B-131044, MAY 2, 1957

B-131044, MAY 2, 1957

TO COMMANDER WALTER J. LEARY, USN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1957, FORWARDED WITH FIRST ENDORSEMENT OF THE SAME DATE FROM THE CHIEF OF THE BUREAU OF AERONAUTICS, REQUESTING REVIEW OF OUR SETTLEMENT OF OCTOBER 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF PATROL SQUADRON FORTY-SIX, U.S. PACIFIC FLEET AIR FORCE, DURING OPERATIONAL DEPLOYMENT ACTIVITIES OF THAT SQUADRON.

YOUR CLAIM WAS FOR PER DIEM DURING PERIODS YOU WERE IN PEARL HARBOR, T. H.; JOHNSON ISLAND; KWAJALEIN ISLAND; GUAM; AND SANGLEY POINT, REPUBLIC OF THE PHILIPPINES DURING THE PERIOD MAY 20 TO DECEMBER 6, 1954. IT WAS DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT TRAVEL ORDERS DIRECTING THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY FOR WHICH PER DIEM COULD BE PAID. IN THAT CONNECTION YOU REFER TO A SERIES OF MOVEMENT ORDERS ORDERING THE DEPLOYMENT OF PATROL SQUADRON FORTY-SIX DURING THE PERIOD MAY 20 THROUGH DECEMBER 6, 1954, AND ALSO PERTINENT PROVISIONS OF SECNAV INSTRUCTION 7220.19, DATED JUNE 4, 1956, AND APPARENTLY CONTEND THAT SUCH PAPERS CONSTITUTE SUFFICIENT AUTHORITY TO SUPPORT YOUR CLAIM FOR PER DIEM.

SECNAV INSTRUCTION 7220.19 (ISSUED APPROXIMATELY 2 YEARS AFTER THE PERIOD FOR WHICH YOU CLAIM PER DIEM) CLARIFIES NAVY DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHERE PROPER WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE CONCLUSION THAT PER DIEM WAS NOT PAYABLE. THE INSTRUCTION PROVIDES, AMONG OTHER THINGS, THAT MEMBERS CURRENTLY DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL ORDERS WILL BE ISSUED PROPER CONFIRMATORY ORDERS, AND THAT MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY DUTY AND WHO, PRIOR TO RECEIPT OF THE SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS, WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE. PARAGRAPH 6D OF SUCH INSTRUCTIONS PROVIDES AS FOLLOWS:

"MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION WILL NOT BE ISSUED CONFIRMING ORDERS.'

IT APPEARS THAT THE DUTY PERFORMED BY YOU FALLS WITHIN THE COVERAGE OF PARAGRAPH 6D, THUS PRECLUDING ISSUANCE OF CONFIRMING ORDERS IN YOUR CASE.

SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL PERFORMED "UNDER COMPETENT ORDERS.' THERE IS NO DISAGREEMENT WITH THE FACT THAT THE DEPLOYMENT ORDERS "WERE LEGALLY ISSUED BY COMPETENT AUTHORITY" AS STATED IN PARAGRAPH 5A OF YOUR LETTER REQUESTING REVIEW. HOWEVER, COMPETENT ORDERS FOR PER DIEM PURPOSES ARE DEFINED IN PARAGRAPH 3000 3003, JOINT TRAVEL REGULATIONS. SUCH ORDERS WERE NOT ISSUED. WHERE SUCH COMPETENT ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE BELIEF THAT PER DIEM WAS NOT PAYABLE AND THE EXPENSES OF TRAVEL WERE OF MINOR NATURE BECAUSE OF THE FACT THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE, THE QUESTION OF WHETHER PROPER CONFIRMATORY ORDERS WILL BE ISSUED IS A MATTER FOR ADMINISTRATIVE DETERMINATION. PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NEGATIVE ADMINISTRATIVE DETERMINATION THAT CONFIRMING ORDERS WILL NOT BE ISSUED IN YOUR CASE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM DURING THE PERIOD OF OPERATIONAL DEPLOYMENT OF YOUR SQUADRON WAS CORRECT AND IS SUSTAINED.