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MARINE CORPS MEMBER WHO HAD CLAIM FOR PER DIEM DISALLOWED BECAUSE EXTENSION OF TRAINING COURSE FROM 16 WEEKS TO 20 WEEKS CAUSED TEMPORARY STATION TO BE REGARDED AS PERMANENT STATION MAY HAVE ENDORSEMENT ON ORDERS EXTENDING DUTY TO 20 WEEKS REGARDED AS ERRONEOUS AND WITHOUT EFFECT AND THEREFORE MEMBER MAY BE ALLOWED PER DIEM FOR TEMPORARY DUTY. THE NEXT DAY YOUR ORDERS WERE AMENDED BY SECOND ENDORSEMENT TO STATE THAT THE SCHEDULED LENGTH OF THE COURSE OF INSTRUCTION INVOLVED IN THE ORDERS WAS 20 WEEKS. A MEMORANDUM ENDORSEMENT WAS ADDED TO YOUR ORDERS TO STATE THAT THE SCHEDULED LENGTH OF THE COURSE COVERED BY YOUR ORDERS WAS FOR LESS THAN 20 WEEKS BUT THAT UNFORESEEN DELAYS DUE TO CLASS CONVENING DATE AND THE CHRISTMAS HOLIDAY PERIOD EXTENDED THE SCHEDULED ASSIGNMENT BEYOND 20 WEEKS.

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B-159538, AUG. 30, 1967

PER DIEM - MILITARY PERSONNEL - TRAINING DUTY LESS THAN 20 WEEKS DECISION TO MARINE CORPS OFFICER RE PER DIEM FOR TEMPORARY DUTY. MARINE CORPS MEMBER WHO HAD CLAIM FOR PER DIEM DISALLOWED BECAUSE EXTENSION OF TRAINING COURSE FROM 16 WEEKS TO 20 WEEKS CAUSED TEMPORARY STATION TO BE REGARDED AS PERMANENT STATION MAY HAVE ENDORSEMENT ON ORDERS EXTENDING DUTY TO 20 WEEKS REGARDED AS ERRONEOUS AND WITHOUT EFFECT AND THEREFORE MEMBER MAY BE ALLOWED PER DIEM FOR TEMPORARY DUTY. B-159538, FEB. 9, 1967 MODIFIED.

TO CAPTAIN DONALD J. REYNOLDS, 087439, USMC:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE MILITARY PAY EXAMINATION OFFICE, HEADQUARTERS U.S. MARINE CORPS, YOUR LETTER OF MAY 13, 1967, ADDRESSED TO REPRESENTATIVE L. MENDEL RIVERS IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY AT PENSACOLA, FLORIDA, FOR THE PERIOD SEPTEMBER 15, 1965, TO FEBRUARY 3, 1966.

THE BASIC ORDERS IN YOUR CASE DATED AUGUST 12, 1965, DETACHED YOU FROM DUTY AT THE U.S. NAVAL AUXILIARY AIR STATION, KINGSVILLE, TEXAS, AND DIRECTED YOU TO PROCEED TO MARINE AVIATION DETACHMENT, NAVAL AIR BASE TRAINING COMMAND, PENSACOLA, FLORIDA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT 16 WEEKS. YOU ARRIVED AT PENSACOLA ON SEPTEMBER 14, 1965, AND THE NEXT DAY YOUR ORDERS WERE AMENDED BY SECOND ENDORSEMENT TO STATE THAT THE SCHEDULED LENGTH OF THE COURSE OF INSTRUCTION INVOLVED IN THE ORDERS WAS 20 WEEKS.

YOU BEGAN THE COURSE OF INSTRUCTION ON SEPTEMBER 24, 1965, COMPLETED IT ON FEBRUARY 4, 1966, AND DEPARTED PENSACOLA THE SAME DAY, MORE THAN 20 WEEKS AFTER YOUR ARRIVAL AND MORE THAN 20 WEEKS AFTER THE ENDORSEMENT OF SEPTEMBER 15. SUBSEQUENTLY, ON APRIL 25, 1966, A MEMORANDUM ENDORSEMENT WAS ADDED TO YOUR ORDERS TO STATE THAT THE SCHEDULED LENGTH OF THE COURSE COVERED BY YOUR ORDERS WAS FOR LESS THAN 20 WEEKS BUT THAT UNFORESEEN DELAYS DUE TO CLASS CONVENING DATE AND THE CHRISTMAS HOLIDAY PERIOD EXTENDED THE SCHEDULED ASSIGNMENT BEYOND 20 WEEKS.

YOUR CLAIM FOR PER DIEM FOR MORE THAN 20 WEEKS WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED AUGUST 10, 1966. UPON REVIEW SUCH ACTION WAS SUSTAINED BY DECISION TO YOU OF FEBRUARY 9, 1967, B-159538, IN WHICH IT WAS CONCLUDED THAT EXTENSION OF THE COURSE OF INSTRUCTION TO 20 WEEKS CAUSED PENSACOLA TO BE A PERMANENT STATION AT WHICH NO PER DIEM WAS PAYABLE. ALSO, WE SAID THE RECORD DOES NOT ESTABLISH THAT WHEN YOU WERE ASSIGNED TO THE 16-WEEK COURSE IT WAS BELIEVED YOU HAD NOT COMPLETED PRE- FLIGHT TRAINING AND THAT THIS LENGTHENED THE ASSIGNMENT, AS CONTENDED BY YOU.

IN YOUR PRESENT LETTER YOU AGAIN INDICATE THAT THE SECOND ENDORSEMENT OF SEPTEMBER 15 MAY HAVE BEEN BASED ON THE ERRONEOUS ASSUMPTION THAT YOU HAD NOT PREVIOUSLY COMPLETED A 4-WEEK PRE-FLIGHT COURSE. THE MARINE CORPS IN FORWARDING YOUR PRESENT REQUEST STATES THAT THE ORDER-ISSUING AUTHORITY HAD ALREADY ESTABLISHED THIS FACT AND THEREFORE ORDERED YOU TO A 16-WEEK COURSE RATHER THAN A 20-WEEK COURSE.

AS STATED IN OUR DECISION OF FEBRUARY 9, 1967, IT APPEARS THAT THE 20- WEEK ENDORSEMENT ON YOUR ORDERS RESULTED FROM THE FACT THAT WHEN YOU ARRIVED AT PENSACOLA ON SEPTEMBER 14 IT WAS EXPECTED THAT YOU WOULD COMMENCE THE COURSE THE FOLLOWING DAY, BUT THAT COURSE WAS FILLED REQUIRING THAT YOU WAIT FOR THE NEXT COURSE BEGINNING ON SEPTEMBER 24, 1965. THUS, THE INSTALLATION COMMANDER APPARENTLY KNEW ON SEPTEMBER 15 THAT THE DELAY IN COMMENCING THE COURSE, TOGETHER WITH THE INTERVENING CHRISTMAS HOLIDAY PERIOD, WOULD MAKE IT NECESSARY FOR YOU TO BE AT PENSACOLA FOR 20 WEEKS. THE MARINE CORPS, HOWEVER, STATES THAT UNDER MARINE CORPS ORDER 1320.8A OF JULY 13, 1962, COPY OF WHICH IT FURNISHED, THE NAVAL AIR BASE TRAINING COMMAND AT PENSACOLA WAS WITHOUT AUTHORITY TO MODIFY THE BASIC INTENT OF YOUR ORDERS, AND THAT THE MODIFICATION OF APRIL 25, 1966, RE-ESTABLISHED THE INTENT OF THE ORDERS OF AUGUST 12, 1965.

THE MARINE CORPS ORDER OF JULY 13, 1962, NOT PREVIOUSLY CALLED TO OUR ATTENTION, WAS ISSUED TO PROVIDE INSTRUCTIONS FOR WRITING AND ENDORSING ORDERS TO TEMPORARY DUTY UNDER INSTRUCTION. THAT ORDER PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"6. MODIFICATION OF TEMPORARY DUTY UNDER INSTRUCTION ORDERS

A. INSTALLATION COMMANDERS OF THE TEMPORARY DUTY STATION WILL, WITHOUT FURTHER AUTHORITY, IMMEDIATELY MODIFY TEMPORARY DUTY UNDER INSTRUCTION ORDERS TO EXTEND THE TEMPORARY DUTY PERIOD, SHOWING THE REASONS THEREFOR, UNDER THE FOLLOWING SITUATIONS, PROVIDED THAT THE MODIFICATION DOES NOT CAUSE THE PERIOD OF TEMPORARY DUTY TO BE FOR 20 WEEKS OR MORE FROM THE DATE OF SUCH MODIFICATION:

(1) FOR -SETBACKS.-

(2) FOR AUTHORIZED LEAVE.

(3) FOR PERIODS THAT A MARINE REPORTS IN ADVANCE OF THAT CONTEMPLATED IN HIS ORDERS.

(4) FOR PERIODS DURING WHICH A MARINE AWAITS ORDERS AFTER COMPLETION OF THE COURSE OF INSTRUCTION.

(5) FOR PERIODS OF NONPERFORMANCE OF DUTY.

B. IN ALL OTHER CASES, EXCEPT HOSPITALIZATION, AUTHORITY TO MODIFY TEMPORARY DUTY UNDER INSTRUCTION ORDERS MUST BE REQUESTED FROM THE COMMANDANT OF THE MARINE CORPS (CODE DF). COMMUNICATION SHOULD BE BY SPEEDLETTER OR MESSAGE, AS WARRANTED.'

IN VIEW OF THE RESTRICTION IN THE DIRECTIVE ON THE AUTHORITY OF INSTALLATION COMMANDERS TO MODIFY ORDERS TO EXTEND TEMPORARY DUTY ASSIGNMENTS FOR 20 WEEKS OR MORE, THE MARINE CORPS APPARENTLY IS OF THE OPINION THAT THE SECOND INDORSEMENT TO YOUR ORDERS WAS WITHOUT EFFECT. SEEMS TO US, HOWEVER, THAT THERE IS SOME BASIS FOR THE VIEW THAT THE PROVISION OF THE 1962 DIRECTIVE WITH RESPECT TO OBTAINING AUTHORITY FROM THE COMMANDANT OF THE MARINE CORPS TO EXTEND PERIODS OF TEMPORARY DUTY FOR 20 WEEKS OR MORE WAS PRIMARILY A PROCEDURAL MATTER TO CONTROL ASSIGNMENTS OF A PERMANENT NATURE AND THAT FAILURE TO FOLLOW SUCH PROCEDURE WOULD NOT NECESSARILY INVALIDATE ORDERS OTHERWISE PROPER THAT MIGHT BE ISSUED BY AN INSTALLATION COMMANDER.

IN VIEW, HOWEVER, OF THE OPINION EXPRESSED BY THE MARINE CORPS AND THE OTHER CIRCUMSTANCES INVOLVED IN YOUR CASE, WE WILL NOW CONSIDER THAT THE INDORSEMENT OF SEPTEMBER 15, 1965, WAS ERRONEOUS AND WITHOUT EFFECT. NEVERTHELESS, DUE TO THE DELAY IN COMMENCING THE COURSE OF INSTRUCTION AND THE INTERVENING CHRISTMAS HOLIDAYS, YOU WERE REQUIRED TO REMAIN AT PENSACOLA UNTIL FEBRUARY 4 IN ORDER TO COMPLETE THE 16 WEEK COURSE WHICH YOU WERE DIRECTED TO ATTEND. CONSEQUENTLY, WHILE THE MATTER IS NOT FREE FROM DOUBT, IT IS NOW CONCLUDED THAT YOU WERE ENTITLED TO PER DIEM AS OTHERWISE AUTHORIZED FOR THE ENTIRE PERIOD THAT YOU WERE AT PENSACOLA. THEREFORE, OUR CLAIMS DIVISION WILL ISSUE A SETTLEMENT IN YOUR FAVOR FOR THE AMOUNT DUE.

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