B-131145, MAY 3, 1957, 36 COMP. GEN. 757

B-131145, MAY 3, 1957, 36 COMP. GEN. 757

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TEMPORARY OR PERMANENT DUTY A DUTY ASSIGNMENT OF MEMBERS OF THE UNIFORMED SERVICES FOR A PERIOD IN EXCESS OF FIVE OR SIX MONTHS MAY NOT REASONABLY BE CONSIDERED AS TEMPORARY DUTY FOR PAYMENT OF PER DIEM. THE ASSIGNMENT OF MEMBERS OF THE UNIFORMED SERVICES TO ANTARCTICA INCIDENT TO OPERATION " DEEPFREEZE II" FOR AN 18-MONTH PERIOD IS FAR IN EXCESS OF THE DURATION WHICH REASONABLY MAY BE CONSIDERED TEMPORARY FOR PAYMENT OF PER DIEM.

TO THE SECRETARY OF THE NAVY, MAY 3, 1957:

REFERENCE IS MADE TO LETTER DATED MARCH 16, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REQUESTING DECISION AS TO THE LEGALITY OF PAYING PER DIEM ALLOWANCES TO NAVY PERSONNEL INCIDENT TO THE PERFORMANCE OF DUTY IN ANTARCTICA IN CONNECTION WITH OPERATION DEEPFREEZE II.

IT IS STATED THAT MEMBERS PARTICIPATING IN OPERATION DEEPFREEZE II HAVE BEEN DIRECTED TO ANTARCTICA BY COMPETENT ORDERS INDICATING TEMPORARY DUTY FOR A PERIOD OF 18 MONTHS, UPON THE COMPLETION OF WHICH THEY ARE TO RETURN TO THEIR PERMANENT DUTY STATION LOCATED AT DAVISVILLE, RHODE ISLAND. INSTRUCTIONS IN ALNAV 3, DATED FEBRUARY 13, 1956, INDICATED THAT PERMANENT CHANGE OF STATION ORDERS WERE TO BE ISSUED TO COVER SUCH ASSIGNMENT. COPY OF ORDERS OF THE TYPE ISSUED TO THE PERSONNEL PARTICIPATING IN THE OPERATION WAS NOT FURNISHED. WHILE DOUBT IS EXPRESSED AS TO WHETHER THE PERSONNEL IN QUESTION MIGHT BE CONSIDERED AS IN A TRAVEL STATUS BECAUSE OF THE PROLONGED PERIOD INVOLVED, IT IS SUGGESTED THAT AN AFFIRMATIVE CONCLUSION TO THE QUESTION IS INDICATED IN THE VIEW EXPRESSED IN OUR DECISION OF SEPTEMBER 1, 1953, B-115213 (33 COMP. GEN. 103), IN WHICH THE TERMINABLE FEATURE OF A DUTY ASSIGNMENT THERE INVOLVED WAS HELD TO BE INDICATIVE OF ITS TEMPORARY NATURE. ALSO, THERE WERE NOTED AS FACTORS IN THE DETERMINATION TO ADMINISTER THE OPERATION ON A TEMPORARY DUTY BASIS THE FACT THAT THE COSTS OF TRANSPORTATION OF DEPENDENTS, DISLOCATION ALLOWANCES, AND SHIPMENTS OF HOUSEHOLD EFFECTS THAT WOULD BE PAYABLE WERE THE OPERATION CONDUCTED ON A PERMANENT CHANGE OF STATION BASIS WOULD PROBABLY OFFSET THE PER DIEM ALLOWANCES PAYABLE ON THE TEMPORARY DUTY BASIS. YOU INDICATE THAT THE TEMPORARY DUTY BASIS WOULD OFFER MORE SATISFACTION TO THE MEMBERS INVOLVED IN THE MISSION IN THAT THE NECESSITY FOR DISRUPTING THEIR FAMILIES, WITH THE ATTENDING INCONVENIENCES, BROKEN SCHOOL YEARS, AND EXPENSES WOULD BE REMOVED.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, EXPRESSLY AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES WHEN IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY "REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY.' SUCH PROVISIONS, HOWEVER, HAVE NOT BEEN CONSIDERED TO COVER CASES INVOLVING ORDERS THAT DIRECT THE PERFORMANCE OF DUTY, THOUGH DESIGNATED AS TEMPORARY DUTY, WHERE ITS FORESEEABLE DURATION EXTENDS BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS. IF A MEMBER'S IMMEDIATE DUTY ASSIGNMENT EXTENDS BEYOND THAT POINT, IT BECOMES HIS PARAMOUNT ASSIGNMENT--- HIS PERMANENT DUTY ASSIGNMENT--- AND THE ONE INDICATED AS THAT WHICH HE SHOULD RESUME OR ASSUME UPON ITS COMPLETION BECOMES SO REMOTE THAT IT LOSES ITS CHARACTERISTICS OF BEING HIS BASIC DUTY ASSIGNMENT. WHERE SUCH CIRCUMSTANCES OCCUR, IT IS CONCLUDED THAT THE ORDERS IN FACT DIRECT A PERMANENT CHANGE OF STATION FROM THE BEGINNING.

WHETHER AN ASSIGNMENT TO A PARTICULAR DUTY STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT AND IS FOR DETERMINATION FROM A CONSIDERATION OF THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND OF THE CHARACTER OF THE ASSIGNMENT ITSELF, PARTICULARLY WITH REFERENCE TO SUCH ITEMS AS ITS DURATION AND THE NATURE OF THE DUTY. BY DEFINITION, THE WORD "TEMPORARY" IS A TERM OF LIMITATION WHICH INDICATES A PERIOD OF SHORT DURATION AND TRANSITORY NATURE. IT HAS BEEN SO USED WITH REFERENCE TO TEMPORARY DUTY ASSIGNMENTS. 24 COMP. GEN. 667. ADMINISTRATIVE REGULATIONS HAVE DIRECTED THAT CHANGE OF DUTY ORDERS SHOULD BE ISSUED WHEN DUTY FOR A PERIOD OF FIVE MONTHS OR MORE AT ONE PLACE IS CONTEMPLATED. SEE, FOR EXAMPLE, BUPERS-BUSANDA JOINT LETTER 51-229, DATED MARCH 16, 1951. IT IS NOT BELIEVED THAT A DUTY ASSIGNMENT FOR A PERIOD IN EXCESS OF FIVE OR SIX MONTHS REASONABLY COULD BE CONSIDERED TO BE OF THE SHORT DURATION CONTEMPLATED BY SUCH TERM. THE TERMINABLE NATURE OF THE DUTY ASSIGNMENT INVOLVED IN THE DECISION OF SEPTEMBER 1, 1953, TO WHICH YOU REFERRED, WAS CONSIDERED TO BE INDICATIVE OF A TEMPORARY ASSIGNMENT ONLY BECAUSE THAT FEATURE DISTINGUISHED IT FROM THE INDEFINITE TIME ELEMENT ORDINARILY ASSOCIATED WITH PERMANENT DUTY ASSIGNMENTS. IT WAS NOT INTENDED TO CONVEY THE IMPRESSION THAT SUCH FEATURE WOULD INDICATE A TEMPORARY DUTY ASSIGNMENT IN A CASE WHERE THE TERMINATION DATE SET IN THE ORDERS ESTABLISHED A DUTY PERIOD PROLONGED TO A POINT WHERE OTHER CONSIDERATIONS REQUIRED A DETERMINATION THAT THE ASSIGNMENT WAS PERMANENT IN NATURE.

BECAUSE THE 18-MONTH PERIOD INVOLVED IN THE DUTY ASSIGNMENTS IN QUESTION FAR EXCEED THAT WHICH REASONABLY MIGHT BE CONSIDERED AS WITHIN TEMPORARY DUTY LIMITATIONS, IT IS CONCLUDED THAT SUCH ASSIGNMENTS ARE NOT TEMPORARY ASSIGNMENTS FOR WHICH THE PAYMENT OF PER DIEM IS AUTHORIZED.