B-132200, SEP. 23, 1957

B-132200, SEP. 23, 1957

TO LIEUTENANT COLONEL W. O. ADAMS, USMC, DISBURSING OFFICER UNITED STATES MARINE CORPS:

BY ENDORSEMENT OF MAY 30, 1957, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR UNDATED LETTER REQUESTING DECISION WHETHER PAYMENT MAY BE MADE ON THE TWO VOUCHERS SUBMITTED, ONE IN FAVOR OF STAFF SERGEANT JACK G. SELFRIDGE, USMC, FOR PER DIEM FOR A PERIOD WHILE ATTENDING A COURSE OF INSTRUCTION AT GREAT LAKES, ILLINOIS, PLUS MILEAGE FOR TRAVEL FROM THAT POINT TO SAN DIEGO, CALIFORNIA, AND THE OTHER IN FAVOR OF SERGEANT GRANT L. YENERALL, USMC, FOR PER DIEM COVERING PERIODS WHILE ATTENDING COURSES OF INSTRUCTION AT SAN FRANCISCO, CALIFORNIA, AND SAN DIEGO, CALIFORNIA, PLUS MILEAGE FOR TRAVEL FROM CAMP PENDLETON, CALIFORNIA, TO SAN FRANCISCO, AND FROM SAN FRANCISCO TO SAN DIEGO, UNDER THE CIRCUMSTANCES OUTLINED BELOW.

BY ORDERS OF HEADQUARTERS, FORCE TROOPS, FLEET MARINE FORCE, ATLANTIC, CAMP LEJEUNE, NORTH CAROLINA, DATED SEPTEMBER 11, 1956, SERGEANT SELFRIDGE WAS TRANSFERRED FROM CAMP LEJEUNE AND DIRECTED TO REPORT ON PERMANENT CHANGE OF STATION TO THE COMMANDING OFFICER, MARINE BARRACKS, NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, FOR DUTY AND ASSIGNMENT TO DUTY UNDER INSTRUCTION IN THE ELECTRONICS TECHNICIANS CLASS "A" COURSE AT THAT STATION. HE REPORTED AT GREAT LAKES ON OCTOBER 25 AND APPARENTLY WAS ASSIGNED TO THE COURSE OF INSTRUCTION ON THE FOLLOWING DAY. YOU INDICATE THAT SUCH COURSE WAS SCHEDULED FOR A PERIOD OF 16 WEEKS. A FURTHER PERMANENT CHANGE OF STATION WAS DIRECTED BY ORDERS DATED MARCH 4, 1957, ISSUED AT THE MARINE BARRACKS AT GREAT LAKES, SERGEANT SELFRIDGE BEING DIRECTED BY THOSE ORDERS TO REPORT TO THE COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, SAN DIEGO, BY APRIL 9, 1957, FOR DUTY UNDER INSTRUCTION IN THE COMMUNICATION-ELECTRONICS SCHOOL BATTALION AT THAT STATION. HE LEFT GREAT LAKES ON MARCH 16, 1957, UNDER THOSE ORDERS AND REPORTED AT SAN DIEGO ON APRIL 4. THE PROPOSED PAYMENT IN HIS CASE COVERS PER DIEM FOR THE PERIOD OCTOBER 26, 1956, TO MARCH 15, 1957, EXCEPT FOR THE PERIOD DECEMBER 22, 1956, TO JANUARY 5, 1957, WHILE ON LEAVE, AND MILEAGE AT SIX CENTS PER MILE FROM GREAT LAKES TO SAN DIEGO. NOTATION ON THE VOUCHER INDICATES THAT TRAVEL ALLOWANCE FOR THE TRAVEL FROM CAMP LEJEUNE TO GREAT LAKES PREVIOUSLY WAS PAID.

ORDERS OF HEADQUARTERS, 5TH MARINES, 1ST DIVISION (REINF) FLEET MARINE FORCE, CAMP PENDLETON, DATED MAY 1, 1956, PROVIDED FOR THE TRANSFER OF SERGEANT YENERALL FROM HIS DUTY ASSIGNMENT AT CAMP PENDLETON ON PERMANENT CHANGE OF STATION AND DIRECTED THAT HE REPORT TO THE COMMANDING OFFICER, MARINE BARRACKS, NAVAL STATION, TREASURE ISLAND, SAN FRANCISCO, FOR TEMPORARY DUTY UNDER INSTRUCTION IN THE ELECTRONICS TECHNICIANS CLASS "A" COURSE FOR A PERIOD OF ABOUT 16 WEEKS, UPON THE COMPLETION OF WHICH HE WAS TO PROCEED TO THE MARINE CORPS RECRUIT DEPOT AT SAN DIEGO FOR DUTY UNDER INSTRUCTION WITH THE COMMUNICATION-ELECTRONICS SCHOOL BATTALION FOR A PERIOD OF ABOUT 20 WEEKS. HE PROCEEDED FROM CAMP PENDLETON AND REPORTED AT TREASURE ISLAND ON JULY 19, AND COMPLETED THE COURSE THERE ON NOVEMBER 9. HE REPORTED AT THE MARINE CORPS RECRUIT DEPOT AT SAN DIEGO ON NOVEMBER 11 IN COMPLIANCE WITH INSTRUCTIONS IN ENDORSEMENT OF THE COMMANDING OFFICER AT THE TREASURE ISLAND STATION DATED NOVEMBER 9. ENDORSEMENT OF THE COMMANDING OFFICER OF THE COMMUNICATIONS-ELECTRONIC SCHOOL BATTALION, DATED NOVEMBER 20, 1956, STATES THAT SERGEANT YENERALL REPORTED ON NOVEMBER 11 AND THAT "YOU ARE ASSIGNED TO ELECTRONICS SCHOOL COMPANY FOR DUTY UNDER INSTRUCTION IN THE GROUND RADAR REPAIR COURSE.' IT WAS STATED FURTHER THAT THE COURSE OF INSTRUCTION INVOLVED IN THE EXECUTION OF THOSE ORDERS WOULD BE FOR A PERIOD OF ABOUT 18 WEEKS. HE WAS TRANSFERRED FROM THAT ASSIGNMENT EFFECTIVE APRIL 15, 1957, AND ASSIGNED TO FORCE TROOPS, FLEET MARINE FORCE, PACIFIC, TWENTY-NINE PALMS, CALIFORNIA, FOR DUTY BY ORDERS OF THE COMMUNICATION ELECTRONICS SCHOOL BATTALION DATED APRIL 12, 1957. THE PROPOSED PAYMENT IN HIS CASE IS FOR PER DIEM INCIDENT TO DUTY UNDER INSTRUCTION AT SAN FRANCISCO FROM JULY 20 TO NOVEMBER 8, 1956, AND AT SAN DIEGO FROM NOVEMBER 12, 1956, TO APRIL 14, 1957, EXCEPT FOR THE PERIOD DECEMBER 19 TO 21, 1956, WHILE ON LEAVE, AND FOR MILEAGE AT SIX CENTS PER MILE FOR THE DISTANCE FROM CAMP PENDLETON TO SAN FRANCISCO AND FROM SAN FRANCISCO TO SAN DIEGO.

YOUR DOUBT IN EACH CASE IS AS TO WHETHER UNDER THE INDICATED CIRCUMSTANCES THE MEMBERS WERE IN FACT IN A TRAVEL STATUS AWAY FROM THEIR PERMANENT DUTY STATIONS DURING THE PERIODS WHILE ATTENDING COURSES OF INSTRUCTION FOR WHICH PER DIEM ALLOWANCES ARE CLAIMED.

PARAGRAPH 305C OF THE JOINT TRAVEL REGULATIONS AUTHORIZES PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION. A PERMANENT DUTY STATION IS DEFINED IN PARAGRAPH 1150-10 OF THE REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, WITH THE EXCEPTION THAT WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION FOR A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION. ANY ASSIGNMENT TO A COURSE OF INSTRUCTION FOR 20 WEEKS OR MORE MUST BE CONSIDERED A PERMANENT ASSIGNMENT FOR PER DIEM PURPOSES UNDER THOSE REGULATIONS. IT FOLLOWS THAT AN ASSIGNMENT TO A COURSE OF INSTRUCTION FOR LESS THAN 20 WEEKS IS A TEMPORARY ASSIGNMENT. 34 COMP. GEN. 260. WHILE ORDINARILY THE SCHEDULED LENGTH OF A COURSE OF INSTRUCTION IS DETERMINATIVE IN THE MATTER, THE QUESTION OF WHETHER AN ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED PRIMARILY BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT--- PARTICULARLY WITH REFERENCE TO ACTUAL DURATION IN CASES SUCH AS THIS WHERE THE REGULATORY MEASURE OF THE QUESTION IS SPECIFICALLY BASED ON THAT FACTOR. DETERMINATION THAT A PARTICULAR ASSIGNMENT IS TEMPORARY IN NATURE, HOWEVER, DOES NOT GIVE RISE TO A RIGHT TO PER DIEM UNLESS SUCH ASSIGNMENT IS FOR PERFORMANCE AT A POINT REMOVED FROM THE MEMBER'S PERMANENT DUTY STATION.

SINCE SERGEANT SELFRIDGE WAS DIRECTED BY THE ORDERS OF SEPTEMBER 11, 1956, TO REPORT AT GREAT LAKES FOR DUTY AND FOR ASSIGNMENT BY THE COMMANDING OFFICER THERE TO DUTY UNDER INSTRUCTION, AND NO INDICATION WAS MADE IN THE ORDERS AS TO THE DURATION OF HIS ASSIGNMENT AT GREAT LAKES (THE ACTUAL DURATION OF THE COURSE TO WHICH HE WAS TO BE ASSIGNED THERE UNDOUBTEDLY WAS KNOWN BY THOSE ISSUING THE ORDERS), OR AS TO HIS DISPOSITION UPON ITS COMPLETION, IT IS CONCLUDED THAT THE PURPOSE OF THOSE ORDERS, UNLIKE ORDERS DIRECTING A MEMBER TO A POINT FOR TEMPORARY DUTY (OR DUTY) UNDER INSTRUCTION, WAS TO DIRECT A PERMANENT ASSIGNMENT AT GREAT LAKES, AND THAT THE DUTY UNDER INSTRUCTION THERE WAS BUT AN INCIDENT OF THAT PERMANENT ASSIGNMENT. THAT VIEW IS SUPPORTED BY THE FACT THAT SERGEANT SELFRIDGE WAS TRANSFERRED FROM GREAT LAKES BY SUBSEQUENTLY ISSUED PERMANENT CHANGE OF STATION ORDERS. HAD THE ORDERS OF SEPTEMBER 11, 1956, DIRECTED THAT HE PROCEED TO GREAT LAKES FOR TEMPORARY DUTY UNDER INSTRUCTION TO ATTEND THE COURSE, IT WOULD APPEAR THAT A CONCLUSION THAT THE ASSIGNMENT WAS PERMANENT IN NATURE WOULD FOLLOW BECAUSE IT IS SHOWN ON THE VOUCHER THAT THE MEMBER WAS ON DUTY UNDER INSTRUCTION UNTIL MARCH 15, 1957, APPROXIMATELY 20 WEEKS FROM THE DATE HE COMMENCED SUCH DUTY. SEE B- 132211, AUGUST 20, 1957. HOWEVER, SINCE THE ORDERS DIRECTED A PERMANENT ASSIGNMENT AT GREAT LAKES, THAT STATION BECAME HIS PERMANENT DUTY STATION UPON HIS REPORTING THERE AND SO HE MAY NOT PROPERLY BE PAID PER DIEM FOR THE PERIOD CLAIMED WHILE AT THAT STATION REGARDLESS OF THE DURATION OF THE COURSE OF INSTRUCTION THERE.

SERGEANT YENERALL'S ASSIGNMENT AT TREASURE ISLAND CLEARLY APPEARS TO HAVE BEEN OF A TEMPORARY NATURE UNDER THE REGULATIONS, AND HE MAY BE PAID PER DIEM FOR THE PERIOD CLAIMED WHILE AT THAT STATION. HOWEVER, SINCE THE ORDERS OF MAY 1, 1956, DIRECTED DUTY UNDER INSTRUCTION AT SAN DIEGO FOR A PERIOD OF ABOUT 20 WEEKS AND THE INSTRUCTION PERIOD AT THAT STATION WAS NOT COMPLETED UNTIL A DATE MORE THAN 20 WEEKS SUBSEQUENT TO HIS REPORTING AT SAN DIEGO, IT MUST BE CONCLUDED THAT HIS ASSIGNMENT THERE WAS OF A PERMANENT NATURE AND THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF THE PER DIEM CLAIMED WHILE AT THAT STATION. THE DUTY UNDER INSTRUCTION AT THE GROUND RADAR REPAIR COURSE, INDICATED IN THE INDORSEMENT OF NOVEMBER 20, 1956, TO BE FOR A PERIOD OF ABOUT 18 WEEKS, APPARENTLY WAS BUT PART OF THE DUTY UNDER INSTRUCTION CONTEMPLATED AT SAN DIEGO UNDER THE BASIC ORDERS SINCE ASSIGNMENT TO THAT COURSE WAS NOT MADE UNTIL THE NINTH DAY AFTER REPORTING AT SAN DIEGO.

IT APPEARS THAT SERGEANTS SELFRIDGE AND YENERALL ARE ENTITLED TO MILEAGE AS CLAIMED. ACCORDINGLY, THE VOUCHERS PRESENTED ARE RETURNED HEREWITH FOR PAYMENT ON THE LIMITED BASIS INDICATED ABOVE, IF OTHERWISE CORRECT.

CONTRARY TO THE CONCLUSION IN OUR SETTLEMENT OF FEBRUARY 3, 1956, IT APPEARS THAT FOR SUBSTANTIALLY THE SAME REASONS STATED ABOVE IN CONNECTION WITH SERGEANT SELFRIDGE'S CASE STAFF SERGEANT RICHARD S. SANFT'S TRANSFER FROM LONG BEACH, CALIFORNIA, TO SAN FRANCISCO UNDER ORDERS DATED FEBRUARY 1, 1955, CONSTITUTED A PERMANENT CHANGE OF STATION FOR THE PURPOSES OF HIS CLAIM FOR TRANSPORTATION OF DEPENDENTS. INSTRUCTIONS HAVE BEEN ISSUED FOR THE RECONSIDERATION OF THE CLAIM ON THAT BASIS.