B-171651, FEB 17, 1971, 50 COMP GEN 579

B-171651: Feb 17, 1971

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" WHO BEFORE MOVING HIS DEPENDENTS HOME MAINTAINED THEM FOR A SHORT PERIOD IN THE VICINITY OF THE HOSPITAL UNTIL HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. IS ENTITLED TO A DISLOCATION ALLOWANCE. SINCE AT THE TIME THE OFFICER'S ORDERS WERE ISSUED THERE WAS ONLY A POSSIBILITY OF RETIREMENT OR TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST. COMMANDER MEISENHEIMER WAS TO BE DETACHED FROM DUTY WITH THE JOINT STAFF AND WAS TO PROCEED TO THE NAVAL HOSPITAL. TEN DAYS' DELAY WAS LATER AUTHORIZED. FOR TEMPORARY DUTY UNDERGOING HOSPITALIZATION AND THAT GOVERNMENT MESSING AND BERTHING FACILITIES WERE AVAILABLE AND WERE TO BE UTILIZED BY THE OFFICER. THE RECORD SHOWS THAT THE OFFICER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON SEPTEMBER 30.

B-171651, FEB 17, 1971, 50 COMP GEN 579

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCE - HOSPITAL TRANSFERS A NAVY OFFICER DETACHED FROM DUTY OVERSEAS AND ASSIGNED TO A HOSPITAL "FOR STUDY AND TREATMENT IF INDICATED AND APPEARANCE BEFORE A MEDICAL BOARD AND PRERETIREMENT PHYSICAL EXAMINATION," WHO BEFORE MOVING HIS DEPENDENTS HOME MAINTAINED THEM FOR A SHORT PERIOD IN THE VICINITY OF THE HOSPITAL UNTIL HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IS ENTITLED TO A DISLOCATION ALLOWANCE, SINCE PARAGRAPH M9003-3A, JOINT TRAVEL REGULATIONS, PROVIDING THE ALLOWANCE INCIDENT TO A HOSPITAL TRANSFER APPLIES TO THE OFFICER AND NOT PARAGRAPH M9004-1, ITEM 2, WHICH PROHIBITS PAYMENT OF THE ALLOWANCE IN CONNECTION WITH SEPARATION, RELEASE FROM ACTIVE DUTY, PLACEMENT ON THE DISABILITY RETIRED LIST, OR RETIREMENT, SINCE AT THE TIME THE OFFICER'S ORDERS WERE ISSUED THERE WAS ONLY A POSSIBILITY OF RETIREMENT OR TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST.

TO R. SHINN, DEPARTMENT OF THE NAVY, FEBRUARY 17, 1971:

THERE HAS BEEN RECEIVED BY SECOND ENDORSEMENT FROM THE DIRECTOR, NAVY MILITARY PAY SYSTEM, DATED NOVEMBER 20, 1970, YOUR LETTER OF OCTOBER 22, 1970, IN WHICH YOU REQUEST A DECISION AS TO THE ENTITLEMENT OF COMMANDER JOHN L. MEISENHEIMER, USN, TO A DISLOCATION ALLOWANCE IN THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 70-58, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

HEADQUARTERS, UNITED STATES EUROPEAN COMMAND, APO NEW YORK 09128, ORDERS OF JUNE 17, 1970, QUOTING BUREAU OF NAVAL PERSONNEL MESSAGE OF JUNE 16, 1970, PROVIDE THAT WHEN DIRECTED, COMMANDER MEISENHEIMER WAS TO BE DETACHED FROM DUTY WITH THE JOINT STAFF AND WAS TO PROCEED TO THE NAVAL HOSPITAL, NATIONAL NAVY MEDICAL CENTER, BETHESDA, MARYLAND, " *** FOR STUDY AND TREATMENT IF INDICATED AND APPEARANCE BEFORE A MEDICAL BOARD AND PRE-RETIREMENT PHYSICAL EXAMINATION." TEN DAYS' DELAY WAS LATER AUTHORIZED. SUBSEQUENT ENDORSEMENT DATED AUGUST 1, 1970, DIRECTED THE OFFICER TO REPORT WITH HIS DEPENDENTS TO STUTTGART, GERMANY, FOR TRANSPORTATION TO THE UNITED STATES VIA PRESTWICK, SCOTLAND.

ENDORSEMENT TO THE ORDERS, DATED AUGUST 8, 1970, STATES THAT THE OFFICER REPORTED THAT DAY AT THE NAVAL HOSPITAL, NATIONAL NAVY MEDICAL CENTER, FOR TEMPORARY DUTY UNDERGOING HOSPITALIZATION AND THAT GOVERNMENT MESSING AND BERTHING FACILITIES WERE AVAILABLE AND WERE TO BE UTILIZED BY THE OFFICER. THE OFFICER'S CLAIM SHOWS THAT UPON ARRIVAL AT HIS DUTY STATION, HE MAINTAINED A RESIDENCE FOR HIS DEPENDENTS IN BETHESDA, MARYLAND.

THE RECORD SHOWS THAT THE OFFICER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON SEPTEMBER 30, 1970. THE CHIEF OF NAVAL PERSONNEL HAS REPORTED THAT THE PRIMARY PURPOSE OF ORDERING THE OFFICER TO THE NATIONAL NAVAL MEDICAL CENTER WAS FOR STUDY, TREATMENT, AND FOR APPEARANCE BEFORE A MEDICAL BOARD. HE SAYS THE PRERETIREMENT PHYSICAL EXAMINATION WAS INCIDENTAL.

YOU SAY THAT THE OFFICER ADVISED YOU IT WAS NECESSARY FOR HIM TO OBTAIN HOUSING FOR HIS DEPENDENTS IN THE AREA FOR A PERIOD OF ABOUT 1 MONTH BEFORE BEING ABLE TO TRANSPORT THEM TO HIS HOME. HOWEVER, YOU INDICATE THAT IN THE CIRCUMSTANCES DISCLOSED, THERE IS DOUBT AS TO THE OFFICER'S ENTITLEMENT TO DISLOCATION ALLOWANCE, SAYING THAT THE PROVISIONS OF PARAGRAPHS M9004-2 AND M9003-3, JOINT TRAVEL REGULATIONS, WHICH ARE APPLICABLE IN HIS CASE ARE IN DIRECT CONFLICT WITH EACH OTHER.

SECTION 407(A)(1), TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION, IS ENTITLED TO A DISLOCATION ALLOWANCE IN AN AMOUNT EQUAL TO HIS BASIC ALLOWANCE FOR QUARTERS FOR 1 MONTH.

PARAGRAPH M9003-3A, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE STATUTORY PROVISION CITED, PROVIDES THAT A DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WITH DEPENDENTS WHO IS TRANSFERRED FROM OUTSIDE THE UNITED STATES TO A HOSPITAL IN THE UNITED STATES FOR OBSERVATION AND TREATMENT AND WHO RELOCATES HIS HOUSEHOLD INCIDENT TO SUCH TRANSFER. PARAGRAPH M9004-1, ITEM 2, OF THE REGULATIONS, PROVIDES IN PERTINENT PART THAT THE ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE -OF-STATION TRAVEL PERFORMED FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, RELEASE FROM ACTIVE DUTY, PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, OR RETIREMENT.

IN 4 COMP. GEN. 653, WE HELD THAT WHEN AN OFFICER AT A FOREIGN STATION IS DETACHED WITH DIRECTIONS TO PROCEED TO A HOSPITAL IN THE UNITED STATES FOR TREATMENT, HIS FAMILY OR DEPENDENTS ARE ENTITLED TO BE BROUGHT BACK TO THE UNITED STATES. FOR THAT REASON, INSOFAR AS THE MEMBER'S HOUSEHOLD IS CONCERNED, A PERMANENT DETACHMENT FROM A FOREIGN STATION WITH ORDERS TO A HOSPITAL IN THE UNITED STATES FOR TREATMENT IS REGARDED AS A PERMANENT CHANGE OF STATION.

IN DECISION DATED DECEMBER 17, 1957, B-134227, INVOLVING A SITUATION SOMEWHAT SIMILAR TO THE ONE UNDER CONSIDERATION, AN OFFICER WAS ORDERED FROM AN OVERSEAS STATION TO THE WALTER REED ARMY MEDICAL CENTER, WASHINGTON, D.C., FOR OBSERVATION AND TREATMENT, APPEARANCE BEFORE A MEDICAL BOARD AND, IF WARRANTED, BEFORE A PHYSICAL EVALUATION BOARD. APPARENTLY AT THAT TIME, THE OFFICER'S DEPENDENTS WERE RELOCATED FROM OVERSEAS TO TAKOMA PARK, MARYLAND. SUBSEQUENTLY, THE PHYSICAL EVALUATION BOARD FOUND THE OFFICER ELIGIBLE FOR RETIREMENT. THEREAFTER, THE DEPENDENTS CONTINUED TO RESIDE IN THE AREA. WE HELD THAT THE OFFICER HAD MADE A PERMANENT CHANGE OF STATION IN HIS TRANSFER TO A HOSPITAL IN THE UNITED STATES. B-130953, JULY 11, 1957.

WE HELD FURTHER THAT WHILE THE REFERENCE IN THE ORDERS INDICATED A POSSIBILITY THAT THE OFFICER'S PHYSICAL CONDITION MIGHT BE FOUND TO BE SUCH AS TO WARRANT HIS RETIREMENT, IT APPEARED THAT HIS RETIREMENT AND TRAVEL TO HIS HOME WAS NOT CONTEMPLATED AT THE TIME THE ORDERS WERE ISSUED. CONSEQUENTLY, IN SUCH CIRCUMSTANCES, IT WAS CONCLUDED THAT THE OFFICER'S TRANSFER TO THE UNITED STATES ON A PERMANENT CHANGE OF STATION DID NOT INVOLVE TRAVEL FROM HIS LAST STATION TO HIS HOME. THE PAYMENT OF A DISLOCATION ALLOWANCE WAS THEREFORE AUTHORIZED.

WHILE THE ORDERS OF JUNE 17, 1970, DIRECTED A STUDY AND TREATMENT, APPEARANCE BEFORE A MEDICAL BOARD, AND PRERETIREMENT PHYSICAL EXAMINATION, IT WOULD APPEAR THAT AT THE TIME THE ORDERS WERE ISSUED ONLY A POSSIBILITY EXISTED THAT THE OFFICER WOULD BE FOUND ELIGIBLE FOR RETIREMENT OR TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON ACCOUNT OF PHYSICAL DISABILITY. ACCORDINGLY, IT WOULD APPEAR THAT THE TRANSFER TO THE NAVAL HOSPITAL, NATIONAL NAVY MEDICAL CENTER, BETHESDA, MARYLAND, ON A PERMANENT CHANGE OF STATION DID NOT INVOLVE TRAVEL TO HOME INCIDENT TO RETIREMENT. THEREFORE, IT IS CONCLUDED THAT THE OFFICER IS ENTITLED TO A DISLOCATION ALLOWANCE AND THE SUBMITTED VOUCHER IS RETURNED HEREWITH FOR PAYMENT, IF OTHERWISE CORRECT.