B-121383, OCT 13, 1954

B-121383, OCT 13, 1954

PRECIS-UNAVAILABLE

R.H. HANCOCK, DEPARTMENT OF THE NAVY:

BY DIRECTION OF THE SECRETARY OF THE NAVY AND UNDER DATE OF SEPTEMBER 10, 1954, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF JULY 12, 1954, SUBMITTING TWO VOUCHERS FOR ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF MILEAGE FOR TRAVEL TO THE UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND, AND PER DIEM FOR TEMPORARY DUTY THERE.

ORDERS OF APRIL 16, 1954, ADDRESSED TO ENSIGN MAURICE H. WERNESS, USN, AT THE NAVAL ACADEMY, ADVISED HIM THAT UPON GRADUATION HE SHOULD REGARD HIMSELF DETACHED FROM DUTY AT THE NAVAL ACADEMY AND DIRECTED HIM TO REPORT TO THE SUPERINTENDENT OF THE ACADEMY FOR TEMPORARY DUTY FOR A PERIOD OF ABOUT THREE MONTHS, UPON COMPLETION OF WHICH HE WAS TO PROCEED TO THE UNITED STATES NAVAL AIR STATION, PENSACOLA, FLORIDA, AND REPORT FOR DUTY. A DELAY UNTIL JUNE 25, 1954, WAS AUTHORIZED IN REPORTING AT ANNAPOLIS (TO COUNT AS GRADUATION LEAVE) AND IT WAS STATED THAT HE WOULD BE ENTITLED TO REIMBURSEMENT FOR THE DISTANCE ACTUALLY TRAVELED UNDER SUCH ORDERS, NOT TO EXCEED THE OFFICIAL DISTANCE FROM HIS HOME OR FROM THE NAVAL ACADEMY AS INDICATED OPPOSITE HIS NAME, TO HIS FIRST DUTY STATION, PER PARAGRAPH 5001 -4, JOINT TRAVEL REGULATIONS. HE APPEARS TO HAVE PERFORMED NO TRAVEL AND HIS CLAIM IS FOR PER DIEM AT THE RATE OF $9 PER DAY FOR THE PERIOD JUNE 26 TO JULY 15, 1954.

ORDERS OF APRIL 30, 1954, TO ENSIGN ROBERT E. SCHLENZIG, USN, WERE SIMILAR EXCEPT THAT THE TEMPORARY DUTY AT ANNAPOLIS WAS TO BE FOR ABOUT NINE WEEKS, UPON COMPLETION OF WHICH HE WAS TO PROCEED AND REPORT TO THE COMMANDING OFFICER, U.S.S. BORDELON AT NORFOLK, VIRGINIA, FOR DUTY. THE ADDRESS WILDWOOD, NEW JERSEY, APPEARS AFTER HIS NAME IN SUCH ORDERS. HIS CLAIM IS FOR MILEAGE FOR TRAVEL FROM HIS HOME AT WILDWOOD TO ANNAPOLIS AND PER DIEM FOR THE PERIOD JUNE 25 TO JULY 15, 1954. BOTH OFFICERS WERE STILL ON TEMPORARY DUTY AT ANNAPOLIS ON THE LATTER DATE.

UNDER THE PROVISIONS OF SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND REGULATIONS ISSUED UNDER THAT ACT (SEE PARTICULARLY PARAGRAPH 4201-4, JOINT TRAVEL REGULATIONS), PER DIEM MAY BE PAID TO OFFICERS ONLY "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY." PARAGRAPH 5000; JOINT TRAVEL REGULATIONS, AUTHORIZES PAYMENT OF PER DIEM TO MIDSHIPMEN OF THE NAVAL ACADEMY AS PRESCRIBED FOR OFFICERS OF THE UNIFORMED SERVICES IN SUCH REGULATIONS, AND SINCE IT APPEARS THAT THE NAVAL ACADEMY MUST BE REGARDED AS THE DESIGNATED POST OF DUTY OF MIDSHIPMEN FOR PER DIEM PURPOSES, IT IS CLEAR THAT SUCH PLACE WAS THE DESIGNATED POST OF DUTY OF THE CLAIMANTS AT THE TIME THE ORDERS WERE ISSUED. NO RIGHT TO PER DIEM COULD ACCRUE TO THE OFFICERS UNTIL THEY LEFT THAT PLACE IN A TRAVEL STATUS. SINCE MR. WERNESS DID NOT LEAVE ANNAPOLIS AND MR. SCHLENZIG'S ABSENCE FROM THAT PLACE WAS FOR LEAVE PURPOSES PRIOR TO THE EFFECTIVE DATE OF HIS ORDERS, NEITHER OFFICER WAS IN A STATUS OF TRAVELING AWAY FROM HIS POST OF DUTY DURING THE PERIOD OF HIS CLAIM AND THEY ARE NOT ENTITLED TO PER DIEM.

PARAGRAPH 5001-4, JOINT TRAVEL REGULATIONS, PROVIDES THAT WHEN OFFICERS GRADUATING FROM ANY SERVICE ACADEMY TRAVEL UNDER COMPETENT ORDERS TO THE FIRST STATION TO WHICH THEY ARE ASSIGNED FOR DUTY, THEY SHALL RECEIVE THE TRAVEL ALLOWANCES AUTHORIZED FOR MEMBERS TRAVELING UNDER COMPETENT ORDERS IN CONNECTION WITH A PERMANENT CHANGE OF STATION "FOR THE DISTANCE ACTUALLY TRAVELED UNDER SUCH ORDERS, NOT TO EXCEED THE OFFICIAL DISTANCE FROM THEIR HOME, OR FROM THE SERVICE ACADEMY, AS MAY BE DESIGNATED IN THEIR ORDERS, TO SUCH FIRST DUTY STATION." SUCH REGULATIONS APPEAR TO CONTEMPLATE THE PAYMENT OF TRAVEL ALLOWANCES FOR TRAVEL FROM HOME TO FIRST STATION WHEN THE ORDERS SO PROVIDE AND IF SUCH ORDERS DESIGNATE A ROUTE OF TRAVEL VIA A TEMPORARY STATION, TRAVEL OVER SUCH ROUTE PROPERLY MAY BE REGARDED AS HAVING BEEN PERFORMED "UNDER SUCH ORDERS" WITHIN THE MEANING OF THE REGULATIONS. NO REASON IS PERCEIVED WHY A DIFFERENT VIEW SHOULD BE TAKEN IF TEMPORARY DUTY IS PERFORMED AT THE NAVAL ACADEMY. SUCH CONCLUSION WILL PERMIT THE PAYMENT OF MILEAGE FOR THE TRAVEL INVOLVED PERFORMED BY MR. SCHLENZIG FROM WILDWOOD TO ANNAPOLIS.

PAYMENT ON HIS VOUCHER, RETURNED HEREWITH, IS AUTHORIZED TO THAT EXTENT. THE OTHER VOUCHER WILL BE RETAINED IN THIS OFFICE.