B-122483, MAY 11, 1955

B-122483, MAY 11, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COMMANDER JOHN T. TIMMERMAN, USN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1954, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 9, 1954, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JUNE 25 TO DECEMBER 25, 1953, INCIDENT TO THE PERFORMANCE OF DUTY AT PORTLAND, OREGON, UNDER ORDERS DATED JANUARY 1, 1953.

ORDERS OF HEADQUARTERS COLUMBIA RIVER GROUP, PACIFIC RESERVE FLEET, U.S. NAVAL STATION, TONGUE POINT, ASTORIA, OREGON, DATED APRIL 9, 1951, DESIGNATED AS TEMPORARY ADDITIONAL DUTY ORDERS, PROVIDED THAT WHEN DIRECTED YOU SHOULD REPORT TO THE COMMANDER SUB GROUP ONE, COLUMBIA RIVER GROUP, PACIFIC RESERVE FLEET, "TO DUTY AS OFFICER IN CHARGE, AFL 15 AND PROCEED TO PORTLAND IN CONNECTION WITH SECURITY AND INSPECTION OF COLUMBIA RIVER GROUP SHIPS IN THE PORTLAND AREA." YOUR RESPONSIBILITIES AND DUTIES IN THAT ASSIGNMENT WERE SET OUT IN LETTER OF THE SAME COMMAND DATED APRIL 10, 1951. IT WAS STATED IN THAT LETTER THAT THE APL-15 WOULD BE BERTHED AT PORTLAND FOR USE AS HEADQUARTERS SHIP IN CONNECTION WITH QUINQUENNIAL OVERHAULS OF COLUMBIA RIVER GROUP SHIPS IN THAT AREA. ALSO, IT WAS STATED THAT "BOTH OFFICERS AND ENLISTED PERSONNEL WILL BE GIVEN TAD ORDERS TO REPORT TO THE OFFICER-IN CHARGE APL-15 UNTIL SUCH TIME AS AUTHORITY IS RECEIVED TO ISSUE PERMANENT ORDERS OR SUCH ORDERS ARE ISSUED BY HIGHER AUTHORITY."

THE ORDERS OF JANUARY 1, 1953, ALSO OF THE SAME COMMAND, STATED THAT YOU WERE AUTHORIZED TO PROCEED TO PORTLAND FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE INSPECTION AND SECURITY OF COLUMBIA RIVER GROUP VESSELS IN THAT AREA. YOU WERE TO REPORT TO THE OFFICER IN CHARGE, APL- 15, FOR BERTHING, MESSING, AND ASSIGNMENT TO DUTY. THE DURATION OF THE TEMPORARY DUTY WAS STATED TO BE APPROXIMATELY FIVE MONTHS, AND YOU WERE DIRECTED TO RETURN UPON ITS COMPLETION TO YOUR DUTY STATION AND RESUME YOUR REGULAR DUTIES. THE REPORTING INDORSEMENT ON THOSE ORDERS, DATED JANUARY 1, 1953, WAS SIGNED BY YOU IN THE CAPACITY OF OFFICER IN CHARGE OF THE APL-15. YOU STATED IN COMMUNICATION DATED MARCH 4, 1954, THAT FROM THE ACTIVATION OF THE DETACHMENT AT PORTLAND ON APRIL 10, 1951, TO DECEMBER 25, 1953, THE DATE OF YOUR TRANSFER, YOU WERE SERVING ON TEMPORARY ADDITIONAL DUTY ORDERS AND PERFORMED THE SAME DUTIES DURING THAT ENTIRE PERIOD. YOU STATE FURTHER THAT THE APL-15 SERVED AS HEADQUARTERS FOR THE ACTIVITY AT PORTLAND UNTIL JUNE 25, 1953, WHEN IT WAS TAKEN TO ASTORIA, OREGON, AND INACTIVATED, AND THAT HEADQUARTERS WERE LOCATED AFTER THAT DATE ON SUAN ISLAND IN PORTLAND. YOUR CLAIM APPARENTLY IS BASED UPON THE FACT THAT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE TO YOU AFTER THAT DATE.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DUTY POSTS. PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THAT AUTHORITY, PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, INCLUDING PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT - PARTICULARLY AS TO ITS DURATION, NATURE OF THE DUTY ENJOINED, ETC., 33 COMP. GEN. 98. THE CITED PROVISIONS OF THE STATUTE AND OF THE JOINT TRAVEL REGULATIONS DO NOT CONSTITUTE AUTHORITY FOR PER DIEM PAYMENTS WHERE ORDERS DIRECT THE PERFORMANCE OF DUTY, ALTHOUGH DESIGNATED TEMPORARY OR TEMPORARY ADDITIONAL DUTY, IN CIRCUMSTANCES WHERE THE FORESEEABLE DURATION OF THE DUTY EXTENDS SO FAR BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS THAT THE ORDERS MUST BE REGARDED AS IN FACT EFFECTING A PERMANENT CHANGE OF STATION FROM THE BEGINNING.

WHILE THE ORDERS OF APRIL 9, 1951, DESIGNATED YOUR ASSIGNMENT TEMPORARY ADDITIONAL DUTY AND DIRECTED A RESUMPTION OF YOUR REGULAR DUTIES UPON ITS COMPLETION, THE INFORMATION CONTAINED IN THE LETTER OF APRIL 10, 1951, DESCRIBING YOUR ASSIGNMENT AT PORTLAND AND SETTING FORTH YOUR DUTIES UNDER THOSE ORDERS INDICATES CLEARLY THAT IT WAS ANTICIPATED THAT THE ASSIGNMENT WAS TO BE OF A PROLONGED NATURE EXTENDING BEYOND THE LIMITATIONS NORMALLY ASSOCIATED WITH TEMPORARY DUTY ASSIGNMENT. IN FACT, IT IS INDICATED THAT IT WAS CONSIDERED A PERMANENT ASSIGNMENT BY THE COMMAND ISSUING THE ORDERS BUT THAT IT WAS DESIGNATED AS TEMPORARY ADDITIONAL DUTY PENDING RECEIPT OF AUTHORITY TO ISSUE APPROPRIATE PERMANENT ORDERS. IT MUST BE CONSIDERED, THEREFORE, THAT THE ORDERS OF APRIL 9, 1951, IN FACT EFFECTED A PERMANENT CHANGE OF YOUR STATION TO PORTLAND, OREGON. SO CONSIDERED, THE CONCLUSION IS REQUIRED THAT A RIGHT TO PER DIEM COULD NOT ARISE UNDER THE ORDERS OF JANUARY 1, 1953, FOR ANY PERIOD WHILE YOU REMAINED AT PORTLAND, THE EFFECT OF THOSE ORDERS MERELY BEING TO DIRECT A CONTINUATION OF THE DUTIES TO WHICH PERMANENTLY ASSIGNED UNDER THE PRIOR ORDERS. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 9, 1954, IS SUSTAINED.

THE ENCLOSURES FORWARDED BY YOU ARE RETURNED.