B-120680, B-122508, JAN 5, 1956 (B)

B-120680, B-122508, JAN 5, 1956 (B)

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE:

REFERENCE IS MADE TO OUR LETTER ADDRESSED TO YOU ON JUNE 8, 1955, B 122508, CONCERNING A SUGGESTED AMENDMENT OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS.

THE PROVISIONS OF PARAGRAPH 4209 WERE THEN TO THE EFFECT THAT A MEMBER WHO WAS AT A TEMPORARY DUTY STATION COULD CONTINUE TO RECEIVE PER DIEM ALLOWANCES AFTER RECEIPT OF ORDERS DESIGNATING HIS TEMPORARY STATION AS HIS NEW PERMANENT STATION IF THE ORDERS STATED THAT THE PERMANENT CHANGE OF STATION TO THAT PLACE WAS TO BE EFFECTIVE AT A FUTURE DATE. IT WAS POINTED OUT IN THE LETTER OF JUNE 8 THAT A MEMBER'S DUTY STATION SHIFTS IMMEDIATELY TO THE NEWLY DESIGNATED STATION, DESPITE A NOTATION IN THE ORDERS THAT THE CHANGE OF STATION IS TO BECOME EFFECTIVE AT A LATER DATE, AND THAT UNLESS A MEMBER'S ORDERS CONTEMPLATE THAT HE WILL PROCEED TO SOME OTHER PERMANENT DUTY STATION AFTER COMPLETION OF HIS TEMPORARY DUTY ASSIGNMENT, HE IS NOT AWAY FROM HIS DESIGNATED POST OF DUTY DURING THIS ASSIGNMENT. CHANGE 38, JOINT TRAVEL REGULATIONS, EFFECTIVE SEPTEMBER 1, 1955, AMENDED PARAGRAPH 4209 TO STATE THAT PER DIEM COULD NOT BE PAID AFTER RECEIPT OF ORDERS DESIGNATING THE TEMPORARY STATION AS THE MEMBER'S NEW POST OF DUTY, BUT ADDED THE STATEMENT THAT THE MERE RECEIPT OF ORDERS OF THIS TYPE WOULD NOT AFFECT A MEMBER'S RIGHT TO PER DIEM FOR BONA FIDE TEMPORARY DUTY AT THAT STATION, IF SUCH ORDERS DO NOT CHANGE THE REQUIREMENT THAT HE COMPLETE THE TEMPORARY DUTY ASSIGNMENT AND RETURN TO HIS OLD STATION, REFERRING IN THAT RESPECT TO PARAGRAPH 4156, CASE 3 OF SUCH REGULATIONS.

IT APPEARS DOUBTFUL THAT THE AMENDED REGULATIONS FULLY CLARIFY A MEMBER'S RIGHTS IN THE PREMISES. PARAGRAPH 4156, CASE 3, CHANGE 23 OF THE JOINT TRAVEL REGULATIONS, PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES, WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS WHILE TRAVELING OR WHILE AT A TEMPORARY DUTY STATION, MAY PROCEED TO HIS NEW STATION VIA HIS OLD STATION AT GOVERNMENT EXPENSE, EXCEPT IN CASES WHERE RETURN TO THE OLD STATION IS EXPRESSLY PROHIBITED IN THE PERMANENT CHANGE OF STATION ORDERS. SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES THE PROMULGATION OF REGULATIONS GOVERNING TRAVEL AND TRANSPORTATION ALLOWANCES "FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS". ORDERS DIRECTING A PERMANENT CHANGE OF STATION RECEIVED BY A MEMBER WHILE AWAY FROM HIS STATION IN A TRAVEL STATUS HAVE BEEN REGARDED AS SUPERSEDING THAT PART OF PRIOR TEMPORARY DUTY ORDERS DIRECTING A RETURN TO THE OLD PERMANENT STATION, EXCEPT TO THE EXTENT INDICATED IN THE PERMANENT CHANGE OF STATION ORDERS. THEREFORE, A RETURN TO THE OLD PERMANENT STATION AS CONTEMPLATED BY THE REGULATIONS IN QUESTION CANNOT BE REGARDED AS TRAVEL PERFORMED UNDER COMPETENT ORDERS, UNLESS THE PERMANENT CHANGE OF STATION ORDERS EXPRESSLY DIRECT A RETURN ON OFFICIAL BUSINESS.

THE CITED CASE 3 UNDER PARAGRAPH 4156 OF THE REGULATIONS DOES NOT PURPORT TO REQUIRE A RETURN TO THE ORIGINAL STATION UNDER THE PERMANENT CHANGE OF STATION ORDERS, THE MATTER OF RETURN BEING LEFT TO THE DISCRETION OF EACH MEMBER, EXCEPT IN CASES WHERE THE PERMANENT CHANGE OF STATION ORDERS PROHIBIT SUCH TRAVEL. IT THUS SEEMS CLEAR THAT UNLESS THE PERMANENT CHANGE OF STATION ORDERS EXPRESSLY DIRECT A RETURN TO THE ORIGINAL STATION AT THE COMPLETION OF THE ORDERED TEMPORARY DUTY, RETURN TRAVEL TO THAT PLACE IS PERMISSIVE AND, HENCE, IS NOT TRAVEL ON PUBLIC BUSINESS. TRAVEL AT GOVERNMENT EXPENSE IN SUCH CIRCUMSTANCES IS NOT AUTHORIZED BY THE STATUTE (PERRIMOND V. UNITED STATES, 19 C. CLS. 509) AND NO RIGHT TO PER DIEM WOULD ACCRUE TO A MEMBER AT A TEMPORARY DUTY STATION AFTER RECEIPT OF ORDERS DESIGNATING THAT PLACE AS HIS NEW PERMANENT STATION, EVEN THOUGH SUCH ORDERS DO NOT EXPRESSLY RESCIND OR MODIFY THE PRIOR TEMPORARY DUTY ORDERS DIRECTING A RETURN TO THE OLD STATION.

EVEN IN A CASE WHERE THE PERMANENT CHANGE OF STATION ORDERS DIRECT THE COMPLETION OF TEMPORARY DUTY THEN BEING PERFORMED AND A RETURN TO THE OLD STATION, NO BASIS IS PERCEIVED TO PAY THE MEMBER A PER DIEM WHILE HE REMAINS AT THE NEW STATION AFTER RECEIPT OF SUCH ORDERS, NOR WOULD THE MEMBER BE ENTITLED TO REIMBURSEMENT OF HIS EXPENSES OF TRAVEL BACK TO THE OLD STATION UNLESS SUCH TRAVEL WAS REQUIRED ON PUBLIC BUSINESS, AS DISTINGUISHED FROM PERSONAL REASONS. FOR AUDIT PURPOSES, THE RECORD SHOULD CLEARLY SHOW THAT THE RETURN TO THE OLD STATION WAS REQUIRED BY OFFICIAL DUTIES TO BE PERFORMED AT THAT PLACE.

IT IS RECOMMENDED THAT THE REGULATIONS BE CHANGED TO PRECLUDE PAYMENTS CONTRARY TO THESE PRINCIPLES. A REPORT ON THE ACTION TAKEN WOULD BE APPRECIATED.