B-127887, AUG. 1, 1956

B-127887, AUG. 1, 1956

TO CONSTANCE CUMMINGS, ENSIGN (NC), USNR:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $62.70 CHECKED IN YOUR PAY ACCOUNT REPRESENTING PER DIEM ERRONEOUSLY PAID TO YOU INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT ST. ALBANS, LONG ISLAND, NEW YORK, DURING THE PERIOD OCTOBER 2 TO NOVEMBER 8, 1954.

UNDER BUREAU OF NAVAL PERSONNEL ORDERS DATED SEPTEMBER 8, 1954, YOU WERE DIRECTED, IF FOUND PHYSICALLY QUALIFIED, TO PROCEED FROM YOUR HOME AND REPORT AT THE NAVAL HOSPITAL AT ST. ALBANS FOR TEMPORARY ACTIVE DUTY UNDER INSTRUCTION, UPON THE COMPLETION OF WHICH YOU WERE TO PROCEED AND REPORT AT THE NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, FOR DUTY. IN AN ENDORSEMENT TO THE ORDERS YOU STATED THAT FOLLOWING YOUR PHYSICAL QUALIFICATION YOU PROCEEDED FROM YOUR HOME, WOODSIDE, NEW YORK, AND REPORTED FOR TEMPORARY DUTY AT ST. ALBANS ON OCTOBER 1, 1954. YOU WERE DETACHED FROM TEMPORARY DUTY AT ST. ALBANS ON NOVEMBER 9, 1954, AND DIRECTED TO PROCEED TO CHELSEA IN COMPLIANCE WITH YOUR BASIC ORDERS. EVIDENCE SUBMITTED WITH YOUR CLAIM, INCLUDING A CERTIFICATION OF OCTOBER 1, 1954, APPARENTLY ISSUED BY DIRECTION OF THE COMMANDING OFFICER AT ST. ALBANS, AND A CERTIFICATION BY COMMANDER ESTHER L. SCHMIDT, ACTING SENIOR NURSE INSTRUCTOR AT THE NAVAL HOSPITAL, DATED SEPTEMBER 8, 1955, INDICATES THAT THE NATURE OF THE DUTY ASSIGNMENT AT ST. ALBANS REQUIRED YOUR PRESENCE THERE TO THE EXTENT THAT IT WAS IMPRACTICABLE FOR YOU TO COMMUTE FROM YOUR HOME AT WOODSIDE. YOU STATE THAT FOR THAT REASON YOU WERE PUT TO ADDITIONAL EXPENSE FOR MEANS AT THE HOSPITAL MESS WHICH YOU FEEL SHOULD BE PAID FOR BY THE GOVERNMENT.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, EXPRESSLY LIMITS THE PAYMENT OF PER DIEM OR OTHER TRAVEL ALLOWANCES TO MILITARY PERSONNEL FOR PERIODS WHILE PERFORMING TRAVEL OR TEMPORARY DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY AND PROVIDES THAT THE RESPECTIVE SECRETARIES SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS AND PRESCRIBE THE CONDITIONS UNDER WHICH THE ALLOWANCES WILL BE AUTHORIZED. THERE IS NO OTHER STATUTORY AUTHORITY FOR THE PAYMENT OF PER DIEM TO PERSONNEL IN THE PERFORMANCE OF TEMPORARY DUTY UNDER CIRCUMSTANCES SUCH AS THOSE INVOLVED IN YOUR CASE.

REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THOSE REGULATIONS 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, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING * * * PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY," UNDER VARIOUS DESIGNATED CIRCUMSTANCES, INCLUDING TRAVEL FROM ONE PERMANENT DUTY STATION TO ANOTHER PERMANENT DUTY STATION, SUCH STATUS TO COMMENCE WITH DEPARTURE FROM THE PERMANENT DUTY STATION. PARAGRAPH 3003 OF THE REGULATIONS GIVES AN OFFICER'S HOME THE STATUS OF A PERMANENT DUTY STATION FOR PER DIEM PURPOSES WHERE ORDERS DIRECT TRAVEL FROM HOME TO DUTY STATION ON ENTRANCE UPON ACTIVE DUTY.

PARAGRAPH 1150 OF THE JOINT TRAVEL REGULATIONS DEFINES THE PERMANENT DUTY STATION TO BE THAT AREA WITHIN THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED. SINCE FOR PER DIEM PURPOSES UPON ENTRANCE ON ACTIVE DUTY A PERSON'S HOME IS A DUTY STATION, HE MUST THEREFORE DEPART FROM THE AREA COMPRISING HIS DUTY STATION (THE AREA WITHIN THE CORPORATE BOUNDARIES OF THE CITY IN WHICH HIS HOME IS LOCATED) BEFORE ENTERING A TRAVEL STATUS. HE MAY NOT BE PAID A PER DIEM PRIOR TO SUCH DEPARTURE EVEN THOUGH REQUIRED, PRIOR TO HIS DEPARTURE, TO PERFORM TEMPORARY DUTY WITHIN THE LIMITS OF THE DUTY STATION UNDER CIRCUMSTANCES INVOLVING A CHANGE IN LIVING ARRANGEMENTS WITH A RESULTING INCREASE IN LIVING EXPENSES. COMPARE 33 COMP. GEN. 55; B-120844, NOVEMBER 29, 1954. SINCE YOUR HOME AT WOODSIDE AND THE TEMPORARY STATION AT ST. ALBANS BOTH APPEAR TO BE LOCATED WITHIN THE CORPORATE LIMITS OF NEW YORK CITY IT MUST BE CONSIDERED THAT YOU WERE NOT IN A TRAVEL STATUS DURING THE PERIOD OF TEMPORARY DUTY AT ST. ALBANS AND SO WERE NOT IN A STATUS FOR WHICH THE PAYMENT OF PER DIEM IS AUTHORIZED UNDER THE LAW. ACCORDINGLY, THE SETTLEMENT OF MARCH 6, 1956, IS SUSTAINED.

THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED. OTHER PAPERS SUBMITTED BY YOU IN SUPPORT OF YOUR CLAIM, INCLUDING THE SIGNED VOUCHER FORM, THE CERTIFICATE OF COMMANDER SCHMIDT, AND YOUR ITINERARY WHILE AT ST. ALBANS, HAVE BECOME A PART OF THE PERMANENT RECORDS OF THE GENERAL ACCOUNTING OFFICE AND MAY NOT BE RETURNED TO YOU.