As a result of this decision, many extremely undesirable situations have arisen in which Army members are being treated unequally while in a temporary duty status at the same station and attending the same course of instruction due to what appears to the personnel affected to be a mere technicality, and one which could not be corrected due to the suddenness of this decision. The opinion rendered by the Court of Claims in the case referred to has been thoroughly studied, and there is no indication that its holding is to be followed in any cases other than those involving newly inducted or enlisted members, as was the status of the plaintiffs in that case. As a matter of fact, the Court held that even though the provisions of paragraph 4201, item 12, Joint Travel Regulations, were not published or made effective until after the plaintiffs had completed-their courses of instruction at the schools concerned, such change merely clarified what was intended by the regulations in effect at the time they performed this duty. This would indicate that the view of the Court was that per diem was to be denied in these cases only for newly inducted or enlisted members and not to newly appointed officers or enlisted members with prior service. In this connection, reference is made to the fact that even now the provisions of paragraph 4201, item 12, Joint Travel Regulations, deny per diem only to newly inducted or enlisted members. Following this decision, the Department of the Army abolished TDPFO assignments for officer personnel in all circumstances. Consequently, only those in this situation on and after 19 June 1959 were or will be affected by this decision. In view of this, it is considered only reasonable and it is urgently suggested that you authorize per diem to be restored or established in all instances where Army members-other than newly inducted or enlisted memberswere in a TDPFO status from home on or after 19 June 1959, provided such payments are otherwise proper. If not, it is respectfully requested that this entitlement be restored or established in all instances where the orders were amended to name a first permanent station or or after the date of this decision and prior to completion of the TDPFO assignment from (1) the date such payments were required to be terminated or the date they otherwise would have begun to accrue; (2) the date of issuance of the modifying orders; or (3) the date of receipt of the modifying orders. 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. The Court of Claims in a judicial interpretation of that provision in the Califano case 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 performed. Upon consideration of that decision and since paragraph 3050-1 of the Joint Travel Regulations applies to all members of the uniformed services, we advised the Secretary of Defense by letter of June 19, 1959, B-138900, that from the date of the decision we would follow the ruling of the Califano case "in any case" where a member is ordered 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. Contrary to the administrative view as expressed in the letter of the Assistant Secretary, the ruling in the Califano case does not appear to be limited to cases involving newly inducted or enlisted members. The ruling applies "in any case" where a member is ordered 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 the orders do not designate a specific permanent duty station to which the member is to travel to and report for duty upon completion of the temporary duty. The letter of the Assistant Secretary states that following the decision of June 19, 1959, the Department of the Army abolished temporary duty pending further orders assignments for officers in all circumstance; that only those officers in this situation on and after June 19, 1959, are affected by the decision; that instructions were issued directing order issuing authorities to amend all orders of this type so as to designate a permanent station to which the officer was to report upon completion of temporary duty. On such basis, it is suggested that, in otherwise proper cases, per diem be authorized in all cases where Army officers were in a temporary duty pending further orders status from home on or after June 19, 1959. As an alternative, it is requested that entitlement to per diem be restored or established in all instances where the orders were amended to name a first permanent station on or after the date of the decision and prior to the completion of the temporary duty pending further orders assignment from (1) the date such payments were required to be terminated or the date they otherwise would have begun to accrue; (2) from the date of issuance of the modifying orders; or (3) from the date of receipt of the modifying orders. In this connection, it would appear that in cases where the orders of the type here involved were amended to designate a first permanent station on or after June 19, 1959, and prior to the completion of the temporary duty directed in the initial orders, such amendatory orders would place the member in a travel status away from his designated post of duty only from the date of receipt by him of the amendatory orders. Thus, in such cases we would not be required to object to otherwise proper per diem payments made administratively covering periods of temporary duty from the date of receipt by the members of the amendatory orders. Our decision of June 19, 1959, 38 Comp. Gen. 849, as herein modified, is affirmed. There are enclosed for your information copies of our letters of today to the Secretary of the Air Force and the Secretary of the Navy concerning the matter here involved. [B-138900] Military Personnel-Subsistence-Per Diem-Training or School Assignment-Califano Case A member of the uniformed services who is ordered to active duty from his home, assigned to a station for temporary duty upon completion of which he is to report to another location for temporary duty and further assignment may not have the place at which the second or subsequent periods of temporary duty are performed considered as other than the member's only post of duty to place the member in a travel status for per diem purposes. 38 Comp. Gen. 849, clarified. To the Secretary of the Navy, January 11, 1960: Reference is made to letter of September 29, 1959, from the Assistant Secretary of the Navy (Personnel and Reserve Forces) concerning our decision of June 19, 1959, 38 Comp. Gen. 849, to the Secretary of Defense, concerning the ruling of the court in the case of Califano v. United States, C. Cls. No. 86-58. In the decision of June 19, 1959, it was pointed out that 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 4 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. We stated in the decision of June 19, 1959, that from the date of that decision we would follow the ruling in the Califano 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. We stated further, however, that the decision was not to be construed as prohibiting the payment of per diem, in otherwise proper cases, where a member is ordered to active duty from his home, assigned to temporary duty, and the orders designate a specific duty station to which he is to travel to and report for duty upon completion of the temporary duty. The letter of the Assistant Secretary is in part as follows: Administrative considerations frequently require that members ordered from their homes will perform more than one period of temporary duty prior to their reaching an ultimate permanent duty station. Questions have arisen in these cases concerning the existence of per diem allowance entitlement during the second (and subsequent) periods of such temporary duty. The following cases are given as typical examples of these situations. While only one additional temporary duty station is proposed in the examples, it should be noted that on occasion there may be several such assignments prior to a member receiving orders which designate a permanent duty station. Case 1: A member is ordered from home to temporary duty under orders which direct that on completion thereof he will proceed to another location for further temporary duty and further assignment. Prior Case 2: A member is ordered from home to temporary duty under orders which indicate only that on completion he will be further assigned, to completion of this temporary duty he receives further orders which direct him to another location for additional temporary duty and further assignment. Case 3: A member is ordered from home to Officer Candidate School for temporary active duty for a period of indoctrination and on completion to further active duty (the usual wording of such orders). On completion of the Officer Candidate course, he receives new orders to another location for temporary duty and further assignment. Case 4: A newly enlisted member, on completion of basic training, receives orders to temporary duty and further assignment. (The temporary duty involved is not of a nature for which per diem allowance payments are prohibited by Joint Travel Regulations, paragraph 4201, item 12.) In the above cases, it appears reasonable to conclude that once the member departs from the location of his first temporary duty or indoctrination, he enters a travel status, since he then has been required to perform travel away from a designated post of duty, and is therefore entitled to payment of otherwise proper per diem allowances. In addition, it appears that Case 1 might be considered to fall within the area of your cited decision in which you state that payment of per diem allowances in connection with temporary duty at his initial designated post of duty was not prohibited in the case of a member ordered from home to temporary duty under orders "which designate a specific duty station to which he is to travel and report for duty on completion of the temporary duty." While in the circumstances contemplated in Case 1, no ultimate permanent duty station is named, an additional duty station to which the member must travel and report is indicated in the orders. Your decision is therefore requested concerning whether per diem allowances may be paid to members in the circumstances outlined in Cases 1 through 4, while at temporary duty stations subsequent to the one to which they were ordered from their homes and, in addition, whether in the circumstances applicable to Case 1, per diem entitlement can also be considered to exist during the initial period of temporary duty. 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 post 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 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. Paragraph 1150-10b states that where a member is transferred or assigned under permanent change of station orders to a school or installation as a student to pursue a course of instruction the duration of which is 20 weeks or more, such school or installation is defined to be a permanent station. A member who is ordered to active duty from his home, assigned to a station for temporary duty upon completion of which he is to report to another location for temporary duty and further assignment, may not be considered for the periods of such temporary duty as being away from his designated post of duty within the meaning of the applicable provisions of the statute and regulations so as to be entitled to per diem. In such circumstances, and irrespective of any earlier temporary duty performed at another place, the place at which he is currently performing temporary duty constitutes his only designated post of duty and, hence, while so serving he would not be traveling away from a permanent station. On this basis, the answers to the questions presented are as follows: In Case (1) the member would not be entitled to per diem during the initial period of temporary duty, or during the subsequent period, since the orders do not designate a specific permanent duty station to which he is to report upon completion of the periods of temporary duty. In Case (2) the answer is the same as the answer in Case (1). In Case (3) it would appear that the initial orders, presumably to a course of instruction of 20 weeks or more, if written as there indicated, would constitute the Officer Candidate School the member's permanent duty station and, hence, he would not be precluded from receiving per diem for any period of temporary duty away from the school performed under temporary duty orders which fall within paragraph 3003-2 of the Joint Travel Regulations. In Case (4) the member would not be entitled to per diem. Our decision of June 19, 1959, 38 Comp. Gen. 849, as herein clarified, is affirmed. There are enclosed for your information copies of our letters of today to the Secretary of the Air Force and the Secretary of the Army concerning the matter here involved. [B-140981] Appropriations and Miscellaneous-Foreign Currencies Received in Repayment of Trade and Economic Loans-Availability The use of foreign currencies received in repayment of loans made under section 104(g) of the Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. 1704(g), for construction or acquisition of family housing abroad, or for any purposes other than the specific purposes in sections 104 (a) and (h) of the act and except subject to section 1415 of the Supplemental Appropriation |
