B-140973, JAN. 26, 1960

B-140973, JAN. 26, 1960

TO LIEUTENANT (JG) W. J. WARFEL, USNR:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 30, 1959, AND JANUARY 8, 1960, WITH ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 18, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM MARCH 7 TO JUNE 30, 1957, WHILE YOU WERE PERFORMING DUTY UNDER INSTRUCTION AT NEWPORT, RHODE ISLAND.

THE RECORD SHOWS THAT ON OCTOBER 4, 1956, YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE AS AN AIRMAN RECRUIT; THAT YOU WERE IMMEDIATELY ORDERED TO ACTIVE DUTY AT THE U.S. NAVAL AIR RESERVE FACILITY, BIRMINGHAM, ALABAMA; THAT ON NOVEMBER 8, 1956, YOU WERE TRANSFERRED FROM THAT PLACE TO THE U.S. NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, FOR RECRUIT TRAINING; AND THAT ON FEBRUARY 9, 1957, YOUR RATING WAS CHANGED FROM AIRMAN RECRUIT TO AIRMAN APPRENTICE. BY ORDERS PREPARED MARCH 4, 1957, YOU WERE DIRECTED TO PROCEED FROM THE U.S. NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, TO THE U.S. NAVAL SCHOOLS COMMAND, NEWPORT, RHODE ISLAND, FOR FOUR MONTHS' DUTY UNDER INSTRUCTION UPON THE COMPLETION OF WHICH YOU WERE TO BE APPOINTED AN ENSIGN IN THE UNITED STATES NAVAL RESERVE. YOU REPORTED AT NEWPORT, RHODE ISLAND, ON MARCH 6, 1957. THE COURSE OF INSTRUCTION THERE WAS SCHEDULED FOR APPROXIMATELY 16 WEEKS. ORDERS OF JUNE 5, 1957, ADDRESSED TO YOU AS ENSIGN, YOU WERE DIRECTED, UPON GRADUATION AND ACCEPTANCE OF APPOINTMENT IN THE UNITED STATES NAVAL RESERVE, TO REPORT IMMEDIATELY TO YOUR COMMANDING OFFICER FOR TEMPORARY DUTY FOR A PERIOD OF ABOUT TWO DAYS. SUCH ORDERS FURTHER STATED THAT UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED, YOU WERE TO PROCEED TO ATHENS, GEORGIA, FOR DUTY UNDER INSTRUCTION. ENDORSEMENTS ON THESE ORDERS SHOW THAT YOU WERE DETACHED AT NEWPORT, RHODE ISLAND, ON JULY 2, 1957, AND THAT YOU REPORTED FOR DUTY UNDER INSTRUCTION AT ATHENS ON JULY 8, 1957. GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO YOU DURING THE PERIOD YOU WERE AT NEWPORT. YOUR CLAIM FOR PER DIEM AT THE RATE OF $1 PER DAY COVERING THE PERIOD FROM MARCH 7 TO JUNE 30, 1957, WAS DISALLOWED BY OUR SETTLEMENT DATED SEPTEMBER 18, 1959, FOR THE REASON THAT YOU WERE NOT IN A TEMPORARY DUTY STATUS ENTITLING YOU TO PER DIEM DURING THE PERIOD INVOLVED.

IN YOUR LETTER OF SEPTEMBER 30, 1959, YOU SAY IN EFFECT THAT WHILE THE ORDERS ASSIGNING YOU TO OFFICER CANDIDATE SCHOOL AT NEWPORT, RHODE ISLAND, DID NOT DESIGNATE A FURTHER PERMANENT DUTY STATION TO WHICH YOU WERE TO REPORT UPON COMPLETION OF YOUR DUTY UNDER INSTRUCTION THERE, THE INTENT WAS TO ASSIGN YOU ELSEWHERE WHEN YOU GRADUATED AND ACCEPTED A COMMISSION; AND THAT SINCE THE DUTY AT NEWPORT WAS FOR LESS THAN 20 WEEKS, IT SHOULD BE CONSIDERED AS TEMPORARY DUTY. ON SUCH BASIS YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, 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 UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

IN THE CASE OF CALIFANO V. UNITED STATES, C.CLS. 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.

IN OUR DECISION OF JANUARY 11, 1960, B-138900, TO THE SECRETARY OF THE NAVY, COPY ENCLOSED, IT WAS STATED THAT A MEMBER WHO IS ORDERED TO ACTIVE DUTY FROM HIS HOME, ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT, MAY NOT BE CONSIDERED FOR THE PERIODS OF SUCH TEMPORARY DUTY AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE APPLICABLE PROVISIONS OF THE STATUTE AND REGULATIONS SO AS TO BE ENTITLED TO PER DIEM. IN SUCH CIRCUMSTANCES, AND IRRESPECTIVE OF ANY EARLIER TEMPORARY DUTY PERFORMED AT ANOTHER PLACE, THE PLACE AT WHICH HE IS CURRENTLY PERFORMING TEMPORARY DUTY CONSTITUTES HIS ONLY DESIGNATED POST OF DUTY AND, HENCE, WHILE SO SERVING, HE WOULD NOT BE TRAVELING AWAY FROM A PERMANENT STATION.

FOR THE REASONS STATED IN THE DECISIONS CITED ABOVE AND SINCE IT APPEARS THAT YOU HAD ONLY TEMPORARY ASSIGNMENTS PRIOR TO REPORTING AT THE OFFICER CANDIDATE SCHOOL AT NEWPORT, RHODE ISLAND, IT MUST BE CONCLUDED THAT DURING THE PERIOD FROM MARCH 7 TO JUNE 30, 1959, WHILE YOU WERE PERFORMING DUTY AT THAT SCHOOL, YOU WERE NOT IN A STATUS ENTITLING YOU TO PER DIEM.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF SEPTEMBER 18, 1959, IS SUSTAINED.

THE COPY OF ORDERS PREPARED MARCH 4, 1957, AND ORIGINAL ORDERS DATED JUNE 5, 1957, WITH RELATED PAPERS, ARE RETURNED HEREWITH.