B-128333, AUG. 7, 1956

B-128333, AUG. 7, 1956

TO LIEUTENANT COLONEL J. R. FENNELL, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT OF JUNE 19, 1956, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR FIRST INDORSEMENT OF MAY 22, 1956, AND ACCOMPANYING PAPERS, REQUESTING AN ADVANCE DECISION WHETHER FIRST LIEUTENANT HOWARD E. GOLDFARB, JAGC, IS ENTITLED TO STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR DUTY PERFORMED AT ORLEANS, FRANCE, DURING THE PERIOD FEBRUARY 10 TO MARCH 25, 1956.

IT APPEARS THAT AFTER ARRIVING AT ORLEANS ON JUNE 26, 1955, ON A PERMANENT CHANGE OF STATION FROM A STATION IN THE UNITED STATES TO 7966 ARMY UNIT, APO 58, NEW YORK, NEW YORK (ORLEANS, FRANCE), LIEUTENANT GOLDFARB BECAME ILL AND REMAINED IN A HOTEL ROOM UNTIL JUNE 28, 1955, WHEN HE WAS ADMITTED AS A PATIENT AT THE UNITED STATES ARMY HOSPITAL, APO 58, LA CHAPELLE ST. MESMIN, FRANCE, SAID TO BE LOCATED ABOUT FIVE MILES FROM THE LOCATION OF 7966 ARMY UNIT IN ORLEANS. BY HOSPITAL TRANSFER ORDER NO. 57, OCTOBER 22, 1955, HIS ASSIGNMENT WITH 7966 ARMY UNIT WAS TERMINATED AND HE WAS REASSIGNED TO THE MEDICAL HOLDING DETACHMENT AT THAT HOSPITAL. PARAGRAPH 4, SPECIAL ORDERS NO. 23, ISSUED BY THE HEADQUARTERS OF THE HOSPITAL UNDER DATE OF FEBRUARY 9, 1956, REASSIGNED HIM TO 7966 ARMY UNIT. THE OFFICER STATES THAT HE SECURED QUARTERS IN A CIVILIAN HOTEL IN ORLEANS ON FEBRUARY 10, 1956, WHERE HE CONTINUED TO RESIDE AT THE TIME OF SUBMITTING HIS CLAIM ON MAY 10, 1956. IT IS CERTIFIED THAT NEITHER GOVERNMENT QUARTERS NOR MESSING FACILITIES WERE AVAILABLE AT HIS STATION.

PARAGRAPH 4303-2A, JOINT TRAVEL REGULATIONS, PROVIDES THAT UPON INITIAL ASSIGNMENT TO A PERMANENT STATION OUTSIDE THE UNITED STATES "AND UPON SUBSEQUENT TRANSFER FROM ONE PERMANENT STATION OUTSIDE THE UNITED STATES TO ANOTHER PERMANENT STATION OUTSIDE THE UNITED STATES REQUIRING A CHANGE IN RESIDENCE" A MEMBER OF THE UNIFORMED SERVICES, WHO IS NOT FURNISHED GOVERNMENT QUARTERS AND WHO IS REQUIRED TO SECURE TEMPORARY LODGINGS FOR AN PERIOD "DURING THE FIRST 45 DAYS AFTER ARRIVAL THEREAT," SHALL BE PAID STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE PRESCRIBED FOR THAT AREA.

IT IS OUR VIEW THAT THE OFFICER COULD NOT PROPERLY BE REGARDED AS HAVING BEEN TRANSFERRED FROM ANOTHER PERMANENT STATION TO HIS PERMANENT STATION AT ORLEANS ON FEBRUARY 10, 1956, WHEN HE ACTUALLY ARRIVED AT THAT PLACE ON JUNE 26, 1955, AND WAS HOSPITALIZED IN A NEARBY ARMY HOSPITAL FROM JUNE 28, 1955, TO FEBRUARY 10, 1956, IT BEING REASONABLY CLEAR THAT HIS TRANSFER TO AND FROM THE HOSPITAL DID NOT INVOLVE A TRANSFER FROM ONE PERMANENT STATION TO ANOTHER PERMANENT STATION. A PERMANENT STATION IS DEFINED IN SPECIAL REGULATIONS 320-5 1 AS A "POST OR STATION TO WHICH AN OFFICER OR ENLISTED MAN IS ASSIGNED TO DUTY UNDER ORDERS WHICH DO NOT PROVIDE FOR THE TERMINATION OF THE ASSIGNMENT.' A PATIENT IS NOT ASSIGNED TO A HOSPITAL FOR DUTY. HENCE, EVEN THOUGH THE OFFICER'S ASSIGNMENT TO THE 7966 ARMY UNIT WAS TERMINATED WHEN HE WAS ASSIGNED TO THE MEDICAL HOLDING DETACHMENT AT THE HOSPITAL, NEITHER HIS ASSIGNMENT TO THAT DETACHMENT NOR HIS REASSIGNMENT TO THE 7966 ARMY UNIT INVOLVED A TRANSFER FROM ONE PERMANENT STATION TO ANOTHER PERMANENT STATION. WHILE A RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS CAN ACCRUE TO A MEMBER IN CERTAIN CIRCUMSTANCES IN CONNECTION WITH HIS TRANSFER TO A HOSPITAL FOR OBSERVATION AND TREATMENT, UNDER THE EXPRESS TERMS OF PARAGRAPHS 7004 AND 8009-4F OF THE JOINT TRAVEL REGULATIONS, SUCH RIGHT ACCRUES "AS FOR A PERMANENT CHANGE OF STATION," RATHER THAN BECAUSE HOSPITAL IS REGARDED AS A PERMANENT STATION FOR PATIENTS WHO ARE TRANSFERRED THERETO FOR OBSERVATION AND TREATMENT.

IN THE CIRCUMSTANCES DISCLOSED THE 45-DAY PERIOD CONTEMPLATED BY PARAGRAPH 4303-2A OF THE JOINT TRAVEL REGULATIONS MUST BE REGARDED AS HAVING COMMENCED TO RUN, IN LIEUTENANT GOLDFARB'S CASE, ON JUNE 26, 1955, WHEN HE ARRIVED AT HIS PERMANENT STATION AT ORLEANS, AND HE IS NOT ENTITLED TO STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR ANY DAY AFTER THAT PERIOD, WHILE AT ORLEANS, OR FOR ANY DAY DURING OR AFTER THAT PERIOD WHEN HE WAS A PATIENT IN THE HOSPITAL AND WAS NOT REQUIRED TO HAVE TEMPORARY LODGINGS.

THE MILITARY PAY ORDERS, AND ACCOMPANYING PAPERS, SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.