B-142938, JUN. 24, 1960

B-142938, JUN. 24, 1960

TO MR. JAMES C. BEDNAR:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 14, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIODS FROM OCTOBER 3 TO DECEMBER 5, 1955, DECEMBER 7 TO 15, 1955, AND JANUARY 4 TO APRIL 10, 1956, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES NAVAL RESERVE.

A REPORT FROM THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, DATED SEPTEMBER 24, 1959, INDICATES THAT YOUR ORIGINAL ORDERS OF SEPTEMBER 15 AND DECEMBER 6, 1955, HAVE BEEN LOST OR DESTROYED AND THAT COPIES OF SUCH ORDERS ARE NOT AVAILABLE. THE REPORT STATES THAT ON SEPTEMBER 15, 1955, YOU WERE TRANSFERRED FROM THE U.S. NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND (TO WHICH ACTIVITY YOU HAD REPORTED ON JULY 1, 1955, UPON ENTERING THE SERVICE), TO THE NAVAL AIR TECHNICAL TRAINING CENTER, NORMAN, OKLAHOMA, WHERE YOU REPORTED ON OCTOBER 2, 1955; THAT ON DECEMBER 6, 1955, YOU WERE TRANSFERRED FROM NORMAN, OKLAHOMA, TO THE NAVAL AIR TECHNICAL TRAINING UNIT, OLATHE, KANSAS; AND THAT ON APRIL 11, 1956, YOU WERE TRANSFERRED FROM OLATHE, KANSAS, TO THE U.S. NAVAL RECEIVING STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, FOR FURTHER ASSIGNMENT. THE REPORT ALSO STATES THAT THE TEMPORARY DUTY UNDER INSTRUCTION AT NORMAN, OKLAHOMA, AND OLATHE, KANSAS, WAS SCHEDULED FOR LESS THAN 20 WEEKS, AND THAT YOU WERE GRANTED LEAVE FROM DECEMBER 16, 1955, THROUGH JANUARY 3, 1956. YOUR CLAIM FOR PER DIEM AT THE RATE OF $1 PER DAY FOR THE INDICATED PERIODS WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 14, 1959, FOR THE REASON THAT YOU WERE NOT CONSIDERED TO BE IN A TEMPORARY DUTY STATUS ENTITLING YOU TO PER DIEM DURING SUCH PERIODS.

IN YOUR LETTER OF MAY 6, 1960, YOU STATE THAT YOU HAVE RECEIVED INFORMATION TO THE EFFECT THAT OTHER ENLISTED MEMBERS WERE PAID PER DIEM FOR THE PERIODS WHILE THEY WERE ATTENDING THE SCHOOLS AT NORMAN, OKLAHOMA, AND OLATHE, KANSAS. ON SUCH BASIS, YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL "AWAY FROM THEIR PERMANENT DUTY STATION" UPON PUBLIC BUSINESS. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS MEANING DUTY AT A LOCATION OTHER THAN THE 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.

IN THE CASE OF CALIFANO V. UNITED STATES, C.CLS. NO. 86-58, DECIDED MARCH 4, 1959, THE COURT OF CLAIMS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS BEING PERFORMED, AND THAT ORDERS DIRECTING THE MEMBER IN THAT CASE TO PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THAT TIME.

IN OUR DECISION OF JUNE 19, 1959, B-138900, 38 COMP. GEN. 849, WE STATED THAT WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE "IN ANY CASE" WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FROM HIS HOME AND IS ASSIGNED TO A STATION FOR TEMPORARY DUTY, UNDER ORDERS WHICH CONTEMPLATE A FURTHER ASSIGNMENT TO DUTY UPON COMPLETION OF THE TEMPORARY DUTY, AND THAT SUCH STATION WOULD BE REGARDED AS THE MEMBER'S DESIGNATED POST OF DUTY. ALSO, SEE OUR DECISION OF JANUARY 11, 1960, B-138900, TO THE SECRETARY OF THE NAVY, COPY ENCLOSED, IN WHICH IT WAS HELD THAT THAT PRINCIPLE IS APPLICABLE TO SUBSEQUENT TEMPORARY DUTY ASSIGNMENTS, SUCH AS THOSE INVOLVED IN YOUR CASE, WHERE THE MEMBER IS ORDERED TO ACTIVE DUTY AND ASSIGNED TO A STATION FOR TEMPORARY DUTY UPON THE COMPLETION OF WHICH HE IS TO REPORT TO ANOTHER LOCATION FOR TEMPORARY DUTY AND FURTHER ASSIGNMENT. WE STATED, ALSO, IN THE DECISION OF JUNE 19, 1959, THAT WHILE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN THE CONSIDERATION OF CLAIMS SUBMITTED HERE FOR SETTLEMENT BEGINNING WITH THE DATE OF THAT DECISION, PER DIEM PAYMENTS MADE ADMINISTRATIVELY BEFORE JULY 1, 1959, WOULD NOT BE QUESTIONED, IF OTHERWISE PROPER. HENCE, YOUR CLAIM, WHICH WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 2, 1959, WAS DISALLOWED IN ACCORDANCE WITH THE RULING IN THE CALIFANO CASE. THE PER DIEM PAYMENTS WHICH YOU INDICATE WERE RECEIVED BY OTHER ENLISTED MEN WHILE ATTENDING SCHOOL AT NORMAN, OKLAHOMA, AND OLATHE, KANSAS, PRESUMABLY WERE MADE BY THE DEPARTMENT OF THE NAVY PRIOR TO JULY 1, 1959, AND SUCH PAYMENTS COULD NOT AFFECT YOUR RIGHT TO PER DIEM AS CLAIMED BY YOU. VIEW OF THE HOLDINGS IN THE CITED DECISIONS OF JUNE 19, 1959, AND JANUARY 11, 1960, NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 14, 1959, IS SUSTAINED.