B-133580, SEP. 25, 1957

B-133580, SEP. 25, 1957

TO LIEUTENANT (JG) LELAND A. SCHNEIDER, USNR:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 30, 1956, WHICH, EXCEPT FOR THE ALLOWANCE FOR A PART OF ONE DAY AS NECESSARY TRAVEL TIME, DISALLOWED YOUR CLAIM FOR DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, DURING THE PERIOD APRIL 7, 1955, TO NOVEMBER 10, 1955.

YOUR REQUEST FOR REVIEW IS ASSERTED IN PART ON THE BASIS THAT YOUR DEPLOYMENT TO NANTUCKET, MASSACHUSETTS, WAS A TEMPORARY MOVE AND DID NOT CONSTITUTE A CHANGE IN HOME PORT, AND THAT REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS AND HOUSEHOLD EFFECTS WAS DENIED ON THAT BASIS. THE RECORD SHOWS THAT PURSUANT TO ORDERS OF THE U.S. NAVAL MOBILE CONSTRUCTION BATTALION NO. SIX, DAVISVILLE, RHODE ISLAND, DATED APRIL 7, 1955, YOU PROCEEDED TO NANTUCKET, MASSACHUSETTS, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH ACTIVITIES OF YOUR PARENT COMMAND. HOWEVER, THESE TRAVEL ORDERS SPECIFIED THAT UPON ARRIVAL AT NANTUCKET, YOU WERE TO REPORT TO DETACHMENT ITEM OF MOBILE CONSTRUCTION BATTALION NO. SIX FOR DUTY AND CONSIDER YOUR TEMPORARY ADDITIONAL DUTY TERMINATED. BY SETTLEMENT OF OCTOBER 30, 1956, YOU WERE ALLOWED $6.75, REPRESENTING PER DIEM FOR NECESSARY TRAVEL TIME BY COMMON CARRIER FROM DAVISVILLE, RHODE ISLAND, TO NANTUCKET, MASSACHUSETTS, UNDER THE ORDERS OF APRIL 7, 1955.

SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, 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 INSTRUCTION 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.'

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. 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. THE ORDERS OF APRIL 7, 1955, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM, BY THEIR OWN TERMS, LIMITED PER DIEM TO THE TRAVEL TIME INVOLVED FROM DAVISVILLE, RHODE ISLAND TO NANTUCKET, MASSACHUSETTS. THE CONCLUSION APPEARS REQUIRED, THEREFORE, THAT PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE.