B-38567, APRIL 7, 1944, 23 COMP. GEN. 761

B-38567, APRIL 7, 1944, 23 COMP. GEN. 761

RENTAL ALLOWANCES - OFFICERS WITHOUT DEPENDENTS RETURNED TO UNITED STATES FOR HOSPITALIZATION - WHILE ON SICK LEAVE AWAY FROM HOSPITAL AN OFFICER WITH OR WITHOUT DEPENDENTS IS ENTITLED, WITH CERTAIN EXCEPTIONS, TO RENTAL ALLOWANCE DURING THE INTERIM BETWEEN DETACHMENT FROM PERMANENT STATION AND REPORTING TO A NEW PERMANENT STATION, INCLUDING PERIODS WHILE ON LEAVE OF ABSENCE AND WHILE ON SICK LEAVE FROM HOSPITAL, REGARDLESS OF THE OFFICER'S STATUS FOR RENTAL ALLOWANCE PURPOSES WHILE AT HIS FORMER PERMANENT STATION, THAT IS, NO DISTINCTION IS MADE BETWEEN OFFICERS FURNISHED QUARTERS IN KIND AND THOSE RECEIVING AN ALLOWANCE IN LIEU OF QUARTERS. WHERE, AFTER DETACHMENT FROM HIS OVERSEAS STATION AND RETURN TO THE UNITED STATES FOR HOSPITALIZATION, AN ARMY OFFICER WITHOUT DEPENDENTS WAS HOSPITALIZED AND ASSIGNED TO A REPLACEMENT POOL PENDING DETERMINATION OF HIS FITNESS FOR FURTHER MILITARY DUTIES AND WAS GRANTED SICK LEAVE AWAY FROM THE HOSPITAL PRIOR TO COMPLETION OF HIS HOSPITALIZATION, HE IS ENTITLED, UNDER SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, TO RENTAL ALLOWANCE FOR THE PERIOD WHILE ON SICK LEAVE AWAY FROM HOSPITAL.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. H. A. PIERCE, UNITED STATES ARMY, APRIL 7, 1944:

REFERENCE IS MADE TO YOUR FIRST INDORSEMENT OF OCTOBER 30, 1943, FORWARDED BY SECOND INDORSEMENT OF NOVEMBER 23 OF THE DIRECTOR, FISCAL DIVISION, HEADQUARTERS, ARMY SERVICE FORCES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CAPTAIN LEO I. GOULSTON, TC ( OR), U.S. ARMY, COVERING RENTAL ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS FOR THE PERIOD FROM SEPTEMBER 25, 1943, TO OCTOBER 24, 1943, WHILE ON SICK LEAVE FROM HOSPITAL.

IT IS STATED IN YOUR INDORSEMENT, IN PERTINENT PART, AS FOLLOWS:

2. OFFICER HAS RETURNED FROM FOREIGN SERVICE AND HE IS ASSIGNED TO THE TRANSPORTATION CORPS OFFICERS' REPLACEMENT POOL, BOSTON P/E, BOSTON, MASS., TO WHICH STATION HE HAS NEVER REPORTED. HE IS AT PRESENT AND WAS AT THE TIME OF SICK LEAVE A PATIENT AT LOVELL GENERAL HOSPITAL FOR OBSERVATION AND TREATMENT, AND DETERMINATION AS TO THE TYPE OF DUTY HE MIGHT BE ABLE TO PERFORM. OFFICER IS MAKING THE CERTIFICATION REQUIRED BY PAR 24 A (2) AR 35-4220 UNDER THE PROVISIONS OF PAR 2 B (2) (A) 1 AR 35- 1360 C1, CLAIMING HIS PERMANENT STATION AS THE BOSTON P/E. NO ORDERS (BY LOVELL GENERAL HOSPITAL) WERE ISSUED TERMINATING HIS QUARTERS WHEN HE WENT ON SICK LEAVE AND IT IS THE OPINION OF THIS OFFICE THAT HE IS NOT ABSENT FROM HIS PERMANENT STATION IN THE SENSE CONSTRUED BY EXISTING REGULATIONS. THEREFORE, HE CANNOT PROPERLY MAKE THE REQUIRED CERTIFICATION HIMSELF. IT IS QUESTIONABLE WHETHER PAYMENT CAN BE MADE ON THIS VOUCHER.

3. IT IS FURTHER REQUESTED THAT THIS OFFICE BE INFORMED IF A HOSPITAL BED IS TO BE CONSIDERED AS ADEQUATE QUARTERS IN THE CASE OF A SINGLE OFFICER UNDER CONDITIONS AS HEREINBEFORE STATED.

SPECIAL ORDER NO. 177, DATED JULY 23, 1943, HEADQUARTERS LOVELL GENERAL HOSPITAL, FORT DEVENS, MASSACHUSETTS, PROVIDES:

15. PER PAR 6G (1) (A) 2 WDC 82, 1943 THE FOLLOWING O, NOW POINTS THIS GH ARE ASGD TO TCORP BOSTON P/E BOSTON, MASS. THEY WILL REMAIN AT LOVELL GH FOR OBSN AND TREATMENT AND RECOMMENDATION FOR THE TYPE DY, IF ANY, THEY MAY BE PHYSICALLY QUALIFIED TO PERFORM.

CAPT. LEO T. (I) GOULSTON, O-325980, TC. AND PARAGRAPH 4, SPECIAL ORDER NO. 230, DATED SEPTEMBER 23, 1943, OF THE SAME HEADQUARTERS, IS AS FOLLOWS:

CAPT. LEO I. GOULSTON, O-325980, TO O PNT. IS GRANTED SK LV FOR THIRTY (30) DAYS EFF 25 SEPT 1943 PER PAR 14A, AR 605-115. UPON TERMINATION OF SK LV CAPT GOULSTON WILL RPT TO THE CO LOVELL GH FOR FURTHER OBSN AND DISPOSITION.

THE VOUCHER SHOWS THAT, PURSUANT TO SAID SPECIAL ORDER NO. 230, THE OFFICER DEPARTED FROM LOVELL GENERAL HOSPITAL ON SEPTEMBER 25, 1943, AND RETURNED THERETO ON OCTOBER 24, 1943, AND ON SAID VOUCHER THE OFFICER CERTIFIES, AS FOLLOWS:

I CERTIFY THAT DURING THE PERIOD FOR WHICH RENTAL ALLOWANCE IS CLAIMED ON THE VOUCHER, I WAS NOT ASSIGNED ADEQUATE QUARTERS AT MY PERMANENT STATION, AND WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT MY OWN EXPENSE.

WAR DEPARTMENT CIRCULAR NO. 82, DATED MARCH 24, 1943, CITED AS AUTHORITY FOR THE ASSIGNMENT OF CAPTAIN GOULSTON TO THE TRANSPORTATION CORPS OFFICERS' REPLACEMENT POOL, BOSTON, MASSACHUSETTS, PROVIDES, IN PERTINENT PART:

6. ACTION TO BE TAKEN IN CASE OF PHYSICALLY UNFIT OFFICER.--- A. WHENEVER IT IS BELIEVED THAN AN OFFICER IS BECOMING PERMANENTLY INCAPABLE OF PERFORMING THE DUTIES OF HIS OFFICE, DUE TO PHYSICAL OR MENTAL CAUSES (OTHER THAN THOSE OF MENTAL INDIFFERENCE, INAPTITUDE, OR INCOMPETENCE, TO WHICH AR 605-230 APPLIES), HIS COMMANDING OFFICER WILL CAUSE THE OFFICER TO BE GIVEN A THOROUGH PHYSICAL EXAMINATION BY A BOARD OF MEDICAL OFFICERS

B. (1) IF AS A RESULT OF THE ABOVE EXAMINATION IT IS FOUND---

(A) THAT AN OFFICER NOW ASSIGNED GENERAL MILITARY DUTIES IS CONSIDERED AS PHYSICALLY INCAPABLE OF PERFORMING SUCH DUTIES, OR

(B) THAT AN OFFICER NOW CLASSIFIED AS LIMITED SERVICE IS CONSIDERED AS PHYSICALLY INCAPABLE OF PERFORMING LIMITED SERVICE DUTIES. THE OFFICER CONCERNED WILL BE ORDERED TO THE NEAREST GENERAL HOSPITAL FOR OBSERVATION, TREATMENT, AND RECOMMENDATION FOR THE TYPE OF DUTY, IF ANY, THAT HE MAY BE PHYSICALLY QUALIFIED TO PERFORM.

(2) * * *

G. (1) (A) OFFICERS IN THE FOLLOWING CATEGORIES, EXCEPT GENERAL OFFICERS, AT THE TIME THEY ARE HOSPITALIZED, WILL BE ASSIGNED TO THE NEAREST REPLACEMENT POOL OF THEIR ARM OR SERVICE (SEE (C) BELOW) PENDING FURTHER DISPOSITION AS HEREINAFTER PROVIDED:

2. THOSE RETURNED FOR HOSPITALIZATION FROM OVERSEAS.

7. DISPOSITION OF OFFICERS BY GENERAL HOSPITALS.--- * * *

C. (1) OFFICERS WHO ARE HOSPITALIZED UNDER THE PROVISIONS OF THIS CIRCULAR WILL BE DISPOSED OF AS FOLLOWS:

(A) OFFICERS INDICATED IN PARAGRAPH 6G (1) WHO ARE RECOMMENDED FOR GENERAL MILITARY DUTY OR FOR LIMITED SERVICE WILL BE RETURNED TO THE REPLACEMENT POOL TO WHICH THEY ARE ASSIGNED (SEE PAR. 9 FOR REASSIGNMENT).

THE RECORD HERE CONTAINS NO COPY OF THE ORDER OR ORDERS DIRECTING THE TRANSFER OF CAPTAIN GOULSTON TO THE UNITED STATES FOR HOSPITALIZATION. HOWEVER, THE PROCEDURE OUTLINED ABOVE WITH RESPECT TO HOSPITALIZATION OF OFFICERS TRANSFERRED FROM OVERSEAS APPEARS CLEARLY TO CONTEMPLATE THAT THE OFFICERS BE RELIEVED FROM THEIR FORMER ASSIGNMENTS AND IT HAS BEEN ASCERTAINED INFORMALLY FROM THE WAR DEPARTMENT THAT SUCH IS THE ACTION CONTEMPLATED BY SAID PROCEDURE. ACCORDINGLY, IT IS CONSIDERED THAT THE PRESENT CLAIMANT WAS DETACHED FROM HIS OVERSEAS STATION PRIOR TO HOSPITALIZATION.

SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, PROVIDES, IN PART, AS FOLLOWS:

EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT * * * WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE-DUTY PAY SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS.

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD DUTY UNLESS HIS COMMANDING OFFICER CERTIFIES THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE, OR WHILE ON SEA DUTY, EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, AND SUCH CERTIFICATIONS SHALL BE CONCLUSIVE * * *.

ARMY REGULATIONS 35-1360 ( CHANGE NO. 1, DATED 13 SEPTEMBER 1943), EFFECTIVE DURING THE PERIOD OF SICK LEAVE HERE INVOLVED, PROVIDES, IN PART, AS FOLLOWS:

2. CERTIFICATES.

B. TEMPORARY CERTIFICATES ATTESTING TO EXISTENCE OF STATED FACTS.

(2) CONDITIONS UNDER WHICH TEMPORARY CERTIFICATES MAY BE USED.--- UNDER THE PROVISIONS OF (1) ABOVE (ACT OF OCTOBER 26, 1942, 56 STAT. 987), PAYMENTS WILL BE MADE ON THE PAY AND ALLOWANCE ACCOUNTS OF COMMISSIONED OFFICERS * * * WHEREVER SERVING, BEARING THEIR CERTIFICATES ATTESTING TO THE EXISTENCE OF THE STATED FACTS, WITHOUT OTHER SUPPORTING EVIDENCE, WITH RESPECT TO---

(A) ASSIGNMENT, TERMINATION, OCCUPANCY, OR ADEQUACY OF QUARTERS.--- ASSIGNMENT, TERMINATION, OCCUPANCY, OR ADEQUACY OF QUARTERS UPON EXECUTION OF CERTIFICATE BY THE OFFICER CLAIMING THE ALLOWANCE ON LINE (17), WAR DEPARTMENT FORM NO. 336, IN LIEU OF EXEMPTION BY THE COMMANDING OFFICER---

1. WHEN ABSENT FROM PERMANENT STATION AND CERTIFICATE OF THE COMMANDING OFFICER IS NOT AVAILABLE. * * *

WITH CERTAIN EXCEPTIONS, NOT HERE MATERIAL, IT HAS BEEN HELD CONSISTENTLY THAT AN OFFICER WITH OR WITHOUT DEPENDENTS IS ENTITLED TO RENTAL ALLOWANCE DURING THE INTERIM BETWEEN DETACHMENT FROM PERMANENT STATION AND REPORTING TO A NEW PERMANENT STATION, INCLUDING PERIODS WHILE ON LEAVE OF ABSENCE AND WHILE ON SICK LEAVE FROM HOSPITAL. THIS RULE HAS BEEN APPLIED REGARDLESS OF THE OFFICER'S STATUS FOR RENTAL ALLOWANCE PURPOSES WHILE AT HIS FORMER PERMANENT STATION, THAT IS, NO DISTINCTION HAS BEEN MADE BETWEEN OFFICERS FURNISHED QUARTERS IN KIND AND THOSE RECEIVING AN ALLOWANCE IN LIEU OF QUARTERS.

THE PROCEDURE AUTHORIZED BY CIRCULAR NO. 82, SUPRA, WITH RESPECT TO OFFICERS RETURNED FROM OVERSEAS TO THE UNITED STATES FOR HOSPITALIZATION, APPEARS TO CONTEMPLATE THAT SUCH OFFICERS BE ASSIGNED TO THE APPROPRIATE REPLACEMENT POOL, AND THAT, UPON A DETERMINATION OF THEIR FITNESS EITHER FOR GENERAL OR LIMITED MILITARY DUTIES, THEY BE RETURNED TO THE REPLACEMENT POOL FOR REASSIGNMENT.

IN THE INSTANT MATTER, IT CLEARLY APPEARS THAT, ALTHOUGH THE OFFICER WAS ASSIGNED TO A REPLACEMENT POOL AT THE TIME HE WAS GRANTED SICK LEAVE, HIS HOSPITALIZATION HAD NOT BEEN COMPLETED; AND AS STATED IN YOUR INDORSEMENT, HE HAD NOT YET REPORTED TO THE REPLACEMENT POOL. WHILE IT APPEARS THAT HE WAS FURNISHED THE USUAL HOSPITAL ACCOMMODATIONS WHEN ACTUALLY IN THE HOSPITAL, OBVIOUSLY HE WAS NOT IN OCCUPANCY OF THOSE ACCOMMODATIONS--- NOR WERE THEY ASSIGNED TO AND RESERVED FOR HIM--- WHILE ON SICK LEAVE AWAY FROM THE HOSPITAL, AND, IN ACCORDANCE WITH THE RULE HEREINBEFORE STATED, HE IS ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD WHILE AWAY FROM THE HOSPITAL ON SICK LEAVE.

IN VIEW OF THE FOREGOING, IT WOULD APPEAR IMMATERIAL WHETHER THE CLAIMANT PROPERLY MAY MAKE THE CERTIFICATION AUTHORIZED BY ARMY REGULATION 35-1360, SUPRA, OR WHETHER "A HOSPITAL BED IS TO BE CONSIDERED AS ADEQUATE QUARTERS IN THE CASE OF A SINGLE OFFICER," AS TO WHICH, GENERALLY, SEE 6 COMP. GEN. 17.

ACCORDINGLY, PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT, IS AUTHORIZED.