B-151951, JAN. 31, 1964

B-151951, JAN. 31, 1964

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 30, 1963, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 21, 1963, B-151951, 43 COMP. GEN. ------, WHICH HELD THAT JOHN W. MOLUSKI, AOCA, USN, WAS NOT ENTITLED TO PER DIEM FOR TEMPORARY DUTY AT REAM FIELD, CALIFORNIA, UNDER THE CIRCUMSTANCES PRESENTED, THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 63-23, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

MR. MOLUSKI WAS DIRECTED BY ORDERS OF JUNE 1, 1962, TO PROCEED FROM HIS DUTY STATION AT REAM FIELD TO THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY UNDER TREATMENT UNDER AUTHORITY OF PARAGRAPH 21.32 B./1) OF THE ENLISTED TRANSFER MANUAL, PROVIDING THAT ORDERS FOR TEMPORARY DUTY UNDER TREATMENT FROM SHORE DUTY WILL BE ISSUED WHEN IT IS EXPECTED OR BECOMES APPARENT THAT HOSPITALIZATION WILL BE IN EXCESS OF 45 DAYS. HE WAS TRANSFERRED EFFECTIVE OCTOBER 3, 1963, FROM THE NAVAL HOSPITAL TO THE U.S. NAVAL STATION, SAN DIEGO, FOR FURTHER TRANSFER PURSUANT TO PROVISIONS OF PARAGRAPH 21.61 OF THE MANUAL REQUIRING TRANSFER FROM THE HOSPITAL UPON COMPLETION OF TREATMENT TO A DESIGNATED INTERMEDIATE REPORTING ACTIVITY FOR PROCESSING, AND BY ORDERS OF OCTOBER 5, 1962, ISSUED AT THE NAVAL STATION HE WAS REASSIGNED TO REAM FIELD FOR APPROXIMATELY 6 MONTHS' TEMPORARY DUTY PENDING ACTION ON HIS MEDICAL SURVEY. IN THE DECISION OF AUGUST 21, 1963, IT WAS HELD THAT SINCE THE TEMPORARY DUTY ASSIGNMENT FOR TREATMENT WAS NOT VIEWED AS CONCLUSIVELY DETACHING MR. MOLUSKI FROM HIS OLD STATION AT REAM FIELD BUT WAS IN THE NATURE OF A CONTINGENT DETACHMENT DEPENDENT UPON WHETHER, UNDER SUBSEQUENT DEVELOPMENTS, HE WOULD BE ASSIGNED TO A PLACE OTHER THAN HIS OLD STATION, REAM FIELD SHOULD BE CONSIDERED HIS PERMANENT DUTY STATION DURING THE PERIOD OF HOSPITALIZATION AND, BECAUSE OF HIS REASSIGNMENT THERE, THAT IT REMAINED HIS DUTY STATION DURING THE PERIOD IN QUESTION FOR PER DIEM PURPOSES.

THE UNDER SECRETARY REQUESTS FURTHER CONSIDERATION IN THE MATTER ON THE BASIS THAT THE ORDER ISSUING COMMAND, UNDER ITS RESPONSIBILITY FOR DETERMINING WHETHER THE "UNDER TREATMENT" SHOULD BE A TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY ASSIGNMENT, HAD TRANSFERRED MR. MOLUSKI FOR TEMPORARY DUTY UNDER TREATMENT. HE SUGGESTS THAT A COMPLETE DETACHMENT FROM THE OLD DUTY STATION MIGHT BE FOUND IN THOSE CIRCUMSTANCES SINCE IT WAS NOT CONTEMPLATED, NOR WAS THERE ANY ASSURANCE AT THE TIME OF TRANSFER, THAT UPON COMPLETION OF THE TREATMENT THE MEMBER WOULD BE REASSIGNED TO PERMANENT DUTY AT HIS OLD DUTY STATION, WHEREAS IF HE HAD BEEN ASSIGNED TEMPORARY ADDITIONAL DUTY UNDER TREATMENT HE WOULD HAVE BEEN RETURNED DIRECTLY TO HIS FORMER COMMAND AT THE OLD DUTY STATION.

AS STATED IN THE DECISION OF AUGUST 21, 1963, A MEMBER'S ENTITLEMENT TO PER DIEM AND OTHER TRAVEL ALLOWANCES UNDER 37 U.S.C. 404 AND PERTINENT REGULATIONS IS DEPENDENT UPON HIS BEING IN A TRAVEL STATUS AWAY FROM HIS PERMANENT STATION UNDER COMPETENT ORDERS. FOR PURPOSES OF THE STATUTE, IT HAS BEEN RECOGNIZED THAT THE MEMBER'S OLD DUTY STATION MAY LOSE ITS IDENTITY AS THE PERMANENT STATION WHEN DETACHMENT AND DEPARTURE ARE EFFECTED THEREFROM WHERE, AT THE CONCLUSION OF HIS ASSIGNED DUTIES AT SUCH STATION, HE HAS BEEN ASSIGNED TO PERMANENT DUTY AT ANOTHER PLACE, OR TEMPORARY DUTY PENDING ASSIGNMENT TO DUTY AT A PLACE OTHER THAN THE OLD STATION UNDER CIRCUMSTANCES NOT CONTEMPLATING HIS RETURN TO THE OLD STATION. AS IN 35 COMP. GEN. 547 AND B-127359, MARCH 29, 1956, CITED BY THE UNDER SECRETARY, A RIGHT TO TRAVEL ALLOWANCES HAS BEEN RECOGNIZED IN SUCH CIRCUMSTANCES INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT OR NEAR THE OLD STATION PERFORMED SUBSEQUENT TO THE INITIAL DETACHMENT AND DEPARTURE FROM THE OLD STATION.

MR. MOLUSKI'S DETACHMENT FROM DUTY AT REAM FIELD, HOWEVER, WAS NOT INCIDENT TO THE NORMAL TERMINATION OF HIS TOUR THERE AND ASSIGNMENT TO DUTY ELSEWHERE, AS IN THOSE CASES, BUT WAS FOR THE PURPOSE OF RECEIVING MEDICAL TREATMENT UNDER CIRCUMSTANCES ANTICIPATING A DETERMINATION SUBSEQUENT TO THE TREATMENT AS TO WHETHER HE SHOULD BE RETURNED TO REAM FIELD OR WHETHER OTHER DISPOSITION WAS REQUIRED. IN THOSE CIRCUMSTANCES, IT WAS PROPERLY HELD IN THE DECISION OF AUGUST 21, 1963, THAT A COMPLETE DETACHMENT FROM DUTY AT REAM FIELD WAS NOT ACCOMPLISHED AND THAT THAT FIELD REMAINED MR. MOLUSKI'S PERMANENT DUTY STATION DURING THE PERIOD OF HIS HOSPITALIZATION AND THEREAFTER BECAUSE OF HIS REASSIGNMENT THERE. THE FACT THAT HE COULD HAVE BEEN ORDERED TO THE NAVAL HOSPITAL IN TEMPORARY ADDITIONAL DUTY UNDER TREATMENT STATUS RATHER THAN FOR TEMPORARY DUTY UNDER TREATMENT WITH AN INTERVENING ASSIGNMENT FOR THE PURPOSE OF THEN DETERMINING HIS DISPOSITION IS NOT BELIEVED TO PROVIDE A BASIS FOR A DIFFERENT CONCLUSION IN THE MATTER.