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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JUNE 16. IN WHICH IT IS STATED THAT IN CONNECTION WITH THE PERIODIC PHYSICAL EXAMINATIONS REQUIRED UNDER SUBSECTION 404/B) OF THE CAREER COMPENSATION ACT OF 1949. THE QUESTION HAS ARISEN AS TO WHETHER MEMBERS WHO HAVE BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND ARE UNDERGOING PERIODIC PHYSICAL EXAMINATIONS AS BED PATIENTS OR IN-PATIENTS IN A HOSPITAL MAY BE PAID A PER DIEM ALLOWANCE. YOU ASK WHETHER WE WOULD BE REQUIRED TO OBJECT TO AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS WHICH WOULD PROVIDE FOR THE PAYMENT OF PER DIEM ALLOWANCE TO MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST WHILE UNDERGOING PERIODIC PHYSICAL EXAMINATION WHEN SUCH MEMBERS ARE NOT SUBSISTED WITHOUT CHARGE.

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B-124428, OCT. 27, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JUNE 16, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), IN WHICH IT IS STATED THAT IN CONNECTION WITH THE PERIODIC PHYSICAL EXAMINATIONS REQUIRED UNDER SUBSECTION 404/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821, THE QUESTION HAS ARISEN AS TO WHETHER MEMBERS WHO HAVE BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND ARE UNDERGOING PERIODIC PHYSICAL EXAMINATIONS AS BED PATIENTS OR IN-PATIENTS IN A HOSPITAL MAY BE PAID A PER DIEM ALLOWANCE. YOU ASK WHETHER WE WOULD BE REQUIRED TO OBJECT TO AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS WHICH WOULD PROVIDE FOR THE PAYMENT OF PER DIEM ALLOWANCE TO MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST WHILE UNDERGOING PERIODIC PHYSICAL EXAMINATION WHEN SUCH MEMBERS ARE NOT SUBSISTED WITHOUT CHARGE, THE PER DIEM ALLOWANCE IN SUCH CASES TO BE COMMENSURATE WITH THE COST OF SUBSISTENCE TO SUCH MEMBERS.

THE ALLOWANCE AUTHORIZED IN CONNECTION WITH PERIODIC PHYSICAL EXAMINATIONS FOR MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SUBSECTIONS 402/E) AND 404/A) OF THE CAREER COMPENSATION ACT OF 1949 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 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.'

UNDER THE PROVISIONS OF SUBSECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949 THE SECRETARIES CONCERNED ARE AUTHORIZED TO PRESCRIBE REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES, AND SUBSECTION 303 (G) OF THE ACT PROVIDES THAT THE SECRETARIES CONCERNED SHALL DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS.

GENERALLY, A RIGHT TO PER DIEM CAN ACCRUE TO A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY ONLY WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM HIS DESIGNATED POST OF DUTY. A MEMBER WHOSE NAME HAS BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST HAS NO DESIGNATED DUTY STATION. UNDER THE LAW, HOWEVER, HE IS REQUIRED TO UNDERGO A PERIODIC PHYSICAL EXAMINATION TO DETERMINE WHETHER HIS DISABILITY FOR WHICH HE WAS TEMPORARILY RETIRED HAS CHANGED. FOR THE PURPOSE OF SUCH EXAMINATION, THE STATUS SPECIFICALLY PROVIDES THAT SUCH MEMBERS SHALL RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCE AS FOR A MEMBER PERFORMING TEMPORARY DUTY WHILE ON ACTIVE DUTY. HENCE, DURING THE TIME REQUIRED TO CONDUCT THE PERIODIC PHYSICAL EXAMINATION, WHICH MAY OR MAY NOT NECESSITATE HOSPITALIZATION, SUCH MEMBERS MUST BE CONSIDERED AS THOUGH THEY WERE PERFORMING TEMPORARY DUTY. IN VIEW OF THE STATUTORY AUTHORITY VESTED IN THE SECRETARIES CONCERNED TO PRESCRIBE REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES AND TO DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS, WE PERCEIVE NO LEGAL BASIS FOR OBJECTING TO AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS AS PROPOSED IN YOUR LETTER.

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