B-152627, OCT. 29, 1963

B-152627, OCT. 29, 1963

TO LIEUTENANT COLONEL JACK E. LAMBERT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1963, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 21, 1963, WHICH DISALLOWED YOUR CLAIM FOR PARTIAL PER DIEM FOR THE PERIOD MARCH 7, 1962, THROUGH JUNE 1, 1963, WHILE ASSIGNED AS RESIDENT ENGINEER, SQUADRON II, AT PARSHALL, NORTH DAKOTA.

THE RECORD SHOWS THAT BY MINOT AREA ORDER NO. 1, ISSUED JANUARY 25, 1962, BY THE AREA ENGINEER, MINOT, U.S. ARMY, CORPS OF ENGINEERS, BALLISTIC MISSILE CONSTRUCTION OFFICE, MINOT AIR FORCE BASE, NORTH DAKOTA, YOU WERE ASSIGNED TO DUTY AS RESIDENT ENGINEER, SQUADRON II. IT APPEARS THAT THIS ASSIGNMENT WAS AT PARSHALL, NORTH DAKOTA, APPROXIMATELY 75 MILES FROM MINOT AIR FORCE BASE, AND WAS THE DESIGNATED POINT FROM WHICH CONSTRUCTION OF VARIOUS MINUTEMAN INTERCONTINENTAL BALLISTIC MISSILE BASES WAS TO BE INSPECTED BY MILITARY AND CIVILIAN EMPLOYEES AND SUPERVISED BY YOU. IT IS REPORTED THAT PARSHALL WAS CONSIDERED AS PART OF THE AREA WITH HEADQUARTERS AT MINOT AIR FORCE BASE AND FOR THIS REASON TEMPORARY DUTY ORDERS WERE NOT ISSUED. IT IS FURTHER REPORTED THAT A FURNISHED TRAILER WHICH COULD HAVE SERVED AS A RESIDENCE FOR YOUR FAMILY WAS MADE AVAILABLE TO YOU WITHOUT COST BY THE BOEING COMPANY. HOWEVER, IT APPEARS THAT YOUR FAMILY REMAINED IN GOVERNMENT QUARTERS AT MINOT AIR FORCE BASE AND THAT YOU RETURNED THERE ON WEEKENDS AND HOLIDAYS.

YOUR CLAIM FOR PARTIAL PER DIEM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. REFERENCE WAS MADE IN THE SETTLEMENT TO THE TEMPORARY DUTY ORDERS DATED MAY 14, 1963, ISSUED BY THE AIR FORCE IN THE CASE OF AIRMAN RONALD L. MCWILLIAMS,WHICH YOU HAD SUBMITTED WITH YOUR CLAIM. IN YOUR PRESENT LETTER YOU SAY THAT, BECAUSE OF THE DISTANCE INVOLVED, COMPETENT PERMANENT CHANGE OF STATION ORDERS SHOULD HAVE BEEN ISSUED CHANGING YOUR DUTY STATION, OR THAT, IN THE ALTERNATIVE, APPROPRIATE TEMPORARY DUTY ORDERS WERE REQUIRED. YOU SAY THAT THE TRAILER OFFERED BY THE BOEING COMPANY WAS NOT ADEQUATE QUARTERS FOR YOUR FAMILY; THAT IT WAS SUBSTANDARD EVEN FOR BACHELOR OFFICER QUARTERS; THAT THE AIR FORCE FURNISHED YOU THIS TYPE OF QUARTERS FOR YOUR OWN USE BUT DID NOT FURNISH MEALS, AND THAT IT IS THE SUBSISTENCE PORTION OF EXPENSE INCURRED DURING THE DUTY FOR WHICH YOU ARE SEEKING REIMBURSEMENT. ALSO, YOU REFER TO THE ORDERS ISSUED TO AIRMAN MCWILLIAMS STATING THAT THESE WERE APPROPRIATE TRAVEL ORDERS ISSUED IN A SITUATION IDENTICAL WITH YOURS SINCE YOU WERE BOTH ENGAGED IN DUTIES RELATING TO THE IDENTICAL GEOGRAPHICAL AREA COMPRISING THE MINUTEMAN COMPLEX SURROUNDING MINOT AIR FORCE BASE, WHICH COVERS SOME 8,000 SQUARE MILES IN NORTH DAKOTA. IN THE EVENT THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED YOU REQUEST THAT YOUR LETTER BE TREATED AS AN APPEAL TO THE COURT OF CLAIMS AND THAT A TRANSCRIPT OF THE RECORD BY FURNISHED YOU.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A) (NOW 37 U.S.C. 404 (A) (, PROVIDES AUTHORITY UNDER REGULATIONS PRESECRIBED BY THE SECRETARIES CONCERNED FOR THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED "UNDER COMPETENT ORDERS" AND "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' PARAGRAPH 1150-10A OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO DEFINES THE MEMBER'S POST OF DUTY OR PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. IT IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE. THE TERM "TEMPORARY DUTY" WHICH INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH 3003-2 OF THE REGULATIONS, FOR TRAVEL ALLOWANCE PURPOSES, TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. TO QUALIFY FOR TRAVEL ALLOWANCE UNDER SUCH PROVISIONS, TRAVEL AND TEMPORARY DUTY MUST BE PERFORMED UNDER COMPETENT TRAVEL ORDERS AT A POINT OR POINTS REMOVED FROM THE PLACE AT WHICH THE BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE.

WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT. ORDINARILY, IT IS A FACT WHICH IS WITHIN THE KNOWLEDGE OF THE RESPONSIBLE OFFICER WHO ISSUES THE ORDERS MAKING SUCH ASSIGNMENT. COMP. GEN. 667, 670. YOU HAVE SUBMITTED NO ORDERS DIRECTING YOU TO PERFORM TEMPORARY DUTY OF A TYPE WHICH WOULD GIVE RISE TO A RIGHT TO PER DIEM, AND HENCE, YOU HAVE FAILED TO MEET THE FIRST AND BASIC CONDITION NECESSARY TO ESTABLISH A RIGHT TO SUCH AN ALLOWANCE. FURTHERMORE, THE LENGTH OF THE PERIOD INVOLVED INDICATES THAT THE ASSIGNMENT WAS NOT, IN FACT, A TEMPORARY DUTY ASSIGNMENT.

IN YOUR CASE THE ARMY DETERMINED THAT YOUR DUTY AT PARSHALL WAS IN THE SAME AREA AS YOUR DUTY STATION, MINOT AIR FORCE BASE, AND DID NOT ISSUE TRAVEL ORDERS PLACING YOU ON TEMPORARY DUTY AWAY FROM YOUR PERMANENT STATION. IN THE ABSENCE OF SUCH ORDERS THE FACT THAT YOU FOUND THE TRAILER OFFERED BY THE BOEING COMPANY INADEQUATE FOR YOUR FAMILY AND THEY REMAINED IN GOVERNMENT QUARTERS AT MINOT AIR FORCE BASE WHILE YOU OCCUPIED A TRAILER FURNISHED BY THE AIR FORCE, AND THE FURTHER FACT THAT THE AIR FORCE ISSUED AN AIRMAN TRAVEL ORDERS FOR TEMPORARY DUTY AT PARSHALL AWAY FROM MINOT AIR FORCE BASE DOES NOT AFFORD A BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR THE SUBSISTENCE PORTION OF PER DIEM FOR THE PERIOD OF YOUR ASSIGNMENT AT PARSHALL. WHILE YOU MAY FEEL THAT THE ADMINISTRATIVE OFFICE SHOULD HAVE TAKEN DIFFERENT ACTION IN YOUR CASE, IN THE ABSENCE OF COMPETENT TRAVEL ORDERS, THE SETTLEMENT OF AUGUST 21, 1963, WAS CORRECT AND IS SUSTAINED.

THE ACTION OF THIS OFFICE ON CLAIMS FILED HERE IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. 28 COMP. GEN. 69; 31 ID. 596. HOWEVER, INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346 (A) (2), 1491 AND 2501. THIS, HOWEVER, IS AN ACTION SEPARATE AND DISTINCT FROM THE FILING OF A CLAIM HERE, AND IS THE RESPONSIBILITY OF THE CLAIMANT. INASMUCH AS THE PAPERS TRANSMITTED HERE REALTING TO YOUR CLAIM NOW CONSTITUTE A PART OF THE PERMANENT RECORD UPON WHICH THE DISALLOWANCE WAS BASED THEY ARE REQUIRED TO BE RETAINED HERE (21 COMP. GEN. 819, 823), AND A TRANSCRIPT MAY NOT BE FURNISHED AT YOUR REQUEST IN THE ABSENCE OF A SHOWING OF THE NEED THEREFOR. COPIES OF PERTINENT PAPERS WILL, OF COURSE, BE FURNISHED UPON PROPER REQUEST BY A COURT.