B-133447, OCT. 23, 1957

B-133447, OCT. 23, 1957

TO MR. LESTER E. ESHELMAN:

IN YOUR LETTER OF AUGUST 6, 1957, YOU REQUEST REVIEW OF OUR SETTLEMENT OF JUNE 25, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD NOVEMBER 10, 1955, TO MARCH 13, 1956, INCIDENT TO THE PERFORMANCE OF DUTY ASSIGNED TO YOU DURING THAT PERIOD AS AN ENLISTED MEMBER OF THE U.S. AIR FORCE.

UNDER SPECIAL ORDERS NO. 74, 9TH AIR POSTAL SQUADRON (FEAF), APO 710, DATED NOVEMBER 3, 1955, YOU WERE RELIEVED FROM DUTY WITH DETACHMENT 1 AT THAT STATION, REASSIGNED TO DETACHMENT 6, APO 157, AND DIRECTED TO PROCEED AND REPORT AT APO 950 IN INDETERMINATE TEMPORARY DUTY FOR THE PURPOSE OF OPERATING ARMY POST OFFICE 950 AT THAT STATION. YOU PROCEEDED UNDER THOSE ORDERS FROM KOMAKI AIR FORCE BASE, JAPAN, ON NOVEMBER 10 AND REPORTED AT MIHO AIR FORCE BASE, JAPAN, ON NOVEMBER 11, 1955. ORDERS DATED MARCH 9, 1956, STATED THAT YOU WERE RELIEVED FROM MIHO AIR FORCE BASE BACK TO KOMAKI AIR FORCE BASE ON MARCH 12 AND 13, 1956. ORDERS OF THE SAME COMMAND DATED AUGUST 27, 1956, PURPORT TO AMEND THE BASIC ORDERS OF NOVEMBER 3, 1955, TO PROVIDE THAT YOU WERE ASSIGNED DUTY AT APO 950 RATHER THAN TO INDETERMINATE TEMPORARY DUTY. SUCH ORDERS WERE REVOKED BY ORDERS DATED AUGUST 29, 1956. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT APO 950 ACTUALLY WAS YOUR PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION AND THAT AS A CONSEQUENCE PER DIEM COULD NOT BE PAID TO YOU INCIDENT TO DUTY PERFORMED THERE.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF PER DIEM ONLY FOR PERIODS WHILE IN A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION, AND PARAGRAPH 1150-10 DEFINES A PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IN ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH 3003-2 DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. WHETHER A PARTICULAR DUTY ASSIGNMENT IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT FOR DETERMINATION UPON A CONSIDERATION OF SUCH FACTORS AS THE NATURE AND DURATION OF THE DUTY ASSIGNED, AND WHETHER THERE EXISTS OR HAS BEEN ASSIGNED ANOTHER STATION TO WHICH THE MEMBER MUST PROCEED UPON ITS COMPLETION TO RESUME HIS NORMAL DUTY ASSIGNMENT. THE CITED REGULATIONS REQUIRE THAT SUCH INFORMATION SHALL BE CONTAINED IN THE ORDERS DIRECTING THE DUTY ASSIGNMENT IN QUESTION.

THE DUTY ASSIGNED TO YOU AT APO 950 UNDER THE ORDERS OF NOVEMBER 3, 1955, WAS EXPRESSLY STATED TO BE OF INDETERMINATE DURATION, AND THERE WAS NO PROVISION IN THOSE ORDERS DIRECTING THAT YOU RETURN TO YOUR OLD DUTY STATION OR PROCEED ELSEWHERE UPON ITS COMPLETION. UNDER SUCH CIRCUMSTANCES, IT MUST BE CONSIDERED THAT YOUR DUTY ASSIGNMENT AT APO 950 WAS NOT TEMPORARY DUTY WITHIN THE CONTEMPLATION OF THE REGULATIONS AND, THEREFORE, THAT THAT STATION WAS YOUR PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION. THE ADMINISTRATIVE REPORT REFERRED TO IN THE SETTLEMENT OF YOUR CLAIM INDICATES A BELIEF THAT YOUR BASIC ORDERS OF NOVEMBER 3, 1955, WERE ISSUED ERRONEOUSLY BECAUSE THEY DIRECTED TEMPORARY DUTY RATHER THAN A PERMANENT ASSIGNMENT. SUCH, HOWEVER, WAS NOT THE CASE.