B-150262, JAN. 15, 1963

B-150262, JAN. 15, 1963

TO SECOND LIEUTENANT CHARLES W. MORGAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1962, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 20, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD OCTOBER 18 TO DECEMBER 3, 1961, OR DISLOCATION ALLOWANCE, INCIDENT TO ORDERS DATED SEPTEMBER 28 AND DECEMBER 4, 1961.

BY LETTER ORDER A-09-449, DATED SEPTEMBER 28, 1961, YOU WERE ORDERED TO ACTIVE DUTY FROM YOUR HOME, PENN YAN, NEW YORK, AND ASSIGNED TO THE U.S. ARMY TRANSPORTATION TRAINING COMMAND, FORT EUSTIS, VIRGINIA, WITH TEMPORARY DUTY FOR APPROXIMATELY 8 WEEKS AT THE ARMY TRANSPORTATION SCHOOL AT FORT EUSTIS, REPORTING NOT LATER THAN OCTOBER 17, 1961, TO ATTEND THE TRANSPORTATION OFFICERS ORIENTATION COURSE. THE ORDERS STATED THAT ENTITLEMENT TO REIMBURSEMENT FOR MOVEMENT OF HOUSEHOLD GOODS AND DEPENDENT TRAVEL WOULD NOT ACCRUE UNTIL COMPLETION OF TEMPORARY DUTY, CITING PARAGRAPH 3003-1B, JOINT TRAVEL REGULATIONS. THAT PARAGRAPH PROVIDES IN SUBPARAGRAPH 2 THAT WHEN ORDERS INVOLVE TEMPORARY DUTY AT ONE OR MORE PLACES EN ROUTE TO A PERMANENT DUTY STATION THE EFFECTIVE DATE, FOR THE PURPOSE OF DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS, IS THE DATE OF RELIEF FROM THE LAST TEMPORARY DUTY STATION, PLUS AUTHORIZED LEAVE, DELAY OR ADDITIONAL TRAVEL TIME. YOU REPORTED FOR THE TEMPORARY DUTY, AND BY PARAGRAPH 98, SPECIAL ORDERS NO. 298, DATED DECEMBER 4, 1961, YOU WERE TRANSFERRED TO FORT ORD, CALIFORNIA, FOR DUTY EFFECTIVE UPON COMPLETION OF THE TEMPORARY DUTY AT FORT EUSTIS. FOLLOWING RECEIPT OF THE LATTER ORDERS YOU WERE PAID PER DIEM FOR TEMPORARY DUTY AT FORT EUSTIS FROM DECEMBER 4 TO 19, 1961. APPARENTLY YOUR WIFE TRAVELED FROM PENN YAN TO FORT ORD INCIDENT TO THE ORDERS OF DECEMBER 4, 1961. SINCE HER TRAVEL TO FORT EUSTIS WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE, YOU CONTENDED THAT YOU WERE ENTITLED EITHER TO PER DIEM FOR TEMPORARY DUTY AT FORT EUSTIS FROM OCTOBER 18 TO DECEMBER 3, 1961, OR TO A DISLOCATION ALLOWANCE INCIDENT TO THE RELOCATION OF YOUR HOUSEHOLD TO FORT ORD.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE, IT BEING STATED THEREIN THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE FOR THE REASON THAT PARAGRAPH 9003-3 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL FROM HOME TO FIRST PERMANENT DUTY STATION UPON CALL TO ACTIVE DUTY, AND THAT "IT HAS BEEN HELD THAT A MEMBER IS NOT ENTITLED TO PER DIEM ALLOWANCE FOR TEMPORARY DUTY PERFORMED AT THE PLACE DESIGNATED TO BECOME HIS PERMANENT DUTY STATION.' IN YOUR PRESENT LETTER YOU AGREE THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE SINCE THE TRAVEL OF YOUR DEPENDENT WAS FROM YOUR HOME TO YOUR FIRST PERMANENT DUTY STATION. HOWEVER, YOU QUESTION THE QUOTED STATEMENT RELATING TO PER DIEM SINCE FORT EUSTIS DID NOT ACTUALLY BECOME YOUR PERMANENT STATION, AND SINCE YOU WERE NOT ENTITLED TO MOVE YOUR HOUSEHOLD THERE AND WERE REQUIRED TO MAINTAIN TWO HOMES WHILE ON TEMPORARY DUTY.

THE QUESTION OF WHETHER A DUTY ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT AND AS SUCH IT IS NOT DETERMINABLE SOLELY BY THE PRESENCE IN ORDERS OF WORDS GENERALLY USED TO DENOTE A PERMANENT CHANGE OF STATION, BUT MUST BE RESOLVED FROM SUCH FACTORS AS THE NATURE AND DURATION OF THE DUTY INVOLVED. IT SEEMS CLEAR THAT THE ONLY DUTY REQUIRED OR INTENDED BY THE ORDERS OF SEPTEMBER 28, 1961, WAS YOUR ATTENDANCE AT A COURSE OF INSTRUCTION AT FORT EUSTIS FOR A PERIOD OF APPROXIMATELY EIGHT WEEKS, THAT YOU PERFORMED NO OTHER DUTY THERE AND THAT THE PLACE AND NATURE OF YOUR DUTY ASSIGNMENT THEREAFTER WAS TO BE DETERMINED ON A LATER DATE. THAT FORT EUSTIS WAS NOT INTENDED TO BE YOUR PERMANENT STATION IS FURTHER SUBSTANTIATED BY THE FACT THAT BY SPECIAL ORDERS NO. 298, DATED DECEMBER 4, 1961, YOU, ALONG WITH OTHER OFFICERS WHO WERE ATTENDING THE SCHOOL UNDER ORDERS CONTAINING LANGUAGE SIMILAR TO YOURS, WERE FURTHER ASSIGNED TO VARIOUS COMMANDS IN THE CONTINENTAL UNITED STATES FOR PERMANENT DUTY UPON COMPLETION OF THE COURSE OF INSTRUCTION. UNDER SUCH CIRCUMSTANCES AND IN THE ABSENCE OF ANY EVIDENCE SHOWING THAT IT WAS ADMINISTRATIVELY INTENDED FOR YOU TO REMAIN AT FORT EUSTIS UPON COMPLETION OF THE COURSE OF INSTRUCTION AS A PART OF THE PERMANENT PARTY PERSONNEL OF THAT STATION, IT MUST BE CONSIDERED THAT SUCH STATION WAS ONLY A TEMPORARY STATION. THUS, FORT ORD BECAME YOUR FIRST PERMANENT STATION AND UNDER THE CONTROLLING REGULATIONS YOU ARE NOT ENTITLED TO A DISLOCATION ALLOWANCE INCIDENT TO TRAVEL OF YOUR DEPENDENTS FROM YOUR HOME TO THAT STATION.

ENTITLEMENT TO PER DIEM UNDER THE PERTINENT STATUTE, 37 U.S.C. 404, IS DEPENDENT UPON A MEMBER BEING IN A TRAVEL STATUS "AWAY FROM HIS DESIGNATED POST OF DUTY.' PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS AND THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THE PERMANENT STATION UPON PUBLIC BUSINESS PURSUANT TO COMPETENT ORDERS. IN THE CASE OF CALIFANO V. UNITED STATES, 145 CT.CL. 245, 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 PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO HIS 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. THUS, UNDER THE COURT'S DECISION YOU WERE NOT IN A TRAVEL STATUS AT FORT EUSTIS UNTIL FORT ORD WAS DESIGNATED AS YOUR PERMANENT STATION. IT IS FOR THIS REASON THAT YOU DID NOT BECOME ENTITLED TO PER DIEM AT FORT EUSTIS UNTIL YOU RECEIVED THE ORDERS ASSIGNING YOU TO FORT ORD. THE SENTENCE WHICH YOU QUOTE FROM THE SETTLEMENT WOULD APPLY ONLY IF FORT EUSTIS WERE YOUR PERMANENT STATION. SEE 34 COMP. GEN. 427, 37 COMP. GEN. 669, AND PARAGRAPH 4209, JOINT TRAVEL REGULATIONS.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF PER DIEM FOR THE PERIOD CLAIMED NOTWITHSTANDING THAT YOU WERE NOT AUTHORIZED TO MOVE YOUR DEPENDENTS OR HOUSEHOLD EFFECTS TO FORT EUSTIS AND THAT YOU NECESSARILY HAD TO MAINTAIN TWO HOUSEHOLDS DURING THE PERIOD OF TEMPORARY DUTY. ACCORDINGLY, THE SETTLEMENT OF AUGUST 20, 1962, IS SUSTAINED.