B-155937, APR. 7, 1965, 44 COMP. GEN. 613

B-155937, APR. 7, 1965, 44 COMP. GEN. 613

PAY - RETIRED - ACTIVE DUTY - WITHOUT PAY - ALLOWANCES V. RETIRED PAY WHEN A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO IS RECEIVING DISABILITY COMPENCTION BY REASON OF PRIOR MILITARY SERVICE IS ORDERED, PURSUANT TO 10 U.S.C. 683 (A), TO PERFORM TRAINING OR OTHER DUTY WITHOUT PAY, HE IS ENTITLED TO THE TRANSPORTATION, AND QUARTERS AND SUBSISTENCE BENEFITS PRESCRIBED BY 37 U.S.C. 1002 (B) IN ADDITION TO HIS DISABILITY RETIREMENT, THE REQUIREMENT OF 10 U.S.C. 684 (A) THAT MEMBERS ELECT EITHER THE PAYMENTS INCIDENT TO EARLIER MILITARY DUTY, OR THE PAY AND ALLOWANCES AUTHORIZED BY LAW--- "COMPENSATION" THAT INCLUDES TRAVEL OR OTHER EXPENSES, AND SUBSISTENCE AND QUARTERS--- FOR CURRENT ACTIVE DUTY, NOT BEING FOR APPLICATION, THE ALLOWANCES FOR TRAVEL TO AND FROM A TRAINING STATION AND THE SUBSISTENCE AND QUARTERS BENEFITS AUTHORIZED UNDER 37 U.S.C. 1002 (B) FOR RESERVISTS ORDERED TO DUTY WITHOUT PAY AT RATES FIXED BY THE SECRETARY CONCERNED, WHICH MAY OR MAY NOT BE THE SAME RATE THAT IS PROVIDED BY LAW, NOT CONSTITUTING EITHER PAY OR ALLOWANCES, AND AS THEY ARE NOT "COMPENSATION" WITHIN THE MEANING OF 10 U.S.C. 684 (A), THE RESERVIST IS ENTITLED TO BOTH DISABILITY RETIREMENT AND 37 U.S.C. 1002 (B) ALLOWANCES.

TO THE SECRETARY OF DEFENSE, APRIL 7, 1965:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 14, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER A MEMBER OF A RESERVE COMPONENT WHO PERFORMS TRAINING OR OTHER DUTY WITHOUT PAY UNDER 10 U.S.C. 683 (A) IS ENTITLED TO THE ALLOWANCES AUTHORIZED BY 37 U.S.C. 1002 (B) IN ADDITION TO THE DISABILITY COMPENSATION TO WHICH HE IS ENTITLED BY REASON OF HIS PRIOR MILITARY SERVICE. THE QUESTION PRESENTED IS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 355 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 683 (A) OF TITLE 10, U.S. CODE, AUTHORIZES RESERVE MEMBERS TO PERFORM ACTIVE DUTY WITHOUT PAY. SECTION 684 (A) OF TITLE 10 PROVIDES THAT RESERVE MEMBER WHO BECAUSE OF HIS EARLIER MILITARY SERVICE IS ENTITLED TO A PENSION, RETIRED OR RETAINER PAY, OR DISABILITY COMPENSATION AND WHO PERFORMS DUTY FOR WHICH HE IS ENTITLED TO COMPENSATION, MAY ELECT TO RECEIVE FOR THAT DUTY EITHER (1) THE PAYMENTS TO WHICH HE IS ENTITLED BECAUSE OF HIS EARLIER MILITARY SERVICE; OR (2) IF HE SPECIFICALLY WAIVES THOSE PAYMENTS, THE PAY AND ALLOWANCES AUTHORIZED BY LAW FOR THE DUTY THAT HE IS PERFORMING.

PUBLIC LAW 844, 81ST CONG., 64 STAT. 1067, FROM WHICH THE CITED PROVISIONS IN 10 U.S.C. 684 (A) WERE DERIVED, PROVIDED THAT A MEMBER OF ANY OF THE RESERVE COMPONENTS OF THE MILITARY SERVICES ENTITLED TO DRAW PENSION, RETAINER, PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT BY VIRTUE OF PRIOR MILITARY SERVICE MAY ELECT, WITH REFERENCE TO PERIODS OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, DRILL, TRAINING INSTRUCTION, OR OTHER DUTY FOR WHICH HE MAY BE ENTITLED TO RECEIVE "COMPENSATION" PURSUANT TO ANY PROVISIONS OF LAW, TO RECEIVE EITHER "THE COMPENSATION FOR SUCH DUTY, WHICH, WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR COMMUTATION THEREOF," OR THE PAYMENTS TO WHICH ENTITLED BECAUSE OF EARLIER SERVICE, BUT NOT BOTH. IT SEEMS CLEAR, THEREFORE, THAT A RESERVIST ENTITLED TO PAYMENTS BECAUSE OF EARLIER MILITARY SERVICE WHO IS ORDERED TO PERFORM DUTY FOR WHICH HE IS ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES MAY NOT, UNDER THE PROVISIONS OF 10 U.S.C. 684 (A), RECEIVE SUCH PAYMENTS IN ADDITION TO HIS PAY OR ALLOWANCES.

IN THE DISCUSSION IN COMMITTEE ACTION NO. 355 IT IS STATED THAT THE TRAVEL ALLOWANCES AND COMMUTATION RATES FOR SUBSISTENCE AND QUARTERS PRESCRIBED BY THE VARIOUS SERVICES UNDER AUTHORITY OF THE PROVISIONS OF 37 U.S.C. 1002 FOR MEMBERS ORDERED TO TRAINING DUTY WITHOUT PAY WOULD APPEAR TO BE IN THE NATURE OF A REIMBURSEMENT FOR NECESSARY EXPENSES INCURRED INCIDENT TO THAT DUTY RATHER THAN AS COMPENSATION FOR THE PERFORMANCE OF THE DUTY. DOUBT IS EXPRESSED, THEREFORE, THAT A MEMBER WHO IS PROVIDED TRANSPORTATION AND QUARTERS AND SUBSISTENCE BENEFITS UNDER 37 U.S.C. 1002 WHILE PERFORMING TRAINING DUTY FOR WHICH HE IS NOT ENTITLED TO "PAY AND ALLOWANCES" IS TO BE VIEWEDAS PERFORMING DUTY FOR WHICH HE IS ENTITLED TO "COMPENSATION" FOR THE PURPOSE OF THE PROVISIONS OF 10 U.S.C. 684 (A).

SECTION 1002 OF TITLE 37, U.S. CODE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) A MEMBER OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, MAY, WITH HIS CONSENT, BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED.

(B) A MEMBER WHO PERFORMS TRAINING OR OTHER DUTY WITHOUT PAY UNDER SUBSECTION (A) OF THIS SECTION MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE AUTHORIZED THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY SECTION 404 (A) - (D), AND (F), OF THIS TITLE FOR TRAVEL PERFORMED TO AND FROM THAT TRAINING OR DUTY, AND, DURING THE PERFORMANCE OF THAT TRAINING OR DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED BY THE SECRETARY CONCERNED.

THE QUOTED PROVISIONS OF 37 U.S.C. 1002 ARE APPLICABLE ONLY TO MEMBERS WHO ARE PERFORMING DUTY WITHOUT PAY AND UNDER THE PROVISIONS OF 37 U.S.C. 402 AND 403 A MEMBER WHO IS NOT ENTITLED TO BASIC PAY IS NOT ENTITLED TO THE SUBSISTENCE AND QUARTERS ALLOWANCES AUTHORIZED BY THOSE SECTIONS. THE STATUTE DOES NOT CONFER ANY ENTITLEMENT TO TRANSPORTATION, QUARTERS AND SUBSISTENCE ON THE MEMBERS CONCERNED BUT AUTHORIZES THE SECRETARY IN HIS DISCRETION TO FURNISH THE MEMBERS TRAVEL AND TRANSPORTATION ALLOWANCES TO AND FROM HIS TRAINING DUTY STATION AND QUARTERS AND SUBSISTENCE BENEFITS "AT A RATE TO BE FIXED BY" HIM. IN THE DISCRETION OF THE SECRETARY THE "RATE" MAY OR MAY NOT BE THE SAME AS IS FIXED BY LAW FOR A MEMBER PERFORMING TRAINING DUTY IN A FULL PAY STATUS. IT IS OUR VIEW THAT SUCH LIMITED BENEFITS DO NOT CONSTITUTE EITHER PAY OR ALLOWANCES FOR THE PERFORMANCE OF THE TRAINING DUTY AND THAT CONGRESS DID NOT INTEND THEM TO BE CONSIDERED AS ,COMPENSATION" WITHIN THE MEANING OF 10 U.S.C. 684 (A).