B-152681, NOV. 26, 1963

B-152681, NOV. 26, 1963

TO LIEUTENANT COMMANDER JOHN P. CURRAN, USN:

YOUR CLAIM FOR PER DIEM IN ADDITION TO THAT ALLOWED IN SETTLEMENT OF NOVEMBER 25, 1957, COVERING THE PERIOD JULY 24, 1956, TO SEPTEMBER 9, 1956, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY AND BASED ON EVIDENCE THAT GOVERNMENT QUARTERS AND SUBSISTENCE WERE NOT AVAILABLE TO YOU, WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR ACTION TAKEN IN THAT SETTLEMENT.

PURSUANT TO ORDERS DATED MAY 11, 1956, YOU PROCEEDED FROM YOUR HOME AND REPORTED TO THE UNITED STATES NAVAL HOSPITAL, ST. ALBANS, NEW YORK, ON JULY 23, 1956, FOR TEMPORARY ACTIVE DUTY PENDING FURTHER ASSIGNMENT TO DUTY. BY ORDERS DATED SEPTEMBER 10, 1956, WHEN DIRECTED BY YOUR COMMANDING OFFICER ON THAT DATE YOU WERE TO REGARD YOURSELF AS DETACHED FROM TEMPORARY DUTY AT THE NAVAL HOSPITAL AND PROCEED TO CAMP LEJEUNE, NORTH CAROLINA, FOR TEMPORARY DUTY; UPON COMPLETION OF SUCH TEMPORARY DUTY AND WHEN DIRECTED ABOUT NOVEMBER 20, 1956, YOU WERE TO PROCEED TO PENSACOLA, FLORIDA, FOR TEMPORARY DUTY; AND UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED YOU WERE TO PROCEED IN TIME TO REPORT TO THE NAVAL SCHOOL AVIATION MEDICINE, NAVAL AIR STATION, PENSACOLA, FLORIDA, ON JANUARY 6, 1956, FOR DUTY UNDER INSTRUCTION. THE ORDERS OF SEPTEMBER 10, 1956, STATE THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR YOU AT THE NAVAL HOSPITAL AT ST. ALBANS, AND THAT YOU WERE DETACHED FROM DUTY THERE ON SEPTEMBER 10.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, NOW CODIFIED IN SECTION 404 OF TITLE 37 OF THE UNITED STATES CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION, OTHER THAN PERMANENT STATION, TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

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 BEING PERFORMED, AND THAT THE ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A 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.

IN OUR 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 WHICH 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. WE FURTHER STATED IN THAT DECISION THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THE DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED IF OTHERWISE PROPER. IN OUR DECISION OF JANUARY 11, 1960, 39 COMP. GEN. 506, THE CUT-OFF DATE WITH RESPECT TO ADMINISTRATIVELY MADE PER DIEM PAYMENTS WAS CHANGED FROM JULY 1, 1959, TO OCTOBER 1, 1959. IN VIEW OF THE CLEAR HOLDING IN THE CALIFANO CASE, HOWEVER, NO BASIS EXISTS FOR ANY FURTHER PAYMENT OF PER DIEM IN CASES COMING WITHIN THE RULE OF THAT CASE, AND WE EMPHASIZED IN THE DECISION OF JANUARY 11, 1960, THAT "SUCH CHANGE * * * IS NOT TO BE CONSTRUED AS AUTHORIZING THE PAYMENT OF PER DIEM ADMINISTRATIVELY AFTER SEPTEMBER 30, 1959, COVERING PERIODS OF TEMPORARY DUTY PERFORMED PRIOR TO THAT DATE.' WHILE IT APPEARS THAT THROUGH INADVERTENCE YOU WERE ALLOWED PER DIEM IN THE SETTLEMENT OF NOVEMBER 25, 1957, AT THE RATE PRESCRIBED WHERE GOVERNMENT QUARTERS ARE AVAILABLE AND THAT BUT FOR SUCH INADVERTENCE YOU WOULD HAVE BEEN PAID THE FULL $12 RATE FOR PER DIEM DURING THE PERIOD JULY 24, 1956, TO SEPTEMBER 9, 1956, ON THE BASIS OF THE REGULATIONS THEN IN EFFECT, IT MUST BE CONSIDERED THAT YOU ARE TO SOME EXTENT IN THE SAME STATUS AS OTHER OFFICERS WHO WERE NOT PAID PER DIEM ADMINISTRATIVELY BEFORE OCTOBER 1, 1959, AND THAT ALTHOUGH THE PER DIEM PAID UNDER THAT SETTLEMENT WILL NOT BE DISTURBED THERE IS NOW NO AUTHORITY TO PAY YOU ANY PART OF THE ADDITIONAL PER DIEM CLAIMED. SEE B- 138900, DATED JUNE 9, 1960, COPY ENCLOSED.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO DISALLOW YOUR PRESENT CLAIM. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.