B-152420, FEBRUARY 7, 1969, 48 COMP. GEN. 517

B-152420, FEBRUARY 7, 1969, 48 COMP. GEN. 517

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TRAINING DUTY PERIODS - RESERVISTS THE JOINT TRAVEL REGULATIONS ISSUED TO IMPLEMENT TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED IN 37 U.S.C. 404 (A) (4) (PUBLIC LAW 90-168, DECEMBER 1, 1967) FOR MEMBERS OF THE UNIFORMED SERVICES PERFORMING DUTY AWAY FROM HOME MAY NOT BE AMENDED TO DENY PAYMENT OF PER DIEM TO A MEMBER OF A RESERVE COMPONENT PERFORMING ANNUAL ACTIVE DUTY FOR TRAINING AT THE SAME LOCATION WHERE HE NORMALLY PERFORMS INACTIVE DUTY TRAINING, UNLESS THE MEMBER DOES NOT INCUR QUARTERS AND SUBSISTENCE COSTS BUT COMMUTES FROM HOME TO DUTY STATION, WHETHER OR NOT THE DUTY STATION AND HOME ARE BOTH LOCATED WITHIN THE BOUNDARIES OF THE SAME CITY OR OTHER SPECIFIED GEOGRAPHICAL AREA, FOR THEN THE RESERVIST WOULD NOT BE "AWAY FROM HOME" WITHIN THE MEANING OF 37 U.S.C. 404 (A) (4) TO ENTITLE HIM TO PER DIEM FOR THE PERIOD OF ANNUAL ACTIVE DUTY FOR TRAINING. SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TRAINING DUTY PERIODS - RESERVISTS MEMBERS OF RESERVE COMPONENTS WHO ARE CALLED TO ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING, AS DISTINGUISHED FROM ANNUAL ACTIVE DUTY FOR TRAINING UNDER ORDERS WHICH REQUIRED A RETURN HOME UPON COMPLETION OF DUTY, ARE ENTITLED TO PER DIEM IF CALLED TO DUTY FROM THEIR HOMES FOR TOURS OF LESS THAN 20 WEEKS DURATION, 37 U.S.C. 404 (A) (4) PERMITTING THE PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS OF LESS THAN 20 WEEKS OF DUTY, IRRESPECTIVE OF THE TYPE OF DUTY PERFORMED, IF THEY ARE NOT FURNISHED QUARTERS AND MESS AT A TRAINING DUTY STATION. MILITARY PERSONNEL - TRAINING DUTY STATION - STATUS FOR BENEFITS ENTITLEMENT - RESERVISTS DENIAL OF PER DIEM UNDER 37 U.S.C. 404 (A) (4) TO A MEMBER OF A RESERVE COMPONENT IS REQUIRED ONLY WHILE HE IS ON ANNUAL ACTIVE DUTY FOR TRAINING WHEN GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE AND, THEREFORE, PER DIEM MAY BE PAID TO A MEMBER OF A RESERVE COMPONENT WHILE ON ANNUAL ACTIVE DUTY FOR TRAINING, ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY AT A DUTY STATION WHERE GOVERNMENT QUARTERS OR GOVERNMENT MESS, OR BOTH, ARE NOT AVAILABLE EVEN THOUGH THE DUTY IS PERFORMED AT THE SAME PLACE AND UNDER THE SAME CONDITIONS AS APPLY TO THE RESERVIST'S INACTIVE DUTY TRAINING. SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TRAINING DUTY PERIODS - RESERVISTS WHEN MEMBERS OF RESERVE COMPONENTS ARE ON ANNUAL ACTIVE DUTY FOR TRAINING, ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY AT LOCATIONS AWAY FROM HOME UNDER ORDERS WHICH REQUIRE A RETURN HOME UPON COMPLETION OF DUTY, THEY MAY ONLY BE PAID PER DIEM UNDER 37 U.S.C. 404 (A) (4) IF GOVERNMENT QUARTERS AND MESS ARE UNAVAILABLE TO THEM. MEMBERS OF THE REGULAR SERVICES UNDER PARAGRAPH M4205-5 OF THE JOINT TRAVEL REGULATIONS ARE NOT ENTITLED TO PER DIEM WHEN FURNISHED SUBSISTENCE AND QUARTERS WHILE ON TEMPORARY DUTY, AND ANY PER DIEM PAID IS SUBJECT TO REDUCTION, AND SECTION 404 (A) (4) CONTEMPLATING THE EQUALIZATION OF A RESERVIST'S ENTITLEMENT TO PER DIEM WITH THAT OF A REGULAR MEMBER, PAYMENT OF PER DIEM TO A RESERVIST ON ANY OTHER BASIS WOULD RESULT IN UNEQUAL TREATMENT. MILITARY PERSONNEL - RESERVISTS - TRAINING DUTY - PER DIEM WHEN MEMBERS OF RESERVE COMPONENTS ARE ORDERED TO ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR 20 WEEKS OR MORE, THE RULES AND REGULATIONS RELATING TO TEMPORARY DUTY TRAVEL DO NOT APPLY AND THE ENTITLEMENT OF RESERVISTS TO PER DIEM IS FOR DETERMINATION PURSUANT TO 37 U.S.C. 404 (A) (1) AND NOT SECTION 404 (A) (4), WHICH PROVIDES FOR THE EQUALIZATION OF RESERVISTS' BENEFITS WITH THAT OF REGULAR MEMBERS. MILITARY PERSONNEL - RESERVISTS - TRAINING DUTY - PERMANENT CHANGE OF STATION ALLOWANCES THE RESTRICTIONS ON THE MOVEMENT OF DEPENDENTS IN CASES OF ACTIVE DUTY FOR LESS THAN 6 MONTHS AND TRAINING DUTY FOR LESS THAN 1 YEAR THAT ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS ARE UNAFFECTED BY THE ADDITION OF CLAUSE (4) (PUBLIC LAW 90-168, DECEMBER 1, 1967) TO 37 U.S.C. 404 (A), AND THE AMENDMENT OF THE JOINT TRAVEL REGULATIONS TO AUTHORIZE PERMANENT CHANGE-OF-STATION ALLOWANCES FOR MEMBERS OF THE RESERVE COMPONENTS INSTEAD OF PER DIEM WHENEVER SUCH ALTERNATIVE IS CONSIDERED APPROPRIATE IS A MATTER FOR DETERMINATION BY THE SECRETARIES CONCERNED UNDER THE AUTHORITY OF 37 U.S.C. 406 (A) AND (C). TRAVEL EXPENSES - MILITARY PERSONNEL - RESERVISTS - TRAINING - TRAVEL BETWEEN HOME AND DUTY STATION A MEMBER OF A RESERVE COMPONENT WHO COMMUTES DAILY FROM HIS HOME TO HIS TRAINING DUTY STATION IS NOT "AWAY FROM HOME" WITHIN THE MEANING OF 37 U.S.C. 404 (A) (4) TO ENTITLE HIM TO REIMBURSEMENT FOR THE EXPENSE OF COMMUTING AND, THEREFORE, ALTHOUGH THE RESERVIST BECAUSE HIS ACTIVE DUTY STATION IS HIS PERMANENT DUTY STATION WOULD BE ENTITLED TO REIMBURSEMENT UNDER PART K, CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS FOR TRAVEL EXPENSES INCURRED IN CONDUCTING OFFICIAL BUSINESS WITHIN HIS PERMANENT DUTY STATION AND ADJACENT AREAS, THE REGULATION MAY NOT BE AMENDED TO AUTHORIZE REIMBURSEMENT TO RESERVISTS FOR THE EXPENSE OF COMMUTING DAILY BETWEEN HOME AND DUTY STATION LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN. TRAVEL EXPENSES - MILITARY PERSONNEL - RESERVISTS - TRAINING - TRAVEL BETWEEN HOME AND DUTY STATION THE ELIMINATION OF THE PERMANENT STATION DEFINITION IN PARAGRAPH M1150- 10C OF THE JOINT TRAVEL REGULATIONS--- A DEFINITION WHICH IS NEITHER AUTHORIZED NOR REQUIRED BY 37 U.S.C. 404 (A) (4) AND HAS NO EFFECT IN DETERMINING THE ENTITLEMENT OF A MEMBER OF A RESERVE COMPONENT TO EITHER PAY AND ALLOWANCES FOR A PERIOD OF TRAINING DUTY, OR TO REIMBURSEMENT FOR TRAVEL TO AND FROM A TRAINING STATION--- ALTHOUGH RECOMMENDED WOULD NOT ALTER THE FACT THAT PART K, CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS, WHICH AUTHORIZES REIMBURSEMENT OF TRAVEL EXPENSES INCURRED IN CONDUCTING OFFICIAL BUSINESS WITHIN LIMITS OF A PERMANENT DUTY STATION AND ADJACENT AREAS, MAY NOT BE AMENDED TO PROVIDE REIMBURSEMENT TO A RESERVIST FOR THE EXPENSE OF COMMUTING DAILY FROM HOME TO HIS TRAINING STATION.

TO THE SECRETARY OF THE NAVY, FEBRUARY 7, 1969:

REFERENCE IS MADE TO LETTER OF OCTOBER 30, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION ON QUESTIONS ARISING FROM CONTEMPLATED REVISIONS OF THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS RELATING TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SECTION 3 OF PUBLIC LAW 90-168, RESERVE FORCES BILL OF RIGHTS AND VITALIZATION ACT, FOR MEMBERS OF RESERVE COMPONENTS ORDERED TO ACTIVE TRAINING DUTY. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 68-39 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 404 (A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90 168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE.

THE ASSISTANT SECRETARY SAYS THAT AFTER HAVING COMPLETED THE FIRST 10 MONTHS UNDER REGULATIONS ISSUED TO IMPLEMENT THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 90-168, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE HAS RECEIVED A MULTITUDE OF SUGGESTIONS AND RECOMMENDATIONS FOR CHANGES TO THE JOINT TRAVEL REGULATIONS. OUR DECISION ON THE SUBMITTED QUESTIONS IS REQUESTED TO ASSIST IN THE EVALUATION OF THE SUGGESTIONS AND RECOMMENDATIONS.

THE QUESTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED.

QUESTION 1.

MAY THE SECRETARIES OF THE UNIFORMED SERVICES AMEND THE JTR TO DENY THE PAYMENT OF PER DIEM TO MEMBERS OF THE RESERVE COMPONENTS WHILE PERFORMING ANNUAL ACTIVE DUTY FOR TRAINING (ANACDUTRA) AT THE SAME LOCATION WHERE THEY NORMALLY PERFORM INACTIVE DUTY TRAINING:

(A) WHERE NO GOVERNMENT QUARTERS OR GOVERNMENT MESSING FACILITIES ARE AVAILABLE,

(B) WHERE GOVERNMENT QUARTERS ARE AVAILABLE BUT GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE, AND

(C) WHERE GOVERNMENT MESSING FACILITIES ARE AVAILABLE BUT GOVERNMENT QUARTERS ARE NOT AVAILABLE, CONSIDERING THAT IN EACH CASE THE MEMBER'S HOME AND THE ACTIVE DUTY STATION ARE NOT LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN AND IN SOME CASES MAY BE SEVERAL HUNDRED MILES APART?

IN HIS DISCUSSION OF THIS QUESTION THE UNDER SECRETARY SAYS THAT WHILE THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168 INDICATES THAT MEMBERS OF THE RESERVE COMPONENTS MAY BE AUTHORIZED PER DIEM WHEN AWAY FROM HOME TO PERFORM DUTY EXCEPT FOR "WEEKLY DRILLS OR DUTY IN LIEU OF WEEKLY DRILLS OR FOR PERFORMANCE OF THEIR TWO WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESSING ARE, IN FACT, AVAILABLE," ONE OF THE PRINCIPAL WITNESSES BEFORE THE CONGRESS ON THIS BILL IN PRIOR YEARS HAS INDICATED THE BELIEF THAT IT IS NOT THE INTENT OF THIS LAW TO AUTHORIZE PAYMENT OF PER DIEM TO MEMBERS OF THE RESERVE COMPONENTS WHEN THEY PERFORM ACTIVE DUTY AT THE SAME PLACE WHERE THEY NORMALLY PERFORM INACTIVE DUTY TRAINING EVEN THOUGH GOVERNMENT QUARTERS OR GOVERNMENT MESS, OR BOTH, ARE NOT AVAILABLE.

THE UNDER SECRETARY SAYS THAT THE REGULATIONS WHICH WERE ISSUED AND WHICH HAVE BEEN USED SINCE JANUARY 1, 1968, DO NOT PRECLUDE PER DIEM PAYMENTS AT SUCH LOCATIONS UNLESS THE MEMBER IS ON ANNUAL ACTIVE DUTY FOR TRAINING AND BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESSING FACILITIES ARE AVAILABLE.

IN DECISION OF NOVEMBER 12, 1968, 48 COMP. GEN. 301, IT WAS STATED THAT THE PURPOSE OF SECTION 3 OF PUBLIC LAW 90-168 IS TO PERMIT THE PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS (LESS THAN 20 WEEKS) OF ACTIVE DUTY TRAINING AT TRAINING DUTY STATIONS OTHER THAN AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS ARE AVAILABLE, AND IT WAS HELD THAT THE PROVISIONS OF 37 U.S.C. 404 (A) (4) SIMPLY PROVIDE AUTHORITY FOR THE PAYMENT OF PER DIEM ON THAT BASIS EVEN THOUGH SUCH TRAINING DUTY STATIONS IN FACT ARE THE MEMBERS' PERMANENT DUTY STATIONS.

SINCE SUCH PER DIEM IS PROVIDED FOR PERIODS OF DUTY AT THE PERMANENT DUTY STATION, AUTHORITY FOR ITS PAYMENT DOES NOT DEPEND UPON THE EXISTENCE OF A TRAVEL STATUS AWAY FROM THE PERMANENT DUTY STATION AS IS REQUIRED UNDER CLAUSE (1) OF SECTION 404 (A), BUT REQUIRES THAT THE MEMBER BE "AWAY FROM HOME" TO PERFORM DUTY. CONSEQUENTLY, WE ARE OF THE VIEW THAT PER DIEM MAY BE AUTHORIZED FOR THE SHORT PERIODS OF TRAINING DUTY CONTEMPLATED BY CLAUSE (4) AT ANY DUTY POINT OR POINTS "AWAY FROM HOME," REGARDLESS OF WHETHER AT THE SAME LOCATION WHERE INACTIVE DUTY TRAINING IS PERFORMED.

THE TERM "AWAY FROM HOME," APPEARING IN CLAUSE (4), IS NOT DEFINED IN THE STATUTE AND THE LEGISLATIVE INTENT AS TO ITS MEANING IS NOT SPECIFICALLY DISCUSSED IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90 168. THE LEGISLATIVE HISTORY, HOWEVER, REASONABLY SUPPORTS A CONCLUSION THAT CONGRESS INTENDED THAT THE ALLOWANCES AUTHORIZED BY CLAUSE (4) ARE TO REIMBURSE THE MEMBERS CONCERNED FOR THE COST OF QUARTERS AND SUBSISTENCE WHICH THEY ARE REQUIRED TO BEAR AT A DUTY STATION. PRESUMABLY, IT WAS FOR THIS REASON THAT CONGRESS USED THE TERM "AWAY FROM HOME.'

THE IDENTICAL TERM "AWAY FROM HOME" APPEARS IN SECTION 162 (A) (2) OF THE INTERNAL REVENUE CODE, 26 U.S.C. 162 (A) (2), AS A LIMITATION ON AUTHORIZED TRAVELING EXPENSE TAX DEDUCTIONS AND IT HAS BEEN APPLIED BY THE COURTS AS HAVING REFERENCE TO ABSENCE FROM THE TOWN OR AREA WHERE THE TAXPAYER RESIDES. THE COURTS HAVE HELD, THEREFORE, THAT EXPENSES INCURRED IN TRAVELING BETWEEN HOME AND PLACE OF BUSINESS WHERE BOTH ARE LOCATED IN THE SAME CITY OR AREA ARE "COMMUTING XPENSES" AND ARE NOT INCURRED WHILE AWAY FROM HOME WITHIN THE MEANING OF THAT LAW. CARLSON V WRIGHT, 181 F.SUPP. 568; COMMISSIONER V STIDGER, 386 U.S. 287.

SINCE, AS INDICATED ABOVE, THE PURPOSE OF CLAUSE (4) IS TO PROVIDE, BY PAYMENT OF A PER DIEM, A MEANS OF REIMBURSING THE RESERVISTS CONCERNED FOR THE COST OF QUARTERS AND SUBSISTENCE WHICH THEY MUST PROCURE FOR THEMSELVES WHEN "AWAY FROM HOME," WE BELIEVE THAT THE TERM AS USED IN CLAUSE (4) SHOULD BE GIVEN A SIMILAR APPLICATION; THAT IS, AS CONTEMPLATING AN ABSENCE FROM HOME WHICH SUBJECTS THE RESERVIST TO EXPENSES FOR QUARTERS AND SUBSISTENCE.

ACCORDINGLY, WE ARE OF THE VIEW THAT A PER DIEM ALLOWANCE MAY NOT PROPERLY BE AUTHORIZED UNDER CLAUSE (4) OF SECTION 404 (A) FOR PAYMENT TO A RESERVIST WHO COMMUTES DAILY FROM HIS HOME TO HIS DUTY STATION, REGARDLESS OF WHETHER OR NOT THE DUTY STATION AND HOME ARE BOTH LOCATED WITHIN THE BOUNDARIES OF THE SAME CITY OR OTHER SPECIFIED GEOGRAPHICAL AREA. TO THAT EXTENT WE AGREE WITH THE VIEW OF THE WITNESS MENTIONED ABOVE.

WE RECOGNIZE THAT THE ALLOWANCES PROVIDED BY 37 U.S.C. 404 (A) ARE SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, 37 U.S.C. 404 (B) AND 411; AND THAT THOSE OFFICIALS ARE AUTHORIZED TO SPECIFY THE CONDITIONS UNDER WHICH THE ALLOWANCES WILL BE PAYABLE AND, WITHIN PRESCRIBED LIMITATIONS, THE KIND AND AMOUNT OF THE ALLOWANCES. HOWEVER, IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF CLAUSE (4) THAT CONGRESS INTENDED THAT PER DIEM SHALL BE PAID TO RESERVISTS ON DUTY AWAY FROM THEIR HOMES FOR SHORT PERIODS WHEN THEY ARE NOT FURNISHED MESS AND QUARTERS BY THE UNITED STATES. THE DENIAL OF PER DIEM IN SUCH CASES, THEREFORE, ON THE GROUND THAT THE DUTY IS PERFORMED AT THE INACTIVE TRAINING DUTY STATION WOULD, IN OUR OPINION, BE CONTRARY TO THE EXPRESSED INTENT OF CONGRESS. ACCORDINGLY, QUESTIONS 1 (A), (B) AND (C) ARE ANSWERED IN THE NEGATIVE, PROVIDED, OF COURSE, THE MEMBERS ARE "AWAY FROM HOME.' AS TO THE PER DIEM PAYABLE IN THE CIRCUMSTANCES OF QUESTIONS 1 (B) AND (C), SEE THE ANSWER TO QUESTION 4.

QUESTION 2.

WOULD YOUR ANSWERS TO QUESTION 1 BE THE SAME IF THE MEMBERS CONCERNED WERE ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING (ACDUTRA) AS DISTINGUISHED FROM ANNUAL ACTIVE DUTY FOR TRAINING UNDER ORDERS WHICH REQUIRE A RETURN TO HOME UPON COMPLETION OF DUTY?

SINCE THE PURPOSE OF CLAUSE (4) IS TO PERMIT PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS (LESS THAN 20 WEEKS) OF DUTY WHILE AT THE TRAINING DUTY STATION IN CASES WHERE QUARTERS AND MESS ARE NOT AVAILABLE AND THE LAW IS NOT LIMITED AS TO THE TYPE OF DUTY BEING PERFORMED, THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, PROVIDED, OF COURSE, THE MEMBERS WERE CALLED TO DUTY FROM THEIR HOMES FOR TOURS OF LESS THAN 20 WEEKS' DURATION.

QUESTION 3.

WOULD YOUR ANSWERS UNDER QUESTION 1 OR 2 BE THE SAME IF THE STATION AT WHICH THE ANACDUTRA, ACDUTRA, OR ACTIVE DUTY WAS PERFORMED WERE A STATION OTHER THAN THAT AT WHICH THEY NORMALLY PERFORM INACTIVE DUTY TRAINING?

WITH RESPECT TO THIS QUESTION THE UNDER SECRETARY SAYS IT IS BELIEVED THAT, TO COMPLY WITH THE LEGISLATIVE HISTORY, DENIAL OF PER DIEM IS REQUIRED ONLY WHILE ON ANNUAL ACTIVE DUTY FOR TRAINING WHEN BOTH GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE AVAILABLE, AND THAT PAYMENT OF PER DIEM WAS CONTEMPLATED FOR A MEMBER OF THE RESERVE COMPONENTS WHILE ON SUCH DUTY UNDER CONDITIONS WHERE GOVERNMENT QUARTERS, GOVERNMENT MESS, OR BOTH, ARE NOT AVAILABLE EVEN THOUGH THE DUTY IS PERFORMED AT THE SAME PLACE AND UNDER THE SAME CONDITIONS AS APPLY TO HIS INACTIVE DUTY TRAINING.

QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4.

MAY THE SECRETARIES OF THE UNIFORMED SERVICES AMEND THE JTR TO PROVIDE FOR THE PAYMENT OF PER DIEM TO MEMBERS OF THE RESERVE COMPONENTS WHILE ON ANACDUTRA, ACDUTRA, OR ACTIVE DUTY AT LOCATIONS AWAY FROM THEIR HOMES UNDER ORDERS WHICH REQUIRE A RETURN TO HOME UPON COMPLETION OF DUTY REGARDLESS OF THE AVAILABILITY OF GOVERNMENT QUARTERS AND/OR MESS:

(A) WHEN ON DUTY UNDER CONDITIONS WHERE MEMBERS OF THE REGULAR SERVICES ON TEMPORARY DUTY WOULD BE ENTITLED TO PER DIEM AND

(B) WHEN ON DUTY WITH MEMBERS OF THE REGULAR SERVICES WHO ARE ENTITLED TO PER DIEM?

IN H.REPT. NO. 13, 90TH CONG., TO ACCOMPANY H.R. 2, WHICH BECAME PUBLIC LAW 90-168 (PAGE 57), IT IS STATED THAT SECTION 104 OF THE BILL, WHICH BECAME SECTION 3 OF THE ACT, IS DESIGNED TO PROVIDE THE SAME ENTITLEMENTS TO ALL MILITARY PERSONNEL IN THE MATTER OF PER DIEM ELIGIBILITY WHEN CIRCUMSTANCES ARE ESSENTIALLY THE SAME. AS MENTIONED ABOVE, HOWEVER, IT WAS FURTHER STATED THAT IT WAS NOT CONSIDERED APPROPRIATE THAT RESERVISTS DIRECTED TO PERFORM ACTIVE DUTY TRAINING ,SHOULD RECEIVE PER DIEM * * * FOR THE PERFORMANCE OF THEIR 2 WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESSING ARE, IN FACT, AVAILABLE.'

ON PAGE 15 OF S.REPT. NO. 732, 90TH CONG., ALSO TO ACCOMPANY H.R. 2, IT IS STATED THAT THE DEPARTMENT OF DEFENSE HAS INDICATED THAT PAYMENT OF PER DIEM WOULD NOT BE AUTHORIZED DURING ANNUAL ACTIVE DUTY TRAINING PERIODS WHERE GOVERNMENT QUARTERS AND MESSING WERE IN FACT AVAILABLE AT A MILITARY INSTALLATION.

WHILE THOSE STATEMENTS REFER TO PERIODS OF ANNUAL ACTIVE DUTY FOR TRAINING, WE BELIEVE THEY SHOULD BE VIEWED AS REFLECTING AN INTENT THAT THE RIGHT TO PER DIEM SHOULD BE DENIED GENERALLY TO RESERVISTS ON TOURS OF DUTY OF LESS THAN 20 WEEKS' DURATION AT MILITARY INSTALLATIONS WHERE GOVERNMENT QUARTERS AND MESS ARE PROVIDED FOR THEM. THE PER DIEM IS A PERMANENT STATION ALLOWANCE AND, IF A MESS AND QUARTERS ARE AVAILABLE FOR THE MEMBERS AT THE DUTY STATION THE PAYMENT OF PER DIEM IS NOT CONTEMPLATED, THE COMMENT AS TO EQUALIZING ENTITLEMENT TO TRAVEL PER DIEM WITH THAT OF MEMBERS OF THE REGULAR SERVICES APPARENTLY HAVING REFERENCE TO CASES WHERE A MESS OR QUARTERS ARE NOT PROVIDED.

IN THIS REGARD, UNDER THE PROVISIONS OF PARAGRAPH M4205-5 OF THE JOINT TRAVEL REGULATIONS A REGULAR MEMBER ON TEMPORARY DUTY AT A STATION WHERE HE IS FURNISHED SUBSISTENCE WITHOUT CHARGE AND ADEQUATE QUARTERS ARE AVAILABLE FOR HIS USE IS NOT ENTITLED TO ANY PER DIEM PAYMENT ON THEIR ACCOUNT. SIMILARLY, A RESERVIST ON DUTY AT A STATION WHERE MESS AND QUARTERS ARE PROVIDED FOR HIM MAY NOT BE PAID A PER DIEM. IF EITHER SUBSISTENCE IS FURNISHED WITHOUT CHARGE OR ADEQUATE QUARTERS ARE AVAILABLE TO THE REGULAR MEMBER AT HIS TEMPORARY DUTY STATION HIS PER DIEM IS REDUCED ACCORDINGLY. A CORRESPONDING REDUCTION SHOULD BE MADE IN THE CASE OF THE RESERVIST IF EITHER A MESS OR QUARTERS ARE PROVIDED FOR HIM AT THE DUTY STATION. PAYMENT ON ANY OTHER BASIS WOULD, IN OUR OPINION, RESULT IN UNEQUAL RATHER THAN EQUAL TREATMENT.

QUESTIONS 4 (A) AND (B) ARE ANSWERED ACCORDINGLY.

QUESTION 5.

MAY THE SECRETARIES OF THE UNIFORMED SERVICES AMEND THE JTR TO PROVIDE FOR THE PAYMENT OF PER DIEM TO MEMBERS OF THE RESERVE COMPONENTS WHILE ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING UNDER ORDERS WHICH REQUIRE A RETURN TO HOME UPON COMPLETION OF DUTY FOR A PERIOD OF: (A) 20 WEEKS OR MORE BUT LESS THAN 6 MONTHS, OR

(B) 6 MONTHS OR MORE?

QUESTION 6.

IF YOUR REPLY TO QUESTION 5 (A) OR (B) IS IN THE AFFIRMATIVE, MAY THE SECRETARIES OF THE UNIFORMED SERVICES AMEND THE JTR TO PROVIDE IN SUCH CASES FOR ALLOWANCES AS FOR A PERMANENT CHANGE OF STATION INSTEAD OF PER DIEM WHENEVER SUCH ALTERNATIVE IS CONSIDERED TO BE APPROPRIATE BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE? THE ASSISTANT SECRETARY'S VIEWS ON QUESTIONS 5 AND 6 ARE AS FOLLOWS:

THE JOINT TRAVEL REGULATIONS, AS ISSUED JANUARY 1, 1968, LIMITS PER DIEM TO 20 WEEKS. THIS LIMITATION WAS IMPOSED IN VIEW OF THE POSITION TAKEN BY YOUR OFFICE IN LETTER TO THE HONORABLE RICHARD B. RUSSELL, M.C., B-137506 AND B-152420 OF APRIL 28, 1967, CONTAINING YOUR COMMENTS AND RECOMMENDATIONS ON H.R. 2 WHICH WAS ENACTED AS PUBLIC LAW 90-168. WHILE IT IS NOTED THAT SPECIFIC LIMITATIONS WERE NOT ADOPTED BY THE CONGRESS, AS SUGGESTED BY YOU, IT IS BELIEVED THAT REASONABLE LIMITATIONS ARE IMPLICIT. SINCE 6 MONTHS IS THE MINIMUM PERIOD UNDER WHICH MEMBERS ON ACTIVE DUTY FOR OTHER THAN TRAINING DUTY MAY BE FURNISHED TRANSPORTATION OF DEPENDENTS AND SINCE 1 YEAR IS THE MINIMUM PERIOD UNDER WHICH MEMBERS ON ACTIVE DUTY FOR TRAINING MAY BE FURNISHED TRANSPORTATION OF DEPENDENTS, THE CURRENT REGULATION HAS CREATED A GREY PERIOD WHEN PER DIEM IS NOT PAYABLE AND YET IMPORTANT PERMANENT CHANGE OF STATION ENTITLEMENTS ARE WITHHELD. IT IS PLANNED TO APPLY THE SAME GENERAL RULES TO TRAVEL OF MEMBERS OF THE RESERVE COMPONENTS AS IS CURRENTLY BEING APPLIED TO MEMBERS OF THE REGULAR SERVICES IN DETERMINING WHETHER THE MEMBER SHOULD BE PLACED UNDER TEMPORARY DUTY OR PERMANENT CHANGE OF STATION ORDERS IN SUCH CASES.

AS THE ASSISTANT SECRETARY INDICATES, WE BELIEVE SECTION 3 OF PUBLIC LAW 90-168 IS INTENDED TO APPLY ONLY IN THE CASE OF RESERVISTS ORDERED FROM THEIR HOME TO A TRAINING STATION FOR SHORT PERIODS OF LESS THAN 20 WEEKS AND WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF CLAUSE (4) WHICH REQUIRES A CHANGE IN OUR BELIEF.

IMPLICIT IN QUESTIONS 5 AND 6 IS A VIEW THAT THE DUTY INVOLVED IS PERFORMED IN A TEMPORARY DUTY STATUS. SUCH IS NOT THE CASE, HOWEVER, AND THE RULES AND REGULATIONS RELATING TO TEMPORARY DUTY TRAVEL HAVE NO NECESSARY APPLICATION TO SUCH DUTY. REGULATIONS PRESCRIBING PER DIEM ALLOWANCES PERTAINING TO ANY ACTIVE DUTY PERIODS OF MILITARY PERSONNEL FOR A DURATION OF 20 WEEKS OR MORE, THEREFORE, COULD BE AUTHORIZED ONLY UNDER THE PROVISIONS OF 37 U.S.C. 404 (A) (1). ACCORDINGLY, QUESTION 5 (A) AND (B) IS ANSWERED IN THE NEGATIVE.

WHILE, THEREFORE, NO ANSWER IS REQUIRED TO QUESTION 6, IT MAY BE NOTED THAT THE RESTRICTIONS ON THE MOVEMENT OF DEPENDENTS IN CASES OF ACTIVE DUTY FOR LESS THAN 6 MONTHS AND TRAINING DUTY FOR LESS THAN 1 YEAR HAVE LONG BEEN CONTAINED IN THE JOINT TRAVEL REGULATIONS AND IN OUR OPINION, THE ADDITION OF CLAUSE (4) TO 37 U.S.C. 404 (A) HAS NO BEARING UPON THE QUESTION AS TO WHETHER THOSE RESTRICTIONS SHOULD BE CHANGED. THAT QUESTION IS A MATTER FOR DETERMINATION BY THE SECRETARIES CONCERNED UNDER THE AUTHORITY VESTED IN THEM BY THE PROVISIONS OF 37 U.S.C. 406 (A) AND (C).

QUESTION 7.

MAY THE SECRETARIES OF THE UNIFORMED SERVICES AMEND THE JTR TO PERMIT THE PAYMENT OF ALLOWANCES PRESCRIBED IN JTR, PART K, CHAPTER 4, TO MEMBERS OF THE RESERVE COMPONENTS IN CASES IN WHICH SUCH MEMBERS' HOMES, OR PLACES FROM WHICH CALLED TO ACTIVE DUTY, AND THE ACTIVE DUTY STATION ARE BOTH LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN. AS TO THIS QUESTION THE UNDER SECRETARY SAYS:

IN THE CASES HERE CONTEMPLATED, THE MEMBER'S HOME AND REGULAR PLACE OF EMPLOYMENT AS A CIVILIAN ARE NORMALLY LOCATED WITHIN REASONABLE COMMUTING DISTANCE OF EACH OTHER AND HE ESTABLISHES TRANSPORTATION ARRANGEMENTS ACCORDINGLY. WHEN HE IS CALLED TO ACTIVE DUTY AT A STATION LOCATED WITHIN THE GEOGRAPHICAL LIMITS OF THE SAME CITY OR TOWN AS HIS HOME, HE MAY IN CERTAIN CASES: SUCH AS NEW YORK, LOS ANGELES, CHICAGO, ETC., BE PUT TO CONSIDERABLE ADDITIONAL EXPENSE IN COMMUTING TO HIS ACTIVE DUTY STATION. A MEMBER OF THE REGULAR SERVICE IN SUCH SITUATION WHO WOULD, UNDER GOVERNMENT ORDERS, BE REQUIRED TO PERFORM DUTY AT A STATION OTHER THAN HIS REGULAR STATION BUT WITHIN OR AROUND THE METROPOLITAN AREA IN WHICH HIS DUTY STATION IS LOCATED WOULD BE SO REIMBURSED. IT MAY BE THAT THIS BENEFIT, IF PROPER, WAS PERMISSIBLE BEFORE PASSAGE OF PUBLIC LAW 90-168.

INASMUCH AS THE RESERVISTS' ACTIVE DUTY STATIONS ARE IN FACT THEIR PERMANENT DUTY STATIONS PAYMENT OF ALLOWANCES AS PRESCRIBED BY PART K, CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS MAY BE AUTHORIZED IN THE CIRCUMSTANCES INDICATED TO THE EXTENT THAT THEY PROVIDE REIMBURSEMENT FOR TRANSPORTATION EXPENSES NECESSARILY INCURRED IN CONDUCTING OFFICIAL BUSINESS WITHIN THE LIMITS OF THE PERMANENT STATION AND IN AREAS ADJACENT THERETO. THE EXPENSES OF COMMUTING FROM HOME TO DUTY STATION, HOWEVER, ARE NOT SUCH TRANSPORTATION EXPENSES (45 COMP. GEN. 30; 42 ID. 612); AND, SINCE THE RESERVIST WHO COMMUTES DAILY FROM HIS HOME TO HIS TRAINING DUTY STATION IS, IN OUR OPINION, NOT "AWAY FROM HOME" FOR PURPOSES OF 37 U.S.C. 404 (A) (4), THE PROVISIONS OF CLAUSE (4) AFFORD NO AUTHORITY FOR PAYMENT OF ANY COMMUTING EXPENSES IN THE SITUATIONS CONTEMPLATED BY QUESTION 7.

QUESTION 8.

IF THE JOINT TRAVEL REGULATIONS ARE AMENDED TO ELIMINATE PAR. M 1150 10C THEREOF AND TO PROVIDE FOR THE PAYMENT OF PER DIEM UNDER FIXED CONDITIONS ELSEWHERE IN THE REGULATIONS, MAY THE SECRETARIES OF THE UNIFORMED SERVICES CONTINUE TO PROVIDE FOR REIMBURSEMENT TO MEMBERS UNDER JTR, PART K, CHAPTER 4, WHEN AUTHORIZED OR APPROVED THEREUNDER, IN CASES WHERE THE HOME OR PLACE FROM WHICH CALLED TO ACTIVE DUTY OF MEMBERS OF THE RESERVE COMPONENTS AND THEIR ACTIVE DUTY, ANACDUTRA, OR ACDUTRA STATIONS ARE NOT LOCATED IN THE CORPORATE LIMITS OF THE SAME CITY OR TOWN BUT ARE IN THE SAME COMMUTING AREA AND THE APPROPRIATE COMMANDER HAS DETERMINED AND STATED IN ORDERS THAT PER DIEM IS NOT PAYABLE SINCE, IN HIS OPINION, THE MEMBER IS PERMITTED TO COMMUTE DAILY TO HIS HOME AND WILL INCUR NO ADDITIONAL SUBSISTENCE EXPENSE?

BECAUSE OF THE PERMANENT NATURE OF THE ACTIVE DUTY TRAINING STATIONS INVOLVED, THE ANSWER TO QUESTION 7 IS APPLICABLE ALSO TO QUESTION 8, REGARDLESS OF WHETHER PARAGRAPH M1150-10C IS ELIMINATED FROM THE REGULATION.

IT IS OUR OPINION THAT THE PERMANENT STATION DEFINITION CONTAINED IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS IS NEITHER AUTHORIZED NOR REQUIRED BY THE PROVISIONS OF 37 U.S.C. 404 (A) (4) AND IS OF NO EFFECT IN DETERMINING THE MEMBER'S ENTITLEMENT, EITHER TO PAY AND ALLOWANCES FOR THE PERIOD OF HIS TRAINING DUTY, OR TO REIMBURSEMENT OF THE COST OF TRAVEL TO AND FROM THE TRAINING DUTY STATION. SINCE, THEREFORE, THAT PARAGRAPH SERVES NO USEFUL PURPOSE, IT SHOULD BE ELIMINATED FROM THE REGULATIONS. SEE DECISION OF NOVEMBER 12, 1968, 48 COMP. GEN. 301, SUPRA, AND DECISION OF JANUARY 27, 1969, 48 COMP. GEN. 490.