B-143981, NOV. 8, 1960

B-143981, NOV. 8, 1960

TO SECOND LIEUTENANT DONALD R. LETOURNEAU, MSC:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 25, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD APRIL 21 TO JUNE 18, 1959.

LETTER ORDERS DATED APRIL 8, 1958, DIRECTED YOU TO PROCEED FROM YOUR HOME IN FALL RIVER, MASSACHUSETTS, TO THE ARMY MEDICAL SERVICE SCHOOL, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION. THE ORDERS REQUITED YOU TO REPORT NOT LATER THAN APRIL 22, 1959, AND STATED THIS WAS TEMPORARY DUTY PENDING FURTHER ORDERS. IT APPEARS THAT YOU REPORTED AT THE BROOKE ARMY MEDICAL CENTER ON APRIL 20, 1959, AND REMAINED THERE UNTIL AUGUST 14, 1959.

YOUR CLAIM FOR PER DIEM FROM APRIL 21 TO JUNE 18, 1959, WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 25, 1960, IN WHICH THERE WAS CITED AS AUTHORITY CALIFANO V. UNITED STATES, CT.CL. NO. 86-58, DECIDED MARCH 4, 1959, AND OUR DECISION OF JUNE 19, 1959, B-138900, 38 COMP. GEN. 849. IN THAT DECISION WE STATED THAT WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION BUT THAT PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED IF OTHERWISE PROPER. IN YOUR PRESENT LETTER YOU ASK WHY IN THOSE CIRCUMSTANCES YOU WERE NOT NOTIFIED BEFORE THE CUTOFF DATE, JULY 1, 1959, HAD PASSED. APPARENTLY, YOU BELIEVE YOU SHOULD BE ALLOWED PER DIEM FOR THE PERIOD PRIOR TO JULY 1, 1959, SINCE OTHER PAYMENTS FOR THE SAME TYPE OF DUTY WERE APPROVED.

AS WE EXPLAINED IN OUR SETTLEMENT OF FEBRUARY 25, 1960, UNDER THE APPLICABLE STATUTES AND REGULATIONS, MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC BUSINESS. IN THE CASE OF CALIFANO V. UNITED STATES, SUPRA, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS COULD NOT 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 THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTH'S INDOCTRINATION (TEMPORARY DUTY) 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.

UPON CONSIDERATION OF THE DECISION IN THE CALIFANO CASE WE ADVISED THE SECRETARY OF DEFENSE IN THE DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, THAT FROM THE DATE OF THE DECISION WE WOULD FOLLOW THE RULING OF THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED 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. THE DECISION OF JUNE 19, 1959, INSOFAR AS HERE INVOLVED, WAS AFFIRMED BY DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, TO THE SECRETARY OF THE ARMY. WE FURTHER ADVISED THE SECRETARY THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION OF JUNE 19, 1959, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, OUR REASON FOR NOT QUESTIONING THOSE PAYMENTS BEING THAT THEY WERE BASED ON OUR DECISIONS REACHED PRIOR TO THE ISSUANCE OF THE DECISION OF JUNE 19, 1959. HENCE, THERE WAS A LEGAL BASIS TO SUPPORT THE PAYMENTS. HOWEVER, SINCE THOSE DECISIONS ARE NO LONGER IN EFFECT, AND SINCE YOU WERE NOT IN A TRAVEL STATUS FOR PER DIEM PURPOSES UNDER THE ORDERS OF APRIL 8, 1958, BY REASON OF THE RULING IN THE CALIFANO CASE, YOU WERE NOT CONSIDERED AS ENTITLED TO THE PER DIEM CLAIMED, AND CONSEQUENTLY WE HAD NO LEGAL BASIS TO ALLOW YOU THE PER DIEM UP TO THE CUTOFF DATE.

WITH YOUR LETTER YOU ENCLOSED A COPY OF PERMANENT CHANGE OF STATION ORDERS DATED JUNE 9, 1959, WHICH RELEASED YOU FROM YOUR DUTY ASSIGNMENT AT FORT SAM HOUSTON, TEXAS, UPON COMPLETION OF YOUR COURSE OF INSTRUCTION AND DIRECTED THAT YOU THEN PROCEED TO FORT DEVENS, MASSACHUSETTS, FOR DUTY. YOU STATE THAT A FELLOW OFFICER WHO WAS ON THE SAME SET OF ORDERS AS YOU HAD RESUBMITTED HIS CLAIM AND WAS PAID THE SUM OF $240 REPRESENTING PER DIEM FROM THE TIME THE ORDERS OF JUNE 9, 1959, WERE CUT UNTIL HIS DEPARTURE FROM FORT SAM HOUSTON, TEXAS.

IT APPEARS THAT YOU HAVE REFERENCE TO THE SETTLEMENT MADE BY OUR OFFICE TO LIEUTENANT GEORGE S. TOSATTI FOR PER DIEM FOR TEMPORARY DUTY AT FORT SAM HOUSTON FOR THE PERIOD JUNE 15 TO AUGUST 13, 1959, BASED ON THE ORDERS OF JUNE 9, 1959, ASSIGNING FORT HOOD, TEXAS, AS HIS PERMANENT DUTY STATION. LIEUTENANT TOSATTI HAD CERTIFIED THAT HE RECEIVED THE AMENDING ORDERS ON JUNE 15, 1959. THE SETTLEMENT WAS MADE PURSUANT TO OUR DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 507, AUTHORIZING PAYMENT OF PER DIEM IN SUCH CASES AFTER RECEIPT BY THE MEMBER OF ORDERS IN EFFECT AMENDING ORDERS SUCH AS YOURS OF APRIL 8, 1958, TO DESIGNATE A PERMANENT DUTY STATION PRIOR TO THE COMPLETION OF THE TEMPORARY DUTY, TO WHICH HE IS TO PROCEED UPON ITS COMPLETION.

WE WILL CONSIDER YOUR PRESENT LETTER AS PRESENTING A SIMILAR CLAIM FOR PER DIEM UNDER THE ORDERS OF JUNE 9, 1959, FOR THE PERIOD JUNE 15 TO AUGUST 14, 1959, THE DATE OF YOUR DEPARTURE FROM FORT SAM HOUSTON, TEXAS, ON THE ASSUMPTION THAT SUCH ORDERS WERE RECEIVED BY YOU ON JUNE 15 AS HAPPENED IN THE CASE OF LIEUTENANT TOSATTI. ACCORDINGLY, SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE CORRECT AMOUNT FOUND TO BE DUE ON THAT BASIS.