B-148084, MAR. 23, 1962

B-148084, MAR. 23, 1962

TO CHIEF WARRANT OFFICER JAMES A. MCQUAIG, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1961, WITH ENCLOSURE, REQUESTING THAT YOU BE RELIEVED OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $901.80 ARISING FROM ERRONEOUS PAYMENTS OF PER DIEM MADE TO YOU FOR THE PERIOD MAY 1, 1954, TO AUGUST 22, 1954.

THE RECORD SHOWS THAT PARAGRAPH 7, SPECIAL ORDERS NO. 105, ISSUED ON MAY 12, 1954, BY HEADQUARTERS, SAFETY ADVISORY GROUP, JAPAN, 8065TH ARMY UNIT, APO 500, CONFIRMING VERBAL ORDERS OF THE COMMANDING GENERAL OF MAY 1, 1954, RELEASED YOU FROM ASSIGNED DUTY STATION, CAMP NORTH KOGA, HONSHU, JAPAN, AND PLACED YOU ON TEMPORARY DUTY AT THE SAME STATION FOR APPROXIMATELY 31 DAYS BEGINNING MAY 1, 1954. SUBSEQUENT ORDERS ISSUED BY THE SAME HEADQUARTERS CONTINUED YOUR TEMPORARY DUTY ASSIGNMENT AT THE SAME STATION THROUGH AUGUST 22, 1954.

YOU SAY THAT YOUR DUTY STATION AT NORTH KOGA, JAPAN, DID NOT HAVE GOVERNMENT QUARTERS OR MESSING FACILITIES; THAT YOU WERE OBLIGED TO RENT QUARTERS AND PURCHASE MEALS, AND THAT THE INTENT OF THE ORDERS ISSUED BY HEADQUARTERS, SAFETY ADVISORY GROUP, JAPAN, WAS TO PAY YOU PER DIEM TO COMPENSATE YOU FOR THE ADDED EXPENSES ENCOUNTERED AT YOUR DUTY STATION. ALSO, YOU SAY THAT BY LETTER DATED JANUARY 11, 1960, YOU REQUESTED MILITARY ADVISORY ASSISTANCE GROUP, JAPAN, FOR INFORMATION AS TO WHETHER PARAGRAPH 7 OF THE ORDERS OF MAY 12, 1954, HAD BEEN REVOKED, RESCINDED OR MODIFIED TO DELETE THE REFERENCE TO CAMP NORTH KOGA AS YOUR PERMANENT STATION, BUT HAVE RECEIVED NO REPLY. ON THAT BASIS YOU URGE THAT COLLECTION OF $901.80 FROM YOU WOULD BE UNJUST, AND REQUEST RELIEF FROM THE INDEBTEDNESS.

AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS SHALL BE 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, ON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. IN CONSONANCE WITH THIS BASIC REQUIREMENT THAT A TRAVEL STATUS IS NECESSARY TO ENTITLEMENT TO TRAVEL ALLOWANCES, PARAGRAPH 4250-6 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED SPECIFICALLY PROVIDES THAT PER DIEM IS NOT AUTHORIZED FOR TEMPORARY DUTY AT A PERMANENT DUTY STATION.

CAMP NORTH KOGA WAS CLEARLY REFERRED TO IN YOUR ORDERS AS YOUR PERMANENT STATION AND THEREFORE YOU WERE NOT IN A TRAVEL STATUS AWAY FROM YOUR PERMANENT STATION AND ORDERS PURPORTING TO PLACE YOU ON TEMPORARY DUTY AT THE SAME STATION WERE OF NO EFFECT SO FAR AS AUTHORIZING PER DIEM IS CONCERNED. SINCE YOUR ORDERS CLEARLY REFERRED TO CAMP NORTH KOGA AS YOUR STATION AND SINCE YOU PERFORMED DUTY UNDER THOSE ORDERS, IT DOES NOT APPEAR THAT THEY PROPERLY COULD HAVE BEEN MODIFIED SUBSEQUENTLY TO ESTABLISH THAT YOUR STATION WAS ELSEWHERE AND THAT YOU WERE ON TEMPORARY DUTY AWAY FROM YOUR STATION WHILE CONTINUING TO SERVE AT CAMP NORTH KOGA. ON THE PRESENT RECORD WE HAVE NO CHOICE OTHER THAN TO CONCLUDE THAT YOU WERE NOT ENTITLED TO THE PER DIEM PAYMENTS MADE TO YOU IN THE SUM OF $901.80 FOR THE PERIOD MAY 1, 1954, TO AUGUST 22, 1954, WHICH RESULTED IN YOUR INDEBTEDNESS TO THE UNITED STATES.

WE ARE REQUIRED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE PROVISIONS OF LAW AND REGULATIONS. WHILE IT IS UNFORTUNATE THAT YOU WERE ERRONEOUSLY PAID PER DIEM DURING THE PERIOD INVOLVED, WE HAVE NO AUTHORITY TO CANCEL OR WAIVE YOUR INDEBTEDNESS TO UNITED STATES. THE ERRONEOUS PAYMENTS YOU RECEIVED WERE SIMILAR TO THOSE RECEIVED BY MAJOR JAMES P. HUBBARD WHO ALSO WAS ASSIGNED TO TEMPORARY DUTY AT CAMP NORTH KOGA, JAPAN, HIS PERMANENT STATION. A COPY OF OUR DECISION OF MARCH 6, 1959, B-138182, CONCERNING HIS INDEBTEDNESS IS ENCLOSED FOR YOUR INFORMATION.