B-144712, MAR. 22, 1961

B-144712, MAR. 22, 1961

TO LIEUTENANT COMMANDER WILLIAM J. COWHILL:

YOUR LETTER OF DECEMBER 8, 1960, REQUESTS REVIEW OF OUR SETTLEMENT DATED DECEMBER 5, 1960, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD OCTOBER 21, 1959, TO FEBRUARY 29, 1960.

BY ORDERS DATED APRIL 17, 1959, YOU WERE DIRECTED TO PROCEED TO PITTSBURGH, PENNSYLVANIA, FOR TEMPORARY DUTY UNDER INSTRUCTION OF ABOUT FIVE WEEKS. THOSE ORDERS ALSO PROVIDED THAT UPON COMPLETION OF THE TEMPORARY DUTY INDICATED YOU WERE TO PROCEED TO PASCAGOULA, MISSISSIPPI, AND REPORT BY LETTER TO COMMANDANT, SIXTH NAVAL DISTRICT, FOR TEMPORARY DUTY IN CONNECTION WITH FITTING OUT THE U.S.S. SCULPIN (SSN 590) AT INGALLS SHIPBUILDING COMPANY, PASCAGOULA, AND TO OFFICER IN CHARGE, U.S.S. SCULPIN, FOR DUTY ON BOARD THAT VESSEL FROM TIME OF PROVISIONAL ACCEPTANCE INCLUDING PERIOD OF BUILDERS TRIALS.

THE RECORD SHOWS THAT FOLLOWING THE PERFORMANCE OF THE TEMPORARY DUTY AT PITTSBURGH YOU ARRIVED IN PASCAGOULA FOR DUTY ON JULY 20, 1959. PURSUANT TO BUREAU OF NAVAL PERSONNEL ORDER OF OCTOBER 12, 1959, YOU WERE DETACHED FROM TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. SCULPIN ON OCTOBER 21, 1959, AND ASSIGNED TO COMMANDANT SIXTH NAVAL DISTRICT FOR DUTY IN CONNECTION WITH FITTING OUT THE U.S.S. SCULPIN. BUREAU OF NAVAL PERSONNEL ORDER DATED OCTOBER 10, 1960, PURPORTS TO CANCEL THE ORDER OF OCTOBER 12, 1959 (ON THE GROUND THAT SUCH ORDER WAS ISSUED THROUGH ADMINISTRATIVE ERROR), AND PROVIDES FURTHER FOR YOUR DETACHMENT FROM THE RESULTING TEMPORARY DUTY ASSIGNMENT EFFECTIVE MARCH 1, 1960. THUS THE ORDER, IN EFFECT, ATTEMPTS TO EXTEND YOUR TEMPORARY DUTY STATUS FOR AN ADDITIONAL PERIOD OF MORE THAN FOUR MONTHS.

WITH YOUR LETTER YOU ENCLOSED A COPY OF PERSONNEL CONTROL MEMORANDUM NO. 53-59, DATED SEPTEMBER 10, 1959, SETTING FORTH PROCEDURES CONCERNING ASSIGNMENTS MADE IN CONNECTION WITH FITTING OUT OF SHIPS. THE MEMORANDUM STATES THAT WHEN AN OFFICER IS ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OF A SHIP AND IT IS EXPECTED THAT THE DURATION OF THE PERIOD INVOLVED BE MORE THAN SIX MONTHS, PERMANENT CHANGE OF STATION ORDERS WILL BE ISSUED TO THE APPROPRIATE SHORE ACTIVITY AND WILL NOT INCLUDE ASSIGNMENT TO THE ULTIMATE AFLOAT UNIT. WHEN THE COMMISSIONING DATE BECOMES FIRM, OR IN THE CASE OF NUCLEAR POWERED SHIPS, PRIOR TO PROVISIONAL ACCEPTANCE, A SECOND SET OF ORDERS WILL BE WRITTEN, DIRECTING PERMANENT CHANGE OF DUTY TO THE AFLOAT UNIT WHEN COMMISSIONED OR PROVISIONALLY ACCEPTED. THE MEMORANDUM FURTHER STATES THAT IN SITUATIONS WHERE THE EXPECTED DURATION OF THE TEMPORARY DUTY WILL BE SIX MONTHS ORLESS, ORDERS WILL SPECIFY TEMPORARY DUTY FOLLOWED BY PERMANENT ASSIGNMENT TO THE AFLOAT UNIT WHEN COMMISSIONED, OR IN THE CASE OF NUCLEAR POWERED SHIPS, WHEN PROVISIONALLY ACCEPTED, IN THE SAME SET OF ORDERS. ALSO, IT STATES THAT IF, DURING THIS TEMPORARY DUTY PERIOD, IT IS DETERMINED THAT SUCH TEMPORARY PERIOD WILL BE INCREASED TO SIX OR MORE REMAINING MONTHS FROM THE DATE OF SUCH DETERMINATION, AT THAT POINT PERMANENT CHANGE OF STATION ORDERS WILL BE ISSUED TO THE APPROPRIATE SHORE ACTIVITY. THE CONTENTION OF ERROR IN THE ISSUANCE OF THE ORDER OF OCTOBER 12, 1959, IS THAT IT WAS ISSUED ON THE BASIS OF AN IMPROPER CONSIDERATION THAT THEN EXISTING FACTS INDICATED THAT YOUR ASSIGNMENT ULTIMATELY WOULD EXCEED SIX MONTHS MEASURED FROM THE DATE OF REPORTING RATHER THAN FROM THE TIME OF THE CONSIDERATION AS REQUIRED BY THE PROCEDURES SET FORTH IN SUCH MEMORANDUM. NOTHING IN THE RECORD, HOWEVER, APPEARS TO SUPPORT THAT CONTENTION OR TO ESTABLISH THAT THE ORDER WAS NOT ISSUED UPON A DETERMINATION THAT THE TEMPORARY DUTY PERIOD HAD BEEN INCREASED TO SIX OR MORE MONTHS FROM THE DATE OF ITS ISSUANCE.

IT APPEARS TO BE YOUR VIEW THAT UNDER THE OFFICIAL POLICY SET FORTH IN THAT MEMORANDUM YOU WOULD HAVE BEEN CONTINUED ON TEMPORARY DUTY UNTIL MARCH 1, 1960. YOU CONTEND, THEREFORE, THAT SINCE THIS POLICY WAS PROMULGATED BEFORE YOUR ORDERS OF OCTOBER 12, 1959, WERE ISSUED, THOSE ORDERS DID NOT REFLECT ADMINISTRATIVE INTENT AND WERE ERRONEOUS. YOU URGE THAT THE INTENDED EFFECT OF THE ORDERS OF OCTOBER 10, 1960, SHOULD BE ACCEPTED, IT HAVING BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS ARE INCOMPLETE OR AMBIGUOUS ON THEIR FACE, OR WHERE A PROVISION WHICH WAS ORIGINALLY INTENDED TO BE INCLUDED IN TRAVEL ORDERS WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING SUCH ORDERS, THE ORDERS MAY BE CORRECTED OR COMPLETED TO SHOW THE ORIGINAL INTENT. IN THIS REGARD, YOUR ORDERS ARE COMPLETE AND UNAMBIGUOUS AND NO INTENDED PROVISION APPEARS TO HAVE BEEN OMITTED FROM THE ORDERS.

YOUR BASIC ORDERS OF APRIL 17, 1959, APPARENTLY WERE ISSUED ON THE ASSUMPTION THAT THE FITTING OUT PERIOD OF THE U.S.S. SCULPIN WOULD NOT BE OF PROLONGED DURATION. SUCH ASSUMPTION PROVED TO BE ERRONEOUS AND IN ACCORDANCE WITH THE POLICY ANNOUNCED IN PERSONNEL CONTROL MEMORANDUM NO. 53-59, ORDERS WERE ISSUED TERMINATING THE TEMPORARY ASSIGNMENT ON OCTOBER 21, 1959. WE FIND NOTHING IN SUCH MEMORANDUM WHICH INDICATES THAT ITS PURPOSE IS TO PROVIDE FOR AN EXTENSION OF PERIODS OF TEMPORARY DUTY FOR AN ADDITIONAL FIVE OR SIX MONTHS. ON THE CONTRARY, THE EVIDENT PURPOSE OF THE MEMORANDUM WAS TO PREVENT TEMPORARY DUTY ASSIGNMENTS IN THE SITUATIONS WITH WHICH IT WAS CONCERNED FROM EXCEEDING SIX MONTHS IN ANY CASE.

IN SUCH CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE ORDERS OF OCTOBER 12, 1959, DEFINITELY TERMINATED YOUR TEMPORARY DUTY ASSIGNMENT AND DESIGNATED PASCAGOULA, MISSISSIPPI, AS YOUR PERMANENT POST OF DUTY, AND THAT NO RIGHT TO PER DIEM ACCRUED FOR THE DUTY PERFORMED AFTER OCTOBER 21, 1959, WHEN YOU WERE DETACHED FROM SUCH ASSIGNMENT. THE ORDER OF OCTOBER 10, 1960, MAY NOT BE VIEWED AS CHANGING YOUR RIGHTS AND LIABILITIES AS FIXED BY YOUR ORDERS OF APRIL 17 AND OCTOBER 12, 1959.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 5, 1960, IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.