B-181224, DEC 4, 1974

B-181224: Dec 4, 1974

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THERE IS NO LEGAL OBJECTION TO IMPLEMENTATION OF A PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS WHICH WOULD PERMIT PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS INCIDENT TO THEIR APPEARING AT REQUESTED HEARINGS OF THE PHYSICAL EVALUATION BOARD HELD TO REVIEW DECISIONS TO REMOVE THE MEMBER CONCERNED FROM THE TEMPORARY DISABILITY RETIRED LIST AND EITHER RETIRE OR SEPARATE HIM FOR DISABILITY. PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS: THIS ACTION IS IN RESPONSE TO A REQUEST BY THE ACTING ASSISTANT SECRETARY OF DEFENSE (MANPOWER AND RESERVE AFFAIRS) FOR A DECISION AS TO WHETHER IT IS LEGALLY PERMISSIBLE TO AMEND THE JOINT TRAVEL REGULATIONS TO AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST (TDRL) WHO TRAVEL IN ORDER TO APPEAR AT HEARINGS BEFORE THE PHYSICAL EVALUATION BOARD (PEB).

B-181224, DEC 4, 1974

THERE IS NO LEGAL OBJECTION TO IMPLEMENTATION OF A PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS WHICH WOULD PERMIT PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS INCIDENT TO THEIR APPEARING AT REQUESTED HEARINGS OF THE PHYSICAL EVALUATION BOARD HELD TO REVIEW DECISIONS TO REMOVE THE MEMBER CONCERNED FROM THE TEMPORARY DISABILITY RETIRED LIST AND EITHER RETIRE OR SEPARATE HIM FOR DISABILITY.

PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS:

THIS ACTION IS IN RESPONSE TO A REQUEST BY THE ACTING ASSISTANT SECRETARY OF DEFENSE (MANPOWER AND RESERVE AFFAIRS) FOR A DECISION AS TO WHETHER IT IS LEGALLY PERMISSIBLE TO AMEND THE JOINT TRAVEL REGULATIONS TO AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST (TDRL) WHO TRAVEL IN ORDER TO APPEAR AT HEARINGS BEFORE THE PHYSICAL EVALUATION BOARD (PEB). THAT LETTER WAS FORWARDED TO OUR OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 74-19.

THE SUBMISSION INDICATES THAT THE PERTINENT PARAGRAPHS OF THE JOINT TRAVEL REGULATIONS, PARAGRAPHS M5200 THROUGH M5203, WHICH RELATE PRINCIPALLY TO TRAVEL INCIDENT TO PERIODIC PHYSICAL EXAMINATIONS FOR MEMBERS ON THE TDRL REQUIRED UNDER THE PROVISIONS OF 10 U.S.C. 1210, DO NOT REFER SPECIFICALLY TO TRAVEL INCIDENT TO AN APPEARANCE BEFORE A PEB FOR A HEARING. HOWEVER, IT IS ADMITTED THEREIN THAT THE SERVICES HAVE TRADITIONALLY AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES INCIDENT TO SUCH A HEARING, NOTING THAT SECTION 1214 OF TITLE 10, U.S.C. PROVIDES THAT NO MEMBER MAY BE RETIRED OR SEPARATED FOR PHYSICAL DISABILITY WITHOUT A FULL HEARING IF DEMANDED BY THE MEMBER.

WITH REGARD TO THE ABOVE, THE SUBMISSION ALSO INDICATES THAT AUTHORIZING TRAVEL ALLOWANCES IN CONJUNCTION WITH A PEB HEARING COULD BE CONSIDERED AN EXTENSION OF THE AUTHORITY CONTAINED IN 10 U.S.C. 1210. FURTHER, THAT UNDER THE AUTHORITY GRANTED TO THE SECRETARIES UNDER THE GENERAL PROVISIONS OF 37 U.S.C. 404, SUCH REGULATIONS MAY BE PROMULGATED TO PROVIDE FOR THESE ALLOWANCES.

SECTION 1210 OF TITLE 10, U.S.C. PROVIDES IN PART:

"(A) A PHYSICAL EXAMINATION SHALL BE GIVEN AT LEAST ONCE EVERY 18 MONTHS TO EACH MEMBER OF THE ARMED FORCES WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TO DETERMINE WHETHER THERE HAS BEEN A CHANGE IN THE DISABILITY FOR WHICH HE WAS TEMPORARILY RETIRED. HE MAY BE REQUIRED TO SUBMIT TO THOSE EXAMINATIONS WHILE HIS NAME IS CARRIED ON THAT LIST.

"(B) THE SECRETARY CONCERNED SHALL MAKE A FINAL DETERMINATION OF THE CASE OF EACH MEMBER WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST UPON THE EXPIRATION OF FIVE YEARS AFTER THE DATE WHEN THE MEMBER'S NAME WAS PLACED ON THAT LIST. IF, AT THE TIME OF THAT DETERMINATION, THE PHYSICAL DISABILITY FOR WHICH THE MEMBER'S NAME WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST STILL EXISTS, IT SHALL BE CONSIDERED TO BE OF A PERMANENT NATURE."

WITH REGARD TO THE ABOVE, IF THAT FINAL DETERMINATION REQUIRES RETIREMENT OR SEPARATION AS A RESULT OF THE PHYSICAL DISABILITY, SECTION 1214 OF THE SAME TITLE PROVIDES THAT:

"NO MEMBER OF THE ARMED FORCES MAY BE RETIRED OR SEPARATED FOR PHYSICAL DISABILITY WITHOUT A FULL AND FAIR HEARING IF HE DEMANDS IT."

AND SECTION 1216 PROVIDES IN PART THAT:

"(A) THE SECRETARY CONCERNED SHALL PRESCRIBE REGULATIONS TO CARRY OUT THIS CHAPTER (CHAPTER 61 - RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY) WITHIN HIS DEPARTMENT."

UNDER THE AUTHORITY OF THIS SECTION, THE ARMY, FOR EXAMPLE, HAS ISSUED ARMY REGULATION 635-40 COVERING PHYSICAL EVALUATIONS FOR RETENTION, RETIREMENT, OR SEPARATION. THAT REGULATION GOVERNS THE PROCEDURAL DETAILS OF HEARINGS BEFORE PHYSICAL EVALUATION BOARDS AND INCLUDES SUBPARAGRAPH 4- 9B(3) (CHANGE 7, AUGUST 17, 1970) WHICH PROVIDES FOR THE ATTENDANCE OF ALL AVAILABLE MILITARY WITNESSES, AND SUBPARAGRAPH 7-20D (CHANGE 13, SEPTEMBER 10, 1973) WHICH PROVIDES FOR THE ISSUANCE OF TRAVEL ORDERS TO MEMBERS ELECTING TO APPEAR IN PERSON AT THE HEARING.

WHILE THERE ARE NO SPECIFIC REFERENCES MADE IN ANY OF THE CODE PROVISIONS CITED, IT HAS BEEN HELD THAT RULES AND REGULATIONS WHICH ARE ISSUED PURSUANT TO STATUTORY AUTHORITY ARE PROPER SO LONG AS THEY REASONABLY RELATE TO THE PURPOSES OF THE ENABLING LEGISLATION. SEE MOURNING V. FAMILY PUBLICATIONS SERVICE, INC., 411 U.S. 356, 369 (1973), AND CASES CITED THEREIN. THEREFORE, IF THE PROPOSED CHANGE TO THE JOINT TRAVEL REGULATIONS WOULD BE BASED ON THE CONCEPT THAT THE MEMBER'S PRESENCE IS A SUFFICIENTLY ESSENTIAL ELEMENT OF A FULL AND FAIR HEARING, IT WOULD APPEAR THAT SUCH AN AMENDMENT COULD BE CONSIDERED AS APPROPRIATELY RELATED TO THE PURPOSE OF 10 U.S.C. 1214 AND 1216 SO AS TO PERMIT TRAVEL EXPENSES OF THE MEMBER TO BE PAID IN THE SAME WAY THAT THE EXPENSES OF OTHER ESSENTIAL WITNESSES AND PARTICIPANTS ARE PAID.

ACCORDINGLY, IT IS OUR VIEW THAT THE PROPOSED AMENDMENT IS WITHIN THE AUTHORITY GRANTED THE SECRETARIES CONCERNED AND IS, THEREFORE, LEGALLY PERMISSIBLE.