B-168661, DECEMBER 15, 1976, 56 COMP.GEN. 180

B-168661, DECEMBER 15, 1976, 56 COMP.GEN. 180

STATION ALLOWANCES - MILITARY PERSONNEL - HOUSING - ADVANCE PAYMENTS JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO ALLOW ADVANCE PAYMENT FOR STATION HOUSING AND SIMILAR ALLOWANCES PAID UNDER 37 U.S.C. 405, AS THE ADVANCE PAYMENT AUTHORIZATION IN SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 404(B)(1), IS LIMITED TO PAYMENTS FOR THE MEMBER'S TRAVEL, WHICH DOES NOT INCLUDE STATION HOUSING ALLOWANCE. THEREFORE, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR ADVANCE PAYMENT OF SUCH ALLOWANCES, 31 U.S.C. 529 PRECLUDES SUCH ADVANCE PAYMENTS.

IN THE MATTER OF ADVANCE PAYMENT OF HOUSING ALLOWANCES-- PDTATAC CONTROL NO. 76-20, DECEMBER 15, 1976:

THIS ACTION IS IN RESPONSE TO A LETTER DATED OCTOBER 21, 1976, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING OUR OPINION AS TO THE VALIDITY OF A PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS (JTR) TO PROVIDE FOR ADVANCE PAYMENTS OF HOUSING ALLOWANCES IN VIEW OF THE PROHIBITION AGAINST ADVANCE PAYMENTS IN SECTION 3648, REVISED STATUTES, 31 U.S.C. 529 (1970). THE REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER DATED OCTOBER 29, 1976, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NUMBER 76-20).

IT IS ASSERTED IN THE SUBMISSION THAT FINANCIAL HARDSHIP IS EXPERIENCED BY CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED TO MAKE EXTRAORDINARILY LARGE OUTLAYS FOR CASE FOR DEPOSITS TO SECURE LEASES ON SATISFACTORY DWELLINGS IN CERTAIN FOREIGN AREAS WHERE HOUSING IS IN SHORT SUPPLY. IN ORDER TO ALLEVIATE THIS SITUATION, IT IS PROPOSED TO AMEND VOLUME 1 OF THE JTR TO AUTHORIZE ADVANCES OF "STATION ALLOWANCES" AS THAT TERM IS DEFINED IN PARAGRAPH M4300-4 OF 1 JTR, WITH PARTICULAR EMPHASIS ON HOUSING ALLOWANCES. IT IS PROPOSED THAT SUCH ADVANCES WOULD BE RECOUPED AS THE ALLOWANCES THEREAFTER ACCRUE.

IT IS POINTED OUT THAT UNDER SUBSECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 813-814, AS AMENDED, NOW CODIFIED AS 37 U.S.C. 404(B)(1), THE SECRETARIES OF THE UNIFORMED SERVICES, AMONG OTHER THINGS, MAY PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED, "INCLUDING ADVANCE PAYMENTS THEREOF." IT IS INDICATED THAT, ON THE BASIS THAT HOUSING ALLOWANCES ARE "TRAVEL AND TRANSPORTATION ALLOWANCES," THE ADVANCE PAYMENT AUTHORITY CONTAINED IN 37 U.S.C. 404(B)(1), SUPRA, MAY BE CONSIDERED AS OVERCOMING THE GENERAL PROHIBITION AGAINST ADVANCE PAYMENTS CONTAINED IN 31 U.S.C. 529, WHICH PROVIDES IN PART THAT:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE UNLESS AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW. * * *

THE STATION ALLOWANCES SET OUT IN 1 JTR PARAGRAPH M4300-4 ARE THE FOLLOWING:

1. HOUSING AND COST-OF-LIVING ALLOWANCES AUTHORIZED IN 1 JTR PARAGRAPH M4301,

2. INTERIM HOUSING ALLOWANCES AUTHORIZED IN 1 JTR PARAGRAPH M4302, AND

3. TEMPORARY LODGING ALLOWANCES AUTHORIZED IN 1 JTR PARAGRAPH M4303.

THE STATUTORY AUTHORITY FOR THOSE ALLOWANCES IN 37 U.S.C. 405 (1970), WHICH PROVIDES AS FOLLOWS:

TRAVEL AND TRANSPORTATION ALLOWANCES: PER DIEM WHILE ON DUTY OUTSIDE UNITED STATES OR IN HAWAII OR ALASKA.

WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. HOWEVER, DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS. STATION HOUSING ALLOWANCE MAY BE PRESCRIBED UNDER THIS SECTION WITHOUT REGARD TO COSTS OTHER THAN HOUSING COSTS AND MAY CONSIST OF THE DIFFERENCE BETWEEN BASIC ALLOWANCE FOR QUARTERS AND APPLICABLE HOUSING COST. HOUSING COST AND ALLOWANCE MAY BE DISREGARDED IN PRESCRIBING A STATION COST OF LIVING ALLOWANCE UNDER THIS SECTION.

IN ADDITION TO THE STATION ALLOWANCES SPECIFIED IN PARAGRAPH M4300 4, OVERSEAS TRAVEL PER DIEM ALLOWANCES ARE ALSO PROMULGATED PURSUANT TO 37 U.S.C. 405. THE SUBMISSION INDICATES THAT SUCH TRAVEL PER DIEM ALLOWANCES HAVE LONG BEEN ADVANCED TO MEMBERS.

THE SUBMISSION ASKS, THEREFORE:

* * * WHETHER UNDER THE ABOVE REASONING, OR ANY OTHER REASONING, YOUR OFFICE WOULD BE REQUIRED TO OBJECT TO AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR ADVANCE PAYMENTS OF HOUSING ALLOWANCES. IF YOU AGREE THAT SUCH ADVANCES MAY BE MADE, IS THERE ANY LIMIT TO THE PERIOD OF TIME FOR WHICH SUCH ADVANCES MAY BE MADE? IN ADDITION, IN PROPER CASES, MAY OTHER ALLOWANCE PRESCRIBED UNDER 37 U.S.C.A. 405 SUCH AS: COST-OF- LIVING ALLOWANCES, TEMPORARY LODGING ALLOWANCES, INTERIM HOUSING ALLOWANCES, ETC., BE ADVANCED IN PROPER CASES? * * *

THE STATUTORY AUTHORITY FOR THE STATION ALLOWANCES, 37 U.S.C. 405, IS THE CODIFICATION OF SUBSECTION 303(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED, WHILE THE ADVANCE PAYMENT AUTHORITY PROVIDED IN 37 U.S.C. 404(B)(1) IS DERIVED FROM SUBSECTION 303(A) OF THAT ACT.

IN 39 COMP.GEN. 659 (1960) WE CONSIDERED A SIMILAR QUESTION CONCERNING WHETHER PAYMENTS OF TRAILER ALLOWANCES AUTHORIZED UNDER OTHER SUBSECTIONS OF SECTION 303 COULD BE ADVANCED UNDER THE ADVANCE PAYMENT AUTHORITY IN SUBSECTION 303(A). IN THAT CASE WE STATED THAT THE WORDING OF THE STATUTE SHOWS THAT THE ADVANCE PAYMENT AUTHORITY IS LIMITED TO ADVANCES FOR A MEMBER'S PERSONAL TRAVEL (PERSONAL TRANSPORTATION COSTS, MILEAGE, AND TRAVEL PER DIEM) AS PROVIDED IN SUBSECTION 303(A). IT WAS ALSO STATED THAT THE MEANING OF THE LANGUAGE OF THE STATUTE COULD NOT BE CHANGED BY CONSIDERING THE TITLE OF THE SECTION IN THE INTERPRETATION OF THE TEXT. THEREFORE, IT WAS HELD THAT THE ADVANCE PAYMENT AUTHORITY IN SUBSECTION 303(A) DOES NOT OVERCOME THE PROHIBITION IN SECTION 3648, REVISED STATUTES, 31 U.S.C. 529, FOR THE ADVANCE PAYMENT OF TRAILER ALLOWANCES. THAT REASONING WAS REEXAMINED AND REAFFIRMED IN 54 COMP.GEN. 765 (1975), WHICH HELD THAT ADVANCE PAYMENTS TO MEMBERS FOR RENTAL OF VEHICLES FOR MOVEMENT OF PERSONAL PROPERTY IS PRECLUDED BY 31 U.S.C. 529. SEE ALSO 40 COMP.GEN. 77 (1960), WHEREIN IT WAS HELD THAT ADVANCE PAYMENTS TO A MEMBER FOR THE TRAVEL OF DEPENDENTS INCIDENT TO THE MEMBER'S RELEASE FROM ACTIVE DUTY IS PRECLUDED BY 31 U.S.C. 529

THE STATION ALLOWANCES REFERRED TO IN 1 JTR PARAGRAPH M4300-4 ARE NOT PERSONAL TRAVEL AND TRANSPORTATION ALLOWANCES OF THE TYPE PRESCRIBED IN SUBSECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949 (SUCH AS IS THE OVERSEAS TRAVEL PER DIEM ALLOWANCE), FOR WHICH THAT SUBSECTION AUTHORIZES ADVANCE PAYMENTS. ALSO, WITH THE LIMITED EXCEPTION OF SITUATIONS COVERED BY 37 U.S.C. 1006(B) (1970), WHERE A MEMBER IS ON DUTY "AT A DISTANT STATION WHERE THE PAY AND EMOLUMENTS TO WHICH HE IS ENTITLED CANNOT BE DISBURSED REGULARLY," WE ARE NOT AWARE OF STATUTORY AUTHORITY FOR THE PROPOSED CHANGE IN REGULATIONS. THEREFORE, IT IS OUR VIEW THAT ADVANCE PAYMENT OF STATION HOUSING ALLOWANCES, AND OTHER SIMILAR ALLOWANCES PRESCRIBED UNDER 37 U.S.C. 405 (OTHER THAN TRAVEL PER DIEM ALLOWANCES), IS PRECLUDED BY 31 U.S.C. 529 AND, UNLESS STATUTORY AUTHORITY IS ENACTED TO PROVIDE FOR SUCH ADVANCE PAYMENTS, WE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED CHANGE IN REGULATIONS.

THE QUESTIONS ARE ANSWERED ACCORDINGLY.