B-61737, DECEMBER 5, 1946, 26 COMP. GEN. 390

B-61737, DECEMBER 5, 1946, 26 COMP. GEN. 390

FAMILY ALLOWANCES; QUARTERS ALLOWANCE FOR DEPENDENTS - NAVAL RESERVIST ON TRAINING DUTY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, PROVIDING FOR THE PAYMENT OF A MONTHLY FAMILY ALLOWANCE TO DEPENDENTS OF NAVY ENLISTED MEN, INCLUDING ENLISTED MEMBERS OF THE RESERVE COMPONENTS, FOR ANY PERIOD OF ACTIVE SERVICE, DOES NOT APPLY TO ENLISTED MEN OF THE NAVAL RESERVE WHO ARE ORDERED TO ACTIVE DUTY FOR TRAINING--- GENERALLY NOT EXCEEDING FIFTEEN DAYS--- AS DISTINGUISHED FROM EXTENDED ACTIVE DUTY. THE MONEY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 FOR ENLISTED MEN OF THE FIRST THREE PAY GRADES IN THE ACTIVE NAVAL SERVICE IS PAYABLE TO ENLISTED MEN OF THE NAVAL RESERVE WHO ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR COMPARATIVELY SHORT PERIODS OF TIME. ENLISTED MEN OF THE NAVAL RESERVE, WHO ARE EXCLUDED FROM THE FAMILY ALLOWANCE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, WHEN ORDERED TO ACTIVE DUTY FOR TRAINING FOR COMPARATIVELY SHORT PERIODS OF TIME, ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 108 (B) OF SAID ACT THAT THE MONEY ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 IN LIEU OF QUARTERS FOR DEPENDENTS IS PAYABLE ONLY FOR SUCH PERIODS AS AN ALLOTMENT OF PAY FOR DEPENDENTS IS IN EFFECT IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONEY ALLOWANCE. NSWERED IN THE NEGATIVE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 5, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 7, 1946, FILE JAG:II:WJG:MH L16-6/4) (QR1, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED OCTOBER 29, 1946, WHEREIN IT IS REQUESTED THAT A DECISION OF THE COMPTROLLER GENERAL BE OBTAINED ON THE QUESTION OF CREDITING OF MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS AND THE REGISTRATION OF AN ALLOTMENT IN THE CASE OF NAVAL RESERVISTS ON ACTIVE DUTY FOR TRAINING.

(1) THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, WAS PREDICATED ON THE PROPOSITION OF THE GOVERNMENT ASSISTING IN THE SUPPORT OF FAMILIES OF MEN WHO WERE CALLED INVOLUNTARILY TO ACTIVE MILITARY SERVICE IN TIME OF WAR, AND ALSO INCLUDED THOSE VOLUNTARILY IN THE SERVICE. HOWEVER, NEITHER CLASS COULD BE EXCUSED OR RELEASED FROM SERVICE SOLELY BECAUSE OF FAMILY HARDSHIP.

(2) THE FAMILY ALLOWANCE WAS INTENDED TO AUGMENT THE FAMILY INCOME BECAUSE THE SERVICEMAN'S PAY AND ALLOWANCES WERE GROSSLY INSUFFICIENT TO PERMIT HIM TO PROVIDE ADEQUATE SUPPORT OF HIS DEPENDENTS AND ALSO TO ELIMINATE THE DEMANDS BEING MADE BY HIS DEPENDENTS ON LOCAL CHARITABLE AND RELIEF ORGANIZATIONS.

(3) A RESERVIST ON TRAINING DUTY IS NOT CONSIDERED AS "IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES," WITHIN THE MEANING OF THE WORDS AS USED IN SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. THE ACT CLEARLY CONTEMPLATES A PERIOD OF INDEFINITE SERVICE FROM WHICH THE MAN COULD NOT BE RELEASED, NOTWITHSTANDING HARDSHIP ARISING FROM DEPENDENCY OR OTHER EQUALLY APPEALING CASES, WHEREAS TRAINING DUTY IS PRIMARILY ON A VOLUNTARY BASIS.

(4) ANOTHER FACT WHICH CLEARLY INDICATES THAT IT WAS NOT THE LEGISLATIVE INTENT THAT THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, SHOULD BE APPLICABLE TO SHORT PERIODS OF TRAINING DUTY IS THE MANDATORY REQUIREMENT THAT THE INITIAL FAMILY ALLOWANCE BE PAID FOR THE MONTH IN WHICH AN ENLISTED MAN ENTERS A PAY STATUS. THE FULL AMOUNT OF THIS INITIAL ALLOWANCE IS PAID BY THE GOVERNMENT WITHOUT REQUIRING ANY CHARGE THEREFOR IN THE MAN'S PAY ACCOUNT. IT IS PURELY A GRATUITY AND INTENDED TO TIDE OVER THE DEPENDENTS UNTIL THE REGULAR FAMILY ALLOWANCE CAN BE AUTHORIZED.

(5) IN THE CASE OF A REGULAR ENLISTMENT, THE MAN'S DEPENDENTS RECEIVE THE INITIAL ALLOWANCE AS A GRATUITY FOR THE FIRST MONTH ONLY AND THEREAFTER THE MAN IS REQUIRED TO CONTRIBUTE $22 OR $27 AS APPROPRIATE FOR ANY MONTH FOR WHICH THE FAMILY ALLOWANCE IS PAID TO HIS DEPENDENTS.

(6) IN THE CASE OF A RESERVIST ON 15 DAYS' TRAINING DUTY, THE FOLLOWING SITUATIONS COULD ARISE AND SERVE TO DEMONSTRATE THE INAPPLICABILITY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT:

(A) NO MAN IN THE FIRST THREE PAY GRADES WOULD EVER ELECT TO RECEIVE THE $1.25 PER DAY MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS. THE MAXIMUM HE COULD RECEIVE FOR A 15 DAY PERIOD WOULD BE $18.75, WHEREAS THE MINIMUM HIS DEPENDENTS WOULD RECEIVE AS A FAMILY ALLOWANCE WOULD BE $28. IN EACH INSTANCE THE MONEY REFERRED TO IS THE COST OF THE GOVERNMENT'S CONTRIBUTION ON BEHALF OF THE DEPENDENTS.

(B) IN THE CASE OF A RESERVIST WITH A WIFE AND TWO CHILDREN (A COMMON FAMILY GROUP), WHO IS CALLED TO TRAINING DUTY FOR 15 DAYS RUNNING WITHIN A SINGLE CALENDAR MONTH, HIS DEPENDENTS WOULD RECEIVE AN INITIAL FAMILY ALLOWANCE OF $100, WITHOUT ANY CHARGE BEING MADE AGAINST THE MAN'S PAY ACCOUNT. SIMILAR GRATUITY PAYMENTS, VARYING IN AMOUNT ACCORDING TO THE NUMBER AND CLASS OF DEPENDENTS WOULD BE MADE IN THE CASE OF EVERY RESERVIST ORDERED TO TRAINING DUTY.

(C) WHERE THE TRAINING DUTY INVOLVES FRACTIONAL PERIODS OF TWO CALENDAR MONTHS, THE INITIAL PAYMENT OF $100 WOULD BE MADE TO THE DEPENDENTS (WIFE AND TWO CHILDREN), AND A SECOND PAYMENT OF A LIKE AMOUNT OF $100 WOULD BE MADE FOR THE SECOND MONTH. TO ILLUSTRATE THE POINT, IN THE CASE OF A RESERVIST BEGINNING A 15-DAY TRAINING CRUISE ON THE 17TH OF OCTOBER 1946 AND ENDING ON NOVEMBER 1946, HIS DEPENDENTS WOULD RECEIVE A TOTAL FAMILY ALLOWANCE PAYMENT OF $200 (2 MONTHS), AND NO CHARGE WOULD BE MADE FOR THE FIRST MONTH'S PAYMENT AND THE MAN WOULD CONTRIBUTE BUT ONE DAY'S PAY TO THE TOTAL PAYMENT TO HIS DEPENDENTS.

(D) IN ADDITION TO THE AMOUNT PAYABLE TO THE WIFE AND CHILDREN AS SPECIFIED ABOVE, ADDITIONAL FAMILY ALLOWANCES MAY BE CLAIMED BY THE SAME MAN FOR OTHER CLASSES OF DEPENDENTS, WHO MAY BE DETERMINED TO BE DEPENDENT UPON HIM FOR EITHER CHIEF OR SUBSTANTIAL SUPPORT. HOWEVER, IN THE CASE OF THE INITIAL FAMILY ALLOWANCE, THE MAN SIMPLY CLAIMS HE IS THE SUPPORT OF DEPENDENTS AND PAYMENT IS MADE WITHOUT ANY EVALUATION AS TO THE EXTENT OF DEPENDENCY.

(7) THE LEGISLATIVE HISTORY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT PLACES BEYOND THE ARGUMENT THE CONCLUSION THAT THE ACT WAS PREDICATED ON THE INVOLUNTARY INDUCTION OF MEN INTO THE ARMED SERVICES UNDER THE SELECTIVE TRAINING AND SERVICE ACT AND VOLUNTARY ENLISTMENT IN THE ACTIVE NAVAL SERVICE, BOTH FOR AN INDEFINITE PERIOD OF TIME, AND THE NEED FOR SUPPLEMENTING THE INCOME OF A SERVICEMAN WHILE IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES OVER AND BEYOND THAT WHICH COULD BE PROVIDED THEM BY THE MAN FROM HIS PRESCRIBED PAY AND ALLOWANCES. IT WAS NOT A PAY ACT IN ANY SENSE AND NO PART OF THE ALLOWANCE CAN BE PAID TO THE MAN.

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) ARE THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, APPLICABLE TO ENLISTED MEMBERS OF THE NAVAL RESERVE ORDERED TO "ACTIVE DUTY FOR TRAINING" AS DISTINGUISHED FROM "ACTIVE DUTY?

(2) ARE ENLISTED MEN OF THE NAVAL RESERVE, IN THE FIRST THREE PAY GRADES, ORDERED TO "ACTIVE DUTY FOR TRAINING" AS DISTINGUISHED FROM "ACTIVE DUTY," ENTITLED, FOR SUCH PERIODS OF TRAINING DUTY, TO BE CREDITED WITH MONEY ALLOWANCE FOR QUARTERS FOR THEIR DEPENDENTS, AS AUTHORIZED BY THE SECOND PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (37 U.S. CODE, SUPP. V, 110/?

(3) IF THE ANSWER TO QUERY (2) IS IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER OR NOT SUCH ENLISTED MEN OF THE NAVAL RESERVE, WHILE SO EMPLOYED ON "ACTIVE DUTY FOR TRAINING," ARE REQUIRED TO REGISTER AN ALLOTMENT IN FAVOR OF THEIR DEPENDENTS, AS PROVIDED BY SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED (37 U.S. CODE, SUPP. V, 208 (B/?

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, AND SECTION 9 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 541, PROVIDES BASICALLY FOR THE PAYMENT OF A MONTHLY FAMILY ALLOWANCE TO CERTAIN CLASSES OF DEPENDENTS OF ANY ENLISTED MAN IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, INCLUDING THE RESERVE COMPONENTS OF SUCH SERVICES, FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN IS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. THE ACT IS RESTRICTED IN ITS OPERATION TO THE PERIOD OF ANY WAR DECLARED BY CONGRESS AND SIX MONTHS IMMEDIATELY FOLLOWING SUCH WAR, OR DURING THE PERIOD OF AN ENLISTMENT OR REENLISTMENT CONTRACTED BY THE ENLISTED MAN PRIOR TO JULY 1, 1946.

THE MATTERS SET FORTH IN YOUR LETTER REGARDING THE HISTORY OF THE ACT AND THE ANOMALOUS AND ABSURD RESULTS THAT WOULD OBTAIN WERE IT ATTEMPTED TO APPLY IT TO ENLISTED NAVAL RESERVISTS ORDERED TO ACTIVE DUTY FOR TRAINING DUTY, AS DISTINGUISHED FROM OTHER ACTIVE DUTY, LEAVE INESCAPABLE THE CONCLUSION THAT IT WAS NOT INTENDED THAT IT BE SO APPLIED.

AS YOU NOTE IN YOUR LETTER, THE ACT IN QUESTION WAS INTENDED PRIMARILY TO GIVE FINANCIAL ASSISTANCE TO THE FAMILIES OF ENLISTED MEN WHO WERE OBLIGATED TO SERVE IN THE ARMED FORCES ON EXTENDED ACTIVE DUTY IN TIME OF WAR. ALSO, IT IS UNDERSTOOD THAT SUCH PERIODS OF TRAINING DUTY GENERALLY DO NOT EXCEED FIFTEEN DAYS AND IN MANY CASES THE RESERVIST CONTINUES TO DRAW COMPENSATION FROM HIS CIVILIAN OCCUPATION DURING SUCH PERIOD. (SEE, FOR EXAMPLE, SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1177, WHICH PROVIDES, INTER ALIA, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE SHALL BE ENTITLED TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY FOR NOT EXCEEDING FIFTEEN DAYS IN ANY ONE CALENDAR YEAR DURING WHICH THEY MAY BE EMPLOYED UNDER ORDERS OR AUTHORIZATION OF COMPETENT AUTHORITY.)

AS IS EVIDENT, THE HISTORY OF THE ACT AND A PRACTICAL APPLICATION OF ITS TERMS MILITATE AGAINST ANY CONCLUSION OTHER THAN THAT THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 DOES NOT APPLY TO ENLISTED MEN OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY FOR TRAINING; AND IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT CONGRESS INTENDED TO THE CONTRARY THIS OFFICE WOULD NOT BE WARRANTED IN APPROVING PAYMENTS OF SUCH CHARACTER UNDER EXISTING PROVISIONS OBVIOUSLY PHRASED AND INTENDED TO BE APPLICABLE PARTICULARLY TO THE DEPENDENTS OF ENLISTED MEN ON EXTENDED ACTIVE DUTY. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO YOUR SECOND QUESTION, THE SECOND PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, PROVIDES:

EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND: PROVIDED, THAT SUCH ENLISTED MEN SHALL CONTINUE TO BE ENTITLED TO THIS ALLOWANCE ALTHOUGH RECEIVING THE ALLOWANCE PROVIDED IN THE FIRST PARAGRAPH OF THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENT IS PREVENTED FROM DWELLING WITH HIM.

THAT PROVISION, IN EFFECT, REENACTED A SIMILAR PROVISION FOR THE PAYMENT OF A MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS TO ENLISTED PERSONNEL OF THE FIRST THREE GRADES CONTAINED IN THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND IN CONSIDERING THE SAID EARLIER PROVISION IT WAS HELD IN DECISION OF MARCH 17, 1941, 20 COMP. GEN. 522, QUOTING PARAGRAPH 3 OF THE SYLLABUS:

ENLISTED MEN OF THE NAVAL RESERVE OF THE FIRST THREE PAY GRADES ON TRAINING DUTY ARE ENTITLED TO THE MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER THE SAME CONDITIONS AS ENLISTED MEN OF THE REGULAR NAVY.

SINCE NO MATERIAL CHANGE WAS MADE IN THE LAW REGARDING THE PAYMENT OF SUCH ALLOWANCES BY THE SAID SECOND PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, THE CONCLUSION REACHED IN THE DECISION REFERRED TO ABOVE WOULD APPEAR TO BE EQUALLY APPLICABLE HERE. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE THIRD QUESTION PRESENTED CONCERNS THE EFFECT OF SECTION 108 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS ADDED BY SECTION 8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, AND AMENDED BY SECTION 9 (B) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 541, WHICH PROVIDES THAT THE MONEY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, SHALL NOT BE PAYABLE FOR ANY PERIOD DURING WHICH THE FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, AND THIRD GRADES ARE BEING PAID. THAT SECTION FURTHER PROVIDES THAT AN ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE MAY AT HIS OPTION RECEIVE EITHER THE MONEY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS OR HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE THE FAMILY ALLOWANCE, EXCEPT THAT THE PAYMENT OF THE MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS SHALL BE MADE ONLY FOR SUCH PERIODS AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF HIS PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. SUCH PROVISIONS OBVIOUSLY ARE DIRECTED TO ENLISTED PERSONNEL WHO CAN QUALIFY BOTH FOR THE MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS AND FOR THE FAMILY ALLOWANCE FOR DEPENDENTS. CLEARLY, THE ALLOTMENT REQUIREMENTS OF SUCH SECTION APPLY ONLY WHEN SUCH OPTION IS EXERCISED IN FAVOR OF THE MONEY ALLOWANCE FOR QUARTERS AND SINCE, AS INDICATED ABOVE, ENLISTED MEN OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY FOR TRAINING DUTY ARE EXCLUDED FROM THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, SUPRA, THEY HAVE NO OPTION TO EXERCISE. THEREFORE, THE ALLOTMENT REQUIREMENTS WOULD NOT BE FOR APPLICATION TO SUCH PERSONNEL. CF. 25 COMP. GEN. 749. ACCORDINGLY, YOUR THIRD QUESTION IS A ..END :