCES AND PER DIEM FOR THIS DUTY. IT WAS ADMINISTRATIVELY REPORTED, IN COMMUNICATION OF THE COMMANDER AT MCCHORD AIR FORCE BASE DATED JULY 22, 1963, EXPLAINING THE NEED FOR THE ISSUANCE OF THOSE ORDERS, THAT IT WAS INTENDED YOU WOULD UTILIZE GOVERNMENT TRANSPORTATION (ARMY VEHICLE) AS NECESSARY TO ACCOMPLISH YOUR ASSIGNED TEMPORARY DUTY MISSION BUT THAT IN THE ACTUAL PERFORMANCE OF THE DUTY IT BECAME NECESSARY, AND WAS SO DIRECTED, THAT YOU STAY AT THE TEMPORARY DUTY STATION. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF OCTOBER 22, 1963, FOR THE REASON THAT THE TRAVEL AND TEMPORARY DUTY IN QUESTION WERE DIRECTED PRIMARILY FOR YOUR CONVENIENCE RATHER THAN AS A MATTER OF PUBLIC BUSINESS. YOUR LETTER OF MARCH 22, 1964, REQUESTS THAT THIS MATTER BE ADJUDICATED TO TAKE INTO ACCOUNT THE INFORMATION CONTAINED IN THE CORRESPONDENCE OF JULY 22, 1963, FROM THE COMMANDER, MCCHORD AIR FORCE BASE, WHICH YOU BELIEVE WAS NOT PROPERLY CONSIDERED.

IN REPLY TO YOUR LETTER OF MARCH 22, 1963, TO THE COMMANDING GENERAL, 7TH REGION, U.S. ARMY AIR DEFENSE COMMAND, MCCHORD AIR FORCE BASE, WASHINGTON, YOU WERE ADVISED IN FIRST INDORSEMENT DATED APRIL 12, 1963, THAT THE PARAMOUNT REASON FOR YOUR ASSIGNMENT TO THE 26TH ARTILLERY GROUP "WAS TO COMPLY WITH YOUR PERSONAL REQUEST TO THE COMMANDING GENERAL THAT YOU BE IMMEDIATELY REASSIGNED FROM THE G3 SECTION, THIS HEADQUARTERS, DUE TO A PERSONALITY CLASH WITH YOUR SECTION CHIEF," THAT THE REQUEST WAS GRANTED "ONLY AFTER DUE CONSIDERATION TO YOUR SENIORITY, LENGTH OF SERVICE AND OVERWHELMING DESIRE TO BE RELIEVED IMMEDIATELY FROM YOUR DUTIES AND A SUITABLE VACANCY EXISTED IN THE 26TH GROUP," AND THAT "AT THE TIME YOU STATED TO THE COMMANDING GENERAL, WITHOUT ANY RESERVATIONS, THAT IF THIS REQUEST WERE GRANTED, NO CLAIMS FOR PER DIEM WOULD BE REQUESTED AND THE TDY WOULD BE AT NO EXPENSE TO THE GOVERNMENT.' YOU WERE ALSO ADVISED THAT THE COMMANDING GENERAL WAS ABLE TO APPROVE YOUR REQUEST SINCE A SUITABLE VACANCY EXISTED WITHIN THE 26TH GROUP FOR AN EXECUTIVE OFFICER AND THE GROUP COMMANDER AGREED TO EMPLOY YOU IN THAT POSITION PENDING THE ASSIGNMENT OF ANOTHER OFFICER.

TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR PAYMENT TO MILITARY PERSONNEL UNDER PARAGRAPH 3050, OF THE JOINT TRAVEL REGULATIONS ONLY FOR PERIODS OF TRAVEL AND TEMPORARY DUTY AWAY FROM THE DUTY STATION UPON PUBLIC BUSINESS. IT LONG HAS BEEN HELD THAT NO RIGHT TO THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED INCIDENT TO AN ORDERED CHANGE OF STATION OR THE PERFORMANCE OF TEMPORARY DUTY AWAY FROM THE DUTY STATION ACCRUES TO A MEMBER FOR TRAVEL BY HIM UNDER A MERE PERMISSION TO CHANGE STATIONS OR FOR TRAVEL AND TEMPORARY DUTY PERFORMED PRIMARILY FOR PERSONAL CONVENIENCE AND BENEFIT. 3 COMP. GEN. 25; 33 ID. 196; 37 ID. 53. IT MUST APPEAR THAT MILITARY CONSIDERATIONS INDUCED THE ASSIGNMENT, AND HENCE THAT THE TRAVEL WAS PERFORMED ON PUBLIC BUSINESS, SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; DAY V. UNITED STATES, 123 CT.CL. 10, 18.

ON THE FACTS OF RECORD WE MUST CONCLUDE THAT THE LOCATION OF THE VACANCY AT FORT LAWTON SUITABLE FOR YOUR RANK, AND YOUR ASSIGNMENT THERE BY THE ORDERS OF NOVEMBER 2, 1962, WERE ACCOMPLISHED AS AN ACCOMMODATION TO YOUR REQUEST FOR RELIEF FROM AN UNDESIRABLE SITUATION EXISTING AT YOUR DUTY STATION AT MCCHORD AIR FORCE BASE RATHER THAN AS A MATTER OF PUBLIC BUSINESS TO FULFILL A MILITARY NEED FOR YOUR SERVICES AT FORT LAWTON. ALSO, THE FACT THAT YOUR TEMPORARY DUTY WITH THE 26TH GROUP WAS CONSIDERED TO BE AN EVALUATION PERIOD MAY NOT BE USED AS A BASIS TO AUTHORIZE TRAVEL ALLOWANCES SINCE, AS YOU WERE ADVISED, AN OFFICER ON ACTIVE DUTY IS ALWAYS SUBJECT TO AN EVALUATION WHETHER HE IS AT A PERMANENT OR TEMPORARY DUTY STATION, AND NO MILITARY NEED FOR YOUR PRESENCE AT FORT LAWTON FOR THAT PURPOSE IS INDICATED.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 22, 1963, WAS CORRECT AND IS SUSTAINED.