B-176109, OCT 31, 1972

B-176109, OCT 31, 1972

MILITARY PERSONNEL - PER DIEM AND TRAVEL - PERMANENT DUTY STATION DECISION ALLOWING IN PART THE CLAIM OF MAJOR JOSEPH A. BOCANEGRA, USAF, FOR REFUND OF THE AMOUNT COLLECTED FROM HIM BECAUSE OF ERRONEOUS PAYMENT OF PER DIEM WHILE SERVING AT TIGERTOWN, REPUBLIC OF VIETNAM. WHAT CONSTITUTES A MEMBER'S DESIGNATED DUTY POST IS A QUESTION OF FACT TO BE DETERMINED WITH THE ASSISTANCE OF ANY AVAILABLE EVIDENCE AS TO THE AREA WHERE THE MEMBER IS TO PERFORM HIS BASIC ASSIGNMENT. UNDER ORDINARY CIRCUMSTANCES THE DUTY STATION OF A MEMBER NOT ENGAGED IN FIELD ACTIVITIES IS CONFINED TO THE LIMITS OF A RELATIVELY SMALL AREA, A STATION, OR CITY, BECAUSE THE DUTIES OF HIS SPECIFIC ASSIGNMENT ARE FOR PERFORMANCE WITHIN THAT AREA. IF, HOWEVER, THE NATURE OF HIS ASSIGNMENT IS SUCH THAT HIS DUTIES ARE FOR PERFORMANCE OVER A MORE WIDESPREAD AREA, THE ENTIRE SPHERE OF ACTIVITY OF THE BASIC ASSIGNMENT MAY CONSTITUTE THE MEMBER'S DUTY STATION, AND CONSEQUENTLY, TRAVEL ALLOWANCES MAY NOT BE AUTHORIZED FOR TRAVEL OR DUTIES PERFORMED WITHIN THAT SPHERE. SEE 38 COMP. GEN. 656. HOWEVER, SUCH A MEMBER IS ENTITLED TO PER DIEM FOR TEMPORARY DUTY OUTSIDE THE SPHERE OF ACTIVITY FROM THE TIME HE BEGAN HIS TRAVEL FROM THE DUTY STATION TO THE TIME HE COMPLETED SUCH TRAVEL.

TO MAJOR JOSEPH A. BOCANEGRA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1972, WITH ENCLOSURES, IN WHICH YOU REQUEST RECONSIDERATION OF TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF APRIL 19, 1972, WHICH DENIED YOUR CLAIM FOR REFUND OF AMOUNTS COLLECTED FROM YOU BECAUSE OF ERRONEOUS PAYMENT OF PER DIEM OF $1,031.42, WHILE SERVING AT TIGERTOWN, REPUBLIC OF VIETNAM.

SPECIAL ORDER T-010, DECEMBER 2, 1969, 21ST TACTICAL AIR SUPPORT SQUADRON (PACAF), APO SAN FRANCISCO, CALIFORNIA 96326, CONFIRMED VERBAL ORDERS OF THE COMMANDER OF OCTOBER 12, 1969, EXIGENCIES OF THE SERVICE HAVING PRECLUDED ISSUANCE OF WRITTEN ORDERS IN ADVANCE, FOR TEMPORARY DUTY TRAVEL FROM CAM RANH BAY AIR BASE, REPUBLIC OF VIETNAM, TO TIGERTOWN, AND RETURN TO CAM RANH BAY AIR BASE EFFECTIVE OCTOBER 12, 1969, FOR APPROXIMATELY 11 DAYS TO PERFORM DUTY AS AIR LIAISON OFFICER/FORWARD AIR CONTROLLER (ALO/FAC).

BY SQUADRON PERSONNEL ACTION DATED OCTOBER 14, 1969, APPROVED DECEMBER 29, 1969, YOU WERE ASSIGNED DUTY AS THE ASSISTANT DIVISION AIR LIAISON OFFICER, REPUBLIC OF KOREA CAPITOL DIVISION, IN THE OPERATIONAL AREA OF THE II CORPS OPERATING OUT OF QUI NHON (CAM RANH BAY), EFFECTIVE OCTOBER 12, 1969.

BY SPECIAL ORDER NO. TA-2572, OCTOBER 22, 1969, HEADQUARTERS, 12TH TACTICAL FIGHTER WING (PACAF) APO SAN FRANCISCO, CALIFORNIA 96326, TEMPORARY DUTY TRAVEL WAS AUTHORIZED DURING THE PERIOD OCTOBER 23, 1969, TO JUNE 30, 1970, FROM QUI NHON, REPUBLIC OF VIETNAM, TO ANY POINT WITHIN THE BOUNDARIES OF VIETNAM, WITH RETURN TO QUI NHON, FOR THE PURPOSE OF PERFORMANCE OF DUTY AS ALO/FAC. IT WAS STATED THAT TRAVEL IN CONNECTION WITH MEETINGS HELD IN ACCORD WITH AIR FORCE REGULATION 35-14 WAS NOT AUTHORIZED.

SPECIAL ORDER NO. T-014, DECEMBER 8, 1969, SAME SQUADRON, PROVIDED FOR TEMPORARY DUTY OF APPROXIMATELY 5 DAYS COMMENCING ON OR ABOUT DECEMBER 21, 1969, TO ATTEND ARC LIGHT/YOUNG TIGER ORIENTATION, FROM TIGERTOWN TO UTAPAO AIR BASE, THAILAND, WITH RETURN TO TIGERTOWN.

PERSONNEL ACTION DATED DECEMBER 13, AND APPROVED DECEMBER 19, 1969, 21ST TACTICAL AIR SUPPORT SQUADRON, CAM RANH BAY AIR BASE, ASSIGNED YOU FOR DUTY WITH THE REPUBLIC OF KOREA CAPITOL DIVISION IN THE II CORPS OPERATIONAL AREA OPERATING OUT OF PHU CAT (CAM RANH BAY) AS DIVISION ASSISTANT AIR LIAISON OFFICER.

SPECIAL ORDER T-008, JANUARY 12, 1970, SAME SQUADRON, PROVIDED THAT YOU WOULD PROCEED AS NECESSARY DURING THE PERIOD JANUARY 12-JUNE 30, 1970, FROM PHU CAT, REPUBLIC OF VIETNAM, TO PLACES AS MIGHT BE NECESSARY, WITHIN GEOGRAPHICAL LIMITS OF THE REPUBLIC OF VIETNAM, FOR THE PURPOSE OF PERFORMING DUTY AS ALO/FAC. IT FURTHER PROVIDED THAT UPON COMPLETION OF EACH MISSION YOU WOULD RETURN TO PHU CAT AND THAT TRAVEL IN CONNECTION WITH MEETINGS HELD PURSUANT TO AFR 35-14 WAS NOT AUTHORIZED.

ON OCTOBER 12, 1969, YOU TRAVELED FROM CAM RANH BAY VIA QUI NHON TO TIGERTOWN WHERE YOU REMAINED UNTIL OCTOBER 22, ARRIVING (VIA PHU CAT) AT CAM RANH BAY ON OCTOBER 23, AND RETURNING TO TIGERTOWN ON THE SAME DAY. ON OCTOBER 31 YOU FLEW TO NHA TRANG, REPUBLIC OF VIETNAM, RETURNING TO TIGERTOWN ON NOVEMBER 1. ON NOVEMBER 6 YOU WENT TO CAM RANH BAY AND RETURNED TO TIGERTOWN ON NOVEMBER 10. YOU TRAVELED TO PHU CAT ON DECEMBER 10, AND ON THE NEXT DAY, VIA QUI NHON, YOU RETURNED TO TIGERTOWN. DECEMBER 20 YOU TRAVELED VIA CAM RANH BAY, AND BANGKOK, THAILAND, TO UTAPAO AIR BASE, THAILAND, DEPARTING FROM THERE ON DECEMBER 23, AND VIA BANGKOK, ARRIVING AT CAM RANH BAY ON DECEMBER 27, AND AT TIGERTOWN ON THE FOLLOWING DAY.

YOU FLEW TO PHU CAT ON DECEMBER 31 AND RETURNED TO TIGERTOWN THE NEXT DAY. ON JANUARY 12, 1970, YOU PERFORMED ROUND TRIP TRAVEL TO CAM RANH BAY. YOU WENT TO PHU CAT ON JANUARY 19, AND ON JANUARY 21, VIA CAM RANH BAY, RETURNED TO TIGERTOWN. YOU DEPARTED THERE ON FEBRUARY 17, FLEW TO CAM RANH BAY, LEFT THERE THE NEXT DAY AND TRAVELED TO TIGERTOWN VIA PHU CAT. ON FEBRUARY 20 YOU WENT TO PHU CAT WHERE YOU REMAINED UNTIL FEBRUARY 28, WHEN YOU RETURNED TO TIGERTOWN. ON MARCH 6 YOU FLEW TO PHU CAT.

FOR THE PERIOD FROM OCTOBER 12, 1969, THROUGH MARCH 6, 1970, YOU WERE PAID PER DIEM TOTALING $1,084.99 (VOUCHER T-11060, DECEMBER 19, 1969, $456; VOUCHER T-13106, JANUARY 20, 1970, $317.57; AND VOUCHER T-16256, MARCH 9, 1970, $311.42). BY LETTER OF APRIL 6, 1970, ASSISTANT DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS SEVENTH AIR FORCE (PACAF), APO SAN FRANCISCO, CALIFORNIA 96307, IT WAS HELD THAT YOUR PERMANENT DUTY STATION WAS TIGERTOWN, AND THEREFORE YOU WERE NOT IN A TRAVEL STATUS WHILE AT THAT LOCATION, AND YOU WERE NOT ENTITLED TO PER DIEM FOR DUTY THERE. CONSEQUENTLY, YOU WERE INFORMED THAT YOU WERE INDEBTED TO THE GOVERNMENT FOR $1,031.42, THE AMOUNT PREVIOUSLY PAID TO YOU FOR PER DIEM WHILE AT TIGERTOWN. SINCE AUGUST 1970, $50 MONTHLY HAS BEEN DEDUCTED FROM YOUR PAY ACCOUNT FOR REPAYMENT OF THIS DEBT.

YOUR CLAIM FOR REFUND OF THE AMOUNTS COLLECTED AND FOR TERMINATION OF THE COLLECTION ACTION, WAS FORWARDED HERE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER AND WAS DENIED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON APRIL 19, 1972. IN YOUR LETTER DATED MAY 24, 1972, YOU INDICATE YOUR BELIEF THAT QUI NHON, AND LATER PHU CAT, WERE YOUR PERMANENT DUTY STATIONS, AND THAT YOU WERE ON TEMPORARY DUTY AT TIGERTOWN. BY VIRTUE OF PERSONNEL ACTION TAKEN BY THE 21ST TACTICAL AIR SUPPORT SQUADRON, APPROVED DECEMBER 29, 1969, YOU APPEAR TO BELIEVE YOU WERE PERMANENTLY ASSIGNED TO QUI NHON, AND CONSISTENT WITH THIS ASSIGNMENT, YOU WERE AUTHORIZED BY ORDERS ISSUED OCTOBER 22, 1969, TO TRAVEL FROM THERE TO ANY POINT IN VIETNAM, INCLUDING TIGERTOWN, AND TO RETURN TO QUI NHON. SUBSEQUENTLY, BECAUSE OF THE MOVEMENT OF AIRCRAFT AND PERSONNEL SUPPORTING THE REPUBLIC OF KOREA CAPITOL DIVISION, THE FORWARD OPERATING LOCATION WAS MOVED TO PHU CAT, WHICH YOU SAY THEN BECAME YOUR PERMANENT STATION.

YOU EXPRESS THE BELIEF THAT SPECIAL ORDERS EFFECTIVE OCTOBER 12, 1969, AUTHORIZING TEMPORARY DUTY AT TIGERTOWN WITH RETURN TO CAM RANH BAY DEMONSTRATES THAT AT THAT TIME QUI NHON AND NOT TIGERTOWN WAS YOUR PERMANENT STATION. ADDITIONALLY, YOU SAY THAT ALTHOUGH TIGERTOWN IS ONLY 9 MILES FROM QUI NHON AND 18 MILES FROM PHU CAT, BECAUSE OF CONDITIONS IN THE VICINITY, IT COULD NOT BE CONSIDERED TO BE WITHIN THE ESTABLISHED AREA OF EITHER LOCATION.

THE PERTINENT STATUTE, 37 U.S.C. 404(A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.

PARAGRAPH M3003-2A OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "TEMPORARY DUTY" AS DUTY AT ONE OR MORE LOCATIONS, OTHER THAN THE PERMANENT STATION, AT WHICH A MEMBER PERFORMS TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT, OR PENDING FURTHER ASSIGNMENT, TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION UPON COMPLETION OF THE TEMPORARY DUTY.

THE TERM "PERMANENT CHANGE OF STATION," UNLESS OTHERWISE QUALIFIED, MEANS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES FROM ONE PERMANENT STATION TO ANOTHER, PAR. M3003-1A, JTR. ADDITIONALLY, AIR FORCE MANUAL 11-1, AIR FORCE GLOSSARY OF COMPTROLLER TERMS, JUNE 5, 1968, DEFINES A PERMANENT CHANGE OF STATION AS A PHYSICAL TRANSFER OF A PERSON, GROUP OF PERSONS, OR UNIT FROM ONE STATION TO ANOTHER, MADE WITHOUT PLAN OR EXPECTATION OF RETURN TO THE STATION OF FIRST INSTANCE.

PARAGRAPH M1150-10A, JOINT TRAVEL REGULATIONS, PROVIDES IN PERTINENT PART THAT A PERMANENT DUTY STATION IS DEFINED AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY 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 AN 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.

WHAT CONSTITUTES A MEMBER'S DESIGNATED POST OF DUTY IS A QUESTION OF FACT, THE DETERMINATION OF WHICH IS TO BE MADE WITH THE ASSISTANCE OF ANY COMPETENT AVAILABLE EVIDENCE TO ESTABLISH THE PLACE WITHIN WHICH A MEMBER MUST PERFORM HIS BASIC DUTY ASSIGNMENT. CONSIDERATIONS SUCH AS THE LENGTH OF TIME TO BE SPENT BY THE MEMBER AT A PARTICULAR LOCATION, ADMINISTRATIVE EVALUATION OF THE ASSIGNMENT, ETC., ARE OF VALUE TO THE EXTENT THAT THEY PROVIDE A BASIS FOR ESTABLISHING HIS BASIC DUTY ASSIGNMENT. 38 COMP. GEN. 656 (1959), COPY ENCLOSED.

UNDER ORDINARY CIRCUMSTANCES THE DUTY STATION OF A MEMBER NOT ENGAGED IN FIELD ACTIVITIES IS CONFINED TO THE LIMITS OF A RELATIVELY SMALL AREA, A STATION, OR CITY, BECAUSE THE DUTIES OF HIS SPECIFIC ASSIGNMENT ARE FOR PERFORMANCE WITHIN THAT AREA. IF, HOWEVER, THE NATURE OF HIS ASSIGNMENT IS SUCH THAT HIS DUTIES ARE FOR PERFORMANCE OVER A MORE WIDESPREAD AREA, THE ENTIRE SPHERE OF ACTIVITY OF THE BASIC ASSIGNMENT MAY CONSTITUTE THE MEMBER'S DUTY STATION, AND CONSEQUENTLY, TRAVEL ALLOWANCES MAY NOT BE AUTHORIZED FOR TRAVEL OR DUTIES PERFORMED WITHIN THAT SPHERE. SEE 38 COMP. GEN. 656, SUPRA.

YOUR TRAVEL VOUCHERS SHOW THAT DURING THE PERIOD YOU WERE GIVEN AUTHORITY TO OPERATE OUT OF QUI NHON (OCTOBER 12-DECEMBER 19, 1969), YOU VISITED THAT LOCATION ONLY TWICE, EACH TIME REMAINING THERE FOR LESS THAN TWO HOURS, AND RETURNING TO TIGERTOWN. FROM DECEMBER 19, 1969, TO MARCH 6, 1970, WHEN YOU HAD AUTHORITY TO OPERATE OUT OF PHU CAT, YOU VISITED THAT LOCATION ONCE FOR LESS THAN FOUR HOURS, ON TWO OTHER OCCASIONS YOU STAYED OVERNIGHT, AND YOU REMAINED THERE DURING THE PERIOD JANUARY 20-28, RETURNING TO TIGERTOWN AFTER EACH OF THESE VISITS. DURING THE ENTIRE PERIOD INCLUDED IN YOUR CLAIM, WITH FEW EXCEPTIONS, INCLUDING SEVERAL DAYS TEMPORARY DUTY IN THAILAND (DEPARTING FROM AND RETURNING TO TIGERTOWN), YOU WERE PHYSICALLY PRESENT AT TIGERTOWN.

FROM THE RECORD BEFORE US IT APPEARS THAT YOUR ASSIGNMENT TO DUTY WITH THE CAPITOL DIVISION AS ASSISTANT AIR OPERATIONS OFFICER CONTEMPLATED DUTY AT TIGERTOWN, AND ALSO INCLUDED YOUR CONTROLLER ACTIVITIES AT THE FORWARD OPERATING LOCATION 9 MILES AWAY (QUI NHON) AND LATER 18 MILES AWAY (PHU CAT), WHICH FURNISHED AERIAL SUPPORT FOR THE DIVISION AND FROM WHERE YOU WERE AUTHORIZED TO PARTICIPATE IN AERIAL MISSIONS ANYWHERE IN VIETNAM. SUCH CIRCUMSTANCES, TEMPORARY DUTY ALLOWANCES, INCLUDING PER DIEM, MAY NOT BE AUTHORIZED FOR DUTY AT TIGERTOWN (WHERE IN ANY EVENT YOU SERVED MOST OF THE PERIOD) AS QUI NHON AND PHU CAT MAY NOT BE CONSIDERED TO BE SEPARATE POSTS OF DUTY TO WHICH YOU WERE ASSIGNED, BUT WITH TIGERTOWN ARE CONSIDERED AS WITHIN THE SPHERE OF YOUR BASIC DUTY ASSIGNMENT WITH THE CAPITOL DIVISION, IN THE II CORPS OPERATIONAL AREA.

WRITTEN ORDERS DATED DECEMBER 2, 1969, PURPORT TO CONFIRM VERBAL ORDERS ISSUED ON OCTOBER 12, 1969, FOR 11 DAYS' TEMPORARY DUTY AT TIGERTOWN WITH RETURN TO CAM RANH BAY, EFFECTIVE OCTOBER 12, 1969. HOWEVER, PERSONNEL ACTION OF OCTOBER 14, 1969, APPROVED DECEMBER 29, 1969, ASSIGNED YOU AS THE CAPITOL DIVISION'S ASSISTANT AIR OPERATIONS OFFICER EFFECTIVE OCTOBER 12, 1969, WHICH WAS IN THE NATURE OF A PERMANENT DUTY ASSIGNMENT. WHILE IT IS NOT CLEAR IF THE ORDERS OF DECEMBER 2, 1969, WERE CONSIDERED IN MAKING THE OFFICIAL DETERMINATION THAT YOU WERE IN A PERMANENT DUTY STATUS WHILE AT TIGERTOWN, THE RECORD SHOWS THAT AFTER 11 DAYS' DUTY AT TIGERTOWN YOU TRAVELED TO CAM RANH BAY BUT RETURNED TO TIGERTOWN THE SAME DAY AND CONTINUED YOUR DUTIES WITH THE CAPITOL DIVISION. IN THESE CIRCUMSTANCES IT APPEARS THAT WHEN YOU WERE ASSIGNED TO THE CAPITOL DIVISION EFFECTIVE OCTOBER 12, 1969, IT WAS CONTEMPLATED THAT YOU WOULD SERVE IN THAT POST OF DUTY, INCLUDING AT TIGERTOWN, AND THAT YOUR POST OF DUTY WAS NO LONGER AT CAM RANH BAY. ACCORDINGLY, NO PER DIEM MAY BE AUTHORIZED FOR THE PERIOD OCTOBER 12-23, 1969, AS YOU WERE NOT IN A TRAVEL STATUS AT THAT TIME.

IN CONNECTION WITH TEMPORARY DUTY IN THAILAND, YOU HAVE BEEN PAID PER DIEM TOTALING $53.57 ($1,084.99 LESS $1,031.42) FOR THE PERIOD DECEMBER 21 -27, 1969. SINCE YOUR POST OF DUTY THEN INCLUDED TIGERTOWN, YOU ARE ENTITLED TO PER DIEM FROM YOUR DEPARTURE FROM THAT LOCATION AT 9:30 A.M., DECEMBER 20, 1969, UNTIL YOUR RETURN AT 12:45 P.M., DECEMBER 28, 1969.

THE DENIAL OF YOUR CLAIM FOR REFUND OF THE AMOUNTS COLLECTED FROM YOU BECAUSE OF ERRONEOUS PAYMENT OF PER DIEM, IS SUSTAINED. AS IT APPEARS THAT YOU HAVE ALREADY REPAID THE GOVERNMENT $1,031.42 PER DIEM PAID FOR DUTY AT TIGERTOWN, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ISSUE SETTLEMENT FOR ADDITIONAL PER DIEM AS INDICATED ABOVE.