B-124428, NOVEMBER 6, 1957, 37 COMP. GEN. 302

B-124428, NOVEMBER 6, 1957, 37 COMP. GEN. 302

MILITARY PERSONNEL - TEMPORARY DISABILITY RETIREMENT- TRAVEL FOR PHYSICAL EXAMINATIONS - HOSPITALS IN SAME CITY AS HOME - PER DIEM MEMBERS OF THE UNIFORMED SERVICES WHO ARE ON THE TEMPORARY DISABILITY RETIRED LIST AND WHO, PURSUANT TO COMPETENT TEMPORARY DUTY ORDERS, TRAVEL FOR PERIODIC PHYSICAL EXAMINATIONS TO HOSPITALS WHICH ARE SITUATED IN THE SAME CITY AS THEIR HOMES ARE NOT CONSIDERED TO BE IN A TRAVEL STATUS AWAY FROM THE CORPORATE LIMITS OF THEIR PERMANENT STATION DURING THE PERIOD OF TEMPORARY DUTY SO AS TO BE ENTITLED TO PER DIEM.

TO THE SECRETARY OF THE ARMY, NOVEMBER 6, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 10, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY ( FM), COPY ENCLOSED, REFERRING TO OUR DECISION OF OCTOBER 27, 1955, B-124428, AND REQUESTING A DECISION AS TO WHAT ALLOWANCES ARE OR MAY BE AUTHORIZED TO MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST WHO, PURSUANT TO COMPETENT ORDERS, REPORT FOR A PERIODIC PHYSICAL EXAMINATION TO A HOSPITAL WHICH IS SITUATED IN THE SAME CITY AS IS THEIR HOME.

ON DECEMBER 1, 1956, THE JOINT TRAVEL REGULATIONS WERE AMENDED TO PROVIDE IN PARAGRAPH 5200 THAT A MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST WHO IS REQUIRED TO SUBMIT TO A PERIODIC PHYSICAL EXAMINATION "IS CONSIDERED TO BE IN A TRAVEL STATUS DURING THE PERIOD OF THE EXAMINATION AND THE NECESSARY TRAVEL PERFORMED TO AND FROM A HOSPITAL OR OTHER MEDICAL FACILITY UNDER COMPETENT DERS.' PARAGRAPH 5201 PROVIDES THAT FOR TRAVEL PERFORMED TO AND FROM A HOSPITAL OR OTHER MEDICAL FACILITY UNDER COMPETENT ORDERS, INCLUDING THE DAY OF ARRIVAL THEREAT AND THE DAY OF DEPARTURE THEREFROM, A MEMBER WILL BE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN CHAPTER 4, PART E OR F, AS APPLICABLE, EXCEPT THAT THE PROVISIONS OF PARAGRAPH 4203-3B (2) WILL NOT BE APPLICABLE FOR TRAVEL UNDER THIS PART. ITEM 1 OF PARAGRAPH 5202 PRESCRIBES THE ALLOWANCES PAYABLE TO IN-PATIENTS FOR THE PERIOD FOLLOWING THE DAY OF ARRIVAL AT THE HOSPITAL THROUGH THE DAY PRECEDING THE DAY OF DEPARTURE THEREFROM, WHILE ITEM 2 OF THAT PARAGRAPH SPECIFIES THE ALLOWANCES PAYABLE DURING THIS PERIOD TO OUTPATIENTS.

THE ASSISTANT SECRETARY OF THE ARMY STATES IN HIS LETTER THAT OUR DECISION DATED OCTOBER 27, 1955, B-124428, TO THE SECRETARY OF THE NAVY, IS VIEWED AS AUTHORIZING THE PROMULGATION OF REGULATIONS WHICH WOULD PERMIT "ALL MEMBERS IN THIS CATEGORY" TO BE PAID A PER DIEM ALLOWANCE COMMENSURATE WITH THE COST OF THEIR MEALS WHILE INPATIENTS AT HOSPITALS; THAT, HOWEVER, QUESTION HAS ARISEN AS TO WHAT ALLOWANCES ARE OR MAY BE AUTHORIZED THESE MEMBERS ON THE DAY THEY REPORT TO THE HOSPITAL, AS WELL AS THE DAY THEY DEPART THE HOSPITAL, IN INSTANCES WHERE THE HOSPITAL TO WHICH THEY ARE DIRECTED TO REPORT AND THE HOME ARE WITHIN THE SAME CITY. A DECISION IS REQUESTED ON THE QUESTIONS PRESENTED AS FOLLOWS:

A. ARE THEY ENTITLED TO A PER DIEM ALLOWANCE ON THE DAY THEY REPORT AT THE HOSPITAL, IF IN-PATIENTS? IF SO, AT WHAT RATE AND FROM WHAT TIME I.E., TIME OF DEPARTURE FROM HOME OR TIME OF REPORTING AT THE HOSPITAL?

B. ARE THEY ENTITLED TO A PER DIEM ALLOWANCE ON THE DAY THEY REPORT AT THE HOSPITAL, IF OUT-PATIENTS? IF SO, AT WHAT RATE AND FOR WHAT PERIOD, I.E., THE TOTAL TIME AWAY FROM HOME OR MERELY THE TIME AT THE HOSPITAL? CONCERNING THIS QUESTION, PARAGRAPH 4205-4, JOINT TRAVEL REGULATIONS, DENIES PER DIEM TO OFFICER MEMBERS FOR ROUND TRIPS PERFORMED WHOLLY WITHIN A TEN-HOUR PERIOD OF THE SAME CALENDAR DAY BUT AUTHORIZES REIMBURSEMENT TO ENLISTED MEMBERS FOR NOT TO EXCEED TWO MEALS AT THE RATE OF $1.50 EACH IF NECESSARILY PROCURED AT PERSONAL EXPENSE DURING SUCH PERIODS. ACCORDINGLY, IF AN OFFICER MEMBER'S PERIOD OF TIME AWAY FROM HOME (OR AT THE HOSPITAL, AS APPROPRIATE) IS TEN HOURS OR LESS ON THIS DAY, WOULD HE BE ENTITLED TO PER DIEM? IF SO, IN WHAT AMOUNT? CONCERNING ENLISTED MEMBERS IN THESE CIRCUMSTANCES, ARE THEY ENTITLED TO REIMBURSEMENT AT THE RATES PRESCRIBED IN PARAGRAPH 4205-4, JOINT TRAVEL REGULATIONS, REGARDLESS OF THE ACTUAL COSTS OF THEIR MEALS? ALSO, IF MEMBERS UNDER THESE CIRCUMSTANCES ARE AWAY FROM HOME (OR AT THE HOSPITAL, AS APPROPRIATE) FOR PERIODS IN EXCESS OF TEN HOURS AND IT IS HELD THAT THEY ARE ENTITLED TO A TRAVEL PER DIEM ALLOWANCE ON THAT DAY, WHAT IS THE RATE OF PER DIEM PAYABLE? THIS QUESTION IS PROMOTED ON THE BASIS THAT, WHILE THESE MEMBERS ARE CONSIDERED TO BE IN A TEMPORARY DUTY STATUS, THEY WOULD NOT BE "TRAVELING" WITHIN THE MEANING OF PARAGRAPH 4205-5A, NOR WOULD THE SLEEPING ACCOMMODATIONS WHICH THEY WOULD OR COULD UTILIZE AT THE HOME FALL WITHIN THE DEFINITION OF GOVERNMENT QUARTERS SET FORTH IN PARAGRAPH 1150- 5, JOINT TRAVEL REGULATIONS.

C. ARE MEMBERS IN THIS CATEGORY WHO ARE OUT-PATIENTS PROPERLY ENTITLED TO PER DIEM BEGINNING THE DAY FOLLOWING ARRIVAL AT THE HOSPITAL THROUGH THE DAY PRECEDING FINAL DEPARTURE? IF SO, FOR WHAT PERIODS AND AT WHAT RATES?

D. ARE IN- AND OUT-PATIENTS ENTITLED TO PER DIEM ON THE DAY (OR FINAL DAY) OF DEPARTURE FROM THE HOSPITAL; AND, IF SO, FOR WHAT PERIODS AND AT WHAT RATES?

THE ALLOWANCES AUTHORIZED IN CONNECTION WITH PERIODIC PHYSICAL EXAMINATIONS FOR MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ARE CONTAINED IN SECTION 404 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, 37 U.S.C. 274 (B), WHICH PROVIDES THAT---

A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST AND WHO IS REQUIRED TO SUBMIT TO A PERIODIC PHYSICAL EXAMINATION SHALL, FOR TRAVEL PERFORMED, BE ENTITLED TO RECEIVE THE TRAVEL AND TRANSPORTATION ALLOWANCE AUTHORIZED FOR THE RANK, GRADE, OR RATING IN WHICH RETIRED FOR TEMPORARY DUTY TRAVEL PERFORMED WHILE ON ACTIVE DUTY. ( ITALICS SUPPLIED.)

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, EXPRESSLY LIMITS THE PAYMENTS OF PER DIEM OR OTHER TRAVEL ALLOWANCES TO MILITARY PERSONNEL TO PERIODS WHILE PERFORMING TRAVEL OR TEMPORARY DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY AND PROVIDES THAT THE RESPECTIVE SECRETARIES SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS AND PRESCRIBE THE CONDITIONS UNDER WHICH ALLOWANCES WILL BE AUTHORIZED. THE EFFECT OF OUR DECISION OF OCTOBER 27, 1955, WAS TO HOLD THAT, WHILE MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST HAVE NO DESIGNATED POSTS OF DUTY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A), A RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES WHICH ARE, OR MAY BE, AUTHORIZED UNDER THAT SECTION IS CONFERRED UPON THEM BY SECTION 404 (B) OF THE ACT, QUOTED ABOVE.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, 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, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING * * * PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY.' BY DEFINITION, PARAGRAPH 3003 OF THE JOINT TRAVEL REGULATIONS, THE MEMBER'S HOME IS THE PERMANENT STATION OF RETIRED AND RESERVE PERSONNEL NOT ON ACTIVE DUTY.

PARAGRAPH 1150 OF THE JOINT TRAVEL REGULATIONS DEFINES THE PERMANENT DUTY STATION TO BE THAT AREA WITHIN THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED. SINCE A PERSON'S HOME IS HIS PERMANENT STATION UPON ENTRANCE INTO ACTIVE DUTY, IT APPEARS THAT, FOR PER DIEM PURPOSES, MEMBERS SUCH AS ARE HERE INVOLVED CAN ENTER A TRAVEL STATUS WITHIN THE PURVIEW OF THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS ONLY UPON DEPARTING FROM THE AREA WITHIN THE CORPORATE BOUNDARIES OF THE CITIES IN WHICH THEIR HOMES ARE LOCATED; THAT, THEREFORE, THEY MAY NOT BE PAID A PER DIEM ALLOWANCE PRIOR TO SUCH DEPARTURE, EVEN THOUGH REQUIRED TO PERFORM TEMPORARY DUTY WITHIN THE LIMITS OF THE DUTY STATION UNDER CIRCUMSTANCES INVOLVING A TEMPORARY CHANGE IN LIVING ARRANGEMENTS WITH A RESULTING INCREASE IN CERTAIN OF THEIR LIVING EXPENSES. SEE B-120844, NOVEMBER 29, 1954; B-127887, AUGUST 1, 1956. COMPARE 33 COMP. GEN. 55, 34 ID. 427. ACCORDINGLY, SINCE THE HOMES OF THE MEMBERS IN QUESTION AND THEIR TEMPORARY DUTY STATIONS BOTH ARE LOCATED WITHIN THE SAME CORPORATE LIMITS, IT MUST BE CONSIDERED THAT THEY WOULD NOT BE IN A TRAVEL STATUS DURING THE PERIOD OF TEMPORARY DUTY AT A HOSPITAL OR OTHER MEDICAL FACILITY AND SO WOULD NOT BE IN A STATUS FOR WHICH THE PAYMENT OF PER DIEM ALLOWANCE IS AUTHORIZED UNDER APPLICABLE LAW AND REGULATIONS. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.