B-175183, NOV 9, 1972

B-175183, NOV 9, 1972

MILITARY PERSONNEL - PER DIEM - MILEAGE ALLOWANCE - CHANGE OF TEMPORARY DUTY STATION TO PERMANENT DECISION DENYING THE CLAIM OF 1ST LT. ERNEST W. ASHENFELTER FOR ADDITIONAL PER DIEM AND FOR REIMBURSEMENT FOR LOCAL TRAVEL BELIEVED TO BE DUE INCIDENT TO HIS SERVICE IN THE U.S. ARMY. WHERE A MEMBER RECEIVES PERMANENT CHANGE OF STATION ORDERS WHILE AT A TEMPORARY DUTY STATION AND THOSE ORDERS DESIGNATE THAT TEMPORARY DUTY STATION AS HIS NEW PERMANENT DUTY STATION, HE IS NOT ENTITLED TO PER DIEM OR MILEAGE ALLOWANCE FOR USE OF A PRIVATELY-OWNED VEHICLE AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS, JTR, PARAGRAPH M4209. THEREFORE, PAYMENTS MADE FOR PER DIEM AFTER THIS DATE WERE ERRONEOUS.

TO 1ST LT. ERNEST W. ASHENFELTER:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11, 1972, WITH ENCLOSURES, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, WHICH IN EFFECT REQUESTS RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM AND REIMBURSEMENT FOR LOCAL TRAVEL BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY FOR THE PERIOD SEPTEMBER 11, 1970, THROUGH SEPTEMBER 30, 1970.

THIS MATTER WAS THE SUBJECT OF A SETTLEMENT BY OUR CLAIMS DIVISION DATED OCTOBER 1, 1971, WHICH ALLOWED YOU PER DIEM IN THE AMOUNT OF $85.50 FOR THE PERIOD SEPTEMBER 11, 1970, THROUGH SEPTEMBER 29, 1970. PER DIEM WAS COMPUTED AT THE RATE OF $4.50 PER DAY AND THE SETTLEMENT STATED THAT IN THE ABSENCE OF A STATEMENT FROM AN APPROPRIATE OFFICIAL SHOWING THAT GOVERNMENT QUARTERS AND/OR MESSING FACILITIES WERE NOT AVAILABLE TO YOU DURING THE PERIOD IN QUESTION, REIMBURSEMENT FOR LOCAL TRAVEL IS NOT AUTHORIZED AND PER DIEM IS LIMITED TO THE RATE WHEN GOVERNMENT QUARTERS AND MESSING FACILITIES ARE AVAILABLE.

YOU HAVE SUBMITTED A STATEMENT FROM THE CHIEF OF THE BILLETING BRANCH, ABERDEEN PROVING GROUND, MARYLAND, CERTIFYING THAT DURING THE PERIOD IN QUESTION GOVERNMENT QUARTERS WERE NOT AVAILABLE TO YOU BUT THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU. AS A RESULT OF THIS CERTIFICATION, YOU CONTEND THAT YOU ARE ENTITLED TO RECEIVE A PER DIEM AT THE RATE OF $18.20 PER DAY AND REIMBURSEMENT FOR LOCAL TRAVEL THAT WAS REQUIRED AS A RESULT OF OFF-POST LIVING.

THE RECORD SHOWS THAT BY LETTER ORDERS NUMBER A-06-1181, DATED JUNE 16, 1970, ISSUED BY THE OFFICE OF PERSONNEL OPERATIONS, FORT BENJAMIN HARRISON, INDIANA, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY WITH YOUR CONSENT FOR A PERIOD OF TWO YEARS AT "USA SAMSC (ASWOINAA), VINT HILLS STATION, VA 22186" AND DIRECTED TO REPORT TO THE UNITED STATES ARMY ORDNANCE CENTER AND SCHOOL, ABERDEEN PROVING GROUND, MARYLAND, EFFECTIVE JULY 5, 1970, FOR TEMPORARY DUTY OF APPROXIMATELY 9 WEEKS FOR THE PURPOSE OF ATTENDING THE ORDNANCE OFFICER BASIC COURSE NUMBER 1, AND FURTHER TEMPORARY DUTY OF APPROXIMATELY 10 WEEKS TO ATTEND A COURSE OF INSTRUCTION AS DETERMINED BY OFFICE OF PERSONNEL OPERATIONS, OFFICE OF PERSONNEL DIRECTORATE, WASHINGTON, D.C., PRIOR TO YOUR REPORTING TO VINT HILLS STATION, YOUR ORDERED PERMANENT DUTY STATION.

WHILE ON TEMPORARY DUTY AT ABERDEEN PROVING GROUND ATTENDING THE ORDNANCE OFFICER BASIC COURSE, YOU WERE ISSUED SPECIAL ORDERS NUMBER 195 DATED SEPTEMBER 10, 1970, ASSIGNING YOU ON A PERMANENT CHANGE OF STATION TO UNITED STATES ARMY TRANSFER POINT, ABERDEEN PROVING GROUND, AND DIRECTED YOU TO REPORT ON SEPTEMBER 28, 1970, FOR THE PURPOSE OF SEPARATION PROCESSING. BY SPECIAL ORDERS NUMBER 199, DATED SEPTEMBER 15, 1970, THE SEPTEMBER 28 REPORTING DATE WAS CHANGED TO SEPTEMBER 30, 1970.

THE FILE SHOWS THAT YOU WERE PAID PER DIEM FOR TEMPORARY DUTY AT THE RATE OF $18.20 PER DAY AND WERE REIMBURSED FOR YOUR LOCAL TRAVEL AT THE RATE OF $0.10 PER MILE THROUGH SEPTEMBER 10, 1970, THE DATE YOU RECEIVED YOUR PERMANENT CHANGE-OF-STATION ORDERS ASSIGNING YOU TO ABERDEEN PROVING GROUND, MARYLAND, AS YOUR PERMANENT STATION.

ENTITLEMENT TO TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH YOUR ORDERED DUTY IS GOVERNED BY SECTION 404(A) OF TITLE 37, U.S. CODE, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 408 OF THAT TITLE PROVIDES THAT A MEMBER MAY BE DIRECTED BY REGULATIONS OF THE HEAD OF THE DEPARTMENT IN WHICH HE IS SERVING, TO PROCURE TRANSPORTATION NECESSARY FOR CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES WITHIN THE LIMITS OF HIS STATION. EXPENSES SO INCURRED BY THE USE OF A PRIVATELY- OWNED VEHICLE AT A FIXED RATE A MILE SHALL BE DEFRAYED BY THE DEPARTMENT, OR THE MEMBER IS ENTITLED TO BE REIMBURSED FOR THE EXPENSES. IMPLEMENTING REGULATIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS SHALL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, ONLY WHEN ACTUALLY IN A "TRAVEL STATUS" AND THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS. PARAGRAPH M1150-10A OF THE REGULATIONS DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH M4413-4, ITEM 1, OF THE REGULATIONS PROVIDES THAT REIMBURSEMENT OF TRAVEL BY PRIVATELY- OWNED CONVEYANCE BETWEEN A PLACE OF LODGING AND A PLACE WHERE TEMPORARY DUTY IS BEING PERFORMED, WILL BE PAID AT THE RATE OF $0.10 PER MILE FOR NECESSARY TRAVEL WITHIN A TEMPORARY DUTY STATION AND SURROUNDING AREA AS DESCRIBED IN PARAGRAPH M4500-2, WHEN SUITABLE FACILITIES FOR MEALS AND FOR LODGING ARE NOT AVAILABLE.

BY VIRTUE OF THE FACT THAT VINT HILLS STATION, VIRGINIA, WAS YOUR ASSIGNED PERMANENT DUTY STATION UNDER LETTER ORDERS DATED JUNE 16, 1970, YOU WERE ENTITLED TO RECEIVE THE APPROPRIATE TRAVEL AND TRANSPORTATION ALLOWANCES WHILE PERFORMING TEMPORARY DUTY AT ABERDEEN PROVING GROUND, MARYLAND. HOWEVER, SPECIAL ORDERS DATED SEPTEMBER 10, 1970, HAD THE EFFECT OF AMENDING YOUR BASIC ORDERS WHICH SHORTENED YOUR ORIGINAL TOUR OF ACTIVE DUTY AND MADE ABERDEEN PROVING GROUND YOUR NEW PERMANENT DUTY STATION. IN THIS REGARD, PARAGRAPH M4209 OF THE JOINT TRAVEL REGULATIONS, ENTITLED "TEMPORARY DUTY STATION CHANGED TO PERMANENT STATION", PROVIDES IN PERTINENT PART:

"A MEMBER WHO RECEIVES PERMANENT CHANGE-OF-STATION ORDERS AT A TEMPORARY DUTY STATION *** WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT DUTY STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE-OF-STATION ORDERS ***."

CONSEQUENTLY, FOR THE PURPOSES OF THE PROVISIONS OF THE ABOVE-QUOTED PARAGRAPH, ABERDEEN PROVING GROUND BECAME YOUR PERMANENT DUTY STATION UPON YOUR RECEIPT OF ORDERS ON SEPTEMBER 10, 1970, AND YOUR ENTITLEMENT TO PER DIEM WHICH COMMENCED ON YOUR ARRIVAL AT THAT STATION CEASED UPON RECEIPT OF THE SEPTEMBER 10 ORDERS. SIMILARLY, SINCE YOU HAD NO TEMPORARY DUTY STATUS AFTER THAT DATE, YOU WERE NO LONGER ENTITLED TO A MILEAGE ALLOWANCE AS PROVIDED FOR IN PARAGRAPH M4413-4, ITEM 1, JOINT TRAVEL REGULATIONS, FOR THE USE OF YOUR PRIVATELY-OWNED VEHICLE FROM YOUR PLACE OF LODGING TO YOUR PLACE OF DUTY. MOREOVER, THE RECORD INDICATES THAT DURING YOUR TOUR OF DUTY AT ABERDEEN PROVING GROUND, YOU WERE CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS AND WITH A BASIC ALLOWANCE FOR SUBSISTENCE.

IN LIGHT OF THE ABOVE, THE SETTLEMENT DATED OCTOBER 1, 1971, WHICH ALLOWED YOU THE SUM OF $85.50 AS PER DIEM FOR THE PERIOD SEPTEMBER 11, 1970, TO SEPTEMBER 29, 1970, AT THE RATE OF $4.50 PER DAY WAS ERRONEOUSLY BASED UPON A MISUNDERSTANDING OF THE LAW AND REGULATIONS APPLICABLE TO YOUR SITUATION. ACCORDINGLY, YOU ARE NOT ENTITLED TO PER DIEM OR REIMBURSEMENT FOR LOCAL TRAVEL EXPENSES FOR THE PERIOD SEPTEMBER 11, 1970, THROUGH SEPTEMBER 30, 1970, AND THE SETTLEMENT DATED OCTOBER 1, 1971, WAS IMPROPER. IN THIS CONNECTION, THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF AUGUST 17, 1972, B-175528, WHICH SUSTAINED THE DISALLOWANCE OF A CLAIM FOR PER DIEM DURING SEPTEMBER AND OCTOBER 1970 WHILE AT ABERDEEN PROVING GROUND UNDER CIRCUMSTANCES SIMILAR TO YOURS AND INVOLVING THE SAME LAW AND REGULATIONS.