Skip to main content

B-138900, JANUARY 11, 1960, 39 COMP. GEN. 506

B-138900 Jan 11, 1960
Jump To:
Skip to Highlights

Highlights

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TEMPORARY DUTY - ORDERS FROM HOME TO TEMPORARY DUTY STATION - CALIFANO CASE PER DIEM PAYMENTS WHICH WERE MADE TO MEMBERS OF THE UNIFORMED SERVICES WHO WERE ORDERED TO ACTIVE DUTY FROM HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATED FURTHER ASSIGNMENT ON THE BASIS OF DECISIONS IN EFFECT PRIOR TO JUNE 19. WAS ACCEPTED AS PRECEDENT FOR CONSIDERING THAT SUCH MEMBERS WERE NOT IN A TRAVEL STATUS. - WILL NOT BE QUESTIONED IF MADE ADMINISTRATIVELY BEFORE OCTOBER 1. 1960: REFERENCE IS MADE TO LETTER OF SEPTEMBER 28. IT WAS POINTED OUT THAT IN THE CASE OF CALIFANO V. THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED.

View Decision

B-138900, JANUARY 11, 1960, 39 COMP. GEN. 506

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TEMPORARY DUTY - ORDERS FROM HOME TO TEMPORARY DUTY STATION - CALIFANO CASE PER DIEM PAYMENTS WHICH WERE MADE TO MEMBERS OF THE UNIFORMED SERVICES WHO WERE ORDERED TO ACTIVE DUTY FROM HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATED FURTHER ASSIGNMENT ON THE BASIS OF DECISIONS IN EFFECT PRIOR TO JUNE 19, 1959--- THE DATE OF 38 COMP. GEN. 849 IN WHICH THE HOLDING IN CALIFANO V. UNITED STATES, C.CLS. NO. 86-58, WAS ACCEPTED AS PRECEDENT FOR CONSIDERING THAT SUCH MEMBERS WERE NOT IN A TRAVEL STATUS--- WILL NOT BE QUESTIONED IF MADE ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, BUT THIS EXTENSION OF TIME FROM JULY 1, 1959, TO OCTOBER 1, 1959, IN THE APPLICATION OF THE DECISION MAY NOT BE CONSTRUED AS AUTHORIZING PER DIEM AFTER SEPTEMBER 30, 1959, FOR TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE. 38 COMP. GEN. 849, MODIFIED.

TO THE SECRETARY OF THE AIR FORCE, JANUARY 11, 1960:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 28, 1959, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 59-40, REQUESTING THAT THE APPLICATION OF OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, TO THE SECRETARY OF DEFENSE, BE DEFERRED UNTIL OCTOBER 1, 1959.

IN THE DECISION OF JUNE 19, 1959, IT WAS POINTED OUT THAT IN THE CASE OF CALIFANO V. UNITED STATES, C.1CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION, AND FURTHER ASSIGNMENT TO DUTY, DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME. WE STATED IN THE DECISION OF JUNE 19, 1959, THAT FROM THE DATE OF THAT DECISION WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN ANY CASE WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. WE STATED FURTHER IN THAT DECISION THAT "WHILE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT, WE WILL FOLLOW THE RULING IN THE CALIFANO CASE BEGINNING WITH THE DATE OF THIS DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, ON THE BASIS OF OUR PRIOR DECISIONS WILL NOT BE QUESTIONED, IF OTHERWISE PROPER.'

THE LETTER OF THE ASSISTANT SECRETARY IS IN PART AS FOLLOWS:

SINCE 1 JULY 1955, THE DEPARTMENT OF AIR FORCE HAS HAD IN EFFECT A PERSONAL ASSIGNMENT POLICY UNDER WHICH OFFICER AND ENLISTED MEMBERS ARE ORDERED FROM THEIR HOMES TO TEMPORARY DUTY PENDING FURTHER ORDERS ( TDYPFO) TO ATTEND A COURSE OF INSTRUCTION. UNDER THESE CIRCUMSTANCES MEMBERS WERE CONSIDERED TO BE IN A TEMPORARY DUTY STATUS AND ENTITLED TO RECEIVE PER DIEM ALLOWANCES FOR THE ENTIRE PERIOD OF THEIR TEMPORARY DUTY.

IN THE DEPARTMENT OF THE AIR FORCE APPROXIMATELY 1,500 MEMBERS ARE DIRECTLY AFFECTED BY DECISION B-138900. THE MEMBERS INVOLVED WERE CALLED FROM HOME AND DIRECTED TO ATTEND A COURSE OF INSTRUCTION IN A TDYPFO STATUS AND THE PERSONNEL ASSIGNMENTS WERE ACCOMPLISHED PRIOR TO THE DATE AND DISSEMINATION OF THE ABOVE DECISION. ALL OF THE MEMBERS AFFECTED HAVE COMPLETED OR WILL COMPLETE THEIR COURSES DURING THE MONTHS OF JULY, AUGUST, AND SEPTEMBER 1959. HOWEVER, PAYMENTS OF PER DIEM TO THESE MEMBERS WERE DISCONTINUED UPON RECEIPT OF THE DECISION BY ACCOUNTING AND FINANCE OFFICERS; ALTHOUGH PRIOR TO RECEIPT OF THE DECISION, ALL MEMBERS WERE PAID PER DIEM AFTER 1 JULY 1959.

THESE PAYMENTS WERE MADE AND ACCEPTED IN GOOD FAITH AND AT THE TIME OF PAYMENT WERE CONSISTENT WITH PRIOR DECISIONS OF YOUR OFFICE AND ESTABLISHED AIR FORCE POLICY. FOR THIS REASON, THE PERSONNEL AFFECTED WILL CONSIDER THEMSELVES "VICTIMS OF CIRCUMSTANCES" IN THAT THEY WILL BE DEPRIVED OF AN ENTITLEMENT WHICH THE DEPARTMENT OF AIR FORCE FULLY INTENDED THEM TO HAVE AND WHICH THEY BELIEVE IS RIGHTFULLY DUE THEM.

IN VIEW OF THE ABOVE, IT IS REQUESTED THAT THE APPLICATION OF THE DECISION B-138900, DATED 19 JUNE 1959 BE DEFERRED UNTIL 1 OCTOBER 1959.

IN VIEW OF THE CIRCUMSTANCES AS DESCRIBED IN THE LETTER OF THE ASSISTANT SECRETARY, THE CONCLUDING PARAGRAPH OF THE DECISION OF JUNE 19, 1959, IS CHANGED TO PROVIDE THAT PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, ON THE BASIS OF OUR PRIOR DECISIONS, WILL NOT BE QUESTIONED, IF OTHERWISE PROPER. SUCH CHANGE IN THE DECISION, HOWEVER, IS NOT TO BE CONSTRUED AS AUTHORIZING THE PAYMENT OF PER DIEM ADMINISTRATIVELY AFTER SEPTEMBER 30, 1959, COVERING PERIODS OF TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE.

OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, AS HEREIN MODIFIED, IS AFFIRMED.

THERE ARE ENCLOSED COPIES OF OUR LETTER OF TODAY TO THE SECRETARY OF THE NAVY AND THE SECRETARY OF THE ARMY CONCERNING THE MATTER HERE INVOLVED.

GAO Contacts

Office of Public Affairs