B-135950, JUN. 11, 1958

B-135950, JUN. 11, 1958

TO MR. PATRICK P. KOWALICK:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 17, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE, DURING THE PERIODS NOVEMBER 17, 1955, TO MAY 12, 1956, WHILE AT GUANTANAMO BAY, CUBA, AND FROM JULY 13, 1956, TO SEPTEMBER 30, 1956, WHILE AT PORT LYAUTEY, FRENCH MOROCCO.

IN YOUR REQUEST FOR REVIEW YOU ASK THAT WE CONSIDER THE DISALLOWANCE OF YOUR CLAIMS FOR THE PERIODS INVOLVED BECAUSE "IT WAS UNDERSTOOD THAT PER DIEM ALLOWANCE WOULD BE PAID WHILE ON THIS TEMPORARY DUTY.' PER DIEM FOR THE FIRST PERIOD OF DUTY INVOLVED, NAMELY, FROM NOVEMBER 17, 1955, TO MAY 12, 1956, FOR WHICH NO WRITTEN ORDERS HAVE BEEN SUBMITTED, IT CLAIMED ON THE BASIS OF A COMMUNICATION DATED NOVEMBER 23, 1955,FROM THE COMMANDING OFFICER, U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE TO PERSONNEL OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE, WHICH PROVIDED AS FOLLOWS:

"1. THE MEMBERS LISTED ON ENCLOSURE (1), WHO ARE ATTACHED TO U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE, AS DIRECTED BY REFERENCE (A) AND THE COMMANDING OFFICER'S VERBAL ORDERS, DEPARTED DAVISVILLE, R.I. ON 17 NOVEMBER 1955 AND ARRIVED AT GUANTANAMO BAY, CUBA ON 22 NOVEMBER 1955 FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE ACTIVITIES OF THIS COMMAND. TRAVEL WAS PERFORMED BY GOVERNMENT CONVEYANCE.'

FOR A LONG PERIOD OF TIME, DUTY OF THE TYPE YOU WERE PERFORMING DURING THE PERIOD HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTIONS 7220.19 ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPH 6 OF THE SECRETARY'S INSTRUCTIONS PROVIDED:

"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES.

"D. 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.'

THE PROVISIONS OF SUBPARAGRAPH C OF PARAGRAPH 6, SECNAV INSTRUCTIONS 7220.19, QUOTED ABOVE, CONSTITUTES AN EFFECTIVE EXERCISE OF ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAS BEEN ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE SUCH AS COMPLY WITH THE APPLICABLE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES CONCERNED ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS ISSUED IN ADVANCE OF TRAVEL. PARAGRAPHS 3002-1 AND 3002-2 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS. PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY DUTY ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT STATION WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. THE COMMUNICATION OF NOVEMBER 23, 1955, ANNOUNCING THE COMPLETION OF A TROOP MOVEMENT DIRECTED IN COMSERVLANT MOVEMENT ORDER NO. 252-55 DATED OCTOBER 14, 1955, WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY," DIRECTS NO TRAVEL NOR DOES IT CONFIRM ANY VERBAL ORDERS DIRECTING TRAVEL. ALSO, IT DOES NOT PROVIDE FOR THE FURTHER ASSIGNMENT OF THE LISTED MEMBERS, INCLUDING YOU, TO A NEW PERMANENT STATION OR FOR THEIR RETURN TO THE OLD PERMANENT STATION. HENCE, IT DOES NOT MEET THE REQUIREMENT OF PARAGRAPH 6C OF SECNAV INSTRUCTIONS 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR PER DIEM ALLOWANCE WHILE PERFORMING DUTY WITH MOBILE CONSTRUCTION BATTALION ONE AT GUANTANAMO BAY, CUBA.

YOUR CLAIM FOR PER DIEM ALLOWANCE FROM JULY 13, 1956, TO SEPTEMBER 30, 1956, WHILE YOU WERE AT PORT LYAUTEY, FRENCH MOROCCO, HAS BEEN RECONSIDERED, AND IT APPEARS NOW THAT SUCH DUTY WAS PERFORMED PURSUANT TO STANDARD TRANSFER ORDER NO. 173029, DATED JULY 10, 1956, ADDRESSED TO YOU INDIVIDUALLY, AND NO OTHERS. FOR PURPOSES OF PAYMENT OF PER DIEM FOR DUTY YOU PERFORMED WITH DETACHMENT MIKE OF MOBILE CONSTRUCTION BATTALION ONE AT PORT LYAUTEY, FRENCH MOROCCO, SUCH ORDERS WILL BE REGARDED AS COMPETENT TEMPORARY DUTY ORDERS, AND SETTLEMENT WILL ISSUE TO YOU ON THAT BASIS FROM OUR CLAIMS DIVISION IN DUE COURSE IN THE PROPER AMOUNT, TAKING COGNIZANCE OF YOUR ADMITTED INDEBTEDNESS TO THE GOVERNMENT IN THE AMOUNT OF $43.54 AS EVIDENCED IN YOUR LETTER OF MAY 27, 1957, TO THE U.S. NAVY FINANCE CENTER.