B-134568, FEB. 12, 1958

B-134568, FEB. 12, 1958

TO MR. RAY WOODS, DISBURSING OFFICER, VIA THE COMMANDANT OF THE MARINE CORPS:

IN YOUR LETTER OF NOVEMBER 18, 1957, FORWARDED HERE BY ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, DATED NOVEMBER 29, 1957, DECISION IS REQUESTED WHETHER PAYMENT PROPERLY MAY BE MADE ON A SUBMITTED VOUCHER IN FAVOR OF SERGEANT DONALD E. GARRETT, USMC, FOR PER DIEM COVERING THE PERIOD FROM JULY 1 TO OCTOBER 9, 1957, INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP PENDLETON, CALIFORNIA.

UNDER ORDERS OF HEADQUARTERS, U.S. MARINE CORPS AIR STATION, EL TORO (SANTA ANA), CALIFORNIA, DATED JUNE 13, 1955, SERGEANT GARRETT WAS INSTRUCTED TO PROCEED, WHEN DIRECTED, FROM HIS STATION AT EL TORO AND REPORT AT THE MARINE CORPS BASE AT CAMP PENDLENTON FOR DUTY IN CONNECTION WITH AIRSTRIP OPERATIONS FOR AN INDEFINITE PERIOD, SUCH DUTY BEING DESIGNATED AS TEMPORARY ADDITIONAL DUTY. FIRST ENDORSEMENT OF THE COMMANDING OFFICER, STATION OPERATIONS AND ENGINEERING SQUADRON AT EL TORO, DATED JUNE 17, 1955, DIRECTED THAT HE PROCEED UNDER THE BASIC ORDERS AND REPORT AT CAMP PENDLETON ON THAT DAY. SECOND ENDORSEMENT, ALSO DATED JUNE 17, 1955, STATED THAT THE ORDERS WERE RECEIVED BY SERGEANT GARRETT, AND THIRD ENDORSEMENT OF THE SAME DATE, STATED TO HAVE BEEN ISSUED AT EL TORO BUT PRESUMABLY ISSUED AT CAMP PENDLETON, STATED THAT SERGEANT GARRETT REPORTED ON JUNE 17, 1955, AND HE WAS DIRECTED TO REPORT TO THE COMMANDING OFFICER, HEADQUARTERS BATTALION, AT CAMP PENDLETON FOR TEMPORARY ADDITIONAL DUTY FOR AN INDEFINITE PERIOD AND, UPON ITS COMPLETION, TO CARRY OUT THE UNEXECUTED PORTION OF HIS BASIC ORDERS. FOURTH ENDORSEMENT OF THE COMMANDING OFFICER, HEADQUARTERS BATTALION AT CAMP PENDLETON, DATED JUNE 30, 1957, STATED THAT SERGEANT GARRETT'S TEMPORARY ADDITIONAL DUTY WAS COMPLETED ON THAT DATE, AND HE WAS DIRECTED TO CARRY OUT THE UNEXECUTED PORTION OF HIS BASIC ORDERS.

IN ORDERS OF HEADQUARTERS, U.S. MARINE CORPS AIR STATION, EL TORO, DATED JUNE 27, 1957, IT WAS STATED THAT SERGEANT GARRETT'S PERMANENT DUTY STATION WAS AT EL TORO AND TEMPORARY ADDITIONAL DUTY WAS DIRECTED COMMENCING JULY 1, 1957, AT CAMP PENDLETON FOR DUTY IN CONNECTION WITH AIRSTRIP OPERATIONS FOR A PERIOD IN EXCESS OF 30 DAYS, UPON THE COMPLETION OF WHICH HE WAS TO RETURN TO HIS DUTY STATION. FIRST ENDORSEMENT OF THE COMMANDING GENERAL, MARINE CORPS BASE AT CAMP PENDLETON DATED JULY 10, 1957, STATED THAT SERGEANT GARRETT REPORTED UNDER THE ORDERS OF JUNE 27, 1957, ON JULY 1, 1957, AND HE WAS ASSIGNED TO HEADQUARTERS BATTALION. SECOND ENDORSEMENT OF THE COMMANDING OFFICER, HEADQUARTERS BATTALION, DATED OCTOBER 10, 1957, STATED THAT THE TEMPORARY ADDITIONAL DUTY WAS COMPLETED ON THAT DATE, AND HE WAS DIRECTED TO CARRY OUT THE UNEXECUTED PORTION OF HIS ORDERS. HE RETURNED TO EL TORO ON THAT DATE. THUS, THE ORDERS INVOLVED DIRECTED A CONTINUOUS PERIOD OF DUTY AT CAMP PENDLETON EXTENDING FROM JUNE 17, 1955, TO OCTOBER 10, 1957. IT IS STATED THAT SERGEANT GARRETT HAS RECEIVED PER DIEM COVERING THE PERIOD FROM JUNE 17, 1955, THROUGH JUNE 30, 1957, LESS PERIODS OF HOSPITALIZATION AND LEAVE. YOUR DOUBT AS TO HIS ENTITLEMENT FOR THE ENSUING PERIOD NOW IN QUESTION IS AS TO WHETHER, UNDER THE CIRCUMSTANCES INVOLVED, THE DUTY AT CAMP PENDLETON PROPERLY MAY BE CONSIDERED A TEMPORARY DUTY ASSIGNMENT FOR PER DIEM PURPOSES.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZE THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS WHILE THEY ARE IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. THE QUESTION OF WHETHER AN ASSIGNMENT TO A PARTICULAR DUTY STATION IS TEMPORARY OR PERMANENT IS ONE OF FACT FOR DETERMINATION PRIMARILY UPON A CONSIDERATION OF THE PROVISIONS OF THE ORDERS AND THE NATURE AND DURATION OF THE ASSIGNMENT. IN DECISION OF MAY 3, 1957, B-131145 (36 COMP. GEN. 757), WHICH YOU CITE, IT WAS HELD THAT THE PROVISIONS OF SECTION 303 (A) OF THE 1949 ACT DO NOT CONTEMPLATE THE PAYMENT OF PER DIEM INCIDENT TO DUTY WHERE ITS FORESEEABLE DURATION EXTENDS BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS, EVEN THOUGH DESIGNATED IN THE ORDERS AS TEMPORARY DUTY, SUCH DUTY THEN BEING CONSIDERED THE MEMBER'S PERMANENT DUTY ASSIGNMENT. WHILE ASSIGNMENTS IN QUESTION IN THAT CASE WERE DIRECTED UNDER ORDERS INDICATING TEMPORARY DUTY EXTENDING FOR A PERIOD OF 18 MONTHS, WHICH WERE HELD TO BE PERMANENT DUTY ASSIGNMENTS, THE VIEW WAS EXPRESSED THAT DUTY ASSIGNED FOR A FORESEEABLE PERIOD IN EXCESS OF FIVE OR SIX MONTHS SHOULD NOT BE CONSIDERED A TEMPORARY DUTY ASSIGNMENT, THE PERIODS CONTEMPLATED BY THE STATUTE BEING THOSE OF SHORT DURATION AND TRANSITORY NATURE.

THERE WOULD APPEAR TO BE NO REASONABLE BASIS UPON WHICH TO QUESTION THE EXISTENCE OF THE TEMPORARY STATUS OF A MEMBER PERFORMING DUTY INITIALLY ASSIGNED FOR A SHORT PERIOD IF SUCH PERIOD IS PROLONGED THROUGH ADDITIONAL SHORT PERIODS DUE TO CIRCUMSTANCES NOT FORESEEN WHEN THE BASIC ORDERS WERE ISSUED. A SIMILAR VIEW, HOWEVER, COULD NOT BE TAKEN CONCERNING DUTY OVER A PROLONGED PERIOD PERFORMED UNDER ORDERS DIRECTING ITS PERFORMANCE FOR AN INDEFINITE OR UNSPECIFIED PERIOD, EVEN THOUGH SUCH ORDERS DESCRIBE THE DUTY AS TEMPORARY OR TEMPORARY ADDITIONAL DUTY, UNLESS OTHER EVIDENCE, IN THE ORDERS OR ELSEWHERE, SHOWED THAT IT WAS INITIALLY INTENDED THAT THE DUTY ASSIGNMENT WAS TO BE OF THE SHORT TEMPORARY NATURE CONTEMPLATED BY THE STATUTE. THE NEED FOR THAT EVIDENCE WOULD NOT ARISE IF THE DUTY ASSIGNMENT IN FACT WAS CONCLUDED WITHIN A REASONABLY SHORT PERIOD. WHERE, AS IN SERGEANT GARRETT'S CASE, HOWEVER, DUTY IS PERFORMED FOR A PROLONGED PERIOD UNDER ORDERS DIRECTING ITS PERFORMANCE FOR AN INDEFINITE PERIOD, A CONCLUSION THAT THE ASSIGNMENT IS NOT OF A PERMANENT NATURE, EVEN THOUGH DESCRIBED AS TEMPORARY ADDITIONAL DUTY, WOULD NOT BE WARRANTED IN THE ABSENCE OF FURTHER EVIDENCE TO SHOW THAT THE INITIAL ASSIGNMENT WAS INTENDED TO BE FOR A REASONABLY SHORT PERIOD AND THAT THE PERIOD WAS PROLONGED BECAUSE UNFORESEEABLE CIRCUMSTANCES SUBSEQUENTLY AROSE.

SERGEANT GARRETT'S ORDERS OF JUNE 13, 1955, AND ENDORSEMENTS, AFFORD NO EVIDENCE THAT THE DUTY ASSIGNMENT AT CAMP PENDLETON WAS TO BE OF SUCH SHORT DURATION AS TO CONSTITUTE THE DUTY TEMPORARY DUTY, AND THAT ITS EXTENSION BEYOND THAT PERIOD WAS DUE TO UNFORESEEN CIRCUMSTANCES. IT MUST BE CONCLUDED, THEREFORE, THAT THE EXISTING RECORD IS INSUFFICIENT TO ESTABLISH THAT CAMP PENDLETON WAS NOT HIS PERMANENT DUTY STATION FOR PER DIEM PURPOSES UNDER THOSE ORDERS. IF CAMP PENDLETON WAS IN FACT HIS PERMANENT STATION UNDER SUCH ORDERS, NO AUTHORITY WOULD EXIST TO PAY PER DIEM FOR DUTY AT THAT STATION FOR THE PERIOD FROM JULY 1 TO OCTOBER 9, 1957, UNDER THE ORDERS OF JUNE 27, 1957, SUCH DUTY IN EFFECT BEING BUT A CONTINUATION OF THE PRIOR ASSIGNMENT. ACCORDINGLY, NO PROPER BASIS EXISTS ON THE PRESENT RECORD FOR PAYMENT ON THE SUBMITTED VOUCHER WHICH WILL BE RETAINED HERE.

SERGEANT GARRETT'S ORIGINAL ORDERS AND ENDORSEMENTS ARE RETURNED HEREWITH.