B-138760, JUNE 22, 1959, 38 COMP. GEN. 853

B-138760, JUNE 22, 1959, 38 COMP. GEN. 853

MILITARY PERSONNEL - SUBSISTENCE - PER DIEM - TEMPORARY OR PERMANENT ALTHOUGH A TIME LIMITATION OF SIX MONTHS FOR TEMPORARY DUTY ASSIGNMENTS FOR MEMBERS OF THE UNIFORMED SERVICES APPEARS REASONABLE UNDER ORDINARY CIRCUMSTANCES, IF THE SERVICES PROMULGATE UNIFORM REGULATIONS APPLICABLE TO ALL SERVICE PURSUANT TO THE AUTHORITY IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), WITH REASONABLE TIME LIMITATIONS FOR TEMPORARY ASSIGNMENTS, WITH APPROPRIATE ADMINISTRATIVE CRITERIA FOR APPROVAL, IN EXCEPTIONAL CASES, OF TEMPORARY DUTY ASSIGNMENTS WHICH ARE NOT OF SHORT DURATION, PAYMENT OF PER DIEM IN SUCH CASES FOR PERIODS OF DUTY IN EXCESS OF SIX MONTHS COULD BE AUTHORIZED.

TO THE SECRETARY OF THE ARMY, JUNE 22, 1959:

IN LETTER OF FEBRUARY 3, 1959, FROM THE UNDER SECRETARY OF THE ARMY, IT IS REQUESTED THAT OUR DECISION OF MAY 3, 1957, B-131145 (36 COMP. GEN. 757), CONCERNING THE QUESTION OF THE EXISTENCE OF A TRAVEL STATUS FOR PER DIEM PURPOSES DURING THE PERFORMANCE BY MEMBERS OF THE ARMED FORCES OF TEMPORARY DUTY ASSIGNMENTS FOR PERIODS OF PROLONGED DURATION, BE RECONSIDERED AND MODIFIED IN VIEW OF THE CIRCUMSTANCES THERE PRESENTED. THE SUBMISSION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 58 11.

IN OUR DECISION OF MAY 3, 1957, IT WAS HELD THAT THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), AUTHORIZING TRAVEL ALLOWANCES FOR PERIODS MEMBERS ARE IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, DO NOT CONTEMPLATE THE PAYMENT OF PER DIEM INCIDENT TO DUTY WHERE ITS FORESEEABLE DURATION EXTENDS BEYOND REASONABLE TEMPORARY DUTY LIMITATIONS, EVEN THOUGH DESIGNATED IN THE ORDERS AS TEMPORARY DUTY, SUCH DUTY THEN BEING CONSIDERED THE MEMBER'S PERMANENT DUTY ASSIGNMENT. WHILE THE DUTY ASSIGNMENTS IN QUESTION IN THAT CASE WERE FOR PERFORMANCE UNDER ORDERS DIRECTING TEMPORARY DUTY EXTENDING FOR 18 MONTHS, WHICH WERE HELD TO BE PERMANENT DUTY ASSIGNMENTS, THE VIEW WAS EXPRESSED THAT DUTY ASSIGNED FOR FORESEEABLE PERIODS EXCEEDING FIVE OR SIX MONTHS SHOULD NOT BE CONSIDERED TEMPORARY, THE PERIODS CONTEMPLATED BY THE STATUTE BEING THOSE OF SHORT DURATION AND TRANSITORY NATURE.

IT IS STATED BY THE UNDER SECRETARY OF THE ARMY THAT THE DEPARTMENT OF THE ARMY FINDS IT NECESSARY IN SOME INSTANCES TO PLACE ACTIVE ARMY PERSONNEL ON TEMPORARY DUTY FOR PERIODS IN EXCESS OF SIX MONTHS AT ONE PLACE. IT IS SUGGESTED THAT ASSIGNMENTS SUCH AS THOSE PROVIDING ADMINISTRATIVE AND LOGISTICS SUPPORT AT TRAINING CAMPS FOR THE RESERVE COMPONENTS FALL WITHIN THAT CATEGORY, PARTICULARLY WHEN THE ENCAMPMENT SITE IS AN INACTIVE INSTALLATION, WHERE THE CIRCUMSTANCES OF THE TRAINING PROGRAM AND SMALL NUMBER OF PERSONNEL REMAINING IN EXCESS OF SIX MONTHS DO NOT WARRANT ACTIVATION OF THE INSTALLATION IN VIEW OF THE ATTENDANT COSTS THAT WOULD BE INVOLVED IN CONSTRUCTING PERMANENT BUILDINGS AND PROVIDING ADEQUATE FACILITIES AND SERVICES FOR PERMANENT/PARTY PERSONNEL AND THEIR DEPENDENTS. OTHER TEMPORARY DUTY ASSIGNMENTS MENTIONED AS POSSIBLY EXTENDING MORE THAN SIX MONTHS ARE THOSE INVOLVING MANEUVERS AND FIELD EXERCISES, PARTICULARLY WHEN THE PARTICIPANTS MUST ENGAGE IN PREPLANNING AND CLOSE-OUT PHASES IN ADDITION TO THE ACTUAL OPERATION. APPARENTLY, ON THE BASIS OF THE IMPRACTICABILITY OF CONSIDERING ASSIGNMENTS OF THAT NATURE AS PERMANENT DUTY ASSIGNMENTS, IT IS REQUESTED THAT THE DECISION OF MAY 3, 1957, BE MODIFIED TO REFLECT AUTHORITY IN THE SECRETARY OF THE ARMY TO DETERMINE WHETHER A DUTY ASSIGNMENT, REGARDLESS OF LENGTH, IS PERMANENT OR TEMPORARY OR, IN THE ALTERNATIVE, TO REFLECT NO OBJECTION TO THE SECRETARY DETERMINING THAT THE MAXIMUM PERIOD FOR TEMPORARY ASSIGNMENTS, AT LEAST OF THE TYPES MENTIONED, MAY BE ONE YEAR.

IN A MEMORANDUM DATED MARCH 16, 1959, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THERE WERE SET FORTH ADDITIONAL EXAMPLES OF SITUATIONS AND ASSIGNMENTS IN WHICH IT IS SUGGESTED THAT THEIR PERMANENT OR TEMPORARY NATURE SHOULD BE FOR DETERMINATION AT THE DISCRETION OF THE SECRETARY. INCLUDED IN THOSE EXAMPLES ARE ASSIGNMENTS TO A FOREIGN COUNTRY WHERE AGREEMENTS WITH THAT COUNTRY PRECLUDE THE ASSIGNMENT OF CERTAIN CATEGORIES OF ARMY PERSONNEL THERE ON A PERMANENT CHANGE OF STATION BASIS; DUTY IN CONNECTION WITH TESTS, SUCH AS ATOMIC TESTS, WHICH OFTEN ARE CONDUCTED UNDER CIRCUMSTANCES WHERE ACCURATE FORECASTS OF THE DURATION ARE NOT FEASIBLE; ASSIGNMENTS TO COURSES OF INSTRUCTION WHERE AN ECONOMICALLY UNSOUND SITUATION MIGHT RESULT FROM A REQUIREMENT THAT ALL LENGTHY ASSIGNMENTS BE CONSIDERED PERMANENT; AND ASSIGNMENTS WHICH REQUIRE THE COMPLETION OF A SPECIFIC JOB AS DISTINGUISHED FROM THE COMPLETION OF A STABILIZED TOUR, FOR EXAMPLE, ASSIGNMENTS TO OVERSEAS DUTY AS TO WHICH THE INITIAL LENGTH OF THE ASSIGNMENT ALONE FORMS THE BASIS FOR DENYING TRANSPORTATION OF DEPENDENTS TO OVERSEAS AREAS AND ENTITLEMENT TO COST-OF-LIVING ALLOWANCES AS MEMBERS WITH DEPENDENTS.

PARAGRAPH 4200 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE PER DIEM ALLOWANCES THEREIN PRESCRIBED, WITH CERTAIN EXCEPTIONS,"ARE APPLICABLE FOR ALL PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION THEREWITH.' THE BROAD PROVISIONS OF THAT PARAGRAPH MUST BE READ TOGETHER WITH PARAGRAPH 3050-1 WHICH PROVIDES THAT---

1. IMPORTANCE OF TRAVEL STATUS. MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, ONLY WHILE ACTUALLY IN A "TRAVEL STATUS.' THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.

SUBPARAGRAPH 3 OF PARAGRAPH 3050 PROVIDES THAT A TRAVEL STATUS WILL INCLUDE---

1. TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY: TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, INCLUDING TIME SPENT AT A TEMPORARY DUTY STATION OR A TEMPORARY ADDITIONAL DUTY STATION, WITHOUT REGARD TO WHETHER DUTY IS REQUIRED TO BE PERFORMED WHILE TRAVELING, AND WITHOUT REGARD TO LENGTH OF TIME AWAY FROM THE PERMANENT DUTY STATION.

PARAGRAPH 3003 DEFINES THE TERMS TEMPORARY DUTY AND TEMPORARY ADDITIONAL DUTY AS FOLLOWS:

2. TEMPORARY DUTY. THE TERM "TEMPORARY DUTY" MEANS DUTY AT A LOCATION OTHER THAN PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.

3. TEMPORARY ADDITIONAL DUTY. TEMPORARY ADDITIONAL DUTY INVOLVES ONE JOURNEY AWAY FROM THE INDIVIDUAL'S DUTY STATION, IN THE PERFORMANCE OF PRESCRIBED DUTIES AT ONE OR MORE PLACES, AND DIRECT RETURN TO THE STARTING POINT UPON COMPLETION OF SUCH DUTIES. PERSONNEL ON TEMPORARY ADDITIONAL DUTY REMAIN ASSIGNED TO THE STATION FROM WHICH THEY PROCEEDED ON TEMPORARY ADDITIONAL DUTY. TEMPORARY ADDITIONAL DUTY IS A FORM OF TEMPORARY DUTY, AND IS APPLICABLE ONLY WHEN AUTHORIZED IN SEPARATE REGULATIONS BY THE DEPARTMENT CONCERNED.

THE TERM PERMANENT STATION IS DEFINED IN PARAGRAPH 1150 (10) AS FOLLOWS:

A. GENERAL. EXCEPT AS DEFINED IN SUBPAR. B, A PERMANENT DUTY STATION IS DEFINED AS THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME PORT OR HOME YARD OF A VESSEL INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED, BUT IF NOT STATIONED IN A INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED.

B. ASSIGNMENT TO SCHOOLS. WHERE A MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR INSTALLATION AS A STUDENT TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS 20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS DEFINED TO BE A PERMANENT DUTY STATION.

THE PROVISIONS OF SECTION 303 (A) ARE TO BE ADMINISTERED "UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED" AND PURSUANT TO THAT AUTHORIZATION THE JOINT TRAVEL REGULATIONS HAVE BEEN ISSUED. THOSE REGULATIONS, HOWEVER, HAVE NOT INCLUDED, OTHER THAN INDICATED ABOVE, ANY CLEAR GUIDE TO THOSE CHARGED WITH THE RESPONSIBILITY OF ISSUING ORDERS WHICH WOULD HELP THEM IN DETERMINING WHEN A PARTICULAR ASSIGNMENT SHOULD BE TEMPORARY. UNDER THE DEFINITION OF TEMPORARY DUTY QUOTED ABOVE, AN ASSIGNMENT FOR A YEAR OR TWO, OR EVEN MORE, COULD MEET THE PRESCRIBED STANDARD OF TEMPORARY DUTY IF THE ORDERS DESIGNATE THE ASSIGNMENT AS TEMPORARY AND PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION. UNDER THOSE AND SIMILAR REGULATIONS MEMBERS HAVE BEEN ASSIGNED TO DUTY, CALLED TEMPORARY IN THEIR ORDERS, FOR LONG PERIODS OF TIME, APPARENTLY WITHOUT ANY CONSIDERATION OTHER THAN THE DETERMINATION OF THE ORDER ISSUING AUTHORITY THAT THE DUTY WAS TEMPORARY. SEE THE CASE OF RONKA V. UNITED STATES, 127 C.1CLS. 180, INVOLVING THE ASSIGNMENT OF A COAST GUARD MEMBER TO "TEMPORARY DUTY" FOR OVER FIVE YEARS. ALSO SEE OUR DECISION DATED JUNE 2, 1959, B-134568, RENDERED AT THE REQUEST OF THE ASSISTANT SECRETARY OF THE NAVY, WHOSE LETTER INDICATED THAT ORDERS TO INDEFINITE TEMPORARY DUTY (OVER A YEAR) HAD BEEN ISSUED BY COMMANDING OFFICERS WITHOUT PRIOR ADMINISTRATIVE APPROVAL OR DIRECTION. IN ADDITION, OUR DECISION OF MAY 3, 1957, MENTIONED PREVIOUSLY, CONSIDERED A PROPOSAL THAT ASSIGNMENTS UP TO 18 MONTHS BE MADE ON A TEMPORARY BASIS.

THE PROVISION IN SECTION 303 (A) OF THE 1949 ACT FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY, ALTHOUGH CLEARLY AUTHORIZING PER DIEM FOR TEMPORARY DUTY PERFORMED WHILE IN A TRAVEL STATUS, IF OTHERWISE PAYABLE, IS NOT REGARDED AS STATUTORY AUTHORITY FOR CONTINUING AS A PERMANENT STATION, WITHOUT LIMITATION, A STATION ONCE ASSIGNED AS A MEMBER'S PERMANENT STATION AS AGAINST THE STATION WHERE THE MEMBER IS, IN FACT, PERFORMING HIS PRIMARY MILITARY DUTIES. WHEN A PER DIEM PAYMENT IS AUTHORIZED FOR A PROLONGED TEMPORARY ASSIGNMENT, QUESTION NATURALLY ARISES BY REASON OF ITS DURATION AS TO WHETHER THE TEMPORARY DUTY ASSIGNMENT IS NOT IN FACT THE BASIC PERMANENT DUTY ASSIGNMENT.

A PERMANENT STATION, OR DESIGNATED POST OF DUTY, IS DEFINED IN PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY.' THAT IS, IT IS THE PLACE OF THE PRINCIPAL BASIC DUTY ASSIGNMENT. PROLONGED ABSENCES FROM SUCH ASSIGNMENT FOR TEMPORARY DUTY, OR FOR OTHER PURPOSE, ARE INCONSISTENT WITH THE CONTINUITY OF PERFORMANCE ORDINARILY CONTEMPLATED AND REQUIRED IN SUCH BASIC ASSIGNMENT, AND CONSEQUENTLY AS A GENERAL PROPOSITION, FORESEEABLE ABSENCE FOR THE PERFORMANCE OF ANOTHER DUTY FOR MORE THAN A SHORT PERIOD IS CONSIDERED TO BREAK THAT CONTINUITY WITH THE EFFECT THAT THE ASSIGNMENT LOSES ITS CHARACTERISTICS OF BEING THE BASIC DUTY ASSIGNMENT, AND THERE ARE ESTABLISHED IN THE SUBSTITUTED DUTY THE CHARACTERISTICS OF A BASIC ASSIGNMENT. WHILE A RELIEF FROM THE PERFORMANCE OF DUTY FOR A PERIOD OF SIX MONTHS TO PERFORM ANOTHER ASSIGNMENT RAISES A QUESTION AS TO WHETHER THE DUTY FROM WHICH RELIEVED CAN RETAIN ITS CHARACTERISTICS AS THE PERMANENT ASSIGNMENT, ABSENCES NOT EXCEEDING THAT PERIOD OF THE PERFORMANCE OF TEMPORARY ASSIGNMENTS WERE RECOGNIZED IN OUR DECISION OF MAY 3, 1957, PRIMARILY FOR THE REASON THAT ADMINISTRATIVE PRACTICE ON THAT BASIS EXISTED. HOWEVER, THE QUESTION OF WHETHER A PARTICULAR DUTY ASSIGNMENT IS PERMANENT OR TEMPORARY IS ONE OF FACT, AND DURATION OF ASSIGNMENT, AS INDICATED ABOVE, IS A VITAL ELEMENT IN ITS DETERMINATION.

IT IS THE RESPONSIBILITY OF THE " SECRETARIES CONCERNED" ( ARMY, NAVY, AIR FORCE, TREASURY, COMMERCE, HEALTH, EDUCATION AND WELFARE) TO ISSUE REGULATIONS FOR THE GUIDANCE OF THE SERVICES WITH RESPECT TO PAYMENT OF PER DIEM AS WELL AS OTHER TRAVEL ALLOWANCES. THOSE REGULATIONS ARE TO BE UNIFORM INSOFAR AS PRACTICABLE. IF PER DIEM IS TO BE PAID INCIDENT TO ASSIGNMENTS TO TEMPORARY DUTY, THOSE REGULATIONS SHOULD FIX THE ELEMENTS TO BE CONSIDERED IN DETERMINING WHETHER A PARTICULAR ASSIGNMENT IS TEMPORARY WITHIN THE MEANING OF THE REGULATIONS.

AS INDICATED ABOVE, IT IS OUR VIEW THAT, AMONG OTHER THINGS, THERE MUST BE SOME REASONABLE TIME LIMITATIONS FOR TEMPORARY DUTY ASSIGNMENTS. THE REGULATIONS IN EFFECT AT THE TIME OF OUR DECISION OF MAY 3, 1957, DID NOT PROVIDE ANY TIME LIMITATIONS, AND WE EXPRESSED THE VIEW IN OUR DECISION THAT A DUTY ASSIGNMENT IN EXCESS OF FIVE OR SIX MONTHS WAS NOT ONE OF SHORT DURATION AS CONTEMPLATED BY THE WORD "TEMPORARY.' ALSO, AT THE PRESENT TIME THE REGULATIONS DO NOT PROVIDE FOR ANY TIME LIMITATIONS.

THE TIME LIMITATION OF SIX MONTHS APPEARS TO BE A REASONABLE CRITERION TO FOLLOW UNDER ORDINARY CIRCUMSTANCES; HOWEVER, IF THE SERVICES PROMULGATE UNIFORM REGULATIONS--- SINCE TEMPORARY DUTY IS COMMON TO ALL OF THE SERVICES--- SETTING FORTH REASONABLE TIME LIMITATIONS FOR TEMPORARY ASSIGNMENTS, WITH APPROPRIATE ADMINISTRATIVE CRITERIA, FOR APPROVAL, IN EXCEPTIONAL CASES, OF TEMPORARY DUTY ASSIGNMENTS WHICH ARE NOT OF SHORT DURATION, WE BELIEVE THAT PAYMENT OF PER DIEM IN CERTAIN CASES FOR PERIODS IN EXCESS OF SIX MONTHS COULD BE AUTHORIZED. REPRESENTATIVES OF OUR OFFICE WILL BE GLAD TO COOPERATE WITH THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IN DRAFTING APPROPRIATE REGULATIONS ON THIS SUBJECT.