B-124796, NOV. 17, 1955

B-124796, NOV. 17, 1955

TO MR. MICHAEL A. BUZZEO:

YOUR LETTER OF APRIL 24, 1955, FORWARDED HERE BY THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, REQUESTS REVIEW OF THAT PART OF OUR SETTLEMENT OF MARCH 3, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM AUGUST 3 TO DECEMBER 17, 1953, INCIDENT TO YOUR ATTENDANCE AT A COURSE OF INSTRUCTION CONDUCTED AT FORT BENJAMIN HARRISON, INDIANA, WHILE YOU WERE ON ACTIVE DUTY AS AN OFFICER OF THE UNITED STATES ARMY RESERVE.

UNDER THE PROVISIONS OF PARAGRAPH 22, SPECIAL ORDERS NO. 126, HEADQUARTERS FIRST ARMY, GOVERNORS ISLAND, NEW YORK, DATED JUNE 29, 1953, YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED ON JULY 31, 1953, FROM YOUR HOME AT STAMFORD, CONNECTICUT, TO THE 9003D AAU FINANCE SCHOOL, UNITED STATES ARMY, AT FORT BENJAMIN HARRISON, THE MOVEMENT BEING DESIGNATED AS A PERMANENT CHANGE OF STATION. THE ORDERS FURTHER PROVIDED THAT YOU WOULD BE ORDERED TO "ATTEND APPROPRIATE BRANCH SERVICE SCH ON A TDY BASIS UNDER FIRST AVAILABLE SCH QUOTA AFTER REPT TO ASG STA.' TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WERE AUTHORIZED. YOU LEFT YOUR HOME AS DIRECTED ON JULY 31 AND ARRIVED AT FORT BENJAMIN HARRISON ON AUGUST 2. IT IS STATED THAT THE SCHOOL BEGAN ON AUGUST 19 AND TERMINATED ON DECEMBER 18, 1953. PARAGRAPH 75 OF DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 215, DATED NOVEMBER 2, 1953, PROVIDED THAT YOU WERE TO BE RELIEVED FROM THE STUDENT DETACHMENT, FINANCE SCHOOL, USA 9003D AAU, AT FORT BENJAMIN HARRISON, WITH TEMPORARY DUTY PENDING FURTHER ORDERS, EFFECTIVE UPON THE COMPLETION OF THE COURSE OF INSTRUCTION YOU THEN WERE ATTENDING, AND YOU WERE ASSIGNED TO DUTY AT THE ARMY CHEMICAL CENTER, MARYLAND. PARAGRAPH 4 OF SPECIAL ORDERS NO. 245, HEADQUARTERS FIRST ARMY, DATED DECEMBER 16, 1953, PURPORTS TO CONFIRM VERBAL ORDERS OF JULY 31, 1953, AMENDING THE ORDERS OF JUNE 29, 1953, TO PROVIDE THAT THE DUTY DIRECTED AT FORT BENJAMIN HARRISON WAS TEMPORARY DUTY PENDING FURTHER ORDERS AND THAT THE TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WERE NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED.

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 DUTY STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED PRIMARILY FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE NATURE OF THE ASSIGNMENT ITSELF.

THE ORDERS OF DECEMBER 16, 1953, STATED TO CONFIRM VERBAL ORDERS OF JULY 31, 1953, APPARENTLY HAD AS THEIR BASIS A CONSIDERATION THAT THE COURSE OF INSTRUCTION WHICH YOU WERE UNDERGOING AT FORT BENJAMIN HARRISON WOULD NOT EXTEND OVER A PERIOD OF SUFFICIENT LENGTH TO CHARACTERIZE IT AS PERMANENT IN NATURE. DEPARTMENT OF THE ARMY CIRCULAR NO. 35-3, DATED JANUARY 14, 1955, TO WHICH YOU REFER, PROPERLY STATES THAT STATIONS TO WHICH MEMBERS ARE ASSIGNED TO PURSUE COURSES OF INSTRUCTION OF LESS THAN 20 WEEKS' DURATION CAN BE REGARDED AS TEMPORARY DUTY ASSIGNMENTS EVEN THOUGH OTHERWISE DESIGNATED IN THE ORDERS. THE ASSIGNMENT MADE BY THE ORDERS OF JUNE 29, 1953, HOWEVER, EVEN THOUGH DIRECTING THAT YOU REPORT TO A SCHOOLING INSTALLATION, WAS NOT TO ATTEND A COURSE OF INSTRUCTION, BUT WAS FOR DUTY AT THAT PLACE FROM WHICH YOU LATER WOULD BE ORDERED TO ATTEND A COURSE OF INSTRUCTION UNDER THE FIRST AVAILABLE SCHOOL QUOTA. WHILE THE COURSE OF INSTRUCTION TO WHICH YOU WERE ASSIGNED, COMMENCING ON AUGUST 19, APPARENTLY WAS OF A TEMPORARY NATURE, IT SEEMS CLEAR THAT THE ASSIGNMENT TO DUTY AT FORT BENJAMIN HARRISON UNDER THE ORDERS OF JUNE 29, 1953, FROM WHICH THE PERMANENT DUTY ASSIGNMENT. NOTHING IN THE RECORD INDICATES THAT THAT ASSIGNMENT WAS NOT IN FACT A PERMANENT ONE, IT BEING NOTED THAT EVEN RECOGNIZING THE AMENDMENT OF DECEMBER 16, 1953, THE ORDERS OF JUNE 29, 1953, SPECIFICALLY DESIGNATED THE ASSIGNMENT TO FORT BENJAMIN HARRISON AS A "PCS," PERMANENT CHANGE OF STATION.

EVEN THOUGH THE COURSE OF INSTRUCTION ATTENDED BY YOU DURING THE PERIOD FROM AUGUST 19 TO DECEMBER 18, 1953, WAS A TEMPORARY ASSIGNMENT, IT WAS PERFORMED AT THE PERMANENT STATION ASSIGNED TO YOU BY THE ORDERS OF JUNE 29, 1953. CONSEQUENTLY, YOU WERE NOT IN A TRAVEL STATUS AWAY FROM YOUR DESIGNATED POST OF DUTY TO ENTITLE YOU TO THE PER DIEM CLAIMED. APPEARS THAT YOU HAVE RECEIVED THE TRAVEL ALLOWANCES PROPERLY DUE YOU FOR YOUR TRAVEL, AND FOR THAT OF YOUR DEPENDENT, ON THE BASIS THAT THE CHANGE FROM YOUR HOME TO FORT BENJAMIN HARRISON UNDER THE ORDERS OF JUNE 29, 1953, AND FROM THAT POINT TO THE ARMY CHEMICAL CENTER, MARYLAND, UNDER THE ORDERS OF NOVEMBER 2, 1953, WERE PERMANENT CHANGES OF STATION. ACCORDINGLY, THE SETTLEMENT OF MARCH 3, 1955, IS SUSTAINED.