B-139689, JUN 18, 1959

B-139689, JUN 18, 1959

PRECIS-UNAVAILABLE

WILLIAM L. MCELWEE, SWCP, 4709470, USN:

REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD SEPTEMBER 29, 1955, TO JANUARY 19, 1956, FORWARDED HERE BY LETTER DATED APRIL 15, 1959, FROM THE UNITED STATES NAVY REGIONAL ACCOUNTS OFFICE. A SIMILAR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 10, 1957, AND YOUR PRESENT CLAIM WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

THE RECORD SHOWS YOU WERE DEPLOYED TO ANTIGUA, BRITISH WEST INDIES, AS A MEMBER OF A MOBILE CONSTRUCTION UNIT DURING THE PERIOD INVOLVED UNDER VERBAL ORDERS GIVEN PURSUANT TO MOVEMENT ORDERS NO. 203-55, OF AUGUST 29, 1955. WRITTEN ORDERS ISSUED ON JUNE 7, 1956, PURPORTING TO CONFIRM VERBAL ORDERS DIRECTING TEMPORARY ADDITIONAL DUTY FOR THE PERIOD IN QUESTION.

FOR A LONG TIME DUTY OF THIS TYPE 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, PARAGRAPH 6 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 SUBPARAGRAPH C OF PARAGRAPH 6, SECNAV INSTRUCTIONS 7220.19, QUOTED ABOVE, CONSTITUTE AN EFFECTIVE 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. 57 U.S.G. 253 813, 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 ORDRRS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS USSUED 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 HOINT 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. YOUR ORDERS OF JUNE 7, 1956, WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY; CONFIRMATION OF VERBAL ORDERS FOR" ARE NOT COMPETENT ORDERS. WHILE THEY SHOW THAT YOU WERE ASSIGNED TO DUTY WITH THE U. S. NAVAL MOBILE CONSTRUCTION BATTALION SIX ON OCTOBER 9, 1955, AND THAT YOU WERE DETACHED ON JANUARY 20, 1956, TO COMPLY WITH ORDERS TRANSFERRING YOU TO DUTY AT NORFOLK, VIRGINIA, THEY DO NOT CONFIRM SPECIFIC VERBAL ORDERS DIRECTING TRAVEL, AND PROVIDING FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR YOUR RETURN TO YOUR OLD PERMANENT STATION, BUT RECITE ONLY THAT THEY CONFIRM SUCH ORDERS FOR THE DUTY PERFORMED AS MUST HAVE BEEN ISSUED "AS A MATTER OF NECESSITY." HENCE, THESE ORDERS DO NOT MEET THE REQUIREMENT OF PARAGRAPH 6C OF SECNAV INSTRUCTION 7220.19 FOR WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS AND AFFORD NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. MODIFICATION AT THIS TIME OF THOSE ORDERS TO SHOW TEMPORARY DUTY WAS IN FACT PERFORMED DURING THE PERIOD OF YOUR CLAIM WOULD SERVE NO USEFUL PURPOSE. SEE PARAGRAPH 6D OF THE CITED SECNAV INSTRUCTION WHICH PROVIDES IN EFFECT THAT UNLESS PROPER CONFIRMATORY ORDERS WERE ISSUED PRIOR TO RECEIPT OF THAT INSTRUCTION, CONFIRMING ORDERS WILL NOT BE ISSUED. ALSO, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. SEE 23 COMP. GEN. 716; 24 ID. 439.

ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.