Skip to main content

B-152420, MARCH 30, 1970, 49 COMP. GEN. 621

B-152420 Mar 30, 1970
Jump To:
Skip to Highlights

Highlights

REGULATIONS MAY BE AMENDED TO PROVIDE SO CALLED "RESIDUAL" PER DIEM FOR RESERVISTS ORDERED TO DUTY FOR PERIODS OF LESS THAN 20 WEEKS WHEN QUARTERS AND MESS ARE AVAILABLE. IN ALL CASES SIMILAR TO THOSE WHERE REGULAR MEMBERS PERFORMING LIKE DUTY IN A TEMPORARY DUTY STATUS ARE ENTITLED TO PER DIEM. THAT NO MEMBER OF A RESERVE COMPONENT SHOULD RECEIVE ANY PER DIEM FOR PERFORMANCE OF 2 WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESS ARE AVAILABLE. 48 COMP. UPON REINSTATEMENT OF REGULATIONS THAT AUTHORIZED PER DIEM TO RESERVISTS ORDERED TO ACTIVE DUTY FOR LESS THAN 20 WEEKS WHERE QUARTERS AND MESS ARE AVAILABLE. NO OBJECTION WILL BE RAISED TO PER DIEM PAYMENTS HERETOFORE OR HEREAFTER MADE FOR ANY PERIOD ON OR AFTER JANUARY 1.

View Decision

B-152420, MARCH 30, 1970, 49 COMP. GEN. 621

SUBSISTENCE -- PER DIEM -- MILITARY PERSONNEL -- TRAINING DUTY PERIODS - RESERVISTS TO EQUALIZE THE ENTITLEMENT OF MEMBERS OF THE NATIONAL GUARD WITH MEMBERS OF REGULAR COMPONENTS, REGULATIONS MAY BE AMENDED TO PROVIDE SO CALLED "RESIDUAL" PER DIEM FOR RESERVISTS ORDERED TO DUTY FOR PERIODS OF LESS THAN 20 WEEKS WHEN QUARTERS AND MESS ARE AVAILABLE, NOT ONLY TO ATTEND SERVICE SCHOOLS, BUT IN ALL CASES SIMILAR TO THOSE WHERE REGULAR MEMBERS PERFORMING LIKE DUTY IN A TEMPORARY DUTY STATUS ARE ENTITLED TO PER DIEM, SUBJECT TO THE EXCEPTION IN THE LEGISLATIVE REPORTS WITH RESPECT TO SECTION 3 OF PUBLIC LAW 90-168 (37 U.S.C. 404(A)), THAT NO MEMBER OF A RESERVE COMPONENT SHOULD RECEIVE ANY PER DIEM FOR PERFORMANCE OF 2 WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESS ARE AVAILABLE. 48 COMP. GEN. 517, AND B-152420, JULY 8, 1969, MODIFIED. REGULATIONS -- RETROACTIVE -- ADMINISTRATIVE ERROR CORRECTION THE GENERAL RULE THAT REGULATIONS MAY NOT BE MADE RETROACTIVELY EFFECTIVE WHEN THE LAW HAS BEEN PREVIOUSLY CONSTRUED OR PROPOSED REGULATIONS AMEND REGULATIONS PREVIOUSLY ISSUED, DOES NOT APPLY TO THE REINSTATEMENT OF PROPERLY ISSUED REGULATIONS. THEREFORE, UPON REINSTATEMENT OF REGULATIONS THAT AUTHORIZED PER DIEM TO RESERVISTS ORDERED TO ACTIVE DUTY FOR LESS THAN 20 WEEKS WHERE QUARTERS AND MESS ARE AVAILABLE, NO OBJECTION WILL BE RAISED TO PER DIEM PAYMENTS HERETOFORE OR HEREAFTER MADE FOR ANY PERIOD ON OR AFTER JANUARY 1, 1968, AND PRIOR TO THE EFFECTIVE DATE OF THE NEW REGULATIONS TO GIVE EFFECT TO PER DIEM ENTITLEMENT, IF SUCH PAYMENTS ARE IN ACCORDANCE WITH PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS, ISSUED APRIL 1, 1968, TO IMPLEMENT SECTION 3 OF PUBLIC LAW 90-168. SUBSISTENCE - - PER DIEM - MILITARY PERSONNEL -- RESERVISTS WHERE DUE TO UNFORESEEN CIRCUMSTANCES, IT IS IMPOSSIBLE FOR A RESERVIST TO COMPLETE ORDERED DUTY WITHIN A SCHEDULED 20-WEEK PERIOD, PER DIEM PAYMENTS MAY BE CONTINUED FOR SHORT ADDITIONAL PERIODS AND REGULATIONS AMENDED ACCORDINGLY.

TO THE SECRETARY OF THE AIR FORCE, MARCH 30, 1970:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 17, 1969, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS), REQUESTING RECONSIDERATION IN PART OF DECISION OF JULY 8, 1969, B 152420, WHICH DENIED PER DIEM TO MEMBERS OF THE RESERVE COMPONENTS ORDERED TO DUTY FOR PERIODS OF LESS THAN 20 WEEKS WHEN QUARTERS AND MESS ARE AVAILABLE.

ALSO, OUR DECISION IS REQUESTED AS TO WHETHER THE REGULATIONS MAY BE AMENDED TO AUTHORIZE PER DIEM FOR MORE THAN 20 WEEKS UNDER CERTAIN CIRCUMSTANCES. THE REQUEST WAS ASSIGNED CONTROL NO. 69-44 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

WITH HIS REQUEST FOR REVIEW, THE ASSISTANT SECRETARY FORWARDED A LETTER DATED AUGUST 15, 1969, FROM THE CHIEF, NATIONAL GUARD BUREAU, WITH ATTACHMENTS, IN WHICH IT IS CONTENDED THAT THE PURPOSE AND INTENT OF SECTION 3 OF PUBLIC LAW 90-168, 81 STAT. 525, WHICH ADDED CLAUSE 4 TO 37 U.S.C. 404(A), WAS TO MAKE MEMBERS OF THE NATIONAL GUARD ENTITLED TO PER DIEM UNDER THE SAME CONDITIONS AS THE REGULAR MEMBER WHEN THE GUARDSMAN LEAVES HIS HOME FOR SHORT PERIODS FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER TITLE 37, U.S.C. AND, THEREFORE, THAT SUCH MEMBERS ARE ENTITLED TO PER DIEM (SO-CALLED RESIDUAL PER DIEM) WHEN ON ACTIVE DUTY FOR PERIODS OF LESS THAN 20 WEEKS TO ATTEND A COURSE OF INSTRUCTION WHEN QUARTERS AND MESS ARE AVAILABLE.

THE DECISION OF JULY 8, 1969, WAS AN AMPLIFICATION OF THE HOLDING IN DECISION OF FEBRUARY 7, 1969, 48 COMP. GEN. 517, THAT UNDER THE PROVISIONS OF CLAUSE (4) OF 37 U.S.C. 404(A), A RESERVIST MAY NOT BE PAID PER DIEM WHEN MESS AND QUARTERS ARE PROVIDED FOR HIM. THIS CONCLUSION WAS BASED UPON OUR UNDERSTANDING OF THE PURPOSE AND INTENT OF CLAUSE (4) AS EXPLAINED IN ITS LEGISLATIVE HISTORY. THE DECISION APPLIED TO ALL TYPES OF DUTY INCLUDING PERIODS OF ATTENDANCE AT COURSES OF INSTRUCTION.

AS INDICATED ABOVE, HOWEVER, THE REQUEST FOR RECONSIDERATION RELATES ONLY TO THAT PART OF THE DECISION DENYING PER DIEM WHILE ATTENDING COURSES OF INSTRUCTION. IN THE LETTER OF AUGUST 15, 1969, FROM THE CHIEF, NATIONAL GUARD BUREAU, IT IS URGED THAT THE BACKGROUND AND LEGISLATIVE HISTORY OF THE LAW SHOW THAT IT WAS THE INTENT OF THE CONGRESS TO PERMIT PAYMENT OF PER DIEM TO RESERVES IN SUCH CASES SO THAT REGULARS AND RESERVES ATTENDING SCHOOL WOULD BE TREATED EQUALLY.

IN SUPPORT OF THIS VIEW THE CHIEF, NATIONAL GUARD BUREAU, REFERS TO BILLS INTRODUCED IN THE 85TH, 86TH, 87TH, 88TH, AND 89TH CONGRESSES FOR THE PURPOSE OF AUTHORIZING THE PAYMENT OF PER DIEM TO RESERVES WHILE ON TRAINING DUTY. NONE OF THESE BILLS, HOWEVER, WAS ENACTED AND WITH THE EXCEPTION OF H.R. 17195, 89TH CONGRESS, THEY WERE STATED IN LANGUAGE SUBSTANTIALLY DIFFERENT FROM THAT CONTAINED IN 37 U.S.C. 404(A)(4). THE PER DIEM PAYMENT PROVISIONS OF H.R. 17195 AND THE EXPLANATION OF THEIR PURPOSE IN ITS LEGISLATIVE HISTORY ARE IDENTICAL WITH THE LANGUAGE OF SECTION 404(A)(4) AND THE EXPLANATION OF ITS PURPOSE IN ITS LEGISLATIVE HISTORY.

THE DIFFERENTLY WORDED BILLS WERE NOT ENACTED BY CONGRESS, IN FACT, SOME OF THEM DO NOT APPEAR TO HAVE BEEN CONSIDERED BY THE LEGISLATIVE COMMITTEES. THEIR LANGUAGE AND THE EXPLANATION OF THEIR PURPOSE BY THE MILITARY DEPARTMENTS, HOWEVER, SUPPORT THE VIEWS OF THE CHIEF, NATIONAL GUARD BUREAU.

AS THE CHIEF, NATIONAL GUARD BUREAU, SAYS, THE MATTER OF PER DIEM PAYMENTS TO NATIONAL GUARD MEMBERS ATTENDING SERVICE SCHOOLS IS DISCUSSED (PAGE 57) IN H. REPT. NO. 13 DATED FEBRUARY 13, 1967, TO ACCOMPANY H.R. 2 WHICH BECAME PUBLIC LAW 90-168 (10 U.S.C. 136 NOTE). IT APPEARS TO BE HIS VIEW THAT SUCH DISCUSSION REFLECTS A PURPOSE TO AUTHORIZE PER DIEM PAYMENTS TO RESERVES ATTENDING SERVICE SCHOOLS ON THE BASIS THAT A MEMBER OF THE REGULAR COMPONENT ATTENDING THE SCHOOL IN A TEMPORARY DUTY STATUS IS ENTITLED TO PER DIEM.

IT IS STATED IN THE COMMITTEE REPORT THAT SECTION 404(A)(4) IS DESIGNED TO PROVIDE THE SAME ENTITLEMENT TO ALL MILITARY PERSONNEL IN THE MATTER OF PER DIEM ELIGIBILITY WHEN THE CIRCUMSTANCES ARE ESSENTIALLY THE SAME. THE REPORT STATES, HOWEVER, THAT NO PER DIEM IS TO BE PAYABLE DURING ANNUAL ACTIVE DUTY FOR TRAINING WHEN QUARTERS AND MESS ARE AVAILABLE.

IN THE DECISION OF FEBRUARY 7, 1969, WE EXPRESSED THE VIEW THAT THE LEGISLATIVE HISTORY REFLECTED AN INTENT THAT THE RIGHT TO PER DIEM SHOULD BE DENIED GENERALLY TO RESERVISTS ON SHORT TOURS OF DUTY AT MILITARY INSTALLATIONS WHERE BOTH GOVERNMENT QUARTERS AND MESS ARE PROVIDED FOR THEM, THE COMMENT THEREIN AS TO EQUALIZING ENTITLEMENT TO TRAVEL PER DIEM WITH THAT OF MEMBERS OF THE REGULAR SERVICES APPARENTLY HAVING HAD REFERENCE ONLY TO CASES WHERE A MESS OR QUARTERS ARE NOT PROVIDED. VIEWED GENERALLY, THE COMMITTEE REPORT LENDS SUPPORT TO THAT VIEW. HOWEVER, CONSIDERED IN THE LIGHT OF THE MATERIAL SUBMITTED BY THE CHIEF, NATIONAL GUARD BUREAU, THE COMMITTEE REPORT DOES NOT NECESSARILY CONFLICT WITH HIS VIEWS IN THOSE CASES WHERE THE CIRCUMSTANCES OF THE REGULAR MEMBER AND THE RESERVE MEMBER ARE ESSENTIALLY THE SAME.

THE LAW IS BROADLY STATED. THEREFORE, WHILE THE MATTER IS NOT FREE FROM DOUBT, IN VIEW OF THE REPRESENTATIONS MADE BY THE CHIEF, NATIONAL GUARD BUREAU, AND THE ABSENCE OF ANY CLEAR SHOWING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168 TO THE CONTRARY, WE WILL NOT OBJECT TO THE PROMULGATION OF REGULATIONS AUTHORIZING PAYMENT OF PER DIEM (RESIDUAL) TO MEMBERS OF RESERVE COMPONENTS ORDERED TO ATTEND SERVICE SCHOOLS FOR PERIODS OF LESS THAN 20 WEEKS WHEN QUARTERS AND MESS ARE AVAILABLE AND THE CIRCUMSTANCES ARE THE SAME AS THOSE OF MEMBERS OF REGULAR COMPONENTS ATTENDING THE SCHOOL IN A TEMPORARY DUTY STATUS.

WE SEE NO BASIS, HOWEVER, FOR THE VIEW THAT CONGRESS INTENDED TO AUTHORIZE THE PAYMENT OF PER DIEM ONLY TO MEMBERS ATTENDING SCHOOLS IN SUCH CASES. CONSEQUENTLY, IF THE EQUALITY OF TREATMENT INTENDED BY THE LAW IS TO BE ACCOMPLISHED, IT IS OUR VIEW THAT THE REGULATIONS SHOULD AUTHORIZE PAYMENT OF PER DIEM TO MEMBERS OF RESERVE COMPONENTS ON ACTIVE DUTY FOR LESS THAN 20 WEEKS IN ALL CASES WHERE MEMBERS OF REGULAR COMPONENTS PERFORMING LIKE DUTY IN A TEMPORARY DUTY STATUS WOULD BE ENTITLED TO PER DIEM, SUBJECT, OF COURSE, TO THE EXCEPTION EXPRESSED IN THE LEGISLATIVE REPORTS THAT NO MEMBER OF A RESERVE COMPONENT "SHOULD RECEIVE (ANY) PER DIEM FOR PERFORMANCE OF *** 2 WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT A MILITARY INSTALLATION WHERE QUARTERS AND MESSING ARE, IN FACT, AVAILABLE." THE CONCLUSION REACHED IN THE DECISIONS OF FEBRUARY 7 AND JULY 8, 1969, IS MODIFIED ACCORDINGLY.

IN HIS LETTER OF AUGUST 15, 1969, THE CHIEF, NATIONAL GUARD BUREAU, REQUESTS THAT ACTION TO AUTHORIZE PER DIEM IN SCHOOL ATTENDANCE CASES BE MADE RETROACTIVELY EFFECTIVE TO FEBRUARY 7, 1969, IN THE ARMY AND JULY 8, 1969, IN THE AIR FORCE. UNDER THE INITIAL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404(A)(4) PER DIEM HAD BEEN AUTHORIZED IN THE SCHOOL ATTENDANCE CASES AND THESE ARE THE RESPECTIVE DATES UPON WHICH PAYMENT OF THE PER DIEM APPARENTLY WAS DISCONTINUED BY THE ARMY AND THE AIR FORCE IN ACCORDANCE WITH THE DECISIONS OF FEBRUARY 7 AND JULY 8, 1969.

AS A GENERAL RULE REGULATIONS MAY NOT BE MADE RETROACTIVELY EFFECTIVE WHEN THE LAW HAS BEEN PREVIOUSLY CONSTRUED OR PROPOSED REGULATIONS AMEND REGULATIONS PREVIOUSLY ISSUED. SEE 45 COMP. GEN. 451 (1966). IN THIS CASE, HOWEVER, WHAT IS PROPOSED IS A REINSTATEMENT OF THE INITIAL REGULATIONS PROMULGATED UNDER THE LAW AND WE NOW CONCLUDE THAT THE INITIAL REGULATIONS WERE PROPER AND THAT TERMINATION OF THE PER DIEM PAYMENTS WAS NOT REQUIRED BY THE LAW.

IN SUCH CIRCUMSTANCES AND SINCE THE NATIONAL GUARD BUREAU, IMMEDIATELY UPON RECEIPT OF THE DECISIONS OF FEBRUARY 7 AND JULY 8, 1969, INITIATED ACTION TO HAVE THEM RECONSIDERED, WE WILL NOT OBJECT TO PER DIEM PAYMENTS HERETOFORE OR HEREAFTER MADE FOR ANY PERIOD ON OR AFTER JANUARY 1, 1968, AND PRIOR TO THE EFFECTIVE DATE OF THE NEW REGULATIONS ISSUED TO GIVE EFFECT TO THIS DECISION, IF SUCH PAYMENTS ARE IN ACCORDANCE WITH PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS ORIGINALLY ISSUED (APRIL 1, 1968) TO IMPLEMENT SECTION 3 OF PUBLIC LAW 90-168, AND ARE OTHERWISE CORRECT.

CONCERNING THE QUESTION WHETHER THE REGULATIONS MAY BE AMENDED TO AUTHORIZE PER DIEM FOR MORE THAN 20 WEEKS IN THESE CASES (THE PAYMENT OF PER DIEM BEING AUTHORIZED FOR RESERVES UNDER PRESENT REGULATIONS ONLY IN CASES WHERE THEY ARE ORDERED TO DUTY FOR LESS THAN 20 WEEKS) WE WOULD HAVE NO OBJECTION TO THE PROMULGATION OF REGULATIONS PROVIDING FOR CONTINUATION OF PER DIEM FOR SHORT ADDITIONAL PERIODS WHERE DUE TO UNFORESEEN CIRCUMSTANCES IT IS IMPOSSIBLE TO COMPLETE THE ORDERED DUTY WITHIN THE SCHEDULED 20-WEEK PERIOD.

GAO Contacts

Office of Public Affairs