B-138885, APRIL 15, 1959, 38 COMP. GEN. 697

B-138885, APRIL 15, 1959, 38 COMP. GEN. 697

MILITARY PERSONNEL - TEMPORARY OVERSEAS DUTY STATION CHANGED TO PERMANENT STATION - TEMPORARY DUTY PER DIEM - STATION PER DIEM THE RESTRICTION AGAINST PAYMENT OF TEMPORARY DUTY ALLOWANCES IN THE UNITED STATES AFTER DATE THE MEMBER OF THE UNIFORMED SERVICES RECEIVES PERMANENT CHANGE OF STATION ORDERS WHICH DESIGNATE THE TEMPORARY DUTY STATION AS THE NEW PERMANENT STATION CONTAINED IN PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS IS APPLICABLE TO TEMPORARY DUTY STATIONS OUTSIDE THE UNITED STATES WHICH ARE DESIGNATED AS THE NEW PERMANENT DUTY STATION DURING THE PERIOD OF TEMPORARY DUTY. MEMBERS OF A NAVAL AIR SQUADRON WHO WERE ISSUED ORDERS IN APRIL 1958 TO PROCEED TO AN OVERSEAS STATION ON OR ABOUT MAY 1, 1958, FOR TEMPORARY ADDITIONAL DUTY FOR 3 MONTHS WITH RETURN TO UNITED STATES BUT WHO ON APRIL 29, 1958, RECEIVED ORDERS CHANGING THEIR PERMANENT DUTY STATION IN THE UNITED STATES EFFECTIVE AUGUST 1, 1958, TO THE OVERSEAS DUTY STATION, ARE PRECLUDED BY THE RESTRICTION AGAINST PAYMENT OF PER DIEM AFTER DATE OF ORDERS WHICH CHANGE A TEMPORARY DUTY STATION TO A PERMANENT DUTY STATION FROM RECEIVING PER DIEM FOR TEMPORARY DUTY AFTER APRIL 30, 1958. THE OVERSEAS STATION ALLOWANCE PROVISIONS IN CHAPTER 4, PART 6, OF THE JOINT TRAVEL REGULATIONS PERMIT PAYMENT ONLY WHEN THE MEMBER IS AT A PERMANENT STATION; HENCE, MEMBERS OF A NAVAL AIR SQUADRON WHO WERE PRECLUDED FROM RECEIVING TEMPORARY DUTY PER DIEM AFTER APRIL 30, 1958, WHEN THEY RECEIVED ORDERS DESIGNATING THE TEMPORARY OVERSEAS DUTY STATION AS A PERMANENT STATION ARE ENTITLED TO OVERSEAS STATION PER DIEM FROM APRIL 30 UNTIL JULY 31, 1958, AND ANY MEMBERS RETURNED TO THE FORMER STATION IN THE UNITED STATES WOULD BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY AT SUCH FORMER PERMANENT DUTY STATION. THE EFFECTIVE DATE OF ORDERS FOR ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS OF MEMBERS OF A NAVAL AIR SQUADRON WHO WERE ISSUED ORDERS TO PROCEED TO A TEMPORARY DUTY STATION OVERSEAS ON OR BEFORE MAY 1, 1958, AND BY DISPATCH OF APRIL 29, 1958, RECEIVED APRIL 30, 1958, THE TEMPORARY DUTY STATION WAS DESIGNATED AS A PERMANENT STATION EFFECTIVE AUGUST 1, 1958, IS APRIL 30, 1958, SINCE WHEN THE MEMBERS REACHED THE OVERSEAS STATION THEY WERE AT THEIR PERMANENT STATION FOR ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND EVEN THOUGH THE ORDERS MIGHT BE CANCELED BEFORE AUGUST 1, 1958, A MEMBER WHOSE DEPENDENTS TRAVELED AFTER APRIL 30, 1958, WOULD BE ENTITLED TO RETURN TRANSPORTATION OF DEPENDENTS.

TO THE SECRETARY OF THE NAVY, APRIL 15, 1959:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 20, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF TRAVEL PER DIEM AND/OR STATION PER DIEM ALLOWANCES TO APPROXIMATELY 1,060 OFFICERS AND ENLISTED MEMBERS FROM APRIL 30 TO JULY 31, 1958. THE REQUEST WAS SUBMITTED UNDER THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE'S CONTROL NO. 58-13.

BY ORDERS ISSUED IN APRIL 1958, THE MEMBERS OF AIRBORNE EARLY WARNING SQUADRON ELEVEN (VW-11) WERE DIRECTED TO PROCEED ON OR ABOUT MAY 1, 1958, FROM NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, TO NAVAL AIR STATION, ARGENTIA, NEWFOUNDLAND, FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF APPROXIMATELY THREE MONTHS AND UPON COMPLETION THEREOF TO RETURN TO THEIR DUTY STATION. BY CHIEF OF NAVAL OPERATIONS DISPATCH DATED APRIL 29, 1958, THE PERMANENT DUTY STATION OF AIRBORNE EARLY WARNING SQUADRON ELEVEN (VW- 11) WAS CHANGED, EFFECTIVE AUGUST 1, 1958, FROM NAVAL AIR STATION, PATUXENT RIVER, TO NAVAL AIR STATION, ARGENTIA.

IN THE ASSISTANT SECRETARY'S LETTER IT IS STATED THAT PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS CONCERNING TEMPORARY DUTY ALLOWANCES IN THE UNITED STATES PROVIDES THAT NO PER DIEM IS PAYABLE ON AND AFTER THE DATE OF RECEIPT OF THE PERMANENT CHANGE OF STATION ORDERS WHICH DESIGNATE THE TEMPORARY DUTY STATION AS THE NEW PERMANENT STATION. IT FURTHER IS STATED THAT WHILE CHAPTER 4, PART F, OF THE JOINT TRAVEL REGULATIONS RELATING TO TEMPORARY DUTY ALLOWANCES OUTSIDE THE UNITED STATES DOES NOT CONTAIN A COMPARABLE PROVISION, THE PRINCIPLES SET FORTH IN PARAGRAPH 4209 SEEM EQUALLY APPLICABLE WHERE THE TEMPORARY DUTY STATION OUTSIDE THE UNITED STATES IS DESIGNATED AS THE NEW PERMANENT DUTY STATION DURING THE PERIOD OF TEMPORARY DUTY AND THAT THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IS CURRENTLY PROCESSING A CHANGE WHICH WILL PLACE IN CHAPTER 4, PART F, OF THE JOINT TRAVEL REGULATIONS A PROVISION IDENTICAL TO PARAGRAPH 4209. IN REQUESTING DECISION AS TO THE ENTITLEMENT TO PER DIEM AND/OR STATION ALLOWANCES ON AND AFTER APRIL 30, 1958, THE FOLLOWING QUESTIONS ARE PRESENTED:

1. ARE THE PRINCIPLES OF PARAGRAPH 4209 JOINT TRAVEL REGULATIONS APPLICABLE IN THIS CASE?

2. IF ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, SHOULD PER DIEM PAYMENTS TERMINATE APRIL 30 OR JULY 31, 1958?

3. IF PER DIEM MUST TERMINATE APRIL 30, 1958, WOULD STATION ALLOWANCES, AS PRESCRIBED BY PART G, JOINT TRAVEL REGULATIONS BE PAYABLE BETWEEN APRIL 30 AND JULY 31, 1958? THE REGULATIONS AUTHORIZE SUCH ALLOWANCES ONLY AT THE PERMANENT DUTY STATION.

4. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD PER DIEM BE PAYABLE FOR ANY PERIOD AT NAVAL AIR STATION, PATUXENT RIVER, WHEN A MEMBER IS REQUIRED TO RETURN THERETO TEMPORARILY BETWEEN THE PERIOD APRIL 30, 1958, AND JULY 31, 1958?

5. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE AND THE REPLY TO QUESTION 2 IS APRIL 30, 1958, WOULD A MEMBER BE IMMEDIATELY ENTITLED TO TRANSPORTATION OF DEPENDENTS TO HIS NEW DUTY STATION EVEN THOUGH THE CHANGE OF PERMANENT DUTY STATION WAS NOT EFFECTIVE UNTIL AUGUST 1, 1958?

6. IF THE ANSWER TO QUESTION 5 IS IN THE AFFIRMATIVE, WOULD RETURN TRANSPORTATION OF DEPENDENTS BE AUTHORIZED IF THE ORDERS TO CHANGE THE PERMANENT STATION OF THIS SQUADRON HAD BEEN CANCELED BEFORE AUGUST 1, 1958?

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS ( CHANGE 65, JANUARY 1, 1958) PROVIDES THAT A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS AT A TEMPORARY DUTY STATION WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY, WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION ,BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS," NOR TO ALLOWANCES FOR TRAVEL TO THE OLD PERMANENT STATION UNLESS THE PERMANENT CHANGE OF STATION ORDERS SPECIFICALLY DIRECT HIS RETURN THERETO ON OFFICIAL BUSINESS. IDENTICAL PROVISIONS WERE PUBLISHED IN PARAGRAPH 4258 ( CHAPTER 4, PART F) OF THE REGULATIONS BY CHANGE 76, JANUARY 1, 1959.

IT CONSISTENTLY HAS BEEN HELD THAT WHEN A MEMBER IS DIRECTED TO REPORT FOR PERMANENT DUTY AT A STATION FOLLOWING COMPLETION OF TEMPORARY DUTY AT THE SAME PLACE THE STATION TO WHICH HE WAS ORDERED BECOMES HIS DESIGNATED PLACE OF DUTY AND, IN EFFECT, HIS PERMANENT STATION, AND THAT NO RIGHT TO PER DIEM ACCRUES DURING THE PERIOD HE PERFORMS "TEMPORARY DUTY" BECAUSE HE IS NOT TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT, 34 COMP. GEN. 427. FURTHER, IT WOULD APPEAR THAT BOTH PARAGRAPH 4209 AND PARAGRAPH 4258 AS THEY ARE CURRENTLY PUBLISHED IN THE JOINT TRAVEL REGULATIONS WERE PROMULGATED ON THE BASIS OF OUR RECOMMENDATION OF JANUARY 5, 1956, B- 120680, B-122508, WHICH DREW NO DISTINCTION BETWEEN STATIONS IN THE UNITED STATES AND STATIONS OUTSIDE THE UNITED STATES. HENCE, REFERRING TO QUESTION 1, IT MUST BE CONCLUDED THAT THE PRINCIPLES OF PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS ARE APPLICABLE TO THE PRESENT CASE. SINCE THE DISPATCH OF APRIL 29, 1958, DESIGNATING ARGENTIA AS THE PERMANENT STATION EFFECTIVE AUGUST 1, 1958, APPARENTLY WAS RECEIVED ON APRIL 30, 1958, THERE IS NO AUTHORITY FOR PAYING PER DIEM FOR TEMPORARY DUTY AT ARGENTIA (QUESTION 2) AFTER THE LATTER DATE.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253 (B), PROVIDES THAT THE SECRETARIES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER INCIDENTAL EXPENSES. CHAPTER 4, PART G, OF THE JOINT TRAVEL REGULATIONS, PROVIDING FOR THE PAYMENT OF STATION ALLOWANCES OUTSIDE THE UNITED STATES, CLEARLY CONTEMPLATES THE PAYMENT OF SUCH ALLOWANCES ONLY WHEN A MEMBER IS AT A PERMANENT STATION. IN THE PRESENT CASE (QUESTION 3), SINCE THE MEMBERS' PERMANENT STATION MUST BE CONSIDERED TO BE ARGENTIA EFFECTIVE APRIL 30, 1958, AND SINCE THEY WERE NOT ENTITLED TO A PER DIEM FOR TEMPORARY DUTY AFTER THAT DATE, STATION ALLOWANCES UNDER THE CONDITIONS AND CIRCUMSTANCES PRESCRIBED IN PART G OF THE REGULATIONS MAY BE PAID BETWEEN THAT DATE AND JULY 31, 1958. ALSO, SINCE THE MEMBERS MUST BE REGARDED AS A PERMANENTLY STATIONED AT ARGENTIA BEGINNING APRIL 30, 1958, A MEMBER RETURNED TO PATUXENT RIVER FOR TEMPORARY DUTY BETWEEN APRIL 30 AND JULY 31, 1958 (QUESTION 4), WOULD BE ENTITLED TO PER DIEM FOR THE TEMPORARY DUTY AT NAVAL AIR STATION, PATUXENT RIVER, MARYLAND.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253 (C), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES MEMBERS SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION.' PARAGRAPH 7000 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED BY THE REGULATIONS. PARAGRAPH 7050 OF THE SAME REGULATIONS PROVIDES THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION ARE CHANGED PRIOR TO THE EFFECTIVE DATE OF THE ORDERS AND A NEW PERMANENT STATION IS DESIGNATED, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED, NOT TO EXCEED THE ENTITLEMENT FROM THE OLD PERMANENT STATION TO THE ULTIMATE NEW STATION. PARAGRAPH 7004, NAVY TRAVEL INSTRUCTIONS, PROVIDES THAT DEPENDENTS ARE NOT ENTITLED TO TRANSPORTATION UNTIL THE EFFECTIVE DATE OF ORDERS; HOWEVER, AUTHORIZED TRANSPORTATION MAY BE FURNISHED AT ANY TIME AFTER RECEIPT OF ORDERS INVOLVING A PERMANENT CHANGE OF STATION AND IF TRANSPORTATION IS FURNISHED PRIOR TO THE EFFECTIVE DATE OF THE ORDERS IT WILL BE WITH THE UNDERSTANDING THAT THE MEMBER WILL BE HELD RESPONSIBLE FOR ANY EXCESS COST INVOLVED BECAUSE OF MODIFICATION OR CANCELLATION OF THE ORDERS UNDER WHICH THE TRANSPORTATION IS FURNISHED.

IT APPEARS, HOWEVER, THAT BOTH PARAGRAPH 7050 OF THE JOINT TRAVEL REGULATIONS AND PARAGRAPH 7004 OF THE NAVY TRAVEL INSTRUCTIONS CONTEMPLATE A SITUATION WHERE PERMANENT CHANGE OF STATION ORDERS ARE ISSUED AND THE EFFECTIVE DATE IS EXTENDED BY LEAVE OR DELAY EN ROUTE (SEE PARAGRAPH 3003- 1B, JOINT TRAVEL REGULATIONS), OR TEMPORARY DUTY EN ROUTE IS DIRECTED AT SOME PLACE OTHER THAN THE NEW PERMANENT STATION. IN THOSE CASES THE MEMBER IS NOT REQUIRED TO TRAVEL TO THE NEW PERMANENT STATION UNTIL SOME TIME AFTER THE ORDERS DESIGNATING IT ARE ISSUED. IT FOLLOWS THAT IF HE SENDS HIS DEPENDENTS TO HIS NEW STATION BEFORE HE HIMSELF IS REQUIRED TO PROCEED TO IT HE DOES SO AT THE RISK THAT THE ORDERS WILL BE MODIFIED OR CANCELED BEFORE THE EFFECTIVE DATE. A DIFFERENT SITUATION EXISTS IN THE PRESENT CASE. THE ORDERS REQUIRED THE MEN TO PROCEED TO A TEMPORARY STATION ON OR BEFORE MAY 1, 1958, AND BY DISPATCH OF APRIL 29, 1958, RECEIVED APRIL 30, 1958, THE TEMPORARY STATION WAS DESIGNATED AS THE PERMANENT STATION. HENCE, WHEN THE MEN REACHED ARGENTIA THEY WERE AT THEIR PERMANENT STATION AND NO FURTHER TRAVEL WAS REQUIRED OF THEM. THESE CIRCUMSTANCES, IT MAY BE CONSIDERED THAT APRIL 30, 1958, WAS THE EFFECTIVE DATE OF THE CHANGE OF STATION ORDERS FOR THE PURPOSE OF ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS. B-137372 DATED FEBRUARY 24, 1959. THEREFORE (QUESTION 5), THE MEMBERS WERE ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE ON OR AFTER THAT DATE. IN THE EVENT THE DEPENDENTS TRAVELED TO ARGENTIA ON OR AFTER APRIL 30, 1958, AND THE ORDERS WERE CANCELED BEFORE AUGUST 1, 1958 (QUESTION 6), RETURN TRANSPORTATION OF DEPENDENTS WOULD BE AUTHORIZED.