B-151541, AUG. 22, 1963, 43 COMP. GEN. 203

B-151541, AUG. 22, 1963, 43 COMP. GEN. 203

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - TRAINING OR SCHOOL ASSIGNMENT - CALIFANO CASE A NAVY OFFICER WHOSE ORDERS TO TEMPORARY DUTY UNDER INSTRUCTION AND SUBSEQUENT ASSIGNMENT TO A DESIGNATED VESSEL WERE CANCELED BEFORE HE WAS REQUIRED TO REPORT TO THE VESSEL BECAUSE OF AN EXTENDED PERIOD OF HOSPITALIZATION IS REGARDED AS HAVING A DESIGNATED POST OF DUTY ABOARD THE VESSEL UPON COMPLETION OF THE TEMPORARY DUTY, EVEN THOUGH CANCELLATION OF THE UNEXECUTED ORDERS RELIEVED HIM OF THE REQUIREMENT TO REPORT TO THE VESSEL, SO THAT THE PRINCIPLE IN CALIFANO V. UNITED STATES, 145 CT.CL. 245, PRECLUDING PER DIEM IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL CAN BE PERFORMED IS NOT FOR APPLICATION AND, THEREFORE, WHEN THE MEMBER WAS FOUND TO BE FIT FOR DUTY AND REPORTED FOR TEMPORARY DUTY PENDING RECEIPT OF PERMANENT ORDERS HE IS CONSIDERED IN A STATUS FOR ENTITLEMENT TO PER DIEM.

TO LIEUTENANT COMMANDER J. L. BELL, JR., DEPARTMENT OF THE NAVY, AUGUST 22, 1963:

THERE HAS BEEN RECEIVED BY FOURTH INDORSEMENT DATED JUNE 26, 1963, YOUR LETTER DATED MAY 10, 1963, REQUESTING AN ADVANCE DECISION ON A VOUCHER IN FAVOR OF ENSIGN KILVERT D. GIFFORD, USNR, FOR PER DIEM FOR THE PERIOD FROM OCTOBER 30 TO NOVEMBER 20, 1962, UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 63-14.

BY BUREAU OF NAVAL PERSONNEL ORDER DATED NOVEMBER 29, 1960, THE OFFICER, THEN ATTENDING THE OFFICERS CANDIDATE SCHOOL, NEWPORT, RHODE ISLAND, WAS DIRECTED UPON BEING FOUND PHYSICALLY QUALIFIED AND UPON ACCEPTANCE OF APPOINTMENT AS ENSIGN, UNITED STATES NAVAL RESERVE, TO PROCEED TO CHARLESTON, SOUTH CAROLINA, FOR TEMPORARY DUTY UNDER INSTRUCTION AND UPON COMPLETION HE WAS TO PROCEED TO THE U.S.S. DOMINANT (MSO-431) FOR DUTY. THE OFFICER REPORTED AT CHARLESTON ON JANUARY 2, 1961. BY ORDERS OF FEBRUARY 20, 1961, HE WAS DIRECTED TO REPORT TO THE UNITED STATES NAVAL HOSPITAL, CHARLESTON, SOUTH CAROLINA, FOR TREATMENT. BY FOURTH INDORSEMENT DATED MARCH 28, 1961, TO THE BASIC ORDERS OF NOVEMBER 29, 1960, SUCH BASIC ORDERS WERE MODIFIED BY THE CANCELLATION OF THE UNEXECUTED PORTION THEREOF AND BY DIRECTING THE OFFICER TO REPORT TO THE NAVAL HOSPITAL AT CHARLESTON FOR TEMPORARY DUTY UNDER TREATMENT AND UPON COMPLETION FOR FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. AT THE REQUEST OF THE OFFICER, AN AUTHORIZATION BY THE BUREAU OF NAVAL PERSONNEL DATED MAY 8, 1961, PROVIDED FOR HIM TO REPORT TO THE NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, FOR FURTHER TREATMENT, WITH THE UNDERSTANDING THAT HE WOULD NOT BE ENTITLED TO MILEAGE OR REIMBURSEMENT OF EXPENSE IN CONNECTION THEREWITH. THE OFFICER WAS ADMITTED TO THE NAVAL HOSPITAL, CHELSEA, ON MAY 14, 1961.

BY ORDERS OF JULY 5, 1961, THE OFFICER WAS ADVISED BY THE COMMANDING OFFICER, NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, THAT HE HAD BEEN FOUND FIT FOR LIMITED DUTY AND HE WAS DIRECTED TO REPORT TO THE U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND, FOR TEMPORARY DUTY AWAITING FINAL ACTION ON REPORT OF BOARD OF MEDICAL SURVEY. BY BUREAU OF NAVAL PERSONNEL ORDERS DATED JULY 20, 1961, THE OFFICER WAS DIRECTED, WHEN DETACHED FROM TEMPORARY DUTY, TO PROCEED TO BOSTON, MASSACHUSETTS, AND REPORT TO THE COMMANDANT, NAVY SHIPYARD, FOR DUTY. THE OFFICER WAS DETACHED FROM QUONSET POINT, RHODE ISLAND, ON AUGUST 4, 1961, AND ON THAT DAY HE REPORTED AGAIN TO THE U.S. NAVAL HOSPITAL, CHELSEA, FOR HOSPITALIZATION PURSUANT TO VERBAL INSTRUCTIONS OF THAT DATE, CONFIRMED BY ORDERS DATED AUGUST 10, 1961. BY BUREAU OF NAVAL PERSONNEL ORDERS DATED AUGUST 23, 1961, THE ORDERS OF JULY 20, 1961, WERE CANCELED, THE OFFICER WAS DETACHED FROM HIS TEMPORARY DUTY ASSIGNMENT AT NAVAL AIR STATION, QUONSET POINT, AND HE WAS DIRECTED TO CONTINUE HIS TREATMENT AT CHELSEA. BUREAU OF NAVAL PERSONNEL ORDERS OF OCTOBER 10, 1961, ADDRESSED TO THE OFFICER AT THE NAVAL AIR STATION, QUONSET POINT, DIRECTED THE OFFICER, WHEN DETACHED, TO PROCEED TO NEWPORT, RHODE ISLAND, AND REPORT TO THE COMMANDING OFFICER, NAVAL HOSPITAL, FOR OBSERVATION, TREATMENT AND REPORT BY AN APPROPRIATE MEDICAL BOARD. THOSE ORDERS, HOWEVER, WERE FORWARDED TO THE OFFICER AT CHELSEA BY THE COMMANDING OFFICER, NAVAL AIR STATION, QUONSET POINT, ON OCTOBER 16, 1961, INASMUCH AS HE HAD BEEN TRANSFERRED THERE TO CONTINUE TREATMENT BY THE ORDERS OF AUGUST 23. ON OCTOBER 29, 1962, THE U.S. NAVAL HOSPITAL, CHELSEA, MASSACHUSETTS, ISSUED ORDERS WHICH STATED THAT HAVING BEEN FOUND FIT FOR LIMITED DUTY BY REPORT OF BOARD OF MEDICAL SURVEY DATED OCTOBER 17, 1962, AND DETACHED FROM HIS PERMANENT DUTY STATION BY THE ORDERS OF AUGUST 23, 1961, THE OFFICER WAS DISCHARGED FROM TREATMENT AND DIRECTED TO REPORT TO THE COMMANDANT, FIRST NAVAL DISTRICT, BOSTON, MASSACHUSETTS, FOR TEMPORARY DUTY PENDING RECEIPT OF PERMANENT ORDERS FROM THE BUREAU OF NAVAL PERSONNEL. HE REPORTED THERE ON OCTOBER 29 AND, BY BUREAU OF NAVAL PERSONNEL ORDERS DATED NOVEMBER 19, 1962, HE WAS DIRECTED TO REPORT IMMEDIATELY TO THE COMMANDANT, FIRST NAVAL DISTRICT, FOR DUTY. FIRST INDORSEMENT SHOWS THE OFFICER REPORTED ON NOVEMBER 21, 1962, AND THAT, WHILE ATTACHED TO THAT COMMAND, THERE WERE NO QUARTERS OR MESSING FACILITIES AVAILABLE FOR HIS USE. THE VOUCHER EVIDENCES THE OFFICER'S CLAIM FOR PER DIEM AT $16 FOR THE PERIOD OF TEMPORARY DUTY FROM OCTOBER 30 TO NOVEMBER 20, 1962.

YOU STATE THAT PARAGRAPH 4056, NAVY TRAVEL INSTRUCTIONS, PROVIDES THAT A MEMBER DETACHED FROM HIS PREVIOUS PERMANENT DUTY STATION IN THE UNITED STATES FOR HOSPITALIZATION, WHO, UPON DISCHARGE FROM THE HOSPITAL IS ORDERED TO TEMPORARY DUTY PENDING ASSIGNMENT, IS CONSIDERED TO BE IN A TEMPORARY DUTY STATUS AND ENTITLED TO PER DIEM, AND THAT BUREAU OF NAVAL PERSONNEL INSTRUCTION 1301.23B, DATED NOVEMBER 9, 1959, PROVIDES FOR THE PAYMENT OF PER DIEM TO SUCH A MEMBER, WHO UPON COMPLETION OF TREATMENT HAS BEEN FOUND PHYSICALLY FIT FOR LIMITED DUTY ONLY UNDER THE APPROPRIATION "MILITARY PERSONNEL, NAVY.' HOWEVER, YOU EXPRESS DOUBT AS TO THE OFFICER'S ENTITLEMENT TO PER DIEM FOR THE PERIOD CLAIMED, IN VIEW OF OUR HOLDING IN 39 COMP. GEN. 511.

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 THE TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO HIS STATION FOR 4 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. IN DECISION OF JUNE 19, 1959, 38 COMP. GEN. 849, WE ADVISED THE SECRETARY OF DEFENSE THAT WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN ANY CASE WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY UNDER ORDERS THAT CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. IN THE DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 511, WHICH YOU CITE, WE HELD THAT UNDER THE PRINCIPLE OF THE CALIFANO CASE A MEMBER ORDERED TO ACTIVE DUTY FROM HIS HOME AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON THE COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION OR OTHER LOCATIONS FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT MAY NOT HAVE THE PLACE OR PLACES AT WHICH THE SECOND OR SUBSEQUENT PERIODS OF TEMPORARY DUTY ARE PERFORMED CONSIDERED AS OTHER THAN THE MEMBER'S ONLY POST OF DUTY FOR PER DIEM PURPOSES.

THE PRINCIPLE OF THE CALIFANO CASE, HOWEVER, HAS NOT BEEN CONSIDERED AS RELATING TO OTHER THAN THE CIRCUMSTANCE OF A MEMBER REPORTING TO FIRST DUTY STATION ON CALL TO ACTIVE DUTY AND CONTINUING ONLY UNTIL HE IS ASSIGNED A PERMANENT DUTY STATION. INASMUCH AS ENSIGN GIFFORD WAS ASSIGNED TO DUTY ABOARD THE U.S.S. DOMINANT UPON THE COMPLETION OF THE TEMPORARY DUTY DIRECTED BY THE ORDERS OF NOVEMBER 29, 1960, HE WAS THEN POSSESSED OF A DESIGNATED POST OF DUTY, AND CONSEQUENTLY THE PRINCIPLE OF THE CALIFANO CASE HAD NO APPLICATION EVEN THOUGH HE SUBSEQUENTLY WAS RELIEVED OF THE REQUIREMENT TO REPORT TO THAT VESSEL.

SINCE THE OFFICER WAS FOUND FIT FOR LIMITED DUTY BY THE BOARD OF MEDICAL SURVEY AND WAS ASSIGNED BY THE ORDERS OF OCTOBER 29, 1962, TO THE PERFORMANCE OF TEMPORARY DUTY PENDING RECEIPT OF PERMANENT ORDERS AND REPORTED FOR PERMANENT DUTY UNDER THE ORDERS OF NOVEMBER 19, 1962, ON NOVEMBER 21, HE MAY BE CONSIDERED AS IN A STATUS FOR WHICH PER DIEM IS AUTHORIZED. COMPARE 27 COMP. GEN. 253. ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.