B-150326, DEC. 27, 1962

B-150326, DEC. 27, 1962

TO MR. LEON E. SHARPE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1962, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED NOVEMBER 8, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD JULY 9 THROUGH 31, 1960, AS PRIVATE FIRST CLASS, ARMY OF THE UNITED STATES.

THE RECORD INDICATES THAT YOU WERE INDUCTED INTO THE ARMY ON APRIL 20, 1960, AND THAT BY PARAGRAPH 242, SPECIAL ORDERS NO. 116, HEADQUARTERS, U.S. ARMY PERSONNEL CENTER FORT DIX, FORT DIX, NEW JERSEY, DATED APRIL 25, 1960, YOU WERE RELIEVED FROM ASSIGNMENT "PIPELINE" AT THAT STATION AND REASSIGNED TO THE 2ND ARMORED DIVISION, FORT HOOD, TEXAS, FOR BASIC COMBAT TRAINING. THE ORDERS STATED IT WAS A PERMANENT CHANGE OF STATION. PARAGRAPH 50, SPECIAL ORDERS NO. 134, HEADQUARTERS 2ND ARMORED DIVISION, FORT HOOD, TEXAS, DATED JUNE 3, 1960, AS AMENDED BY PARAGRAPH 21, SPECIAL ORDERS NO. 137, DATED JUNE 6, 1960, YOU WERE RELIEVED FROM ASSIGNMENT AT FORT HOOD AS A TRAINEE AND ASSIGNED TO THE UNITED STATES ARMY MEDICAL SERVICE MEAT AND DAIRY HYGIENE SCHOOL, CHICAGO, ILLINOIS, FOR AN ADVANCED INDIVIDUAL TRAINING COURSE. THE ORDERS ALSO STATED IT INVOLVED A PERMANENT CHANGE OF STATION. BY SPECIAL ORDERS NO. 53, U.S. ARMY MEDICAL SERVICE MEAT AND DAIRY HYGIENE SCHOOL, CHICAGO, ILLINOIS, DATED AUGUST 9, 1960, YOU WERE RELIEVED FROM ASSIGNMENT AS A STUDENT AT THAT SCHOOL AND ASSIGNED TO THE USATC, ENGR (5017) AT FORT LEONARD WOOD, MISSOURI, FOR TRAINING. THESE ORDERS ALSO INVOLVED A PERMANENT CHANGE OF STATION. THE RECORD SHOWS FURTHER THAT YOU WERE PAID PER DIEM AT $6 ON THE BASIS THAT GOVERNMENT MESS WAS NOT AVAILABLE FOR THE PERIOD JULY 9 TO 31, 1960, FOR A TOTAL OF $138. THIS AMOUNT WAS SUBSEQUENTLY COLLECTED FROM YOU BY THE ADMINISTRATIVE OFFICE FOR THE REASON THAT YOU WERE ASSIGNED ON PERMANENT CHANGE OF STATION AT THE USAMSMADHS, CHICAGO, ILLINOIS, FOR THE PURPOSE OF ATTENDING A TRAINING COURSE AND THE ORDERS DID NOT DESIGNATE A PERMANENT STATION TO PROCEED TO UPON COMPLETION OF THE COURSE. YOU WERE THEREFORE NOT IN A TRAVEL STATUS AS TO BE ENTITLED TO PER DIEM.

YOU CLAIM FOR REFUND OF THE PER DIEM FOR THE PERIOD JULY 9 TO 31, 1960, WAS DISALLOWED BY OUR OFFICE BY SETTLEMENT DATED NOVEMBER 8, 1962, FOR THE REASON THAT WHERE A MEMBER IS INDUCTED FROM HIS HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT UPON COMPLETION OF THE DUTY, SUCH STATION IS REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY FOR WHICH PER DIEM ALLOWANCES ARE NOT PAYABLE. IN YOUR LETTER OF NOVEMBER 9, 1962, YOU STATE THAT WHILE ATTENDING THE MEAT AND DAIRY HYGIENE SCHOOL, NO SUBSISTENCE WAS PROVIDED AND THAT THE REASON YOU WERE PAID PER DIEM.

PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, AUTHORIZES PAYMENT OF PER DIEM ONLY FOR PERIODS A MEMBER IS IN A TRAVEL STATUS AWAY FROM HIS PERMANENT DUTY STATION. PARAGRAPH 1150-10 DEFINES A PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH 4201-12 PROVIDES THAT NEWLY INDUCTED OR ENLISTED MEMBERS WHO PRIOR TO REPORTING TO THEIR FIRST DUTY STATION ARE PARTICIPATING IN PERIODS OF BASIC TRAINING, PROCESSING, INDOCTRINATION OR INSTRUCTION AT PLACES WHERE BOTH GOVERNMENT QUARTERS AND SUBSISTENCE ARE AVAILABLE ARE NOT ENTITLED TO PER DIEM. PARAGRAPH 4201-13 OF THE REGULATIONS, EFFECTIVE AUGUST 1, 1960, PROVIDES THAT A MEMBER ORDERED TO ACTIVE DUTY AND ASSIGNED TEMPORARY DUTY UNDER ORDERS WHICH DO NOT DESIGNATE A SPECIFIC PERMANENT DUTY STATION TO WHICH THE MEMBER IS TO PROCEED UPON COMPLETION OF THE TEMPORARY DUTY, IS NOT ENTITLED TO PER DIEM FOR SUCH PERIODS OF TEMPORARY DUTY.

THE QUESTION OF WHETHER AN ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED NOT ONLY FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE BUT, WHERE NECESSARY, FROM ANY COMPETENT EVIDENCE AS TO THE CHARACTER OF THE ASSIGNMENT. THE MERE DESIGNATION IN AN ORDER THAT THE TRAVEL IS IN CONNECTION WITH A PERMANENT CHANGE OF STATION DOES NOT NECESSARILY MAKE THE STATION TO WHICH THE MEMBER IS ASSIGNED HIS PERMANENT DUTY STATION. IN ISSUING PARAGRAPH 4201-12 OF THE JOINT TRAVEL REGULATIONS, THERE APPEARS TO HAVE BEEN THE ADMINISTRATIVE INTENT TO PROHIBIT THE PAYMENT OF PER DIEM TO NEWLY INDUCTED OR ENLISTED MEMBERS DURING PERIODS OF RECRUIT TRAINING FOR A SHORT PERIOD OF A FEW WEEKS, FOLLOWED PERHAPS BY A SHORT TRAINING COURSE OR INSTRUCTION OR INDOCTRINATION FOR AN ADDITIONAL FEW WEEKS BEFORE RECEIVING A PERMANENT DUTY ASSIGNMENT.

YOUR TRANSFER TO FORT HOOD, TEXAS, UNDER THE ORDERS OF APRIL 25, 1960, WAS FOR BASIC COMBAT TRAINING AND CONTINUED FOR APPROXIMATELY EIGHT WEEKS. THE ORDERS OF JUNE 3, 1960, AS AMENDED BY ORDERS OF JUNE 6, 1960, ASSIGNED YOU TO A SCHOOL IN CHICAGO, ILLINOIS, FOR A COURSE OF INSTRUCTION (WHICH LASTED APPROXIMATELY FIVE WEEKS) BUT DID NOT DESIGNATE A SPECIFIC PERMANENT DUTY STATION TO WHICH YOU WERE TO PROCEED UPON COMPLETION OF THE DUTY. BUT FOR THE FACT THAT GOVERNMENT MESS WAS NOT AVAILABLE TO YOU AT YOUR DUTY STATION IN CHICAGO, IT WOULD SEEM THAT THE PERIOD OF DUTY UNDER THE ABOVE ORDERS CONSISTED OF BASIC TRAINING AND INSTRUCTION PRIOR TO A PERMANENT DUTY ASSIGNMENT WITHIN THE CONTEMPLATION OF PARAGRAPH 4201-12 OF THE REGULATIONS. SINCE FORT HOOD, TEXAS, WAS NOT YOUR PERMANENT DUTY STATION, AND SINCE THE ORDERS OF JUNE 3, 1960, AS AMENDED, ASSIGNING YOU TO A COURSE OF INSTRUCTION AT CHICAGO DID NOT DESIGNATE A SPECIFIC PERMANENT DUTY STATION TO WHICH YOU WERE TO PROCEED UPON COMPLETION OF THE TEMPORARY DUTY, CHICAGO, MUST BE REGARDED AS YOUR DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES FOR WHICH ENTITLEMENT TO PER DIEM IS NOT AUTHORIZED UNDER THE PRINCIPLE ANNOUNCED IN OUR DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, AND WHICH IS NOW INCORPORATED IN PARAGRAPH 4201-13 OF THE REGULATIONS. ACCORDINGLY, YOU ARE NOT ENTITLED TO PER DIEM FOR THE PERIOD JULY 9 TO 31, 1960.

SINCE THE RECORD SHOWS THAT MESSING FACILITIES WERE NOT AVAILABLE TO YOU DURING THE PERIOD YOU WERE AT THE SCHOOL, YOU MAY BE ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE FOR THAT PERIOD. IN THE EVENT YOU HAVE NOT RECEIVED SUCH ALLOWANCE, YOU MAY PRESENT A CLAIM THEREFOR TO THIS OFFICE. ANY SUCH CLAIM SHOULD BE FORWARDED THROUGH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA.