B-164159, NOVEMBER 12, 1968, 48 COMP. GEN. 301

B-164159, NOVEMBER 12, 1968, 48 COMP. GEN. 301

MILITARY PERSONNEL - TRAINING DUTY STATION - STATUS FOR BENEFITS ENTITLEMENT PUBLIC LAW 90-168 (37 U.S.C. 404 (A) (4) ( HAVING AS ITS PURPOSE THE PAYMENT OF THE EXTRA EXPENSES INCURRED DURING TRAINING PERIODS BY MEMBERS OF THE UNIFORMED SERVICES OR NATIONAL GUARD MEMBERS WHILE AWAY FROM HOME, THE DEFINITION IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS IMPLEMENTING THE ACT TO THE EFFECT THAT THE HOME OR PLACE FROM WHICH A MEMBER OF THE RESERVE COMPONENTS IS CALLED OR ORDERED TO ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IS THE PERMANENT DUTY STATION OF THE MEMBER HAS NO EFFECT IN THE DETERMINATION OF ENTITLEMENT, EITHER TO PAY AND ALLOWANCES FOR THE PERIOD OF TRAINING DUTY OR TO REIMBURSEMENT OF THE COST OF TRAVEL TO AND FROM THE TRAINING DUTY. QUARTERS ALLOWANCE - ENTITLEMENT - TRAINING DUTY PERIODS - REPORTING FROM HOME A MEMBER OF THE COAST GUARD RESERVE WHO AWAY FROM HOME TO PERFORM ACTIVE DUTY TRAINING AT AN INSTALLATION WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES ARE NOT AVAILABLE, IN ADDITION TO ENTITLEMENT TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PROVIDED BY 37 U.S.C. 404 (A) (2) AND (3), MAY BE CREDITED UNDER THE AUTHORITY OF 37 U.S.C. 404 (A) (4) WITH A BASIC ALLOWANCE FOR QUARTERS AND PER DIEM WITHOUT REDUCTION, THE RESTRICTION IN 37 U.S.C. 403 (B) TO THE PAYMENT OF A QUARTERS ALLOWANCE WHEN A MEMBER IS NOT ENTITLED TO BASIC PAY HAVING NO APPLICATION TO A SECTION 404 (A) (4) ENTITLEMENT, AND PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS NOT REQUIRING A REDUCTION IN PER DIEM WHILE A RESERVIST IS ENTITLED TO QUARTERS ALLOWANCE. HOWEVER, THE BASIC ALLOWANCE FOR SUBSISTENCE PRESCRIBED BY 37 U.S.C. 402 (B) IS NOT PAYABLE TO AN ENLISTED MAN RECEIVING PER DIEM AND THEREFORE SUBSISTED AT GOVERNMENT EXPENSE.

TO HUBERT M. ANDERSON, UNITED STATES COAST GUARD, NOVEMBER 12, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1968, AND ENCLOSURES, REQUESTING A DECISION AS TO WHETHER DEDUCTION OF QUARTERS ALLOWANCE PREVIOUSLY CREDITED IS REQUIRED IN EFFECTING SETTLEMENT OF CLAIMS BY MEMBERS OF THE COAST GUARD RESERVE FOR TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 90-168 AND IMPLEMENTING REGULATIONS. THE CLAIM OF JAMES R. VANBROCKLIN, YN32028 168, USCGR, WAS SUBMITTED FOR OUR CONSIDERATION.

BY ORDERS DATED JANUARY 23, 1968, VANBROCKLIN WAS DIRECTED, IF FOUND PHYSICALLY QUALIFIED, TO PROCEED FROM HIS HOME, TRAVERSE CITY, MICHIGAN, AND REPORT AT THE U.S. COAST GUARD BASE, DETROIT, MICHIGAN, NOT LATER THAN FEBRUARY 18, 1968, FOR ACTIVE DUTY FOR TRAINING NOT TO EXCEED 13 DAYS. YOU SAY THAT ACTIVE DUTY FOR TRAINING WAS PERFORMED UNDER THESE ORDERS AND THAT NO GOVERNMENT QUARTERS OR MESSING FACILITIES WERE AVAILABLE AT THE COAST GUARD BASE IN DETROIT. YOU ALSO SAY THAT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES WAS MADE FOR THE PERIOD FEBRUARY 18 TO MARCH 1, 1968, WHICH INCLUDED SUBSISTENCE ALLOWANCE AT $2.57 PER DAY AND QUARTERS ALLOWANCE AT $45 PER MONTH.

ON THE CLAIM VOUCHER WHICH YOU ENCLOSED, IT IS PROPOSED THAT THE MEMBER BE PAID A PER DIEM ALLOWANCE AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION COVERING THE INDICATED TRAVEL AND DUTY, LESS CREDIT FOR MILEAGE AND THE QUARTERS AND SUBSISTENCE ALLOWANCES PREVIOUSLY PAID TO HIM. YOUR DOUBT IN THE MATTER IS AS TO THE NECESSITY IN THE CIRCUMSTANCES INVOLVED FOR THE DEDUCTION TO COVER THE QUARTERS ALLOWANCE RECEIVED.

SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 168, 81 STAT. 521, AMENDED SECTION 404 (A) OF TITLE 37, U.S.C. BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF 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.'

CHANGE 183 TO CHAPTER 6, PART A, JOINT TRAVEL REGULATIONS, IMPLEMENTED THIS LAW AND PROVIDES THE CONDITIONS UNDER WHICH THESE ALLOWANCES ARE PAYABLE. PARAGRAPH M1150-10C OF THE REGULATIONS WAS CHANGED. CHANGE 183, TO PROVIDE THAT "THE HOME OR PLACE FROM WHICH A MEMBER OF THE RESERVE COMPONENTS IS CALLED (OR ORDERED) TO ACTIVE DUTY (OR ACTIVE DUTY FOR TRAINING) IS DEFINED TO BE A PERMANENT DUTY STATION.' COMMANDANT INSTRUCTION 4600.4 AMPLIFIED THESE PROVISIONS OF THE JOINT TRAVEL REGULATIONS.

YOUR QUESTION CONCERNING THE CHECK AGE OF BASIC ALLOWANCE FOR QUARTERS PREVIOUSLY CREDITED THE MEMBER DURING THE PERIOD OF ACTIVE DUTY FOR TRAINING ON THE ENCLOSED VOUCHER IS OCCASIONED BY A COMPARISON OF THE PROVISIONS OF PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS, DEFINING THE PERMANENT DUTY STATION OF A RESERVIST FOR THE PURPOSES OF 37 U.S.C. 404 (A) (4), WITH THE PROVISIONS OF SECTION 401, PART IV, OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, ISSUED PURSUANT TO SECTION 403 OF TITLE 37, UNITED STATES CODE. SUBPARAGRAPH D OF THIS SECTION PROVIDES IN PART AS FOLLOWS:

THAT IS THE CASE OF MEMBERS OF THE NATIONAL GUARD, THE AIR NATIONAL GUARD OR RESERVE COMPONENTS OF ANY OF THE UNIFORMED SERVICES ON ACTIVE DUTY FOR TRAINING, THE PLACE WHERE THE TRAINING DUTY IS BEING PERFORMED SHALL BE DEEMED TO BE THE PERMANENT STATION OF SUCH MEMBERS FOR THE PURPOSES OF THESE REGULATIONS.

UNDER THIS PROVISION, THE MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IF IT CAN BE CONSIDERED THAT DETROIT WAS THE PERMANENT STATION AND GOVERNMENT QUARTERS WERE NOT AVAILABLE OR FURNISHED INCIDENT TO THE DUTY AT THE COAST GUARD BASE IN DETROIT. HOWEVER, PARAGRAPH M1150 10C OF THE REGULATIONS PROVIDES THAT THE RESERVIST'S HOME IS THE PERMANENT STATION FOR TRAVEL ALLOWANCE PURPOSES IN THESE CASES AND SINCE PER DIEM ALLOWANCES ARE FIXED AT RATES WHICH INCLUDE THE COST OF QUARTERS, YOU SAY THAT RECOVERY OF QUARTERS ALLOWANCE PREVIOUSLY RECEIVED MAY BE PROPER.

IN THIS REGARD, UNDER THE LAW AS REFLECTED BY RULE 10 OF TABLE 3-2 3, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, A MEMBER ON TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION IS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS UNLESS HE IS RECEIVING BASIC ALLOWANCE FOR QUARTERS AT HIS PERMANENT STATION. SINCE UNDER THE PROVISIONS OF 37 U.S.C. 403 THE BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED ONLY WHILE THE MEMBER IS ENTITLED TO BASIC PAY AND THE RESERVISTS HERE CONCERNED ARE NOT ENTITLED TO BASIC PAY WHILE AT HOME, THERE WOULD BE NO AUTHORITY OF LAW FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THESE RESERVISTS IF THE TRAINING STATION WERE VIEWED AS A TEMPORARY DUTY STATION.

COAST GUARD RESERVISTS, YOU CONTINUE, PERFORM ACTIVE DUTY FOR TRAINING AT NUMEROUS ACTIVITIES THROUGHOUT THE CONTINENTAL UNITED STATES WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES ARE NOT AVAILABLE. TO PREVENT OVERPAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS WITHOUT DEPENDENTS AT THESE ACTIVITIES WHEN THEY ARE ALSO ENTITLED TO A PER DIEM ALLOWANCE, THE COMMANDANT HAS ISSUED INSTRUCTIONS TO WITHHOLD PAYMENT OF QUARTERS ALLOWANCE PENDING OUR DECISION.

ON PAGE 57 OF H.REPT. NO. 13, 90TH CONGRESS, TO ACCOMPANY H.R. 2, WHICH BECAME PUBLIC LAW 90-168, IT IS STATED THAT SECTION 104 OF THE BILL, WHICH BECAME SECTION 3 OF THE RESULTING ACT, IS DESIGNED TO PROVIDE THE SAME ENTITLEMENTS TO ALL MILITARY PERSONNEL IN THE MATTER OF PER DIEM ELIGIBILITY WHEN THE CIRCUMSTANCES ARE ESSENTIALLY THE SAME. ILLUSTRATING THE DISPARITY TO BE OVERCOME, IT IS EXPLAINED IN THE REPORT THAT WHEN NATIONAL GUARD MEMBERS OR MEMBERS OF A RESERVE COMPONENT ATTEND A SERVICE SCHOOL DIRECTLY FROM THEIR HOME AND THEN RETURN HOME AFTER COMPLETION OF THE SCHOOLING, THEY ARE NOT ENTITLED TO PER DIEM WHILE AT THE SCHOOL, WHEREAS PERSONNEL ON CONTINUOUS ACTIVE DUTY WHO ARE ORDERED TO ATTEND A COURSE OF INSTRUCTION FOR 20 WEEKS OR LESS AT A SERVICE SCHOOL AWAY FROM THEIR PERMANENT STATION ARE PLACED ON TEMPORARY DUTY AND ARE ENTITLED TO PER DIEM WHILE AT THE SCHOOL.

THE REPORT STATES THAT THE GUARDSMEN AND RESERVISTS ATTENDING SCHOOL DIRECTLY FROM HOME ARE SUBJECT TO THE SAME ADDITIONAL EXPENSES AS ARE THE MEMBERS ON CONTINUOUS ACTIVE DUTY, AND FOR THAT REASON PER DIEM WOULD BE AUTHORIZED BY THE PROPOSED LEGISLATION. IT WAS ALSO STATED THAT IT WAS NOT CONSIDERED APPROPRIATE THAT THE RESERVISTS "SHOULD RECEIVE PER DIEM FOR ATTENDANCE AT WEEKLY DRILLS OR FOR DUTY IN LIEU OF WEEKLY DRILLS OR 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 CONGRESS, ALSO TO ACCOMPANYH.R. 2, IT IS STATED THAT UNDER EXISTING LAW MEMBERS OF THE RESERVE COMPONENTS ON ACTIVE DUTY FOR TRAINING ARE NOT AUTHORIZED PER DIEM PAYMENTS FOR THE REASON THAT SUCH MEMBERS ARE NOT CONSIDERED AWAY FROM THEIR PERMANENT STATIONS WITHIN THE MEANING OF EXISTING LAW FOR THE PURPOSE OF PER DIEM PAYMENTS. IT IS ALSO STATED THAT THE PROPOSED LAW WOULD AUTHORIZE THE PAYMENT OF PER DIEM WHENEVER THE MEMBER IS ON TRAINING DUTY SUBJECT TO REGULATIONS ISSUED BY THE EXECUTIVE DEPARTMENT; AND THAT THE DEPARTMENT OF DEFENSE HAS INDICATED THAT PAYMENT OF PER DIEM WHILE IN A TRAVEL STATUS WOULD NOT BE AUTHORIZED DURING ANNUAL ACTIVE DUTY TRAINING PERIODS WHERE GOVERNMENT QUARTERS AND MESSING WERE IN FACT AVAILABLE AT A MILITARY INSTALLATION.

UNDER THE PROVISIONS OF 37 U.S.C. 404 (A) (2) AND (3) TRAVEL AND TRANSPORTATION ALLOWANCES HAVE BEEN AND ARE AUTHORIZED FOR THE TRAVEL FROM HOME TO THE DUTY STATION AND FOR THE RETURN TRAVEL TO HOME FOR THE MEMBERS HERE CONCERNED. THESE ALLOWANCES ARE PAYABLE REGARDLESS OF WHETHER THE MEMBERS ARE PERFORMING THE DUTY WITH OR WITHOUT PAY. THE NEED FOR REIMBURSING THESE MEMBERS FOR THE EXTRA EXPENSES WHICH THEY INCUR BECAUSE OF THEIR ASSIGNED DUTIES DOES NOT ARISE UNTIL THEY REPORT TO THE DUTY STATION AND THE LEGISLATIVE HISTORY ESTABLISHES THAT IT IS THIS NEED WHICH SECTION 3 OF PUBLIC LAW 90-168, 37 U.S.C. 404 (A) (4), IS DESIGNED TO MEET. WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY WHICH SHOWS ANY INTENT ON THE PART OF CONGRESS THAT IT SHOULD SUPERSEDE OR OTHERWISE AFFECT THE AUTHORITY TO PROVIDE TRAVEL ALLOWANCES UNDER 37 U.S.C. 404 (A) (2) AND (3).

THUS, THE PURPOSE AND INTENT 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 WHILE AT THE TRAINING DUTY STATION IN CASES WHERE PER DIEM WOULD BE PAYABLE TO MEMBERS ON CONTINUOUS ACTIVE DUTY ORDERED THERE FROM THEIR PERMANENT DUTY STATIONS FOR THE PERFORMANCE OF TEMPORARY DUTY. THE CITED REPORTS INDICATE A VIEW THAT THE PER DIEM SHOULD BE DENIED AT MILITARY INSTALLATIONS WHERE THE TRAINING DUTY IS DIRECTED ONLY IF GOVERNMENT QUARTERS AND MESS ARE AVAILABLE, NO SUGGESTION APPEARING THAT IT WOULD NOT ACCRUE THERE FOR OTHER CAUSE EVEN THOUGH SUCH INSTALLATIONS WOULD BE THE MEMBERS' PERMANENT DUTY STATIONS. 41 COMP. GEN. 726.

IT IS OUR VIEW, THEREFORE, THAT THE TEMPORARY DUTY STATUS OF MEMBERS AWAY FROM THEIR PERMANENT STATIONS WITHIN THE CONTEMPLATION OF 37 U.S.C. 404 (A) (1), PURPORTEDLY MADE APPLICABLE TO RESERVE MEMBERS BY THE PERMANENT STATION DEFINITION IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS DOES NOT EXIST IN THE CASE OF THESE RESERVISTS, BUT RATHER THAT 37 U.S.C. 404 (A) (4) SIMPLY PROVIDES AUTHORITY FOR THE PAYMENT OF PER DIEM FOR THE CONTEMPLATED TRAINING DUTY PERIODS AT A PERMANENT STATION AWAY FROM THE MEMBER'S HOME. ACCORDINGLY, IN OUR OPINION, 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.

IN THIS CASE, SINCE VANBROCKLIN WAS AT HIS PERMANENT STATION WHILE AT DETROIT AND WAS NOT ASSIGNED QUARTERS, HE IS LEGALLY ENTITLED TO CREDIT OF THE BASIC ALLOWANCE FOR QUARTERS FOR THAT PERIOD UNDER THE PROVISIONS OF 37 U.S.C. 403 (B). ALSO HE IS ENTITLED TO CREDIT OF PER DIEM WITHOUT REDUCTION FOR THAT PERIOD, THERE BEING NO PROVISION IN PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS REQUIRING A REDUCTION OF PER DIEM FOR A RESERVIST IN THESE CASES WHILE THE RESERVIST IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

PARAGRAPH M6001 OF THE REGULATIONS PROVIDES FOR THE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION PLUS PER DIEM IN THESE CASES FOR THE TRAVEL FROM HOME TO TRAINING DUTY STATION AND RETURN, APPARENTLY UPON A CONSIDERATION THAT TRAVEL TO A TEMPORARY RATHER THAN PERMANENT DUTY STATION IS INVOLVED. HOWEVER, UNDER THE PROVISIONS OF 37 U.S.C. 404 (A) (2) AND (3) AND 37 U.S.C. 404 (D) THE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AND PER DIEM FOR TRAVEL FROM HOME TO PERMANENT STATION MAY BE AUTHORIZED. SINCE PER DIEM IS AUTHORIZED AT THE TRAINING STATIONS, EVEN THOUGH PERMANENT, AND THE PAYMENT OF MILEAGE IN THESE CASES COULD RESULT IN A DUPLICATE PAYMENT OF SUBSISTENCE ALLOWANCES DUE TO PER DIEM AND MILEAGE ACCRUING ON THE SAME DAY (PROHIBITED BY THE PROVISIONS OF PARAGRAPH M4151 OF THE REGULATIONS), WE DO NOT BELIEVE THESE PROVISIONS OF PARAGRAPH M6001 NEED BE QUESTIONED. ACCORDINGLY, THE PROPOSED ADJUSTMENT OF THE MILEAGE ITEM IS PROPER.

THE SUBMITTED VOUCHER SHOWS A DEDUCTION FOR THE BASIC ALLOWANCE FOR SUBSISTENCE CREDITED TO VANBROCKLIN WHILE HE WAS ON DUTY AT DETROIT. SINCE UNDER THE PROVISIONS OF 37 U.S.C. 402 (B) THE BASIC ALLOWANCE FOR SUBSISTENCE IS NOT AUTHORIZED FOR ENLISTED MEMBERS WHILE BEING SUBSISTED AT GOVERNMENT EXPENSE AND ENLISTED MEMBERS IN RECEIPT OF THE SUBSISTENCE PORTION OF PER DIEM LONG HAVE BEEN VIEWED AS BEING SUBSISTED AT GOVERNMENT EXPENSE FOR THE PURPOSE OF SUCH PROVISIONS--- SEE SECTION 303 (E), EXECUTIVE ORDER NO. 11157--- DEDUCTION OF THE SUBSISTENCE ALLOWANCE CREDIT IS PROPER.