B-150730, APR. 3, 1963

B-150730, APR. 3, 1963

TO DONALD A. NEAL, CWO-W-2:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1963, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 6, 1962, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD JULY 1 THROUGH AUGUST 20, 1961.

THE RECORD SHOWS THAT BY PARAGRAPH 1, LETTER ORDER 31, APRIL 17, 1961, YOU WERE PLACED ON TEMPORARY DUTY WITH THE ARMY AIR DEFENSE COMMAND, ADVANCED MARKSMANSHIP UNIT, AND DIRECTED TO PROCEED FROM FORT GEORGE G. MEADE, MARYLAND, TO FORT CARSON, COLORADO, FOR THE PURPOSE OF FIRING IN SMALL ARMS COMPETITION, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PARENT ORGANIZATION AND STATION. BY LETTER ORDER 5-98, DATED MAY 17, 1961, YOU WERE CONTINUED ON TEMPORARY DUTY AT FORT CARSON FOR APPROXIMATELY 56 DAYS BEGINNING ON OR ABOUT MAY 6, 1961, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PARENT ORGANIZATION AND STATION. PARAGRAPH 4, SPECIAL ORDERS NO. 129, DATED JUNE 30, 1961, WHILE ON TEMPORARY DUTY AT FORT CARSON, YOU WERE ASSIGNED TO PERMANENT DUTY AT FORT CARSON WITH THE ARMY AIR DEFENSE COMMAND, ADVANCED MARKSMANSHIP UNIT, EFFECTIVE AUGUST 1, 1961, AND DIRECTED TO REPORT NOT LATER THAN AUGUST 21, 1961, 30 DAYS' DELAY CHARGEABLE TO LEAVE BEING AUTHORIZED. THE ORDERS FURTHER SPECIFICALLY PROVIDED THAT YOUR TEMPORARY DUTY WITH ARMY AIR DEFENSE COMMAND, ADVANCED MARKSMANSHIP UNIT, WAS TERMINATED CONCURRENTLY WITH THAT ORDER. THOSE ORDERS ALSO EFFECTED A CHANGE IN YOUR ASSIGNMENT OF PARENT ORGANIZATION FROM RFA BATTERY A, 4TH MISSILE BATTALION (HERC), 59TH ARTILLERY, CARROLLTON, VIRGINIA, TO HEADQUARTERS DETACHMENT, 4TH MISSILE BATTALION (HERC), 59TH ARTILLERY, PORTSMOUTH, VIRGINIA. LETTER ORDER 7-129, DATED JULY 31, 1961, CONFIRMED VERBAL ORDERS OF JULY 21, 1961, STATING YOU WERE CURRENTLY ON TEMPORARY DUTY AT FORT CARSON, AND FURTHER PLACING YOU ON TEMPORARY DUTY THERE ON OR ABOUT JULY 21, 1961, FOR APPROXIMATELY 11 DAYS, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PARENT ORGANIZATION AND STATION. YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY FOR THE PERIOD JULY 1 THROUGH AUGUST 20, 1961, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT FORT CARSON BECAME YOUR PERMANENT STATION WITH THE ISSUANCE OF THE ORDERS OF JUNE 30, 1961, AND THAT RETURN TRAVEL TO THE OLD PERMANENT STATION WAS NOT AUTHORIZED IN THE ABSENCE OF ORDERS SPECIFICALLY DIRECTING YOUR RETURN THERE ON OFFICIAL BUSINESS.

YOUR PRESENT LETTER IS ACCOMPANIED BY A STATEMENT OF MAJOR T. R. ZIMMERMAN, OFFICE OF THE G3, O AND T, HEADQUARTERS ARMY AIR DEFENSE COMMAND, DISAGREEING WITH THE SETTLEMENT AND EXPRESSING THE BELIEF THAT THE TEMPORARY DUTY TERMINATED ON AUGUST 1, 1961, RATHER THAN JUNE 30, 1961. HE STATES THAT THERE IS CONFLICT BETWEEN THE ORDERS ISSUED AND SINCE LETTER ORDER 7-129 INDICATED A RETURN TO PARENT ORGANIZATION AND STATION, SPECIAL ORDERS NO. 129 SHOULD HAVE DIRECTED A RETURN TO HOME STATION. HE THEREFORE BELIEVES THAT SPECIAL ORDERS NO. 129 SHOULD NOW BE CHANGED TO DIRECT A RETURN TO THE HOME STATION BEFORE PROCEEDING ON PERMANENT CHANGE OF STATION. YOU STATE THAT THE ARMY AIR DEFENSE COMMAND, ADJUTANT GENERAL STATION, HAS INDICATED A WILLINGNESS TO SO AMEND SPECIAL ORDERS NO. 129, IF THIS OFFICE WILL ALLOW YOUR CLAIM.

THE PERTINENT STATUTE, 37 U.S.C. 404, AUTHORIZES THE RESPECTIVE SECRETARIES CONCERNED TO PRESCRIBE REGULATIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES SHALL BE PAID TO A MEMBER OF THE UNIFORMED SERVICES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON PERMANENT CHANGE OF STATION OR OTHERWISE, OR "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.' UNDER SUCH PROVISIONS OF LAW A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS AT A TEMPORARY DUTY STATION, WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY, WILL NOT BE ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS, NOR TO ALLOWANCES FOR TRAVEL TO THE OLD PERMANENT STATION UNLESS THE PERMANENT CHANGE OF STATION ORDERS SPECIFICALLY DIRECT HIS RETURN THERETO ON OFFICIAL BUSINESS. IN THE PRESENT CASE, WHILE THE ORDERS OF JUNE 30, 1961, INDICATED THAT THE ASSIGNMENT TO PORTSMOUTH, VIRGINIA, WITH DUTY STATION AT FORT CARSON WAS TO BE EFFECTIVE AUGUST 1, 1961, THEY FURTHER PROVIDED THAT YOUR TEMPORARY DUTY WAS TO TERMINATE CONCURRENTLY WITH THE ORDERS. SINCE THOSE ORDERS WERE RECEIVED WHILE YOU WERE ON TEMPORARY DUTY AT FORT CARSON, IT SEEMS CLEAR THAT THEY HAD THE EFFECT OF MAKING FORT CARSON YOUR PERMANENT STATION AND TERMINATING TEMPORARY DUTY IMMEDIATELY. SINCE THOSE ORDERS DID NOT PROVIDE FOR YOUR RETURN TO YOUR OLD STATION, NO TRAVEL WAS AUTHORIZED OR DIRECTED INCIDENT TO YOUR PERMANENT CHANGE OF STATION. IN THOSE CIRCUMSTANCES THE ORDERS OF JULY 31, 1961, STATING THAT YOU CURRENTLY WERE ON TEMPORARY DUTY, EXTENDING THAT DUTY AND INDICATING RETURN TO PARENT ORGANIZATION AND STATION UPON COMPLETION OF SUCH TEMPORARY DUTY, WERE OF NO EFFECT SO FAR AS PER DIEM OR OTHER TRAVEL ALLOWANCES ARE CONCERNED.

EXCEPT TO CORRECT OR COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. 23 COMP. GEN. 713. WHERE TRAVEL ORDERS ON THEIR FACE WOULD BE INCOMPLETE OR AMBIGUOUS, OR WHERE ALL THE FACTS AND CIRCUMSTANCES WOULD DEMONSTRATE THAT SOME PROVISIONS PREVIOUSLY DETERMINED OR OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE HAD BEEN OMITTED THROUGH ERROR INADVERTENCE IN PREPARING THE TRAVEL ORDERS, THEY MAY BE AMENDED RETROACTIVELY SO AS TO CORRECT THE ERROR TO SHOW THE ORIGINAL INTENT. 24 COMP. GEN. 439.

WHEN THE ORDERS OF JUNE 30, 1961, ARE CONSIDERED TOGETHER WITH THE CONTROLLING REGULATION THEY ARE COMPLETE AND UNAMBIGUOUS ON THEIR FACE. THEY MADE FORT CARSON YOUR PERMANENT STATION, TERMINATING PER DIEM IMMEDIATELY, AND DID NOT RETURN YOU TO YOUR HOME STATION. IN THE CIRCUMSTANCES THERE DOES NOT APPEAR TO BE ANY BASIS ON WHICH THIS OFFICE MAY NOW ACCEPT A RETROACTIVE AMENDMENT TO ESTABLISH A RIGHT TO PER DIEM OR TO OTHER TRAVEL ALLOWANCES WHICH DID NOT ACCRUE UNDER THE ORDERS.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 6, 1962, WAS CORRECT AND IS SUSTAINED.