B-146047, JUN. 27, 1961

B-146047, JUN. 27, 1961

TO MR. BENJAMIN P. MYRICK, III:

YOUR LETTER RECEIVED MAY 22, 1961, REQUESTS REVIEW OF THE SETTLEMENT OF APRIL 5, 1961, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY FOR THE PERIODS JULY 28 TO OCTOBER 14, 1956, AND OCTOBER 18 TO DECEMBER 22, 1956, WHILE SERVING IN THE UNITED STATES AIR FORCE.

THE RECORD SHOWS THAT YOU ENLISTED ON APRIL 4, 1956, AT LACKLAND AIR FORCE BASE, TEXAS, WHERE BY PARAGRAPH 117, SPECIAL ORDERS NO. 133, DATED JULY 10, 1956, YOU WERE ORDERED TO FRANCIS E. WARREN AIR FORCE BASE, WYOMING, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION BEGINNING JULY 28, 1956. PARAGRAPH 40, SPECIAL ORDERS NO. 228, DATED OCTOBER 12, 1956, TRANSFERRED YOU TO SCOTT AIR FORCE BASE, ILLINOIS, TO ATTEND AN ADDITIONAL COURSE OF INSTRUCTION. ON DECEMBER 11, 1959, YOU SUBMITTED A VOUCHER FOR PER DIEM FOR TEMPORARY DUTY WHILE ATTENDING THESE SCHOOLS BETWEEN JULY 27 AND DECEMBER 22, 1956, AND IN JANUARY 1960 YOU WERE PAID $144. UPON YOUR DISCHARGE, APRIL 3, 1960, IT WAS REALIZED THAT THE PAYMENT WAS ERRONEOUS AND IT WAS CHARGED TO YOUR ACCOUNT. SINCE INSUFFICIENT CREDITS WERE AVAILABLE IN YOUR ACCOUNT TO COVER THE CHARGES YOU WERE ADVISED BY THE DEPARTMENT OF THE AIR FORCE ON AN INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $108.72. THE RECORD SHOWS THAT THIS SUM IS STILL OWING TO THE UNITED STATES. HOWEVER, BY LETTER OF FEBRUARY 24, 1961, YOU FILED A CLAIM FOR $144 WHICH WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE BASED ON THE DECISION OF THE COURT OF CLAIMS IN A SIMILAR CASE, CALIFANO V. UNITED STATES, CT.CL.NO. 86-58, DECIDED MARCH 4, 1959. IN YOUR PRESENT LETTER YOU REQUEST A FURTHER EXPLANATION AND IN EFFECT ASK ON WHAT BASIS THE ORIGINAL PAYMENT WAS MADE IN YOUR CASE.

IN THE CALIFANO CASE 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. BY DECISION B-138900 OF JUNE 19, 1959 (38 COMP. GEN. 849), COPY ENCLOSED. WE ADVISED THE SECRETARY OF DEFENSE THAT FROM THE DATE OF THE THE COURT'S DECISION WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN ANY CASE WHERE THE 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. WE FURTHER STATED IN THAT DECISION THAT WE WOULD NOT OBJECT TO ADMINISTRATIVE PAYMENTS MADE PRIOR TO JULY 1, 1959, ON THE BASIS OF PRIOR DECISIONS. THAT CUT-OFF DATE LATER WAS EXTENDED TO OCTOBER 1, 1959, BY DECISION B-138900 DATED JANUARY 11, 1960 (39 COMP. GEN. 506), COPY ENCLOSED.

APPARENTLY PER DIEM WAS PAID TO YOU AS THE RESULT OF A MISUNDERSTANDING OF THE CALIFANO CASE IN THE AIR FORCE. HOWEVER, SINCE YOU WERE ASSIGNED TO SCHOOLS AFTER ENTRY INTO THE SERVICE AND HAD NO PERMANENT STATION DURING THE DUTY THERE INVOLVED OTHER THAN THE SCHOOLS TO WHICH YOU WERE ASSIGNED, YOU CLEARLY WERE NOT ENTITLED TO PER DIEM UNDER THE RULING IN THE CALIFANO CASE. THEREFORE, THERE WAS NO AUTHORITY FOR THE PAYMENT BY THE AIR FORCE AFTER OCTOBER 1, 1959, AND YOUR CLAIM MAY NOT NOW BE PAID BY THIS OFFICE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 5, 1961, WAS CORRECT AND IS SUSTAINED. SINCE THE MATTER OF YOUR INDEBTEDNESS IN THE AMOUNT OF $108.72 HAS NOW BEEN REPORTED TO US BY THE DEPARTMENT OF THE AIR FORCE FOR COLLECTION, SUCH AMOUNT SHOULD BE FORWARDED TO OUR CLAIMS DIVISION BY CHECK OR BANK DRAFT MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE.'