B-133766, DEC. 3, 1957

B-133766, DEC. 3, 1957

TO CHIEF WARRANT OFFICER JOHN E. PETERSON, USN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1957, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 20, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION FIVE, DURING THE PERIOD JANUARY 26 TO OCTOBER 2, 1954. IN YOUR LETTER YOU ASK WHAT EFFECT SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, HAS ON YOUR CLAIM FOR PER DIEM.

THE RECORD SHOWS THAT BY ORDERS DATED OCTOBER 19, 1953, ISSUED BY THE BUREAU OF NAVAL PERSONNEL, YOU WERE DIRECTED TO PROCEED ON OR ABOUT DECEMBER 18, 1953, TO SAN FRANCISCO, CALIFORNIA, REPORTING UPON ARRIVAL TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, FOR TRANSPORTATION TO THE POST IN WHICH THE COMMANDING OFFICER, NAVAL MOBILE CONSTRUCTION BATTALION NO. 5 MAY BE, AND UPON ARRIVAL REPORT TO SUCH COMMANDER FOR DUTY.

SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, CLARIFIES NAVY DEPARTMENT POLICY REGARDING THE ISSUANCE OF TEMPORARY ADDITIONAL DUTY ORDERS AUTHORIZING THE PAYMENT OF PER DIEM TO MEMBERS OF MOBILE CONSTRUCTION UNITS WHEN SUCH UNITS ARE DEPLOYED AT PLACES AWAY FROM THE PERMANENT DUTY STATION DESIGNATED FOR THE UNIT. THE INSTRUCTION PROVIDES, AMONG OTHER THINGS, THAT MEMBERS THEN CURRENTLY DEPLOYED WHO HAD NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WOULD BE ISSUED PROPER TEMPORARY ADDITIONAL DUTY ORDERS AND WOULD BE PAID PER DIEM FROM THE DATE THE WRITTEN ORDERS ACTUALLY WERE ISSUED. IT FURTHER PROVIDES THAT MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY DUTY AND WHO, PRIOR TO THE RECEIPT OF THE SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WOULD 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. AN EXAMINATION OF THE RECORD SHOWS THAT NO SUCH ORDERS WERE ISSUED IN YOUR CASE. THE ORDERS OF OCTOBER 19, 1953, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM ARE NOT TEMPORARY DUTY ORDERS, THEY DO NOT DIRECT YOU TO PERFORM TEMPORARY DUTY, RETURN TO YOUR OLD STATION, OR PROCEED TO A NEW STATION UPON COMPLETION OF TEMPORARY DUTY. INSOFAR AS THE ORDERS OF DECEMBER 27, 1954, ARE CONCERNED, THEY DIRECTED TEMPORARY ADDITIONAL DUTY ONLY AS ADVANCE PARTY AT CUBI POINT, BATAAN, LUZON, PHILIPPINE ISLANDS, FOR WHICH PERIOD OF DUTY YOU WERE PAID PER DIEM.

YOUR REQUEST THAT YOUR ORIGINAL ORDERS BE MODIFIED OR THAT PROPER TEMPORARY ADDITIONAL DUTY ORDERS BE ISSUED BY MOBILE CONSTRUCTION BATTALION NO. 5 TO COVER YOUR TOUR OF DUTY IN THE PHILIPPINE ISLANDS MAY NOT BE ACTED UPON BY OUR OFFICE, THE ISSUANCE OF ORDERS BEING AN ADMINISTRATIVE MATTER. IT MAY BE STATED, HOWEVER, THAT GENERALLY WHERE NEITHER COMPETENT WRITTEN ORDERS FOR PER DIEM PURPOSES NOR VERBAL ORDERS WERE ISSUED PRIOR TO THE PERFORMANCE OF THE DUTY INVOLVED--- EVEN THOUGH SUCH ORDERS WERE NOT ISSUED BECAUSE OF AN ERRONEOUS ADMINISTRATIVE BELIEF THAT PER DIEM WAS NOT PAYABLE IN THE CIRCUMSTANCES--- THERE WOULD BE NO PROPER BASIS AFTER THE PERFORMANCE OF THE DUTY FOR ISSUING WHAT MIGHT PURPORT TO BE CONFIRMATORY ORDERS. FURTHERMORE, PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 SPECIFICALLY PROVIDES THAT WHERE THE PERIOD OF DUTY HAD BEEN COMPLETED AND WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THE INSTRUCTION, NO CONFIRMING ORDERS WOULD BE ISSUED.

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