B-137969, DEC 11, 1958

B-137969, DEC 11, 1958

PRECIS-UNAVAILABLE

CHARLES W. NIEHART:

FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION OF SEPTEMBER 22, 1958, AND RELATED CORRESPONDENCE IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 3, 1958, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U. S. NAVAL MOBILE CONSTRUCTION BATTALION FOUR DURING THE PERIOD MAY 27 TO DECEMBER 12, 1955. SUCH CLAIM WAS DISALLOWED FOR THE REASON THAT IT WAS NOT SUPPORTED BY COMPETENT ORDERS.

WITH YOUR REQUEST, YOU HAVE SUBMITTED A STATEMENT, DATED SEPTEMBER 2, 1958, FROM THE PERSONNEL OFFICER OF MOBILE CONSTRUCTION BATTALION FOUR IN WHICH HE CONTENDS THAT YOU DID NOT TRAVEL ON VERBAL ORDERS. HE APPPEARS TO REGARD TWO COMMUNICATIONS TO YOU FROM THE COMMANDING OFFICER OF THE BATTALION BOTH DATED APRIL 25, 1956 - HERETOFORE CONSIDERED IN CONNECTION WITH YOUR CLAIM - AS COMPETENT ORDERS DIRECTING THE PERFORMANCE OF TRAVEL AND TEMPORARY ADDITIONAL DUTY DURING THE PERIOD INVOLVED. SUCH COMMUNICATIONS MERELY ADVISED YOU THAT YOU PROCEEDED ON VERBAL ORDERS FROM DAVISVILLE, RHODE ISLAND, TO PORT LYAUTEY, FRENCH MOROCCO, IN JUNE 1955 FOR TEMPORARY ADDITIONAL DUTY AND THAT YOU RETURNED TO DAVISVILLE IN DECEMBER 1955.

FOR A LONG PERIOD OF TIME, DUTY OF THE TYPE YOU WERE PERFORMING DURING THE PERIOD HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. AS A RESULT, MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD, THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTIONS 7220.19 ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPHS 6C AND D OF THE SECRETARY'S INSTRUCTIONS PROVIDED:

"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER DIEM ALLOWANCES.

"D. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY, FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE DATE OF THIS INSTRUCTION, WILL NOT BE ISSUED CONFIRMING ORDERS."

THE PROVISIONS OF PARAGRAPH 6C, QUOTED ABOVE, CONSTITUTES A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAD BEEN ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE SUCH AS COMPLY WITH THE APPLICABLE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES CONCERNED ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS ISSUED IN ADVANCE OF TRAVEL. PARAGRAPHS 3002-1 AND 3002-2 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

PARAGRAPH 3003-2 OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY DUTY ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT STATION WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. THE COMMUNICATIONS OF APRIL 25, 1956, (WHICH CONTAIN REFERENCES TO MOVEMENT ORDERS THE CONTENTS OF WHICH ARE NOT OTHERWISE DISCLOSED) DIRECT NO TRAVEL IN THEMSELVES, AND THEY DO NOT EVEN PURPORT TO CONFIRM ANY VERBAL ORDERS DIRECTING TRAVEL. ALSO, THEY DO NOT PROVIDE FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR YOUR RETURN TO THE OLD PERMANENT STATION. HENCE, THEY DO NOT MEET THE REQUIREMENTS OF PARAGRAPH 6C OF SECNAV INSTRUCTIONS 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORD NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR PER DIEM WHILE PERFORMING DUTY WITH MOBILE CONSTRUCTION BATTALION FOUR AT PORT LYAUTEY, FRENCH MOROCCO.

ACCORDINGLY, ON THE BASIS OF THE ORDERS SUBMITTED IN SUPPORT OF YOUR CLAIM, THE SETTLEMENT OF APRIL 3, 1958, MUST BE SUSTAINED.