B-143639, AUG. 25, 1960

B-143639, AUG. 25, 1960

TO SECOND LIEUTENANT DONALD H. NEFF:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 19, 1960, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 3, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD JULY 16 TO AUGUST 31, 1959, INCIDENT TO DUTY PERFORMED AT FORT BENJAMIN HARRISON, INDIANA.

BY ORDERS DATED FEBRUARY 13, 1959, YOU WERE ORDERED TO ACTIVE DUTY AT FORT BENJAMIN HARRISON TO ATTEND THE OFFICERS' BASIC COURSE, WHICH WAS DESIGNATED AS TEMPORARY DUTY PENDING FURTHER ORDERS. TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WERE NOT AUTHORIZED. SPECIAL ORDERS 176 DATED SEPTEMBER 1, 1959, AMENDED YOUR ORIGINAL ORDERS TO SHOW YOUR PERMANENT DUTY STATION AS FORT HAYES, OHIO, WITH TEMPORARY DUTY EN ROUTE TO ATTEND A COURSE OF INSTRUCTION AT FORT BENJAMIN HARRISON FOR APPROXIMATELY EIGHT WEEKS. YOU URGE THAT IF YOUR DUTY AT FORT BENJAMIN HARRISON WAS CONSIDERED DUTY PERFORMED AT A PERMANENT DUTY STATION, YOU ARE ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS AND TRAVEL OF DEPENDENTS FROM YOUR HOME OF RECORD TO FORT BENJAMIN HARRISON AND FROM FORT BENJAMIN HARRISON TO YOUR PRESENT DUTY STATION. IS YOUR CONTENTION THAT REGULATIONS HAVE BEEN VIOLATED AND YOU WERE ORDERED TO TWO PERMANENT DUTY STATIONS WITHIN THE SAME FISCAL YEAR AND REQUEST AN EXPLANATION.

AS YOU WERE ADVISED IN OUR SETTLEMENT DATED JUNE 3, 1960, SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, AUTHORIZES, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IN THE CASE OF CALIFANO V. UNITED STATES, CT.CL.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 HELD 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. SUCH WAS YOUR CASE AND UNTIL SEPTEMBER 1, 1959, WHEN YOUR ORDERS WERE AMENDED TO SHOW YOUR PERMANENT DUTY STATION AS FORT HAYES, OHIO, YOU HAD NO DUTY STATION OTHER THAN FORT BENJAMIN HARRISON AWAY FROM WHICH YOU COULD PERFORM TEMPORARY DUTY. CONSEQUENTLY, EVEN THOUGH YOU REMAINED ON TEMPORARY DUTY ASSIGNMENT THROUGH THE PERIOD IN QUESTION AT FORT BENJAMIN HARRISON THERE WAS NO AUTHORITY UNDER THE LAW FOR THE PAYMENT OF PER DIEM TO YOU NOR WERE YOU ENTITLED TO TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS TO AND FROM FORT BENJAMIN HARRISON, YOUR ORDERS SPECIFICALLY PROVIDING THAT SUCH TRAVEL AND TRANSPORTATION WAS NOT AUTHORIZED. ACCORDINGLY, THE SETTLEMENT DATED JUNE 3, 1960, IS SUSTAINED.