B-132515, AUG. 23, 1957

B-132515, AUG. 23, 1957

TO COMMANDER JOHN F. REFO, USN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 16, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF COMPOSITE SQUADRON SIX (VC-6), U.S. ATLANTIC FLEET AIR FORCE, DURING THE PERIOD OCTOBER 1, 1951 TO JANUARY 10, 1952.

YOUR REQUEST FOR REVIEW IS, IN LARGE PART, BASED ON A SETTLEMENT ISSUED TO LIEUTENANT COMMANDER W. C. LEWIS FOR A SQUADRON MOVEMENT ACCOMPLISHED ON ORDERS SIMILAR TO YOUR OWN. THE ITINERARY YOU SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT WHILE COMPLYING WITH YOUR SQUADRON MOVEMENT DURING THE PERIOD OCTOBER 1, 1951, TO JANUARY 10, 1952, YOU WERE AT THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND; PORT LYANTEY, FRENCH MOROCCO; HALFAR, MALTA; ON THE U.S.S. F.D. ROOSEVELT; IN LUQA, MALTA; AND NAPLES, ITALY. YOUR CLAIM WAS DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT TEMPORARY DUTY ORDERS WITHIN THE CONTEMPLATION OF PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS. YOU NOW CITE, AS ADDED AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, A LETTER WHICH YOU RECEIVED FROM COMMANDER LEWIS DESCRIBING THE PROCEDURE UNDER WHICH HIS CLAIM FOR PER DIEM WAS PAID.

SECNAV INSTRUCTION 7220.19 (ISSUED OVER 4 YEARS AFTER THE PERIOD FROM 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 DUTY 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. INSOFAR AS THE CASE OF COMMANDER LEWIS WAS CONCERNED, SETTLEMENT WAS MADE PRIOR TO THE ISSUANCE OF THE "POLICY-SETTING" SECNAV INSTRUCTION OF JUNE 4, 1956, AND THEREFORE, THAT SETTLEMENT WAS NOT SUBJECT TO ITS LIMITATIONS.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63 STAT. 813, AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS. COMPETENT ORDERS FOR PER DIEM PURPOSES ARE DEFINED IN PARAGRAPH 3000-3003, JOINT TRAVEL REGULATIONS. AN EXAMINATION OF THE RECORD SHOWS THAT NO SUCH ORDERS WERE ISSUED IN YOUR CASE. 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 ADMINISTRATION DETERMINATION IN YOUR CASE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM WAS CORRECT AND IS SUSTAINED.