B-143072, OCT. 18, 1960

B-143072, OCT. 18, 1960

TO MR. T. J. DUNKLIN, ACCOUNTING AND FINANCE OFFICER, VIA HEADQUARTERS, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1960, FORWARDED HERE BY INDORSEMENT OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DATED JUNE 1, 1960, PDTATAC CONTROL NO. 60-21, IN WHICH YOU REQUEST DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON FIVE ENCLOSED VOUCHERS COVERING PER DIEM AND OTHER TRAVEL ALLOWANCES CLAIMED BY AIR FORCE PERSONNEL INCIDENT TO TEMPORARY DUTY ASSIGNMENTS PERFORMED AT INSTALLATIONS LOCATED IN AND NEAR SAN ANTONIO, TEXAS.

THE DUTY POINTS INVOLVED IN YOUR SUBMISSION ARE KELLY AIR FORCE BASE, THE EASTERN PORTION OF WHICH YOU STATE IS WITHIN THE CITY LIMITS OF SAN ANTONIO; LACKLAND AIR FORCE BASE, STATED TO BE LOCATED JUST OUTSIDE THE LIMITS OF THE CITY AND SEPARATED FROM KELLY AIR FORCE BASE ONLY BY A FENCE; HEADQUARTERS, UNITED STATES AIR FORCE SECURITY SERVICE, LOCATED IN THE SOUTHERN PART OF KELLY AIR FORCE BASE, LOCATED AND ADJACENT TO LACKLAND AIR FORCE BASE; BROOKS AIR FORCE BASE, LOCATED WITHIN THE CITY LIMITS; AND RANDOLPH AIR FORCE BASE, WHICH YOU STATE IS LOCATED 15 MILES EAST OF THE CITY. DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHERS SUBMITTED IS BASED ON THE FACT THAT THE TEMPORARY AND PERMANENT ASSIGNMENTS OF THE MEMBERS INVOLVED IN EACH CASE WERE LOCATED WITHIN THE INDICATED AREAS, GIVING RISE TO THE QUESTION OF WHETHER THE MEMBERS PROPERLY MIGHT BE CONSIDERED AS IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY.

ENTITLEMENT TO PER DIEM AND OTHER TRAVEL ALLOWANCES UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, IS DEPENDENT UPON MEMBERS BEING IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POST OF DUTY. GOVERNING REGULATIONS ISSUED UNDER THESE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 3050 OF THE REGULATIONS PROVIDES THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS ONLY WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION ON PUBLIC BUSINESS PURSUANT TO COMPETENT ORDERS, SUCH STATUS TO COMMENCE WITH DEPARTURE FROM THE PERMANENT DUTY STATION AND TO TERMINATE WITH RETURN TO THE PERMANENT DUTY STATION OR UPON REPORTING AT A NEW PERMANENT DUTY STATION. IT HAS BEEN RECOGNIZED, IN THAT CONNECTION, THAT A MEMBER IS ENTITLED TO OTHERWISE AUTHORIZED PER DIEM FOR A DIRECTED PERIOD OF TEMPORARY DUTY DURING THE TRAVEL PERIOD PERFORMED ON CHANGE OF STATION ORDERS PRIOR TO HIS ACTUAL ARRIVAL AT HIS NEW DUTY STATION IRRESPECTIVE OF CONSIDERATIONS OF PROXIMITY TO THE DUTY STATION, LIVING ARRANGEMENTS, ETC., THE TRAVEL STATUS CONTINUING UNTIL SUCH ACTUAL ARRIVAL. 37 COMP. GEN. 669.

PARAGRAPH 1150-10A OF THE JOINT TRAVEL REGULATIONS DEFINES A PERMANENT DUTY STATION TO BE 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, THE LIMITS OF WHICH, INSOFAR AS HERE PERTINENT, TO BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED. UNDER THAT DEFINITION THE PHYSICAL LIMITS OF A MEMBER'S POST OF DUTY WHOSE STATION IS LOCATED IN AN INCORPORATED CITY OR TOWN IS FIXED TO CORRESPOND WITH THE CORPORATE BOUNDARIES OF THE CITY OR TOWN, AND THERE WOULD APPEAR TO BE NO REASONABLE BASIS UPON WHICH IT MIGHT BE CONCLUDED THAT SUCH BOUNDARIES SHOULD NOT ALSO PERTAIN TO A STATION SITUATED IN PART WITHIN THE CORPORATE LIMITS OF THE CITY OR TOWN AS IS KELLY AIR FORCE BASE. UNDER THE CITED REGULATIONS NO TRAVEL STATUS COULD BE CONSIDERED TO EXIST WHERE A MEMBER IS REQUIRED TO PERFORM TEMPORARY DUTY AT AN INSTALLATION LOCATED WITHIN BOUNDARIES OF THE INSTALLATION WHERE HE IS ASSIGNED TO DUTY, AND CONSEQUENTLY NO AUTHORITY WOULD EXIST FOR THE PAYMENT OF PER DIEM TO A MEMBER SO ASSIGNED.

WHILE THE PAYMENT OF PER DIEM OTHERWISE IS AUTHORIZED GENERALLY FOR TRAVEL AND TEMPORARY DUTY AWAY FROM THE MEMBER'S DESIGNATED POST OF DUTY, PARAGRAPH 4205-4 OF THE JOINT TRAVEL REGULATIONS PROHIBITS ITS PAYMENT INCIDENT TO A ROUND TRIP PERFORMED ENTIRELY WITHIN A TEN HOUR PERIOD OF THE SAME CALENDAR DAY, ANTICIPATING THOSE SITUATIONS WHERE THE TEMPORARY ASSIGNMENT IS LOCATED IN NEARBY AREAS WHERE ITS PERFORMANCE WOULD NOT MATERIALLY CHANGE THE MEMBER'S LIVING ARRANGEMENTS INSOFAR AS HIS SUBSISTENCE NEEDS ARE CONCERNED. PARAGRAPH 6450 OF THE REGULATIONS PROVIDES FURTHER THAT "EXPENSES INCURRED AT DUTY STATION INCIDENT TO TRAVEL TO AND FROM HOME AND PLACE OF DUTY OR TO SHORT TRIPS WITHIN THE IMMEDIATE VICINITY OF THE DUTY STATION ARE NOT PAYABLE.' IN VIEW OF SUCH LIMITATIONS, PER DIEM SHOULD NOT BE CONSIDERED TO ACCRUE INCIDENT TO TEMPORARY DUTY AT NEARBY POINTS UNLESS THE TIME REQUIRED FOR THE PERFORMANCE OF THE TEMPORARY DUTY, PLUS NECESSARY TRAVEL TIME TO AND FROM THE TEMPORARY STATION, ACTUALLY EXCEEDS TEN HOURS OR, IF A DAILY RETURN TO THE PERMANENT STATION IS NOT MADE, THE NATURE OF THE TEMPORARY ASSIGNMENT REQUIRES THE MEMBER'S CONTINUING ABSENCE FROM HIS PERMANENT STATION.

THE CIRCUMSTANCES INVOLVED IN THE FIVE CASES PRESENTED ARE SET FORTH INDIVIDUALLY IN YOUR LETTER. CASE NUMBER ONE IS AS FOLLOWS:

"1ST LT GEORGE S. JONAS, AO 310 2985, TEMPORARY ADDRESS MAPLEWEEK, LA., WAS ORDERED TO EXTENDED ACTIVE DUTY AT KELLY AFB WITH TEMPORARY DUTY EN ROUTE AT LACKLAND FOR APPROXIMATELY FOUR WEEKS TO ATTEND OFFICER BASIC MILITARY COURSE (LEGAL). HE ARRIVED AT LACKLAND AFB AT 0930 ON 8 DEC 59. GOVERNMENT QUARTERS AND MESSING FACILITIES WERE UTILIZED. HE DEPARTED LACKLAND AFB AT 2300 HOURS ON 10 JAN 60 AND REPORTED FOR DUTY AT KELLY AFB AT 1530 HOURS ON 12 JAN 60. IS HE ENTITLED TO PER DIEM FROM 9 DEC THROUGH 10 JAN 60.'

SINCE KELLY AIR FORCE BASE IS LOCATED IN PART WITHIN THE CORPORATE LIMITS OF SAN ANTONIO, THE OFFICER'S DUTY STATION INCLUDES THE AREA WITHIN THOSE CORPORATE LIMITS. LACKLAND AIR FORCE BASE, HOWEVER, IS LOCATED OUTSIDE THE LIMITS OF THE CITY AND LIEUTENANT JONAS APPARENTLY DID NOT REPORT TO HIS PERMANENT STATION UNTIL JANUARY 12, 1960. UNDER SUCH CIRCUMSTANCES HE MAY BE CONSIDERED AS ENTITLED TO PER DIEM FROM DECEMBER 9, 1959, TO JANUARY 10, 1960. HAD HE FIRST REPORTED AT KELLY AIR FORCE BASE, HIS RIGHT TO PER DIEM THEN NECESSARILY WOULD BE FOR CONSIDERATION UNDER TEN HOUR ABSENCE RULE OF PARAGRAPH 4205-4.

CASE NUMBER TWO:

"CAPTAIN ALBERT S. DONALD, AC 308 9331 (THEN 1ST LT), WAS RELIEVED FROM DUTY AS STUDENT, INTERNSHIP, CONFEDERATE MEMORIAL HOSPITAL, SHREVEPORT, LA., AND FROM ASSIGNMENT WITH HQ AF INSTITUTE OF TECHNOLOGY, WRIGHT- PATTERSON AFB, OHIO, AND TRANSFERRED TO KELLY AFB, TEXAS, WITH 28 DAYS TEMPORARY DUTY EN ROUTE AT GUNTER AFB, ALA., AND 9 WEEKS TEMPORARY DUTY AT BROOKS AFB, TEXAS, TO ATTEND A COURSE IN AVIATION MEDICINE TRAINING. ARRIVED AT BROOKS AFB, TEXAS, AT 1550 HOURS ON 5 AUG 59. GOVERNMENT QUARTERS AND MEALS WERE NOT FURNISHED. HE DEPARTED BROOKS AFB AT 1200 HOURS 9 OCT 59 AND ARRIVED AT KELLY AFB AT 1300 HOURS SAME DATE. OFFICER ENTITLED TO PER DIEM ALLOWANCE WHILE AT BROOKS AFB. IF NOT, WOULD HE HAVE BEEN ENTITLED HAD GOVERNMENT QUARTERS BEEN FURNISHED AT BROOKS AFB.'

SINCE BROOKS AIR FORCE BASE IS LOCATED WITHIN THE CORPORATE LIMITS OF SAN ANTONIO AND SO WITHIN THE AREA OF THE OFFICER'S DUTY STATION HE IS NOT ENTITLED TO PER DIEM REGARDLESS OF WHETHER GOVERNMENT QUARTERS WERE FURNISHED TO HIM.

CASE NUMBER THREE:

"CAPTAIN JAMES M. BROWN, 39956A, ASSIGNED TO THE SCHOOL OF AVIATION MEDICINE AT RANDOLPH AFB, TEXAS, WITH OPERATING LOCATION AT KELLY AFB, TEXAS, WAS PLACED ON TEMPORARY DUTY AT RANDOLPH AFB FOR APPROXIMATELY 49 DAYS TO ATTEND JET QUALIFICATION COURSE. ORDER STATED THAT TRAVEL EXPENSES WERE NOT PAYABLE, BUT WERE AMENDED AFTER COMPLETION OF TRAVEL TO PROVIDE FOR PAYMENT OF TRAVEL ALLOWANCES SINCE OFFICER COMMUTED DAILY FROM HIS HOME IN SAN ANTONIO AND WAS ABSENT THEREFROM IN EXCESS OF 10 HOURS ON THE DAYS CLAIMED. GOVERNMENT QUARTERS WERE NOT UTILIZED. IN THIS CASE, DECISION IS REQUESTED AS TO WHETHER OR NOT ORDERS COULD PROPERLY RESTRICT PAYMENT OF TRAVEL ALLOWANCES, AND, IF SO, MAY THE AMENDING ORDERS BE ACCEPTED AS RETROACTIVELY CORRECTING AN ADMINISTRATIVE ERROR SO AS TO ENTITLE CAPTAIN BROWN TO PAYMENT.'

IN ORDERS OF JULY 7, 1959, DIRECTING THE TEMPORARY DUTY IN QUESTION, IT WAS INDICATED THAT CAPTAIN BROWN WAS ASSIGNED TO DUTY AT RANDOLPH AIR FORCE BASE WITH OPERATING LOCATION KELLY AIR FORCE BASE. THE CIRCUMSTANCES INVOLVED WERE NOT OTHERWISE CLARIFIED IN THE AVAILABLE RECORD TO WARRANT A CONCLUSION THAT THE ASSIGNMENT AT KELLY AIR FORCE BASE MIGHT BE CONSIDERED AS IN FACT HIS PERMANENT DUTY STATION. WHILE A RIGHT TO AN OTHERWISE PROPER PER DIEM PAYMENT COULD NOT BE OVERCOME BY THE PROVISION IN THE ORDERS THAT "TRAVEL AUTHORIZED BY THIS ORDER DOES NOT ENTITLE TRAVELER TO EXPENSE OF TRAVEL," THE INCLUSION OF SUCH PROVISION LENDS SUPPORT TO THE VIEW THAT THE OFFICER'S PERMANENT DUTY STATION WAS IN FACT AT RANDOLPH AIR FORCE BASE, AS INDICATED, AND THAT THE PROVISION WAS PLACED IN THE ORDERS TO SHOW THAT TRAVEL EXPENSES ARE NOT PAYABLE FOR TEMPORARY DUTY ASSIGNED AT THE PERMANENT STATION. ON THE PRESENT RECORD, AND IN THE ABSENCE OF EVIDENCE SHOWING THAT THE OFFICER'S PERMANENT STATION WAS IN FACT AT KELLY AIR FORCE BASE, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM INCIDENT TO THE TEMPORARY DUTY ASSIGNMENT IN THE ORDERS OF JULY 7, 1959. NOR DOES THERE APPEAR TO BE ANY AUTHORITY FOR THE PAYMENT OF THE MILEAGE CLAIMED IN LIEU OF TRANSPORTATION INCIDENT TO THAT ASSIGNMENT IN VIEW OF THE PROVISIONS OF PARAGRAPH 6450 OF THE JOINT TRAVEL REGULATIONS.

CASE NUMBER FOUR:

"1ST LT. BERNARD L. HEBINCK, AO 308 2457, TEMPORARY ADDRESS HOUSTON, TEXAS, WAS ORDERED TO EXTENDED ACTIVE DUTY AND ASSIGNED TO HQ USAF SECURITY SERVICE, KELLY AFB, WITH TEMPORARY DUTY EN ROUTE AT LACKLAND AFB, TEXAS, FOR THE PURPOSE OF ATTENDING OFFICER BASIC MILITARY COURSE (LEGAL) FOR APPROXIMATELY 4 WEEKS. HE ARRIVED AT LACKLAND AFB AT 1000 HOURS ON 6 OCT 59. GOVERNMENT QUARTERS WERE UTILIZED. HE DEPARTED AT 1445 HOURS ON 6 NOV 59 AND ARRIVED AT HQ USAF SECURITY SERVICE AT 1500 HOURS SAME DATE. IS PAYMENT OF PER DIEM FOR PERIOD OF TEMPORARY DUTY PROPER.'

ASSUMING THAT LIEUTENANT HEBINCK DID NOT REPORT AT KELLY AIR FORCE BASE PRIOR TO NOVEMBER 6, 1959, CREDIT FOR PER DIEM WOULD BE PROPER FOR THE PERIOD OF TEMPORARY DUTY AT LACKLAND AIR FORCE BASE.

CASE NUMBER FIVE:

"S/SGT ROBERT H. MERRITT, AF 1345 4107, HQ USAF SECURITY SERVICE, WAS PLACED ON TEMPORARY DUTY AT LACKLAND AFB FOR 9 WEEKS TO ATTEND A RECRUITING COURSE. GOVERNMENT QUARTERS WERE OCCUPIED AT PERMANENT STATION. HE DEPARTED USAF SECURITY SERVICE AT 0930 ON 30 JUN 59 AND ARRIVED AT LACKLAND AFB AT 0950 SAME DATE. HE OCCUPIED GOVERNMENT QUARTERS AT LACKLAND AFB. HE DEPARTED LACKLAND AT 0930 ON 1 SEP 59 AND ARRIVED AT HQ USAF SECURITY SERVICE AT 0950 HOURS SAME DATE. IS AIRMAN ENTITLED TO PER DIEM FROM 0950 30 JUN 59 THROUGH 0930 1 SEP 59.'

NOTHING IN THE PRESENT RECORD INDICATES THAT SERGEANT MERRITT WAS REQUIRED TO REMAIN ABSENT FROM HIS DUTY STATION AT KELLY AIR FORCE BASE CONTINUOUSLY THROUGH THE PERIOD IN QUESTION BY REASON OF HIS TEMPORARY DUTY ASSIGNMENT AT LACKLAND AIR FORCE BASE, OR THAT THE PERFORMANCE OF THE TEMPORARY DUTY WOULD HAVE REQUIRED ABSENCES OF MORE THAN TEN HOURS PER DAY HAD HE RETURNED EACH DAY TO HIS PERMANENT STATION. CONSEQUENTLY, NO AUTHORITY EXISTS ON THE PRESENT RECORD FOR THE PAYMENT OF HIS CLAIM.

THE VOUCHERS IN FAVOR OF LIEUTENANT JONAS AND LIEUTENANT HEBINCK ARE RETURNED HEREWITH WITH PAYMENT AUTHORIZED AS INDICATED ABOVE. PAYMENT ON THE OTHER VOUCHERS PRESENTED IS NOT AUTHORIZED, AND THEY WILL BE RETAINED HERE.