B-115242, SEP 21, 1953

B-115242, SEP 21, 1953

PRECIS-UNAVAILABLE

MR. JOHN HAMBRICK:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1953, REQUESTING REVIEW OF THAT PORTION OF SETTLEMENT DATED MARCH 4, 1952, WHEREIN YOU WERE ADVISED THAT THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF PER DIEM FOR THE PERIOD MARCH 4 TO APRIL 17, 1951, IN THE ABSENCE OF ORDERS DIRECTING THE PERFORMANCE OF TEMPORARY DUTY DURING SUCH PERIOD.

IT APPEARS FROM THE RECORD THAT BY LETTER ORDERS OF THE ADJUTANT GENERAL DATED FEBRUARY 5, 1951, AS AMENDED BY A TELEGRAPHIC COMMUNICATION DATED FEBRUARY 28, 1951, YOU WERE DIRECTED AS A PRIVATE, UNITED STATES ARMY, RETIRED, TO PROCEED FROM YOUR HOME AT ST. LOUIS, MISSOURI, TO CAMP ATTERBURY, INDIANA, TO ARRIVE THEREAT MARCH 4, 1951, FOR A PHYSICAL REEXAMINATION AS REQUIRED BY SECTION 402(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 819, AND UPON COMPLETION OF SUCH REEXAMINATION, YOU WERE DIRECTED TO RETURN TO YOUR HOME PENDING FURTHER INSTRUCTIONS. IT APPEARS THAT YOU ARRIVED AT CAMP ATTERBURY AT 23:15 ON MARCH 3, 1951, THAT YOU WERE ADMITTED TO THE U. S. ARMY HOSPITAL AT THAT STATION ON MARCH 4, 1951, AND THAT YOU WERE DISCHARGED FROM THE SAID HOSPITAL ON APRIL 17, 1951.

YOU CONTEND THAT YOU ARE ENTITLED TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER THE PROVISIONS OF SECTION 303(A) OF THE ABOVE MENTIONED ACT, 63 STAT. 813, 814, FOR THE PERIOD YOU WERE CONFINED AT THE U. S. ARMY HOSPITAL, CAMP ATTERBURY, INDIANA.

THE SAID SECTION 303(A) PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UNDER CERTAIN CIRCUMSTANCES ENUMERATED THEREIN, WHICH MAKE NO PROVISION RELATIVE TO THE TRAVEL OF A MEMBER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST AND IS REQUIRED TO SUBMIT TO A PERIODIC PHYSICAL EXAMINATION.

THE ALLOWANCES AUTHORIZED IN CONNECTION WITH PERIODIC PHYSICAL EXAMINATIONS FOR MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE ABOVE-MENTIONED SECTION 402(A) ARE CONTAINED IN SECTION 404(B) OF THE SAID ACT, 63 STAT. 821, AND PROVIDE IN PERTINENT PART AS FOLLOWS:

"A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST AND WHO IS REQUIRED TO SUBMIT TO A PERIODIC PHYSICAL EXAMINATION SHALL, FOR TRAVEL PERFORMED, BE ENTITLED TO RECEIVE THE TRAVEL AND TRANSPORTATION ALLOWANCE AUTHORIZED FOR THE RANK, GRADE, OR RATING IN WHICH RETIRED FOR TEMPORARY DUTY TRAVEL PERFORMED WHILE ON ACTIVE DUTY. ***"

PARAGRAPH 5200 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN THE CAREER COMPENSATION ACT PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST AND WHO IS REQUIRED TO SUBMIT TO A PERIODIC PHYSICAL EXAMINATION SHALL, FOR TRAVEL PERFORMED IN THE UNITED STATES, BE ENTITLED TO RECEIVE THE TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN CHAPTER 4, PART E. THE SAID PART E PRESCRIBES REGULATIONS GOVERNING PER DIEM ALLOWANCES APPLICABLE FOR PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION THEREWITH WITHIN THE UNITED STATES. PARAGRAPH 4201-5 THEREOF SPECIFICALLY PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD OF TEMPORARY DUTY WHILE A BED PATIENT OR AN IN-PATIENT IN A HOSPITAL. SINCE IT APPEARS THAT YOU WERE A PATIENT IN A HOSPITAL DURING THE ENTIRE PERIOD OF YOUR CLAIM, YOU WERE NOT IN A STATUS WHICH WOULD ENTITLE YOU, UNDER THE APPLICABLE LAW AND REGULATIONS, TO A PER DIEM ALLOWANCE FOR SUCH PERIOD. ACCORDINGLY, YOU WERE PROPERLY ADVISED IN THE ABOVE-MENTIONED SETTLEMENT THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF A PER DIEM ALLOWANCE FOR THE PERIOD OF YOUR HOSPITALIZATION FROM MARCH 4 TO APRIL 17, 1951.