B-174376, DEC 28, 1971

B-174376, DEC 28, 1971

MILITARY PERSONNEL - CHANGE OF STATIONS - TEMPORARY OR PERMANENT DECISION ALLOWING CLAIM OF SSG. JAMES W. HAMPTON, USAF, TO TRAVEL ALLOWANCES FOR TEMPORARY DUTY ASSIGNMENT. THE CLAIMANT, ALONG WITH SEVEN OTHERS, WAS ORDERED BY THE 7TH AIR FORCE TO PROCEED FROM DA NANG, VIETNAM TO KORAT, THAILAND AS A PERMANENT CHANGE OF STATIONS. HOWEVER, THE SAME ORDERS SPECIFIED THAT THE AIRMEN WERE TO RETURN TO DA NANG AT THE END OF 90 DAYS. WHETHER AN ASSIGNMENT IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO DURATION AND NATURE OF THE DUTY. WHAT THE ORDERS CALL THE DUTY IS TO BE GIVEN CONSIDERABLE WEIGHT, BUT IS NOT CONTROLLING. HERE, HEADQUARTERS PACIFIC AIR FORCE (PACAF) COMMANDED THE TRANSFER OF THE EIGHT AIRMEN INVOLVED BY THE 7TH AIR FORCE BECAUSE OF A SHORTAGE OF SUCH PERSONNEL AT KORAT UNDER AUTHORITY OF CHAPTER 6 (TEMPORARY DUTY), AIR FORCE MANUAL. FROM THE CITED AUTHORITY, IT APPEARS THAT PACAF DID NOT INTEND THAT THE 7TH AF MAKE THE ASSIGNMENT INVOLVED A PERMANENT CHANGE OF STATIONS. FURTHER, AS THE DURATION WAS SHORT AND AS THE MEN WERE TO RETURN TO THEIR PRIOR STATIONS, THE CIRCUMSTANCES INDICATE THAT THE DUTY WAS TEMPORARY AND NOT PERMANENT. ACCORDINGLY, ALLOWANCES MAY BE PAID AS INCIDENT TO A TEMPORARY CHANGE OF STATIONS.

TO CAPTAIN D. E. BARBER:

WE REFER FURTHER TO YOUR LETTER DATED JUNE 3, 1971, WITH ATTACHMENTS, FORWARDED HERE BY INDORSEMENT DATED OCTOBER 20, 1971, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NO. 71-45), IN WHICH YOU REQUEST AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF STAFF SERGEANT JAMES W. HAMPTON, USAF, TO TRAVEL ALLOWANCES.

SPECIAL ORDER NO. AC-3725, MAY 15, 1971, HEADQUARTERS 366TH COMBAT SUPPORT GROUP (PACAF), APO SAN FRANCISCO, CALIFORNIA 96337, DIRECTED THE TRANSFER OF SERGEANT HAMPTON AND SEVEN OTHER AIRMEN ON A PERMANENT CHANGE OF STATION WITHOUT PERMANENT CHANGE OF ASSIGNMENT TO 388TH COMBAT SUPPORT GROUP (PACAF), APO SAN FRANCISCO, CALIFORNIA 96288. THEY WERE TO REPORT TO THEIR NEW STATION (KORAT AIR BASE, THAILAND), NO LATER THAN MAY 17, 1971. THE ORDER ALSO PROVIDED THAT EFFECTIVE AUGUST 17, 1971, IT WOULD BE AUTHORITY FOR ALL INDIVIDUALS CONCERNED TO RETURN TO THEIR PRIOR STATION (DA NANG AIR BASE, REPUBLIC OF VIETNAM). CITED AUTHORITY FOR THE ORDER WAS MESSAGE RECEIVED FROM THE 7TH AIR FORCE ON MAY 14, 1971, AND AIR FORCE MANUAL 39-11.

THE MANNING ASSISTANCE MESSAGE RECEIVED FROM HEADQUARTERS 7TH AIR FORCE ON MAY 14, 1971, DIRECTED THE REASSIGNMENT OF EIGHT AIRMEN WITH AFSC 316XIL (MISSILE GUIDANCE CONTROL) TO 388TH COMBAT SUPPORT GROUP (PACAF), AS A PERMANENT CHANGE OF STATION WITHOUT PERMANENT CHANGE OF ASSIGNMENT FOR A PERIOD OF 90 DAYS AND PROVIDED FOR THEIR RETURN TO THEIR ORIGINAL STATION AT THE END OF THAT PERIOD. THIS MESSAGE WAS ISSUED AFTER RECEIPT, ON MAY 12, 1971, OF A MESSAGE FROM HEADQUARTERS PACIFIC AIR FORCES WHICH STATED THAT THERE WAS AN URGENT NEED FOR SUCH PERSONNEL AT KORAT AIR BASE, THAILAND, AND WHICH ORDERED THE DEPLOYMENT OF THE AIRMEN FOR 90 DAYS' TEMPORARY DUTY.

SERGEANT HAMPTON HAS MADE CLAIM FOR PERMANENT CHANGE-OF-STATION TRAVEL ALLOWANCE OF $3.60 FOR TRAVEL FROM DA NANG AIR BASE TO KORAT AIR BASE, DURING THE PERIOD MAY 16-18, 1971. IN THIS REGARD, YOU SAY THAT THE VOUCHER PRESENTED BY THE MEMBER APPEARS TO COVER A PERIOD OF TEMPORARY DUTY RATHER THAN A PERMANENT CHANGE OF STATION. YOU POINT OUT THAT HEADQUARTERS PACIFIC AIR FORCES DIRECTED THE MOVEMENT IN QUESTION TO BE A TEMPORARY DUTY ASSIGNMENT. ALSO, YOU REFER TO MESSAGE RECEIVED FROM HEADQUARTERS 13TH AIR FORCE ON MAY 20, 1971, IN WHICH IT WAS STATED THAT NEITHER PERMANENT CHANGE OF STATION WITHOUT PERMANENT CHANGE OF ASSIGNMENT NOR PERMANENT CHANGE OF ASSIGNMENT WITHOUT PERMANENT CHANGE OF STATION APPEARED TO BE APPROPRIATE IN THE CIRCUMSTANCES.

YOU INDICATE THAT THE MEMBER'S ENTITLEMENTS FOR A TEMPORARY DUTY MOVEMENT WOULD BE APPROXIMATELY $177, DEPENDING ON THE LENGTH OF DUTY AT THE TEMPORARY DUTY STATION AND TRAVEL TIME IN RETURNING TO HIS FORMER STATION. YOU EXPRESS THE OPINION THAT THE JOINT TRAVEL REGULATIONS WERE CIRCUMVENTED TO AVOID PAYING PER DIEM ENTITLEMENTS INCIDENT TO A TEMPORARY ASSIGNMENT.

THE PERTINENT STATUTE, 37 U.S.C. 404(A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH M3003-2A OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT ONE OR MORE LOCATIONS, OTHER THAN THE PERMANENT STATION, AT WHICH A MEMBER PERFORMS TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT, OR PENDING FURTHER ASSIGNMENT, TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION UPON COMPLETION OF THE TEMPORARY DUTY.

THE TERM "PERMANENT CHANGE OF STATION," UNLESS OTHERWISE QUALIFIED, MEANS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES FROM ONE PERMANENT STATION TO ANOTHER, PAR. M3003-1A, JTR. ADDITIONALLY, AIR FORCE MANUAL 11-1, AIR FORCE GLOSSARY OF COMPTROLLER TERMS, JUNE 5, 1968, DEFINES A PERMANET CHANGE OF STATION AS A PHYSICAL TRANSFER OF A PERSON, GROUP OF PERSONS, OR UNIT FROM ONE STATION TO ANOTHER, MADE WITHOUT PLAN OR EXPECTATION OF RETURN TO THE STATION OF FIRST INSTANCE.

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 FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO THE DURATION AND NATURE OF THE DUTY. 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. DECISION B-139112, MAY 27, 1959.

ORDINARILY, MILITARY PERSONNEL ASSIGNED TO A STATION FOR A PERIOD OF RELATIVELY SHORT DURATION UNDER CONDITIONS CONTEMPLATING A FURTHER ASSIGNMENT TO A NEW STATION OR RETURN TO THE OLD PERMANENT STATION, ARE IN FACT IN A TEMPORARY DUTY STATUS WHILE SO ASSIGNED. 24 COMP. GEN. 667, 670, SUPRA. WHERE A PERMANENT CHANGE-OF-STATION ORDER PROVIDED THAT THE MEMBER REPORT TO A CERTAIN STATION FOR FURTHER ASSIGNMENT TO ANOTHER DESIGNATED STATION, TEMPORARY DUTY ALLOWANCES WERE ALLOWED FOR THE PERIOD THE MEMBER REMAINED AT THE FIRST STATION. 33 COMP. GEN. 98 (1953). TEMPORARY DUTY ALLOWANCES INCIDENT TO ATTENDANCE AT A COURSE OF INSTRUCTION LASTING ABOUT 15 WEEKS WERE ALSO AUTHORIZED BY DECISION B- 132393, OCTOBER 1, 1957, EVEN THOUGH THE ORDERS STATED THAT THE ASSIGNMENT WAS A PERMANENT CHANGE OF STATION.

THE RECORD BEFORE US INDICATES THAT HEADQUARTERS PACIFIC AIR FORCES HAD COMMAND AUTHORITY OVER BOTH THE 7TH AND 13TH AIR FORCES, AND, ACCORDINGLY, DIRECTED THE 7TH AIR FORCE TO PROVIDE MANNING ASSISTANCE TO THE 388TH COMBAT SUPPORT GROUP OF THE 13TH AIR FORCE, AS AUTHORIZED IN CHAPTER 6 (TEMPORARY DUTY), AIR FORCE MANUAL 39-11. IN ITS MESSAGE TO HEADQUARTERS 7TH AIR FORCE, HEADQUARTERS PACIFIC AIR FORCES SPECIFICALLY STATED THE NEED FOR DEPLOYMENT OF AIRMEN HOLDING AFSC 316XIL QUALIFICATIONS FOR TEMPORARY DUTY MANNING ASSISTANCE FOR A 90 DAY PERIOD. IT THUS APPEARS THAT IT WAS THE INTENTION OF THAT COMMAND THAT THE ASSIGNMENT WOULD BE OF A TEMPORARY NATURE, AND THAT DESIGNATION OF THE TRANSFER IN THE RESULTING ORDER AS A PERMANENT CHANGE OF STATION, PURSUANT TO INSTRUCTIONS FROM HEADQUARTERS 7TH AIR FORCE, WAS NOT CONTEMPLATED BY HIGHER HEADQUARTERS.

THE ORDER RECEIVED BY SERGEANT HAMPTON AND SEVEN OTHER MEMBERS OF THE 366TH COMBAT SUPPORT GROUP PURPORTED TO CHANGE THEIR PERMANENT STATION FROM DA NANG AIR BASE TO KORAT AIR BASE, AND TO AUTHORIZE ANOTHER PERMANENT CHANGE OF STATION FROM THERE TO THEIR FORMER STATION, DA NANG AIR BASE, 90 DAYS AFTER THE ORIGINAL CHANGE OF STATION. IN OUR VIEW THE ORDER BASICALLY REQUIRED DUTY AWAY FROM HOME STATION, WITH RETURN TO THAT STATION AFTER TERMINATION OF THE SPECIFIED TIME PERIOD WHICH, IN ACCORD WITH THE DECISIONS PREVIOUSLY CITED AND THE PROVISIONS OF PAR. M3003-2A, JTR, IS INDICATIVE OF A TEMPORARY DUTY STATUS. FURTHERMORE, THE 90-DAY PERIOD OF DUTY WITH THE 388TH COMBAT SUPPORT GROUP, IS OF SHORT DURATION AND IS CHARACTERISTIC OF TEMPORARY RATHER THAN A PERMANENT ASSIGNMENT. SEE 36 COMP. GEN. 757 (1957) AND PAR. M3003-2C, JTR.

IN VIEW OF THE CHARACTER OF THE ASSIGNMENT IN QUESTION, WE ARE OF THE OPINION THAT SERGEANT HAMPTON AND THE SEVEN OTHER AIRMEN WERE, IN FACT, ON TEMPORARY DUTY AT KORAT AIR BASE, THAILAND, AS A RESULT OF THE ORDERS ISSUED TO THEM ON MAY 15, 1971, AND IN THAT CONNECTION, MAY BE PAID TEMPORARY DUTY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED. THE VOUCHER SUBMITTED BY SERGEANT HAMPTON IS RETURNED HEREWITH AND MAY BE AMENDED AND PAID ON THE BASIS INDICATED.