B-134356, DEC. 23, 1957

B-134356, DEC. 23, 1957

TO BERNARD L. FREITAGER, CM2, USN:

REFERENCE IS MADE TO LETTER DATED OCTOBER 24, 1957, WITH ENCLOSURES, SUBMITTED ON YOUR BEHALF BY THE COMMANDING OFFICER AT YOUR STATION, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 14, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, DURING THE PERIOD JULY 1, 1955, TO FEBRUARY 8, 1956.

THE RECORD SHOWS THAT BY A STANDARD TRANSFER ORDER DATED MAY 2, 1955, YOU AND OTHER NAMED PERSONNEL WERE TRANSFERRED FROM DETACHMENT JIG, U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, DAVISVILLE, RHODE ISLAND, TO DETACHMENT JIG, U.S. NAVAL MOBILE CONSTRUCTION BATTALION SIX, FLEET POST OFFICE, NEW YORK, NEW YORK (CAPE HATTERAS, NORTH CAROLINA),"FOR DUTY," AND YOU WERE DIRECTED TO PROCEED THERE BY WAY OF THE U.S.S. LST 533 AND THE NAVAL RECEIVING STATION, NORFOLK, VIRGINIA, AS INTERMEDIATE STATIONS. YOU REPORTED TO U.S.S. LST 533 ON MAY 2, 1955, AND THEREAFTER REPORTED FOR DUTY TO DETACHMENT JIG, MOBILE CONSTRUCTION BATTALION SIX, AT CAPE HATTERAS, NORTH CAROLINA, ON MAY 12, 1955. IN A COMMUNICATION FROM THE OFFICER IN CHARGE, MOBILE CONSTRUCTION BATTALION SIX, DETACHMENT JIG, DATED APRIL 25, 1956, IT WAS STATED THAT AS DIRECTED BY COMSERVLANT MOVEMENT ORDER NO. 77-55--- WHICH PRESUMABLY DIRECTED THE MOVEMENT OF MOBILE CONSTRUCTION BATTALION SIX FROM DAVISVILLE TO CAPE HATTERAS--- AND THE COMMANDING OFFICER'S VERBAL ORDERS, YOU WERE AT CAPE HATTERAS FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH ACTIVITIES OF THAT COMMAND UNTIL FEBRUARY 9, 1956. FIRST INDORSEMENT OF JANUARY 23, 1957, TO THAT COMMUNICATION STATED THAT MEMBERS OF MOBILE CONSTRUCTION BATTALIONS DEPLOYED AWAY FROM THEIR PERMANENT DUTY STATION WERE ENTITLED TO PER DIEM IF UNDER INDIVIDUAL TEMPORARY ADDITIONAL DUTY ORDERS. NO ORDERS DIRECTING THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY HAVE BEEN SUBMITTED IN YOUR CASE.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE 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 THE MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. THE TERM "TEMPORARY DUTY," OF WHICH TEMPORARY ADDITIONAL DUTY IS A FORM, IS DEFINED IN PARAGRAPH 3003-2 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.

ENTITLEMENT TO PER DIEM FOR TEMPORARY ADDITIONAL DUTY UNDER THE CITED REGULATIONS ARISES ONLY WHEN IT IS PERFORMED UNDER WRITTEN ORDERS WHICH DIRECT ITS PERFORMANCE AND PROVIDE FOR THE MEMBER'S RETURN TO THE OLD PERMANENT STATION. YOU REPORTED TO CAPE HATTERAS FOR DUTY WITH DETACHMENT JIG, MOBILE CONSTRUCTION BATTALION SIX PURSUANT TO TRAVEL ORDERS OF MAY 2, 1955. SUCH ORDERS DID NOT DIRECT THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY AT THE PLACE OR REQUIRE YOUR RETURN TO DAVISVILLE. IF IT WAS INTENDED THAT YOU SHOULD BE ASSIGNED TO TEMPORARY ADDITIONAL DUTY AT CAPE HATTERAS, THE ORDERS SHOULD HAVE SO PROVIDED AND DIRECTED YOUR RETURN TO DAVISVILLE UPON THE COMPLETION OF THE TEMPORARY ASSIGNMENT. WHILE THE COMMUNICATION OF THE OFFICER IN CHARGE DATED APRIL 25, 1956, STATED THAT YOU WERE GIVEN VERBAL ORDERS DESIGNATING YOUR ASSIGNMENT AT CAPE HATTERAS AS TEMPORARY ADDITIONAL DUTY, SUCH ORDERS, IF GIVEN, WERE WITHOUT EFFECT TO PLACE YOU IN A TEMPORARY ADDITIONAL DUTY STATUS SINCE THE ORDERS OF MAY 2 REQUIRED YOU TO REPORT TO THAT PLACE "FOR DUTY.' UPON REPORTING AT YOUR NEW DESIGNATED POST OF DUTY, YOU COULD NOT AGAIN ENTER A TRAVEL STATUS UNTIL YOU LEFT THAT PLACE. IT IS SHOWN THAT YOU LEFT CAPE HATTERAS ON FEBRUARY 9, 1956, AND REPORTED AT DAVISVILLE ON MARCH 10, 1956, PURSUANT TO INSTRUCTIONS CONTAINED IN A LEAVE AUTHORIZATION DATED FEBRUARY 4, 1956. HOWEVER, SUCH INSTRUCTIONS WERE WITHOUT EFFECT TO CHANGE YOUR DUTY ASSIGNMENT AT CAPE HATTERAS TO THAT OF TEMPORARY ADDITIONAL DUTY.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR STATION AT CAPE HATTERAS WAS A PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION AND CONSEQUENTLY THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JUNE 14, 1957, IS SUSTAINED.