B-134833, MAR. 19, 1958

B-134833, MAR. 19, 1958

TO LIEUTENANT COMMANDER FRANKLIN A. FRANCO, USNR:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 28, 1957, WHICH DISALLOWED IN PART YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED BY A MEMBER OF PATROL SQUADRON SIX, U.S. PACIFIC FLEET AIR FORCE, IN 1952.

THE RECORD SHOWS THAT YOU WERE ALLOWED PER DIEM FOR THE PERIOD JULY 6 THROUGH JULY 11, 1952. HOWEVER, IN YOUR REQUEST FOR REVIEW, YOU APPARENTLY BELIEVE THAT YOU ARE ENTITLED TO PER DIEM FOR THE PERIOD JULY 6 THROUGH NOVEMBER 8, 1952, INCIDENT TO YOUR SQUADRON DEPLOYMENT.

ENTITLEMENT TO PER DIEM FOR TEMPORARY ADDITIONAL DUTY UNDER THE JOINT TRAVEL 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. NO SUCH ORDERS ARE OF EVIDENCE IN YOUR CASE FOR THE PERIOD JULY 11 THROUGH NOVEMBER 8, 1952. ON THE CONTRARY, BY THIRD ENDORSEMENT OF JULY 11, 1952, IT IS NOTED THAT YOUR TEMPORARY ADDITIONAL DUTY WAS COMPLETED ON THAT DATE AND YOU WERE TO RESUME YOUR REGULAR DUTIES.

WITH REGARD TO THE DEPLOYED STATUS OF YOUR PATROL SQUADRON, IT IS NOTED THAT SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, CLARIFIED 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 THE RECEIPT OF SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCE. PARAGRAPH 6D OF SUCH INSTRUCTIONS 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. WHERE COMPETENT ORDERS WERE NOT ISSUED 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 IN AN OTHERWISE PROPER CASE IS A MATTER FOR ADMINISTRATIVE DETERMINATION. PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A NUMBER OF CLAIMS APPARENTLY SIMILAR TO YOURS MAY HAVE BEEN PAID AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO THIS ADMINISTRATIVE DETERMINATION.

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