B-154790, JAN. 13, 1965, 44 COMP. GEN. 396

B-154790, JAN. 13, 1965, 44 COMP. GEN. 396

PAY - ADDITIONAL - FOREIGN DUTY - COMMENCEMENT AND TERMINATION FOR PURPOSES OF FOREIGN DUTY PAY UNDER 37 U.S.C. 305 (A), ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE IN A TRAVEL STATUS IN AN AREA DESIGNATED FOR FOREIGN DUTY PAY BUT WHO HAVE NOT REPORTED TO THEIR DUTY STATION IN THE AREA MAY NOT BE REGARDED AS ON "DUTY AT A DESIGNATED PLACE" WITHIN THE MEANING OF THE LAW AND SECTION 204 OF EXECUTIVE ORDER NO. 11157, AND, THEREFORE, FOREIGN DUTY PAY IS NOT PAYABLE PRIOR TO THE DAY ON WHICH THE MEMBERS IN FACT REPORT TO THEIR DUTY STATION IN THE DESIGNATED AREA.

TO THE SECRETARY OF DEFENSE, JANUARY 13, 1965:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 21, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON SEVERAL QUESTIONS IN CONNECTION WITH THE PROPRIETY OF PAYING SPECIAL PAY AUTHORIZED BY SECTION 305 (A) OF TITLE 37, U.S. CODE, TO ENLISTED MEMBERS UNDER CERTAIN CIRCUMSTANCES.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 347 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. SECTION 204 OF EXECUTIVE ORDER NO. 11157 OF 22 JUNE 1964, SPECIFIED THAT SPECIAL PAY IS PAYABLE TO ENLISTED MEMBERS ON DUTY AT PLACES AS DESIGNATED BY THE SECRETARY OF DEFENSE. THE SECRETARY OF DEFENSE HAS DESIGNATED THE STATE OF ALASKA AS SUCH A PLACE. AN ENLISTED MEMBER REPORTS FOR DUTY AT A STATION IN ALASKA TO WHICH HE HAS BEEN PERMANENTLY ASSIGNED. THE MEMBER WAS IN ALASKA IN A TRAVEL AND PROCESSING STATUS FOR A PERIOD OF 2 DAYS IMMEDIATELY PRIOR TO REPORTING TO THIS DUTY STATION. IS THE MEMBER ENTITLED TO SPECIAL PAY UNDER 37 U.S.C. 305 (A) (2) FROM THE DATE OF ARRIVAL IN THE DESIGNATED PLACE THROUGH THE DATE PRIOR TO THE DATE THE MEMBER REPORTS TO HIS DUTY STATION?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE WOULD THE MEMBER ALSO BE ENTITLED FOR ANY PERIOD OF LEAVE TAKEN BETWEEN THE DATE OF ARRIVAL IN THE DESIGNATED PLACE AND THE DATE OF REPORTING AT HIS DUTY STATION?

3. IF THE MEMBER IN THE FOREGOING QUESTIONS HAD BEEN IN CANADA (IN A DESIGNATED PLACE) IN A TRAVEL OR LEAVE STATUS IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION PRIOR TO REPORTING FOR DUTY IN ALASKA, AND IF SO AUTHORIZED, OR NOT RESTRICTED, UNDER SUPPLEMENTARY REGULATIONS PRESCRIBED UNDER SECTIONS 206 AND 208 OF EXECUTIVE ORDER NO. 11157, MIGHT THE MEMBER BE ENTITLED TO SPECIAL PAY UNDER 37 U.S.C. 305 (A) (2) FOR ANY SUCH PERIOD IN CANADA?

PRIOR TO THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 210, ENTITLEMENT TO SPECIAL PAY FOR FOREIGN DUTY WAS AUTHORIZED IN 37 U.S.C. 305 (A) WHILE ON DUTY IN ANY PLACE OUTSIDE THE UNITED STATES, OR IN ALASKA OR HAWAII. THE TERM "IN ANY PLACE" WAS APPLIED AS AUTHORIZING THE PAYMENT OF FOREIGN DUTY PAY FROM THE DATE OF DEPARTURE FROM THE UNITED STATES EN ROUTE TO ORDERED FOREIGN DUTY.

SECTION 12 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 217, AMENDED SECTION 305 OF TITLE 37 TO PERMIT, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF FOREIGN DUTY PAY "WHILE ON DUTY AT A DESIGNATED PLACE OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA.' 37 U.S.C. 305 (A) (2). THUS, UNDER THE PROVISIONS OF THE 1963 ACT ENTITLEMENT TO FOREIGN DUTY PAY DOES NOT ARISE OUT OF THE LAW ITSELF BUT DEPENDS UPON ADMINISTRATIVE ACTION AND IS AUTHORIZED FOR DUTY AT A PARTICULAR PLACE. THE REASON FOR THIS CHANGE IS SET FORTH IN A STATEMENT AT PAGES 48 AND 49 OF S.REPT. NO. 387 DATED AUGUST 5, 1963, TO ACCOMPANY H.R. 5555 WHICH BECAME THE UNIFORMED SERVICES PAY ACT OF 1963, IN PERTINENT PART, AS FOLLOWS:

CHANGE IN CONCEPT OF FOREIGN DUTY PAY ADOPTED BY SENATE COMMITTEE.

THE COMMITTEE DID NOT CHANGE THE PRESENT CONCEPT OF SEA PAY WHICH ENTITLED ENLISTED MEMBERS WHILE ON SEA DUTY TO THE VARIOUS AUTHORIZED AMOUNTS. FOR FOREIGN DUTY PAY, HOWEVER, THE COMMITTEE ADOPTED LANGUAGE WHICH IN EFFECT CHANGES THE PRESENT CONCEPT. THIS AMENDMENT MAKES THE AWARDING OF FOREIGN DUTY PAY PERMISSIVE. UNDER PRESIDENTIAL REGULATION, SELECTIONS WOULD BE MADE AS TO WHICH LOCATIONS WOULD QUALIFY FOR FOREIGN DUTY PAY UNDER LANGUAGE WHICH, IN EFFECT, PROVIDES THAT ENLISTED PERSONNEL MAY BE PAID FOREIGN DUTY PAY FOR SERVICE OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE DETERMINATION OF THE SECRETARY OF DEFENSE AS TO THE QUALIFYING LOCATIONS.

THE PRESIDENTIAL REGULATIONS IMPLEMENTING THE NEW LAW ARE CURRENTLY CONTAINED IN EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964 (FORMERLY EXECUTIVE ORDER 10168 AS AMENDED BY EXECUTIVE ORDER NO. 11120 OF OCTOBER 2, 1963, EFFECTIVE OCTOBER 1, 1963) AND PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 204. ENLISTED MEMBERS ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE, ADDITIONALLY, PAY UNDER THE RATES PRESCRIBED BY SECTION 305 (A) OF TITLE 37 OF THE UNITED STATES CODE, WHILE ON DUTY AT PLACES THAT ARE OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLOMBIA AND THAT ARE DESIGNATED FOR THIS PURPOSE BY THE SECRETARY OF DEFENSE OR, IN THE CASE OF ENLISTED MEMBERS OF THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, BY THE SECRETARY OF THE TREASURY. SUBJECT TO THE PROVISIONS OF SECTION 305 OF TITLE 37 OF THE UNITED STATES CODE, AN ENLISTED MEMBER WHO IS PERMANENTLY ASSIGNED TO DUTY AT A PLACE SO DESIGNATED IS ENTITLED TO RECEIVE THAT PAY DURING A PERIOD OF AUTHORIZED LEAVE, TEMPORARY ADDITIONAL DUTY, TEMPORARY DUTY, OR HOSPITALIZATION, OR WHILE ON AN OPERATIONAL AIRCRAFT FLIGHT, BUT NOT FOR MORE THAN 30 DAYS WHILE HE IS AWAY FROM THAT PLACE.

SEC. 205. UNLESS OTHERWISE ENTITLED TO SPECIAL PAY IN ACCORDANCE WITH THE LAST SENTENCE OF SECTION 204, HEREOF, DURING PERIODS SPENT ON TEMPORARY ADDITIONAL DUTY OR TEMPORARY DUTY, OR ON OPERATIONAL AIRCRAFT FLIGHTS, PAY IN ACCORDANCE WITH SECTION 204 SHALL ACCRUE TO ENLISTED MEMBERS ONLY FOR PERIODS OF EIGHT CONTINUOUS DAYS OR MORE IN DURATION AT PLACES DESIGNATED, INCLUDING THE DATES OF ARRIVAL AT, AND THE DATE OF DEPARTURE FROM, THOSE PLACES.

SEC. 206. ENLISTED MEMBERS SHALL NOT BE ENTITLED TO ADDITIONAL PAY UNDER THIS ORDER FOR DUTY WHICH, UNDER THE PROVISIONS OF SUPPLEMENTARY REGULATIONS PRESCRIBED HEREUNDER, DOES NOT CONSTITUTE EITHER SEA DUTY OR DUTY DESCRIBED IN SECTIONS 204 AND 205 HEREOF.

SEC. 208. THE SECRETARIES CONCERNED (WITHIN THE MEANING OF SECTION 101 (5) OF TITLE 37 OF THE UNITED STATES CODE), WITH RESPECT TO PERSONNEL OF THE UNIFORMED SERVICES WITHIN THEIR RESPECTIVE DEPARTMENTS, ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT HEREWITH, AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.

UNDER 37 U.S.C. 305 (A) (2) AS ENACTED BY THE 1963 ACT AND EXECUTIVE ORDER NO. 11157, FOREIGN DUTY PAY MAY BE PAID ONLY WHILE ON "DUTY AT A DESIGNATED PLACE.' WHILE NEITHER THE LAW NOR THE EXECUTIVE ORDER DEFINES THE TERM "DUTY AT A DESIGNATED PLACE" WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE LAW WHICH INDICATES THAT MEMBERS IN A TRAVEL STATUS EN ROUTE TO DUTY AT A DESIGNATED PLACE ARE TO BE VIEWED AS ON DUTY AT THE DESIGNATED PLACE WHILE IN A TRAVEL STATUS IN THAT OR SOME OTHER DESIGNATED PLACE. IN THIS RESPECT, IT IS STATED IN COMMITTEE ACTION NO. 347 THAT PLACES DESIGNATED BY THE SECRETARY OF DEFENSE INCLUDE INSULAR AREAS SUCH AS GUAM, ICELAND, OR CORSICA, AND CONTINENTAL AREAS, COUNTRIES IN THEIR ENTIRETY, SUCH AS POLAND, EGYPT AND KOREA. IT IS FURTHER STATED THAT PLACES WITHIN THE COUNTRIES ARE DESIGNATED, POTSDAM, LUBECK, AND HOF, BEING A FEW AMONG MANY PLACES DESIGNATED IN GERMANY. CANADA IS DESIGNATED IN ITS ENTIRETY, EXCEPT METROPOLITAN AREAS AND ST. JOHN-S. HENCE, TO APPLY THE TERM "DUTY AT A DESIGNATED PLACE" AS INCLUDING PERIODS OF TRAVEL THROUGH ALL OR A PART OF A DESIGNATED PLACE EN ROUTE TO A DUTY STATION AT THAT OR SOME OTHER PLACE COULD REQUIRE THE PAYMENT OF FOREIGN DUTY PAY FOR PERIODS PRIOR TO ENTRANCE ON DUTY AT THE DESIGNATED PLACE, A RESULT WHICH WE DO NOT BELIEVE CONGRESS INTENDED.

THE COMMITTEE ACTION POINTS OUT THAT THE SERVICES CONSTRUE THE SECOND SENTENCE OF SECTION 204 OF EXECUTIVE ORDER NO. 11157 AS APPLICABLE ONLY IN THOSE CASES IN WHICH THE ENLISTED MEMBER HAS ACTUALLY REPORTED FOR DUTY AT THE DESIGNATED PLACE. UNDER THE SECOND SENTENCE OF SECTION 204, AN ENLISTED MEMBER WHO IS "PERMANENTLY ASSIGNED" TO DUTY AT A PLACE SO DESIGNATED IS ENTITLED TO RECEIVE FOREIGN DUTY PAY DURING A PERIOD OF AUTHORIZED LEAVE, TEMPORARY ADDITIONAL DUTY, TEMPORARY DUTY, OR HOSPITALIZATION, OR WHILE ON AN OPERATIONAL AIRCRAFT FLIGHT, BUT NOT FOR MORE THAN 30 DAYS WHILE HE IS AWAY FROM THAT PLACE. WE AGREE WITH THE SERVICE VIEWS THAT BEFORE ENTITLEMENT EXISTS UNDER THIS PROVISION OF THE EXECUTIVE ORDER, THE ENLISTED MEMBER MUST HAVE REPORTED TO HIS ASSIGNED DUTY STATION AT THE DESIGNATED PLACE AND THEREAFTER DEPARTED FROM THAT STATION IN ANY OF THE STATUTES THERE DESCRIBED. COMPARE B-154790, SEPTEMBER 28, 1964, 44 COMP.GEN. 175. TO HOLD OTHERWISE COULD APPEAR TO DEFEAT WHAT WE UNDERSTAND TO BE THE STATED PURPOSE OF CONGRESS IN THAT IT WOULD PERMIT THE MEMBER TO RECEIVE FOREIGN DUTY PAY WHILE ON LEAVE, TEMPORARY DUTY, ETC., AT A NON-DESIGNATED PLACE PRIOR TO THE PERFORMANCE OF ANY DUTY AT THE DESIGNATED PLACE. THAT THIS IS THE CORRECT VIEW OF THE LAW IS SUPPORTED BY THE FACT THAT UNDER SECTION 205 OF EXECUTIVE ORDER NO. 11157, ALL PERIODS OF TRAVEL EN ROUTE TO AND FROM DESIGNATED TEMPORARY DUTY STATIONS ARE EXPRESSLY EXCLUDED IN COMPUTING THE LENGTH OF THE TEMPORARY DUTY PERIOD FOR WHICH FOREIGN DUTY PAY MAY BE PAID.

ACCORDINGLY, IT IS OUR VIEW THAT UNDER THE PROVISIONS OF THE 1963 ACT AND THE IMPLEMENTING EXECUTIVE ORDER FOREIGN DUTY PAY IS NOT PAYABLE FOR ANY PERIOD PRIOR TO THE DAY ON WHICH THE MEMBERS CONCERNED IN FACT REPORT TO THEIR DUTY STATION AT THE DESIGNATED PLACE FOR THE PERFORMANCE OF DUTY. QUESTIONS 1 AND 3 ARE ANSWERED IN THE NEGATIVE AND NO ANSWER TO QUESTION 2 IS REQUIRED.