B-133827, DECEMBER 5, 1957, 37 COMP. GEN. 389

B-133827, DECEMBER 5, 1957, 37 COMP. GEN. 389

MILITARY PERSONNEL - SHORE PATROL DUTY - SUBSISTENCE ALLOWANCE OR PER DIEM SHORE PATROL DUTY IS CONSIDERED TO BE A SEPARATE AND DISTINCT TYPE OF DUTY FOR WHICH SUBSISTENCE EXPENSES, RATHER THAN A PER DIEM AS FOR OTHER TEMPORARY DUTY, IS PRESCRIBED, AND THE REGULATIONS RECOGNIZE THAT IN CERTAIN CIRCUMSTANCES THE MEMBER PERFORMING SHORE PATROL DUTY MAY BE IN A TRAVEL STATUS AND ENTITLED TO PER DIEM AUTHORIZED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, AND THAT OTHER ASSIGNMENTS DO NOT PLACE THE MEMBER IN A TRAVEL STATUS. SHORE PATROL DUTY PERFORMED AT LONG BEACH, CALIFORNIA, BY A MARINE CORPS ENLISTED MAN WHO WAS ISSUED TEMPORARY DUTY ORDERS PRESCRIBING PER DIEM BUT WHO COMMUTES DAILY FROM HIS PERMANENT STATION AT EL TORO, CALIFORNIA, WHICH IS 28 MILES DISTANT, MAY BE REGARDED AS DUTY "IN A GENERAL AREA VISITED BY LIBERTY PARTIES FROM A SHIP OR STATION" UNDER REGULATIONS WHICH PRESCRIBE A SUBSISTENCE ALLOWANCE RATHER THAN PER DIEM FOR SHORE PATROL DUTY IN A NONTRAVEL STATUS.

TO RAY WOODS, UNITED STATES MARINE CORPS, DECEMBER 5, 1957:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1957, WITH ENCLOSURES TRANSMITTED HERE BY FIRST ENDORSEMENT DATED SEPTEMBER 16, 1957, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION AS TO WHETHER MASTER SERGEANT JAMES B. JOHNSON, U.S. MARINE CORPS, IS ENTITLED TO REIMBURSEMENT OF PER DIEM ALLOWANCE OR PAYMENT OF A SUBSISTENCE ALLOWANCE IN CONNECTION WITH HIS TEMPORARY ADDITIONAL DUTY AS SHORE PATROL AT LONG BEACH, CALIFORNIA, DURING THE PERIOD AUGUST 20, 1956, THROUGH MARCH 4, 1957.

IT APPEARS THAT BY PARAGRAPH 2 OF SPECIAL ORDERS NO. 579-56, DATED AUGUST 17, 1956, HEADQUARTERS, 3D MARINE AIRCRAFT WING, AIRFMFPAC, MARINE CORPS AIR STATION, EL TORO ( SANTA ANA), CALIFORNIA, MASTER SERGEANT JAMES B. JOHNSON WAS DIRECTED TO REPORT, BY 10800 ON AUGUST 20, 1956, TO THE COMMANDING GENERAL, MARINE BARRACKS, UNITED STATES NAVAL BASE, LONG BEACH, CALIFORNIA, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH SHORE PATROL ACTIVITIES FOR A PERIOD OF APPROXIMATELY 45 DAYS, AND UPON COMPLETION OF THE TEMPORARY DUTY TO RETURN TO HIS DUTY STATION. THE ORDERS ALSO PRESCRIBED THAT, UPON ARRIVAL AT LONG BEACH, PER DIEM WOULD BE PAID IN ACCORDANCE WITH PARAGRAPH 78411 OF THE MARINE CORPS MANUAL. THROUGH SUCCESSIVE ORDERS THE PERIOD OF DUTY WAS EXTENDED FROM TIME TO TIME AND WAS TERMINATED ON MARCH 4, 1947, ON WHICH DATE HE RETURNED TO HIS STATION AT EL TORO ( SANTA ANA). IT ALSO APPEARS THAT QUARTERS WHICH WERE AVAILABLE AT LONG BEACH WERE NOT UTILIZED BY THE ENLISTED MAN AND THAT HE COMMUTED DAILY FROM EL TORO TO LONG BEACH ON THE FOLLOWING SCHEDULE: DEPARTED FROM HOME AT 10700 HOURS; ARRIVED AT LONG BEACH AT 10800 HOURS; DEPARTED LONG BEACH AT 1700 HOURS; AND ARRIVED HOME AT 1800 HOURS.

YOU STATE IN YOUR LETTER THAT PER DIEM, IF PROPER, WOULD BE PAID IN ACCORDANCE WITH PARAGRAPH 4205-5 OF THE JOINT TRAVEL REGULATIONS, AND THAT PARAGRAPH 78411 OF THE MARINE CORPS MANUAL, CITED AS AUTHORITY IN THE ORDERS, OUTLINES THE PROCEDURE FOR PAYMENT OF SUBSISTENCE ALLOWANCE, RATHER THAN PER DIEM.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, PROVIDES, IN PERTINENT PART, THAT:

(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS (1) UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY * * *. THE RESPECTIVE SECRETARIES CONCERNED MAY PRESCRIBE (1) THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES SHALL BE AUTHORIZED * * * AND (2) THE ALLOWANCES FOR TYPES OF TRAVEL NOT TO EXCEED AMOUNTS HEREIN AUTHORIZED.

(G) THE SECRETARIES CONCERNED SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS.

BY ALNAV 39, DATED AUGUST 17, 1956, EFFECTIVE AUGUST 20, 1956, CITING AS AUTHORITY SECRETARY OF THE NAVY NOTE NO. 7200, THE PROVISIONS OF NAVY COMPTROLLER MANUAL, VOLUME 4, CHAPTER 4, WERE MADE APPLICABLE TO THE MARINE CORPS AND EXCEPT FOR CERTAIN PARAGRAPHS NOT HERE PERTINENT, THE MARINE CORPS MANUAL, VOLUME 3, WAS CANCELED. SINCE PARAGRAPH 78411 OF THE MARINE CORPS MANUAL IS CONTAINED IN VOLUME 3 OF THAT MANUAL AND WAS CANCELED EFFECTIVE AUGUST 20, 1956, THE CLAIM IS FOR CONSIDERATION UNDER THE PERTINENT PROVISIONS OF THE NAVY COMPTROLLER MANUAL, AND THE BUREAU OF NAVY PERSONNEL MANUAL.

PARAGRAPH 1046376 OF THE NAVY COMPTROLLER MANUAL, AT THE TIME OF JOHNSON'S ASSIGNMENT TO SHORE PATROL DUTY AND THEREAFTER UNTIL TERMINATION OF SUCH DUTY, PROVIDED AS FOLLOWS:

1046376 SHORE PATROL EXPENSES

1. ENTITLEMENT

A. TRAVEL STATUS. ENLISTED PERSONNEL ORDERED TO SHORE PATROL DUTY ABOARD PUBLIC CARRIERS WITHIN THE UNITED STATES OR CANADA ARE ENTITLED TO ALLOWANCES AUTHORIZED BY THE JOINT TRAVEL REGULATIONS, PARS. 6550 AND 6552. PERSONNEL SERVING ON SHORE PATROL DUTY IN A TRAVEL STATUS, OTHER THAN ABOARD PUBLIC CARRIERS, WILL BE GOVERNED BY THE REGULATIONS AND RATES PRESCRIBED IN THE JOINT TRAVEL REGULATIONS FOR PERSONNEL IN A TRAVEL STATUS.

B. NONTRAVEL STATUS. PERSONNEL SERVING ON SHORE PATROL DUTY IN THE GENERAL AREA VISITED BY LIBERTY PARTIES FROM A SHIP OR STATION ARE CONSIDERED TO BE IN A NONTRAVEL STATUS. AUTHORIZED ALLOWANCES FOR OFFICERS AND ENLISTED PERSONNEL OF THE NAVY ORDERED TO SHORE PATROL DUTY IN A NONTRAVEL STATUS ARE PRESCRIBED IN THE BUREAU OF NAVAL PERSONNEL MANUAL, ART. C-7905. MARINE CORPS AND ENLISTED PERSONNEL ARE ENTITLED TO THE SAME ALLOWANCES AS NAVY PERSONNEL.

ARTICLE C-7905, BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

C-7905 SHORE PATROL ORDERS AND EXPENSES ( CHANGE NO. 16)

(1) COMMANDING OFFICERS OUTSIDE THE CONTINENTAL UNITED STATES, SENIOR OFFICERS PRESENT AFLOAT, AND SHORE COMMANDS WITHIN THE UNITED STATES MAY AUTHORIZE AND PAY CASH SHORE PATROL ALLOWANCES FOR QUARTERS, SUBSISTENCE, AND CERTAIN OTHER SUNDRY EXPENSES, WHEN FACILITIES ARE NOT AVAILABLE TO PERSONNEL PERFORMING SHORE PATROL DUTY. PERSONNEL SERVING ON SHORE PATROL DUTY IN THE GENERAL AREA VISITED BY LIBERTY PARTIES FROM A SHIP OR STATION ARE CONSIDERED TO BE IN A NON-TRAVEL STATUS. * * *

THERE SEEMS TO BE NO DOUBT THAT SHORE PATROL DUTY HAS BEEN CONSIDERED TO BE A SEPARATE AND DISTINCT TYPE OF DUTY FOR WHICH SUBSISTENCE EXPENSES RATHER THAN A PER DIEM AS FOR OTHER TEMPORARY DUTY COULD BE PRESCRIBED. THE REGULATIONS ISSUED IN CONNECTION WITH SHORE PATROL EXPENSES RECOGNIZE THAT IN CERTAIN CIRCUMSTANCES THE MEMBER PERFORMING SHORE PATROL MAY BE IN A TRAVEL STATUS AND ENTITLED TO THE PER DIEM AUTHORIZED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. ALSO, THEY RECOGNIZE THAT OTHER ASSIGNMENTS TO SUCH DUTY DO NOT PLACE THE MEMBER IN A TRAVEL STATUS. COMPARE SECTION 506 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 306.

THE ORDERS INVOLVED IN THE PRESENT CASE CLEARLY ASSIGN THE ENLISTED MAN TO DUTY INVOLVING SHORE PATROL ACTIVITIES AND THE PROVISION IN THOSE ORDERS THAT HE SHALL BE PAID IN ACCORDANCE WITH PARAGRAPH 78411, MARINE CORPS MANUAL, WHICH RELATED TO PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE RATHER THAN PER DIEM FOR TEMPORARY DUTY, MUST BE VIEWED AS AN ADMINISTRATIVE DETERMINATION THAT HE WOULD NOT BE IN A TRAVEL STATUS DURING SUCH ASSIGNMENT.

SINCE IT IS STATED THAT LONG BEACH IS BUT 28 MILES DISTANT FROM THE MARINE CORPS AIR STATION, AT EL TORO ( SANTA ANA), AND APPEARS EASILY ACCESSIBLE BY PRIVATE TRANSPORTATION IN LESS THAN ONE HOUR, IT WAS REASONABLE TO CONCLUDE THAT LONG BEACH IS IN A GENERAL AREA VISITED BY LIBERTY PARTIES FROM THE MARINE CORPS AIR STATION AT EL TORO, AND THAT UNDER PARAGRAPH 1 (B) OF ARTICLE 1046376 OF THE NAVY COMPTROLLER MANUAL AND ARTICLE C-7905 OF THE BUREAU OF NAVAL PERSONNEL MANUAL, MASTER SERGEANT JOHNSON WAS IN A NONTRAVEL STATUS. HENCE, HE IS ENTITLED TO A SUBSISTENCE ALLOWANCE RATHER THAN A PER DIEM WHILE ON THE DIRECTED SHORE PATROL DUTY. THIS APPEARS TO BE THE VIEW OF HEADQUARTERS, U.S. MARINE CORPS, AS EXPRESSED IN NAVAL SPEED LETTER OF JUNE 4, 1957, TO YOU IN THE CASE OF MASTER SERGEANT CHARLES A. ORR, WHO WAS REPLACED AT LONG BEACH BY MASTER SERGEANT JAMES B. JOHNSON.

ACCORDINGLY, IF THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AMENDED TO PROVIDE FOR PAYMENT ON A SUBSISTENCE ALLOWANCE BASIS RATHER THAN PER DIEM, IN ACCORDANCE WITH THE FOREGOING, PAYMENT IS AUTHORIZED, IF OTHERWISE CORRECT.