B-111899, FEBRUARY 4, 1953, 32 COMP. GEN. 348

B-111899, FEBRUARY 4, 1953, 32 COMP. GEN. 348

PAY AND ALLOWANCES - MEMBERS OF THE MILITARY SERVICES AWAITING ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS A MEMBER OF THE MILITARY SERVICE WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS GIVEN ORDERS TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ON AUTHORIZED ABSENCE FROM DUTY AND UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, THE PERIOD SPENT AT HOME OR ELSEWHERE IS REQUIRED TO BE CHARGED AGAINST THE MEMBER'S LEAVE BALANCE TO THE EXTENT POSSIBLE, HOWEVER AN ENLISTED MEMBER, UNLESS SPECIFICALLY GRANTED LEAVE IN HIS ORDERS, IS NOT ENTITLED TO A CREDIT OF LEAVE RATIONS FOR THE PERIOD. AN ENLISTED MEMBER OF THE MILITARY SERVICES WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS ORDERED TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ENTITLED UNDER SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949 TO A BASIC ALLOWANCE FOR SUBSISTENCE AND UNDER SECTION 302 TO A BASIC ALLOWANCE FOR QUARTERS IF WITHOUT DEPENDENTS UNDER THE CIRCUMSTANCES AT THE LOCATION TO WHICH THE MEMBER IS ORDERED AND NOT BY WHAT HIS SITUATION WAS AT THE STATION FROM WHICH DETACHED. A MEMBER OF THE MILITARY SERVICES WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS ORDERED TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ENTITLED TO TRAVEL ALLOWANCES FOR HIMSELF ON THE BASIS THAT THE PLACE TO WHICH HE IS DIRECTED TO PROCEED BECOMES HIS STATION AND UPON ULTIMATE TERMINATION OF HIS SERVICES THE MEMBER IS ENTITLED TO TRAVEL ALLOWANCES FOR HIMSELF FROM THAT PLACE TO THE APPROPRIATE PLACE INCIDENT TO HIS RETIREMENT. A MEMBER OF THE MILITARY SERVICES WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS ORDERED TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ENTITLED TO TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD EFFECTS TO THE DESIGNATED PLACE, HOWEVER UPON FINAL DISPOSITION OF THE RETIREMENT PROCEEDINGS TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD EFFECTS IS SUBJECT TO ADJUSTMENT SO AS NOT TO EXCEED THE TRANSPORTATION AUTHORIZED FROM HIS LAST PERMANENT DUTY STATION TO THE PLACE AUTHORIZED INCIDENT TO HIS RETIREMENT.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF DEFENSE, FEBRUARY 4, 1953:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 12, 1952, FROM THE DEPUTY SECRETARY OF DEFENSE REQUESTING DECISION OF THIS OFFICE AS TO WHETHER MEMBERS OF THE MILITARY SERVICES WHO MAY BE ORDERED "HOME FOR DUTY ON PERMANENT CHANGE OF STATION" OR "PLACED ON DETACHED SERVICE AT HOME OR ELSEWHERE TO AWAIT FURTHER ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS" ARE ENTITLED TO CERTAIN ITEMS OF PAY AND ALLOWANCES MENTIONED IN/COMMITTEE ACTION NO. 33 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

A COPY OF COMMITTEE ACTION NO. 33, RECEIVED WITH THE LETTER OF SEPTEMBER 12, 1952, DISCLOSES THAT IN ORDER TO ELIMINATE OVERCROWDED CONDITIONS IN SERVICE HOSPITALS, PROVIDE A MORE RAPID TURNOVER OF PATIENTS, REDUCE THE OVERALL PATIENT COST AND ALSO TO AVOID THE NECESSITY OF ESTABLISHING AND MAINTAINING SEPARATE UNIT TO PROVIDE FURTHER CARE AFTER MAXIMUM HOSPITALIZATION BENEFITS HAVE BEEN OBTAINED, IT IS THE DESIRE OF THE MILITARY SERVICES THAT "IN THOSE CASES WHERE THE RECOMMENDED FINDINGS OF A PHYSICAL EVALUATION BOARD INDICATED THAT A MEMBER OF THE UNIFORMED SERVICE CONCERNED IS UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE" SUCH MEMBER NOT BE RETAINED IN THE HOSPITAL WHILE AWAITING FINAL ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF FURTHER HOSPITALIZATION IS NOT REQUIRED DURING THAT PERIOD. IN SUCH CASES IT IS PROPOSED THAT THE MEMBER, WHILE AWAITING FURTHER ORDERS AND DISPOSITION OF HIS CASE BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED,"BE ORDERED FOR DUTY, ON PERMANENT CHANGE OF STATION, TO HIS HOME" OR "BE PLACED ON DETACHED SERVICE AT SUCH PLACE AS HE MAY SELECT, OTHER THAN A MILITARY OR NAVAL ORGANIZATION.' IT IS STATED THAT SUCH ORDERS WILL BE ISSUED FOR THE CONVENIENCE OF THE GOVERNMENT AND NOT FOR THE CONVENIENCE OF THE INDIVIDUAL AND IT APPEARS TO BE CONTEMPLATED THAT UNDER SUCH ORDERS "THE MEMBER CONCERNED WOULD BE CONTINUED IN A DUTY STATUS AT HIS HOME OR POINT TO WHICH HE PROCEEDED ON DETACHED SERVICE" INASMUCH AS THE MEMBER "WOULD NOT BE DIRECTED TO BE "ABSENT FROM DUTY" WITH OR WITHOUT LEAVE.' THE BASIC QUESTION, THEREFORE, IS WHETHER THE MEMBER CONCERNED IN SUCH A CASE IS PRESENT FOR DUTY AT HIS HOME OR AT THE PLACE OF DETACHED SERVICE OR ABSENT FROM PENDING DISPOSITION.

WHETHER A MEMBER OF THE MILITARY SERVICE IS TO BE CONSIDERED AS PRESENT FOR DUTY AT HIS HOME OR ELSEWHERE OR ABSENT FROM DUTY AWAITING FINAL ACTION ON PENDING DISABILITY RETIREMENT PROCEEDINGS IS NECESSARILY A QUESTION OF FACT TO BE DETERMINED NOT ONLY FROM THE NATURE OF THE ORDERS ISSUED BUT ALSO ON THE BASIS OF THE ACTUAL CONDITIONS AND CIRCUMSTANCES OF THE PARTICULAR CASE. IT IS INDICATED THAT THE PROCEDURE WHICH IS HERE PROPOSED WILL BE APPLICABLE ONLY IN THOSE INSTANCES WHERE THE RECOMMENDED FINDINGS OF A PHYSICAL EVALUATION BOARD HAVE DISCLOSED THAT THE MEMBER CONCERNED IS UNFIT TO PERFORM THE DUTIES OF HIS RANK AND GRADE. IN OTHER WORDS A CASE INVOLVING A MEMBER WHO IS RECEIVING HOSPITALIZATION; WHO IS UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE; WHO IS NOT EXPECTED TO PERFORM ANY FURTHER DUTY; AND WHO IS GIVEN ORDERS DIRECTING HIM TO PROCEED TO SOME DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH HIS DISABILITY RETIREMENT, WOULD BE ONE WITHIN THE CLASS TO WHICH REFERENCE IS MADE. IT IS THE VIEW OF THIS OFFICE THAT SUCH A MEMBER SO DETACHED FROM HIS STATION, ACTUALLY WOULD BE ON AUTHORIZED ABSENCE FROM DUTY AWAITING FURTHER ORDERS IN CONNECTION WITH THE DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE WITHIN THE SCOPE OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT APPROVED AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (B), WHICH IN PERTINENT PART PROVIDES THAT:

AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES * * * WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT. (ITALICS SUPPLIED.)

IT WAS STATED IN DECISION DATED JUNE 24, 1952, B-108920, 31 COMP. GEN. 678, THAT:

IN AMENDING SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, AND REPEALING SECTION 1265 OF THE REVISED STATUTES, IT APPARENTLY WAS THE INTENTION TO CONTINUE TO PERMIT MEMBERS TO BE ORDERED TO BE ABSENT FROM DUTY IN AN "AWAITING ORDERS STATUS" RATHER THAN IN A LEAVE STATUS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS BUT IN VIEW OF THE PROVISION FOR COMPENSATING MEMBERS FOR UNUSED LEAVE TO THEIR CREDIT AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY, TO REQUIRE LEAVE STANDING TO THE CREDIT OF THE INDIVIDUAL TO BE CHARGED AGAINST SUCH PERIOD WHILE AWAITING ORDERS TO THE EXTENT POSSIBLE. * * *

THE SPECIFIC QUESTIONS PRESENTED ARE ANSWERED AS FOLLOWS:

(1) MUST THE PERIOD SPENT AT HOME, OR ELSEWHERE IF ON DETACHED SERVICE BE CHARGED AGAINST THE MEMBER'S LEAVE BALANCE TO THE EXTENT THAT SUCH BALANCE IS AVAILABLE?

IN VIEW OF THE FACT THAT A MEMBER'S STATUS UNDER ORDERS ISSUED IN THE CIRCUMSTANCES ABOVE DESCRIBED IS TO BE CONSIDERED AS THAT OF AUTHORIZED ABSENCE FROM DUTY AWAITING ORDERS, THE PERIOD SPENT AT HOME OR ELSEWHERE IS REQUIRED TO BE CHARGED AGAINST THE MEMBER'S LEAVE BALANCE TO THE EXTENT POSSIBLE. SEE 31 COMP. GEN. 678, SUPRA.

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, IS AN ENLISTED MEMBER ENTITLED TO LEAVE RATIONS DURING THE PERIOD CHARGEABLE AGAINST HIS LEAVE BALANCE?

NOTWITHSTANDING THE FACT THAT LEAVE STANDING TO THE CREDIT OF AN INDIVIDUAL IS REQUIRED TO BE CHARGED TO THE EXTENT POSSIBLE FOR THE ABSENCE DURING WHICH THE INDIVIDUAL IS IN A STATUS OF AWAITING FURTHER ORDERS, THE MEMBER CONCERNED IS NOT ABSENT FROM DUTY WITH LEAVE UNLESS HIS ORDERS SPECIFICALLY GRANT HIM LEAVE. 31 COMP. GEN. 678. HENCE, AN ENLISTED MEMBER, UNLESS GRANTED LEAVE, WOULD NOT BE ENTITLED TO A CREDIT OF LEAVE RATIONS DURING THE PERIOD SO CHARGEABLE AGAINST LEAVE.

(3) DURING THE PERIOD SPENT AT HOME, OR ELSEWHERE IF ON DETACHED SERVICE, AWAITING ORDERS, IS AN ENLISTED MEMBER'S ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE APPLICABLE WHEN RATIONS IN KIND ARE NOT AVAILABLE OR TO COMMUTED RATIONS GOVERNED BY APPLICABLE CIRCUMSTANCES AT THE STATION FROM WHICH DETACHED OR AT THE MEMBER'S CURRENT LOCATION?

DETACHMENT FROM STATION UNDER ORDERS, AS PROPOSED, WOULD HAVE THE EFFECT OF TERMINATING THE MEMBER'S DUTY ASSIGNMENT AT THAT STATION, AND, ACCORDINGLY DURING THE ABSENCE FROM DUTY AWAITING FURTHER ORDERS IN CONNECTION WITH THE DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE, HIS RIGHT TO BASIC ALLOWANCE FOR SUBSISTENCE IN THE AMOUNT AND UNDER THE CONDITIONS PRESCRIBED IN SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 251, WOULD BE GOVERNED BY THE CIRCUMSTANCES AT THE LOCATION TO WHICH THE MEMBER WAS DIRECTED TO PROCEED AND NOT BY WHAT HIS SITUATION WAS OR MAY HAVE BEEN AT THE STATION FROM WHICH DETACHED. COMPARE ANSWER TO QUESTION (2).

(4) DURING THE PERIOD SPENT AT HOME, OR ELSEWHERE IF ON DETACHED SERVICE, AWAITING ORDERS, IS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS IN THE CASE OF A MEMBER WITHOUT DEPENDENTS GOVERNED BY APPLICABLE CIRCUMSTANCES AT THE STATION FROM WHICH DETACHED OR AT THE MEMBER'S CURRENT LOCATION?

FOR THE REASONS SET FORTH IN ANSWER TO QUESTION (3) ABOVE THE RIGHT OF A MEMBER, WITHOUT DEPENDENTS, TO A BASIC ALLOWANCE FOR QUARTERS IN THE AMOUNTS AND UNDER THE CONDITIONS PRESCRIBED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, LIKEWISE WOULD BE GOVERNED BY THE CIRCUMSTANCES AT THE LOCATION TO WHICH THE MEMBER WAS DIRECTED TO PROCEED.

(5) IS THE MEMBER CONCERNED ENTITLED TO PERMANENT CHANGE OF STATION ALLOWANCES IN CONNECTION WITH TRANSPORTATION ALLOWANCES FOR HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD GOODS WHEN ORDERED HOME ON PERMANENT CHANGE OF STATION OR WHEN ORDERED ON DETACHED SERVICE?

(6) IF THE ANSWER TO QUESTION (5) ABOVE IS IN THE NEGATIVE, TO WHAT ALLOWANCES, IF ANY, WOULD SUCH MEMBER BE ENTITLED IN CONNECTION WITH TRANSPORTATION OF HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD GOODS WHEN ORDERED HOME ON PERMANENT CHANGE OF STATION OR WHEN ORDERED ON DETACHED SERVICE?

UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 33, AND IN VIEW OF THE REASONS THEREIN GIVEN RESPECTING THE EVIDENT DESIRE OF THE MILITARY SERVICES TO ACCOMPLISH A FINAL DETACHMENT FROM DUTY STATION OF THOSE MEMBERS OF THE UNIFORMED SERVICES FOUND TO BE UNFIT TO PERFORM THE DUTIES OF THEIR RANK OR GRADE, IT WOULD SEEM REASONABLY CLEAR THAT ORDERS OF THE TYPE HERE PROPOSED ACTUALLY WILL CONTEMPLATE NO FURTHER DUTY ON THE PART OF THE INDIVIDUAL MEMBER CONCERNED EITHER AT THE STATION FROM WHICH DETACHED OR AT HIS HOME OR ELSEWHERE. IN THAT SITUATION AND SINCE THE MEMBER CONCERNED IS IN FACT FULLY DETACHED FROM ALL DUTY PENDING FURTHER ORDERS ON DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE, NO COMPELLING REASON IS PERCEIVED AS TO WHY ORDERS, AS PROPOSED, SHOULD NOT BE CONSIDERED AS INITIATING A PERMANENT CHANGE OF STATION WITHIN THE MEANING OF THAT TERM AS USED IN THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES, SUCH CHANGE TO BE CONSUMMATED UPON ULTIMATE TERMINATION OF ACTIVE SERVICE BY RETIREMENT, RELEASE FROM ACTIVE DUTY OR OTHERWISE. HENCE, A MEMBER DETACHED FROM HIS DUTY STATION (NOTE REPLY TO QUESTIONS (3) AND (4) ABOVE), UNDER ORDERS ISSUED UNDER THE CIRCUMSTANCES ABOVE DESCRIBED AND WHO PROCEEDS TO THE PLACE DESIGNATED PROPERLY MAY BE VIEWED AS ENTITLED TO TRAVEL ALLOWANCES FOR HIMSELF ON THE BASIS THAT THE PLACE TO WHICH HE WAS DIRECTED TO PROCEED BECAME HIS STATION. ALSO, HE MAY BE CONSIDERED ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS, IF ANY, AND TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO THE EXTENT SUCH ALLOWANCES ARE OTHERWISE AUTHORIZED IN THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES. HOWEVER, SINCE A PERMANENT CHANGE OF STATION MAY NOT BE CONSIDERED TO HAVE BEEN CONSUMMATED UNTIL ULTIMATE RETIREMENT, RELEASE FROM ACTIVE DUTY OR OTHER TERMINATION OF HIS WAITING PERIOD, TRANSPORTATION OF DEPENDENTS OR HOUSEHOLD EFFECTS FURNISHED PRIOR THERETO WOULD BE SUBJECT TO ADJUSTMENT SO AS NOT TO EXCEED THAT AUTHORIZED ON THE BASIS OF RETIREMENT, RELEASE FROM ACTIVE DUTY OR OTHER TERMINATION OF THE WAITING PERIOD, DETERMINING WHAT THE ULTIMATE NEW PERMANENT STATION MAY BE. COMPARE 24 COMP. GEN. 895. QUESTIONS (5) AND (6) ARE ANSWERED ACCORDINGLY.

(7) IF RETIREMENT FOR PHYSICAL DISABILITY BECOMES EFFECTIVE WHILE AT HOME ON PERMANENT CHANGE OF STATION OR ON DETACHED SERVICE, AWAITING FURTHER ORDERS, IS THE MEMBER CONCERNED ENTITLED TO TRANSPORTATION ALLOWANCE FOR HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD GOODS FROM SUCH HOME OR DETACHED SERVICE STATION TO ANOTHER HOME WHICH HE ELECTS INCIDENT TO RETIREMENT, PROVIDED TRAVEL IS PERFORMED WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF RETIREMENT?

(8) IF THE ANSWER TO QUESTION (7) IS IN THE NEGATIVE, TO WHAT ALLOWANCES, IF ANY, WOULD SUCH MEMBER BE ENTITLED IN CONNECTION WITH TRANSPORTATION OF HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD GOODS UPON RETIREMENT IF RETIREMENT FOR PHYSICAL DISABILITY BECOMES EFFECTIVE WHILE AT HOME OR ON DETACHED SERVICE?

SINCE, AS INDICATED IN ANSWER TO QUESTION (5), THE PLACE DESIGNATED IN THE ORDERS PROPOSED AND TO WHICH THE MEMBER TRAVELS MAY BE CONSIDERED HIS STATION, HE IS ENTITLED, UPON ULTIMATE TERMINATION OF HIS SERVICE, TO TRAVEL ALLOWANCE FOR HIMSELF FROM THAT POINT TO THE APPROPRIATE PLACE INCIDENT TO HIS RETIREMENT, RELEASE FROM ACTIVE DUTY, ETC. HOWEVER, SINCE THE DESIGNATED INTERMEDIATE POINT MAY NOT BE CONSIDERED A PERMANENT STATION, HE IS NOT ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS AND HOUSEHOLD EFFECTS FROM THAT POINT, BUT THE AMOUNT OF SUCH TRANSPORTATION IS TO BE DETERMINED ON THE BASIS OF THE DISTANCE FROM HIS PERMANENT STATION AT THE TIME HE RECEIVED THE ORDERS DIRECTING HIM TO PROCEED IN AN AWAITING-ORDERS STATUS TO THE POINT TO WHICH HE IS ENTITLED INCIDENT TO RETIREMENT, RELEASE FROM ACTIVE DUTY, ETC., LESS ANY AMOUNTS PREVIOUSLY PAID FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO THE WAITING POINT. QUESTIONS (7) AND (8) ARE ANSWERED ACCORDINGLY.