B-170707, JUN 24, 1971

B-170707, JUN 24, 1971

MILITARY PERSONNEL - RECALLED TO ACTIVE DUTY - PER DIEM WHERE, AS HERE, AN ARMY RESERVIST, SUCH AS CHIEF WARRANT OFFICER ROY W. GOUGH, IS CALLED TO ACTIVE DUTY AT ONE POST FOR AN EXTENDED PERIOD OF TIME, THEN SEPARATED AS REQUIRED BY ARMY LETTER AGAM-P, JUNE 12, 1969, THEN IMMEDIATELY RECALLED TO ACTIVE DUTY FOR A PERIOD OF 30 DAYS TO DO THE SAME WORK AT A SUBINSTALLATION WHICH DID NOT HAVE SUFFICIENT BACHELOR OFFICER QUARTERS, THE MEMBER IS NOT ENTITLED TO PER DIEM FOR THE SHORTER PERIOD. THE 30 DAY PERIOD IS TO BE CONSIDERED A CONTINUATION OF THE PREVIOUS SERVICE, NOT A SEPARATE PERIOD.

TO LIEUTENANT COLONEL L. L. SCHWINN, FC:

WE AGAIN REFER TO YOUR LETTER OF AUGUST 6, 1970, FILE REFERENCE AMNPR FIN, WITH ATTACHMENTS (PDTATAC CONTROL NO. 71-10) REQUESTING A DECISION AS TO THE ENTITLEMENT OF CHIEF WARRANT OFFICER ROY W. GOUGH, ARMY RESERVE, TO PER DIEM FOR THE PERIOD JUNE 1 TO 30, 1970, IN THE DESCRIBED CIRCUMSTANCES.

BY HEADQUARTERS SIXTH U.S. ARMY, PRESIDIO OF SAN FRANCISCO, RESERVE ORDERS DATED JUNE 27, 1969, THE MEMBER WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR 30 DAYS EFFECTIVE JUNE 29, 1969. THE PURPOSE OF THE TRAINING WAS SITE SUPPORT FOR THE RESERVE PROGRAM. ON JUNE 27, 1969, VERBAL ORDERS OF THE COMMANDING GENERAL, SIXTH U.S. ARMY, AMENDED THE PERIOD OF TRAINING TO TWO DAYS (JUNE 29 AND 30, 1969), WHICH ACTION WAS CONFIRMED BY WRITTEN ORDERS DATED AUGUST 8, 1969. BY ORDERS OF THE SAME HEADQUARTERS DATED AUGUST 5, 1969, THE MEMBER WAS ORDERED TO ACTIVE DUTY EFFECTIVE JULY 1, 1969, FOR 355 DAYS AT THE PRESIDIO OF SAN FRANCISCO AS A PERMANENT CHANGE OF STATION FOR SITE SUPPORT OF THE ARMY RESERVE AND RELATED DUTY.

CHIEF WARRANT OFFICER GOUGH REMAINED AT THE PRESIDO UNTIL MAY 29, 1970, AT WHICH TIME HE WAS REASSIGNED TO THE TRANSFER STATION AT U.S. ARMY PERSONNEL CENTER, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA, FOR SEPARATION PURSUANT TO ORDERS DATED MAY 26, 1970. HE WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE MAY 31, 1970, BY ORDERS DATED MAY 29, 1970. YOU SAY THAT SUCH RELIEF FROM ACTIVE DUTY WAS MANDATORY UNDER DEPARTMENT OF THE ARMY LETTER AGAM-P, JUNE 12, 1969, RELATING TO PERSONNEL ASSIGNED TO SUPPORT OF ARMY RESERVE, FISCAL YEAR 1970, WHICH REQUIRED THAT "ALL ACTIVE DUTY PERIODS MUST COMMENCE ON OR AFTER JULY 1, 1969, AND TERMINATE ON 31 MAY 1970, UNLESS SOONER TERMINATED."

PRIOR TO SUCH RELEASE FROM ACTIVE DUTY, HOWEVER, BY VERBAL ORDERS OF THE COMMANDING GENERAL, SIXTH U.S. ARMY, CONFIRMED BY WRITTEN ORDERS DATED JUNE 1, 1970, THE MEMBER WAS ORDERED TO ACTIVE DUTY FOR 30 DAYS EFFECTIVE JUNE 1, 1970, AND REPORTED TO FORT CRONKHITE, CALIFORNIA. YOU SAY THAT THE LATTER PLACE IS A SUBINSTALLATION OF THE PRESIDIO OF SAN FRANCISCO AND THAT THE PURPOSE OF THIS ACTIVE DUTY TOUR CONTINUED TO BE SITE SUPPORT OF THE U.S. ARMY RESERVE AT THE SAME GEOGRAPHICAL LOCATION FOR THE PERIOD JUNE 29, 1969, THROUGH JUNE 30, 1970.

YOU REPORT THAT THE PRESIDIO OF SAN FRANCISCO HAS NO FIELD RATION MESS NOR ARE THERE SUFFICIENT BACHELOR OFFICER QUARTERS AVAILABLE TO ACCOMMODATE ALL PERMANENTLY ASSIGNED BACHELOR PERSONNEL. THEREFORE, YOU SAY THAT IF ONLY THE LATEST TOUR OF ACTIVE DUTY IS CONSIDERED CHIEF WARRANT OFFICER GOUGH APPARENTLY WOULD BE ENTITLED TO PER DIEM FOR JUNE 1970, UNDER THE PROVISIONS OF PARAGRAPH M6001-1B AND C, VOLUME 1, JOINT TRAVEL REGULATIONS. YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT HE WAS ON CONTINUOUS ACTIVE DUTY SINCE JUNE 29, 1969, AND THAT HE WAS AT THE SAME LOCATION AND ASSIGNED THE SAME POSITION IN JUNE 1970 AS IN MAY 1970.

SECTION 404(A)(2) AND (3) OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS, INCLUDING UPON CALL TO ACTIVE DUTY FROM HIS HOME OR FROM THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY, TO HIS FIRST STATION AND RETURN TO THAT PLACE.

SECTION 404(A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 521, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE:

" *** WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE."

WE HAVE CONSISTENTLY HELD THAT CLAUSE 4 PERMITS THE PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS (LESS THAN 20 WEEKS) OF ACTIVE DUTY WHILE AT THE ACTIVE DUTY STATION IN CASES WHERE A MESS AND QUARTERS ARE NOT PROVIDED FOR THEM ON THE SAME BASIS THAT PER DIEM WOULD BE PAYABLE TO MEMBERS ON CONTINUOUS ACTIVE DUTY WHO ARE ORDERED THERE FROM THEIR PERMANENT DUTY STATIONS FOR THE PERFORMANCE OF TEMPORARY DUTY. WE HELD THAT CLAUSE 4 PROVIDES FOR THE PAYMENT OF PER DIEM ON THAT BASIS EVEN THOUGH SUCH ACTIVE DUTY STATIONS IN FACT ARE THE MEMBERS' PERMANENT DUTY STATIONS. SEE 48 COMP. GEN. 301 (1968); 48 COMP. GEN. 517 (1969); AND 48 COMP. GEN. 553 (1969).

PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE RESERVE COMPONENTS CALLED (OR ORDERED) TO ACTIVE DUTY (OR ACTIVE DUTY FOR TRAINING) WITH OR WITHOUT PAY WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4 OF THE REGULATIONS, AS APPROPRIATE, FOR TRAVEL TO AND FROM THE ACTIVE DUTY STATION.

GENERALLY, THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT IS ONE FOR WHICH PER DIEM IS AUTHORIZED IS A QUESTION OF FACT TO BE DETERMINED BY THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, THE CHARACTER OF THE SERVICE AND THE CIRCUMSTANCES UNDER WHICH IT IS PERFORMED. 24 COMP. GEN. 667, 670 (1945). WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT, AS REFLECTED IN THE ORDERS DIRECTING ITS PERFORMANCE, ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH A DETERMINATION, IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A CONTRARY FACTUAL SITUATION. 139112, MAY 27, 1959.

AS INDICATED ABOVE, CHIEF WARRANT OFFICER GOUGH WAS RELEASED FROM ACTIVE DUTY EFFECTIVE MAY 31, 1970, BY REASON OF A DEPARTMENT OF THE ARMY REQUIREMENT RELATING TO PERSONNEL ORDERED TO ACTIVE DUTY FOR RESERVE SITE SUPPORT IN THE FISCAL YEAR 1970. BEFORE HIS RELEASE BECAME EFFECTIVE, HOWEVER, VERBAL ORDERS, SUBSEQUENTLY CONFIRMED IN WRITING, WERE ISSUED TO EXTEND HIS ACTIVE DUTY, THE PURPOSE OF WHICH CONTINUED TO BE SITE SUPPORT OF THE U.S. ARMY RESERVE AT THE SAME LOCATION.

SINCE THE ORDER-ISSUING AUTHORITY APPARENTLY INTENDED THAT THE MEMBER PERFORM THE SAME DUTY ON A CONTINUOUS BASIS AT THE SAME GEOGRAPHICAL LOCATION FOR HIS ENTIRE PERIOD OF ACTIVE DUTY (JUNE 29, 1969 THROUGH JUNE 30, 1970), AND HE DID SO, THERE APPEARS TO BE NO BASIS FOR CONSIDERING THE PERIOD JUNE 1 THROUGH 30, 1970, AS OTHER THAN A CONTINUATION OF THE FIRST PERIOD OF ACTIVE DUTY FOR TRAINING. THEREFORE, THE MEMBER MAY NOT BE PAID PER DIEM FOR THE MONTH OF JUNE 1970 ON THE BASIS THAT THE ACTIVE DUTY FOR THAT MONTH WAS AUTHORIZED BY SEPARATE ORDERS AND THUS CONSTITUTED A SEPARATE PERIOD OF ACTIVE DUTY FOR LESS THAN 20 WEEKS WITHIN THE MEANING OF THE ABOVE-CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS. 48 COMP. GEN. 655 (1969).

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.