B-175101, JUL 28, 1972

B-175101, JUL 28, 1972

MILITARY PERSONNEL - PER DIEM - TRAVEL STATUS REQUIRED DECISION DENYING CLAIM OF MR. LYNDON D. WILLIAMS FOR PER DIEM FOR THE PERIOD FEBRUARY 22 THROUGH AUGUST 28, 1967, FOR DUTY PERFORMED AT NAS, NORTH ISLAND AND NAS, MOFFETT FIELD, CALIF. CLAIMANT MADE TWO PERMANENT CHANGES OF STATION IN A SHORT PERIOD OF TIME WHICH RESULTED IN INCREASED EXPENSES TO HIM. THIS FACT, HOWEVER, DOES NOT PROVIDE A BASIS FOR PAYMENT OF PER DIEM. SINCE CLAIMANT WAS NOT IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST, HE CANNOT BE PAID PER DIEM. (SEE 37 U.S.C. 404(A)). THE CLAIM IS THEREFORE DENIED.

TO MR. LYNDON D. WILLIAMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 7, 1972, IN WHICH YOU REQUEST RECONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR THE PERIOD FEBRUARY 22 THROUGH AUGUST 28, 1967, FOR DUTY PERFORMED AT NAS, NORTH ISLAND AND NAS, MOFFETT FIELD, CALIFORNIA. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 15, 1971.

THE RECORD INDICATES BUPERS ORDER 019889, DATED NOVEMBER 29, 1966, ORDERED YOU TO PROCEED FROM NAS, CORPUS CHRISTI, TEXAS, TO NAS, NORTH ISLAND, SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY FOR ABOUT 20 WEEKS WITH PATROL SQUADRON 31 AND UPON COMPLETION OF THAT DUTY, TO REPORT TO THE PORT IN WHICH PATROL SQUADRON 50 MAY BE. THE RECORD INDICATES THAT YOU DEPARTED NAS, CORPUS CHRISTI, TEXAS, ON FEBRUARY 22, 1967, AND REPORTED AT NAS, NORTH ISLAND, ON MARCH 9, 1967. THE RECORD SHOWS THAT YOUR HOUSE TRAILER WAS MOVED THERE AT GOVERNMENT EXPENSE AND YOU RECEIVED PERSONAL AND DEPENDENT MILEAGE FOR YOUR MOVE TO NAS, NORTH ISLAND, SINCE PATROL SQUADRON 50 WAS LOCATED THERE AT THAT TIME.

THE SECOND ENDORSEMENT ON YOUR ORIGINAL ORDERS ISSUED MARCH 9, 1967, MODIFIED YOUR ORDERS TO THE EXTENT THAT PATROL SQUADRON 31 HAD BEEN REDESIGNATED PATROL SQUADRON 31, DETACHMENT NORTH ISLAND. ALL THE OTHER PROVISIONS OF YOUR BASIC ORDERS REMAINED IN EFFECT.

BY BUPERS ORDER 019889(1) ISSUED MAY 12, 1967, YOUR ORIGINAL ORDERS WERE AMENDED TO INDICATE YOUR TEMPORARY DUTY WOULD BE ABOUT 8 WEEKS INSTEAD OF 20 WEEKS AND UPON COMPLETION OF THAT DUTY YOU WERE TO REPORT TO PATROL SQUADRON 31 AT NAS, MOFFETT FIELD, CALIFORNIA, FOR TEMPORARY DUTY FOR ABOUT 12 WEEKS AND THEN CARRY OUT THE REMAINDER OF YOUR BASIC ORDERS.

THE THIRD ENDORSEMENT TO YOUR ORDERS INDICATED YOU WERE DETACHED FROM PATROL SQUADRON 31, DETACHMENT NORTH ISLAND ON MAY 31, 1967, AND WERE ORDERED TO REPORT FOR TEMPORARY DUTY FOR ABOUT 12 WEEKS TO PATROL SQUADRON 31 AT NAS, MOFFETT FIELD, CALIFORNIA, NOT LATER THAN JUNE 2, 1967.

ON JUNE 2, 1967, OPNAV INSTRUCTION 3111.14L CHANGE TRANSMITTAL 5, WAS ISSUED, WHICH CHANGED THE PORT OF PATROL SQUADRON 50 FROM NAS, NORTH ISLAND, TO NAS, MOFFETT FIELD, EFFECTIVE JULY 1, 1967.

THE RECORD INDICATES THAT ON JUNE 8, 1967, YOU WERE PAID PERSONAL AND DEPENDENT MILEAGE AND DISLOCATION ALLOWANCE FOR A PERMANENT CHANGE OF STATION FROM NAS, NORTH ISLAND, TO NAS, MOFFETT FIELD.

THE FOURTH ENDORSEMENT ON YOUR ORDERS INDICATES YOU REPORTED FOR DUTY WITH PATROL SQUADRON 31 AT MOFFETT FIELD ON JUNE 2, 1967, AND WERE DETACHED FROM THAT DUTY AUGUST 28, 1967. THE FIFTH ENDORSEMENT ON YOUR ORDERS INDICATES YOU REPORTED TO PATROL SQUADRON 50 AT MOFFETT FIELD ON AUGUST 28, 1967.

YOU INDICATED IN YOUR INITIAL CLAIM THAT, SINCE YOU HAD TO MAKE TWO PERMANENT CHANGES OF STATION WITHIN A SHORT PERIOD OF TIME THROUGH NO FAULT OF YOUR OWN, YOU FEEL YOU ARE ENTITLED TO PER DIEM FOR THE PERIOD OF YOUR TEMPORARY DUTY.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION OF DECEMBER 15, 1971, ON THE BASIS THAT YOU WERE NOT CONSIDERED TO BE IN A TRAVEL STATUS WITHIN THE CONTEMPLATION OF 37 U.S.C. 404 AND THE REGULATIONS PROMULGATED PURSUANT TO THAT SECTION, SO THAT PAYMENT OF PER DIEM WAS NOT AUTHORIZED.

YOU NOW SAY THAT YOU FEEL YOU SHOULD BE CONSIDERED TO BE IN A TRAVEL STATUS IF IT HAD BEEN DETERMINED PRIOR TO THE ISSUANCE OF YOUR ORDERS THAT THE HOME PORT OF PATROL SQUADRON 50 WOULD BE CHANGED. YOU ALSO SAY THAT WHILE YOU DID NOT EAT IN RESTAURANTS AND RENT A ROOM, YOU WERE PUT TO ADDITIONAL EXPENSE AS A RESULT OF THE PERMANENT CHANGE OF STATION TO NORTH ISLAND, SAN DIEGO, WHEN YOU PERFORMED DUTY THERE FOR ONLY 10 WEEKS AND THEN MOVED TO MOFFETT FIELD.

SECTION 404(A) OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY." CONSEQUENTLY, REGARDLESS OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF THOSE ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH TEMPORARY DUTY IS PERFORMED AT A POINT REMOVED FROM THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT STATION.

IT IS WELL ESTABLISHED THAT A MEMBER WHO, AFTER DETACHMENT FROM HIS OLD PERMANENT STATION, PERFORMS TEMPORARY DUTY AT HIS NEW PERMANENT STATION WHICH IS THEN HIS DESIGNATED POST OF DUTY MAY NOT BE VIEWED AS BEING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE CONTEMPLATION OF 37 U.S.C. 404, DURING THE PERIOD OF SUCH TEMPORARY DUTY. 37 COMP. GEN. 140 (1957); 38 COMP. GEN. 656 (1959) AND 38 COMP. GEN. 697, 699 (1959).

PARAGRAPH M 3003-2A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TERM "TEMPORARY DUTY" MEANS DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. PARAGRAPH M 4209 OF THESE REGULATIONS PROVIDES FURTHER THAT A MEMBER WILL NOT BE ENTITLED TO PER DIEM FOR TEMPORARY DUTY UNDER ORDERS WHICH DESIGNATE HIS TEMPORARY DUTY STATION AS HIS PERMANENT STATION, EFFECTIVE EITHER IMMEDIATELY OR ON A LATER DATE, UNLESS THE CHANGE-OF STATION ORDERS SPECIFICALLY DIRECT HIS RETURN TO THE OLD PERMANENT STATION ON OFFICIAL BUSINESS. 34 COMP. GEN. 427 (1955).

IT HAS BEEN HELD THAT THIS IS EQUALLY APPLICABLE WHERE A MEMBER IS PERFORMING TEMPORARY DUTY UNDER ORDERS DIRECTING HIM TO REPORT TO A SQUADRON FOR PERMANENT DUTY ON COMPLETION OF THE TEMPORARY DUTY, AND NOTICE IS GIVEN THAT THE PERMANENT STATION OF THE SQUADRON WILL BE CHANGED TO THAT LOCATION EFFECTIVE PRIOR TO OR AT THE TIME OF THE COMPLETION OF THE TEMPORARY DUTY. IN SUCH CASES PER DIEM IS NOT AUTHORIZED FOR THE TEMPORARY DUTY SUBSEQUENT TO THE DATE OF THE NOTICE THAT THE SQUADRON'S PERMANENT STATION WILL BE CHANGED TO THAT LOCATION. 38 COMP. GEN. 697, 699 (1959).

THE RECORD INDICATES THAT THE PERMANENT STATION OF PATROL SQUADRON 50 FOR THE PERIOD JUNE 30, 1964, THROUGH JUNE 30, 1967, WAS NAS, NORTH ISLAND, CALIFORNIA. THEREFORE, IT WAS NOT JUST COINCIDENTAL THAT THE SQUADRON WAS AT NORTH ISLAND WHILE YOU WERE PERFORMING YOUR TEMPORARY DUTY AT THAT POINT. WHETHER OR NOT IT HAD BEEN DETERMINED PRIOR TO ISSUANCE OF YOUR ORDERS TO CHANGE THE STATION OF PATROL SQUADRON 50 IS IMMATERIAL SINCE IT WAS IN FACT STATIONED AT NORTH ISLAND WHILE YOU WERE ON DUTY THERE. FURTHERMORE, SINCE YOU WERE ON NOTICE AT THE TIME YOU COMMENCED TEMPORARY DUTY AT MOFFETT FIELD THAT PATROL SQUADRON 50 WOULD BE STATIONED AT MOFFETT FIELD EFFECTIVE JULY 1, 1967, PER DIEM IS NOT AUTHORIZED FOR THE PERIOD OF TEMPORARY DUTY PERFORMED AT MOFFETT FIELD. IT WAS YOUR DESIGNATED STATION AT THE TIME YOU TRAVELED THERE AND IT WAS ON THAT BASIS THAT YOU WERE APPARENTLY PAID PERMANENT CHANGE OF-STATION ALLOWANCES FOR SUCH MOVE.

WHILE YOU FEEL YOU INCURRED ADDITIONAL EXPENSES AS A RESULT OF THE CHANGE OF PORT OF PATROL SQUADRON 50, THE RECORD INDICATES YOU WERE PAID THOSE ALLOWANCES TO WHICH YOU WERE ENTITLED INCIDENT TO THE CHANGES OF STATION AS AUTHORIZED UNDER THE LAW AND REGULATIONS. THE FACT THAT YOU MAY HAVE INCURRED ADDITIONAL EXPENSES BECAUSE OF THE SHORT PERIOD YOU WERE AT NORTH ISLAND DOES NOT AFFORD A BASIS FOR THE PAYMENT OF PER DIEM FOR SUCH PERIOD SINCE YOU WERE IN FACT AT YOUR PERMANENT STATION.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM.