B-158684, APR. 27, 1966

B-158684, APR. 27, 1966

TO STAFF SERGEANT WILLIAM R. HAMMEL, AF17343597:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1966, AND ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 5,1965, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR VARIOUS PERIODS FROM MARCH 4, 1963, TO FEBRUARY 10, 1965, INCIDENT TO YOUR DUTY ASSIGNMENT AT THE DAVIS CALIFORNIA RECEIVER SITE.

THE RECORD SHOWS THAT ON MARCH 7, 1963, WHILE PERMANENTLY STATIONED AT MCCLELLAN AIR FORCE BASE, CALIFORNIA, AND SERVING WITH THE 2049TH COMMUNICATIONS GROUP (AFCS), SPECIAL ORDER P-30 WAS ISSUED BY THAT ORGANIZATION ASSIGNING YOU TO DUTY AT THE DAVIS CALIFORNIA RECEIVER SITE, EFFECTIVE MARCH 4, 1963. YOUR CLAIM WAS SUBMITTED ON FOUR SEPARATE VOUCHERS, EACH VOUCHER COVERING A SPECIFIED PERIOD BETWEEN MARCH 4, 1963, AND FEBRUARY 10, 1965. IN SUPPORT OF THE CLAIM YOU SUBMITTED COPIES OF SPECIAL ORDERS NOS. T-99 THROUGH T-102, ISSUED BY YOUR ORGANIZATION AND DATED JUNE 7, 1965, EACH PURPORTING TO CONFIRM VERBAL TEMPORARY DUTY ORDERS OF THE COMMANDING OFFICER FOR CORRESPONDING PERIODS. THE CLAIM WAS DISALLOWED BY THE SETTLEMENT DATED NOVEMBER 5, 1965, ON THE GROUND THAT VERBAL ORDERS MUST BE CONFIRMED IN WRITING WITHIN A REASONABLE LENGTH OF TIME AFTER THEIR ISSUANCE TO INSURE A TRUE REFLECTION OF THE FACTUAL CIRCUMSTANCES OF THEIR ISSUANCE, AND THAT SINCE A PERIOD OF OVER 8 MONTHS HAD ELAPSED AFTER THE DATE OF THE LAST VERBAL ORDER OF YOUR COMMANDING OFFICER, THE CONFIRMATORY ORDERS ISSUED IN YOUR CASE WOULD NOT BE CONSIDERED TO BE OF SUCH ACCURACY AS TO JUSTIFY PAYMENT OF YOUR CLAIM.

BY YOUR LETTER OF FEBRUARY 28, 1966, YOU FURNISHED COPIES OF A NUMBER OF YOUR ORGANIZATIONAL SPECIAL ORDERS AND MISCELLANEOUS REPORTS AND COMMUNICATIONS ISSUED DURING THE PERIOD OF YOUR CLAIM AND CONTAINING YOUR NAME AND GRADE, TO ESTABLISH THAT THE CONFIRMATORY ORDERS OF JUNE 7, 1965, WERE BASED ON "MATTERS OF WRITTEN RECORD NOT MATTERS OF MEMORY," AND IN VIEW OF THOSE PAPERS YOU HAVE REQUESTED RECONSIDERATION OF THE ACTION TAKEN ON YOUR CLAIM. IN FURTHER SUPPORT OF THAT REQUEST YOU HAVE ALSO FORWARDED COPIES OF SPECIAL ORDERS NOS. 39 THROUGH 42 WHICH WERE ISSUED BY YOUR ORGANIZATION ON FEBRUARY 7, 1966, IN LIEU OF THE SPECIAL ORDERS NOS. T-100 AND T-101 OF JUNE 7, 1965. SPECIAL ORDERS NOS. 39 THROUGH 42 PURPORT TO CONFIRM VERBAL ORDERS OF THE COMMANDING OFFICER FOR VARIOUS PERIODS BETWEEN APRIL 11, 1963, AND SEPTEMBER 20, 1964, ALTHOUGH WITH SOME VARIATION FROM THE PERIODS SPECIFIED IN THE EARLIER ORDERS, AND, IN ADDITION, RECITE THAT "ALL CLAIMS FOR TRAVEL/PER DIEM EXPENSES MUST BE SUBMITTED TO BASE FINANCE WITHIN SEVEN DAYS AFTER RECEIPT OF ORDERS.'

SECTION 404/A) (1) OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL ALLOWANCES (INCLUDING PER DIEM) FOR TRAVEL PERFORMED BY A MEMBER OF THE UNIFORMED SERVICES UNDER ORDERS "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.' REGULATIONS PROMULGATED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M1150-10 OF THOSE REGULATIONS DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR OFFICIAL 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, THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED. THE TERM "TEMPORARY DUTY," WHICH INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH M3003-2A OF THE REGULATIONS AS DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER 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. PARAGRAPH M3003-2C STIPULATES THAT EXCEPT AS PROVIDED IN SUBPARAGRAPH D (UNUSUAL OR EMERGENCY CIRCUMSTANCES OR AS THE EXIGENCIES OF THE SERVICE REQUIRE) TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) ASSIGNMENTS WILL BE LIMITED TO PERIODS NOT IN EXCESS OF 6 MONTHS. TO BE ENTITLED TO THE PER DIEM YOU CLAIM UNDER THE CITED LAW AND REGULATIONS YOU MUST HAVE BEEN IN THE PERFORMANCE OF TEMPORARY DUTY UNDER COMPETENT TRAVEL ORDERS AT A POINT REMOVED FROM THE LOCATION OF YOUR BASIC DUTY ASSIGNMENT.

THE QUESTION OF WHETHER AN ASSIGNMENT TO A PARTICULAR INSTALLATION OR STATION IS TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO ITS DURATION, NATURE OF THE DUTY, AND WHETHER RETURN TO A FORMER STATION IS CONTEMPLATED BY THE ORDERS. 36 COMP. GEN. 757 AND 38 COMP. GEN. 656. YOUR ASSIGNMENT UNDER THE CITED ORDERS OF MARCH 7, 1963, WAS TO "DUTY AS RADIO SHIFT SUPERVISOR, DAVIS RADIO, EFFECTIVE 4 MAR 63, FOR CONTINUED UP-GRADE ON-THE-JOB TRAINING," WITH NO INDICATION THAT SUCH DUTY WAS TEMPORARY IN NATURE OF THAT UPON ITS COMPLETION YOUR RETURN TO YOUR FORMER ASSIGNMENT AT MCCLELLAN AIR FORCE BASE WAS DIRECTED OR CONTEMPLATED. WITH THE EXCEPTION OF SEVERAL SHORT ABSENCES, YOU REMAIN IN THE PERFORMANCE OF THE DUTY SO ASSIGNED AT DAVIS, CALIFORNIA, FOR THE ENTIRE PERIOD COVERED BY YOUR CLAIM, FROM MARCH 4, 1963, TO FEBRUARY 10, 1965, UNDER THOSE ORDERS. SUCH ASSIGNMENT WAS MADE BY COMPETENT AUTHORITY, AND NOTHING IN THE RECORD INDICATES THAT IT WAS NOT INTENDED TO BE A PERMANENT OR BASIC DUTY ASSIGNMENT OR THAT IT WAS NOT IN FACT A PERMANENT ASSIGNMENT WITHIN THE CONTEMPLATION OF THE CITED REGULATIONS. IN SUCH CIRCUMSTANCES IT WOULD BE NECESSARY TO CONCLUDE THAT YOUR ASSIGNMENT AT DAVIS DURING THE PERIOD INVOLVED WAS IN FACT A PERMANENT DUTY ASSIGNMENT EVEN IF THE ORDERS ASSIGNING YOU THERE HAD DESIGNATED IT TEMPORARY DUTY. SIMILARLY, IF THE VARIOUS ORDERS SUBMITTED IN SUPPORT OF YOUR CLAIM COULD OTHERWISE BE CONSIDERED VALID CONFIRMING ORDERS AS REPRESENTED, THEIR IMPORT IN DESCRIBING THE DUTY ASSIGNED AT DAVIS AS TEMPORARY DUTY COULD NOT BE RECOGNIZED AS ESTABLISHING THE DUTY ASSIGNMENT AT DAVIS AS TEMPORARY IN NATURE.

SINCE IT IS CONSIDERED THAT YOU WERE NOT IN THE PERFORMANCE OF TEMPORARY DUTY AWAY FROM YOUR DESIGNATED POST OF DUTY DURING THE PERIODS IN QUESTION NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 5, 1965, MUST BE AND IS SUSTAINED.