B-159905, OCTOBER 14, 1966, 46 COMP. GEN. 319

B-159905: Oct 14, 1966

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1966: REFERENCE IS MADE TO LETTER OF AUGUST 16. WHO ARE GIVEN ADDITIONAL TRAINING OR DUTY WITHOUT PAY UNDER 37 U.S.C. 1002/A). THE QUESTION PRESENTED IS SET FORTH AND DISCUSSED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 214B OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. IT IS SUGGESTED IN COMMITTEE ACTION 214B THAT THE TERM "COMMUTATION THEREOF AT A RATE TO BE FIXED BY THE SECRETARY CONCERNED". IF IT IS OUR VIEW THE THIRD ALTERNATIVE IS THE CORRECT APPLICATION OF THE TERM. IT IS STATED IN THE COMMITTEE ACTION THAT THE PRESENT AGGREGATE DAILY COMMUTATION RATE OF $9 ($1.50 PER MEAL AND $4.50 FOR QUARTERS). WHICH HAS BEEN IN EFFECT SINCE COMMITTEE ACTION 214 WAS APPROVED BY THE SECRETARY OF DEFENSE ON OCTOBER 13.

B-159905, OCTOBER 14, 1966, 46 COMP. GEN. 319

RATION COMMUTATION PAYMENTS - MEMBERS SERVING WITHOUT PAY - RATE BASIS. THE COMMUTATION RATE PROVIDED IN 37 U.S.C. 1002/B) IN LIEU OF QUARTERS AND SUBSISTENCE TO MEMBERS OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO CONSENT TO ADDITIONAL TRAINING OF DUTY WITHOUT PAY HAS REFERENCE TO THE COST TO THE GOVERNMENT OF FURNISHING SUBSISTENCE AND QUARTERS IN KIND, AND NOT TO THE ACTUAL EXPENSE A MEMBER INCURS IN PROVIDING HIMSELF WITH SUBSISTENCE AND QUARTERS, AND THE ESTABLISHED AGGREGATE DAILY COMMUTATION RATE EXCEEDING THE MAXIMUM COMMUTED RATES PRESCRIBED BY 37 U.S.C. 402 AND 403 FOR MEMBERS PERFORMING TRAINING DUTY IN A FULL PAY STATUS, THE RATE MAY NOT BE INCREASED. NOR MAY AN INCREASE ON A NON GOVERNMENT COST BASIS, TANTAMOUNT TO PAYMENT OF AN UNAUTHORIZED PER DIEM AT A DUTY STATION, BE PRESCRIBED.

TO THE SECRETARY OF DEFENSE, OCTOBER 14, 1966:

REFERENCE IS MADE TO LETTER OF AUGUST 16, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE PROPER COMMUTATION RATE THAT MAY BE PAID FOR QUARTERS AND SUBSISTENCE TO MEMBERS OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES, WHO ARE GIVEN ADDITIONAL TRAINING OR DUTY WITHOUT PAY UNDER 37 U.S.C. 1002/A). THE QUESTION PRESENTED IS SET FORTH AND DISCUSSED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 214B OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

UNDER THE PROVISIONS OF SUBSECTION (A) OF SECTION 1002 OF TITLE 37 OF THE U.S. CODE, A MEMBER OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE MAY, WITH HIS CONSENT, BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED. SUBSECTION (B) OF THAT SECTION PROVIDES THAT A MEMBER WHO PERFORMS TRAINING OR OTHER DUTY WITHOUT PAY UNDER SUBSECTION (A) MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE AUTHORIZED THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY SECTION 404/A/-/D), AND (F) OF TITLE 37 FOR TRAVEL PERFORMED TO AND FROM THAT TRAINING OR DUTY, AND, DURING THE PERFORMANCE OF THAT TRAINING OR DUTY, BE FURNISHED "WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED BY THE SECRETARY CONCERNED;,

IT IS SUGGESTED IN COMMITTEE ACTION 214B THAT THE TERM "COMMUTATION THEREOF AT A RATE TO BE FIXED BY THE SECRETARY CONCERNED", IN SUBSECTION (B) OF SECTION 1002 OF THE CODE SHOULD BE APPLIED AS HAVING REFERENCE TO EITHER:

1. THE COST TO THE GOVERNMENT OF FURNISHING SUBSISTENCE AND QUARTERS IN KIND; OR

2. THE ACTUAL AND EXACT EXPENSE WHICH A MEMBER INCURS IN PROVIDING HIMSELF WITH SUBSISTENCE AND QUARTERS; OR

3. THE AMOUNT WHICH THE SECRETARY, IN HIS DISCRETION, DEEMS TO BE, ON THE AVERAGE, A FAIR EQUIVALENT TO THE DAILY COST OF SUBSISTENCE AND QUARTERS.

IF IT IS OUR VIEW THE THIRD ALTERNATIVE IS THE CORRECT APPLICATION OF THE TERM, THE COMMITTEE ASKS WHETHER SUBSISTENCE MAY BE COMMUTED AT A RATE OF $2 PER MEAL AND QUARTERS AT A RATE OF $8 PER DAY, AN AGGREGATE DAILY RATE OF $14.

IT IS STATED IN THE COMMITTEE ACTION THAT THE PRESENT AGGREGATE DAILY COMMUTATION RATE OF $9 ($1.50 PER MEAL AND $4.50 FOR QUARTERS), WHICH HAS BEEN IN EFFECT SINCE COMMITTEE ACTION 214 WAS APPROVED BY THE SECRETARY OF DEFENSE ON OCTOBER 13, 1958, IS INADEQUATE. THE RATE IS SAID TO BE INADEQUATE DUE TO DIFFICULTY IN OBTAINING THE CONSENT OF MEMBERS FOR PERFORMANCE OF TRAINING AND OTHER DUTY WITHOUT PAY BECAUSE THE PERFORMANCE OF SUCH DUTY NOW INVOLVES AN ACTUAL OUT- OF-POCKET CASH LOSS TO THE MEMBERS. UNDER THE LAW, THIS SITUATION CANNOT BE REMEDIED BY THE AUTHORIZATION OF A PER DIEM AT THE DUTY STATION. 44 COMP. GEN. 615. HOWEVER, ON THE PREMISE THAT THE TERM ,COMMUTATION" AS DEFINED IN DECISIONS OF THIS OFFICE AND THE COURT OF CLAIMS IS NOT NECESSARILY RELATED TO ACTUAL EXPENSES INCURRED OR EQUAL TO THE VALUE OF THE THING FOR WHICH IT IS A SUBSTITUTE BUT IS ON THE AVERAGE A FAIR EQUIVALENT, IT APPEARS TO BE THE COMMITTEE'S POSITION THAT UNDER HIS AUTHORITY TO FIX THE RATE OF COMMUTATION, THE SECRETARY MAY PRESCRIBE ANY RATE WHICH WILL BE, ON THE AVERAGE, A FAIR EQUIVALENT OF THE DAILY COST TO THE MEMBER OF OBTAINING MEALS AND LODGING FROM NON-GOVERNMENT SOURCES.

THE TERM "SUBSISTENCE" WITHOUT LIMITATION MEANS LIVING EXPENSES AND IN OUR VIEW COMMUTATION ON THE BASIS OF THE COMMITTEE'S POSITION WOULD BE A COMMUTATION OF SUBSISTENCE. PER DIEM IS A COMMUTATION OF SUBSISTENCE IN THAT SENSE. WHEN, HOWEVER, CONGRESS HAS INTENDED TO AUTHORIZE A COMMUTATION OF SUBSISTENCE IT HAS SPECIFICALLY PROVIDED FOR THE PAYMENT OF PER DIEM. EXCEPT FOR MEMBERS IN A TRAVEL STATUS SECTION 1002 OF TITLE 37 DOES NOT PROVIDE FOR THE PAYMENT OF A PER DIEM. AT THE TRAINING OR DUTY STATION ONLY A COMMUTATION OF SUBSISTENCE AND QUARTERS "IN KIND" IS AUTHORIZED. IT FOLLOWS, THEREFORE, THAT THE RATE OF COMMUTATION MUST BE BASED UPON A VALUATION OF THE SUBSISTENCE AND QUARTERS WHICH THE GOVERNMENT FURNISHES IN KIND AT A DUTY STATION RATHER THAN UPON THE COST TO THE MEMBER OF OBTAINING MEALS AND LODGING FROM NON-GOVERNMENT SOURCES AS SUGGESTED IN THE COMMITTEE ACTION.

AS STATED IN THE COMMITTEE ACTION COMMUTATION HAS A LONG HISTORY IN THE MILITARY SERVICE. IT CONSISTENTLY HAS BEEN THE PRACTICE TO PROVIDE MEMBERS OF THE UNIFORMED SERVICES WITH SUBSISTENCE IN KIND AND QUARTERS IN KIND OR A COMMUTATION THEREOF. GENERALLY, HOWEVER, CONGRESS HAS SPECIFICALLY FIXED THE COMMUTED VALUE OF THE ITEMS FURNISHED IN KIND, OR WHEN LEFT TO ADMINISTRATIVE DETERMINATION, HAS SOMETIMES PROVIDED A MAXIMUM OF THE AMOUNT WHICH MAY BE AUTHORIZED.

THE PRESENT SUBSISTENCE AND QUARTERS ALLOWANCES AUTHORIZED BY 37 U.S.C. 402 AND 403 FOR MEMBERS OF THE UNIFORMED SERVICES NOT FURNISHED SUBSISTENCE IN KIND OR QUARTERS IN KIND FALL SQUARELY WITHIN THE DEFINITION OF COMMUTATION AS STATED ABOVE AND ARE A STATUTORY COMMUTATION OF SUCH ITEMS. WHILE MEMBERS PERFORMING TRAINING DUTY WITHOUT PAY ARE NOT ENTITLED TO THE ALLOWANCES PROVIDED BY 37 U.S.C. 402 AND 403, IT IS OUR OPINION THAT THIS LEGISLATIVE COMMUTATION OF SUBSISTENCE AND QUARTERS IN KIND MAY NOT BE DISREGARDED ENTIRELY IN FIXING THE RATE OF COMMUTATION IN THESE CASES. OTHERWISE INDIVIDUALS PERFORMING TRAINING DUTY WITHOUT PAY AT A STATION WHERE SUBSISTENCE AND QUARTERS ARE NOT AVAILABLE IN KIND WILL BE FURNISHED SUBSISTENCE AND QUARTERS ON A VASTLY DIFFERENT COMMUTED BASIS THAN INDIVIDUALS PERFORMING TRAINING DUTY IN A FULL PAY STATUS AT THE SAME STATION FOR WHOM SUBSISTENCE AND QUARTERS IN KIND ARE NOT AVAILABLE, A RESULT WHICH IT IS DOUBTFUL THE CONGRESS INTENDED. PRESENT SERVICE REGULATIONS INDICATE THAT THIS HAS BEEN THE ADMINISTRATIVE VIEW. SEE PARAGRAPH 30135, ARMY REGULATIONS 37-104; PARAGRAPH 80134, AIR FORCE MANUAL 177-105 AND PARAGRAPH 044746, NAVY COMPTROLLER MANUAL.

IN THIS REGARD IT SEEMS APPARENT THAT WHEN CONGRESS AUTHORIZED THE PERFORMANCE OF TRAINING DUTY WITHOUT PAY, IT EXPECTED THAT THE MEMBERS CONCERNED WOULD INCUR SOME OUT-OF-POCKET COSTS WHEN THEY PERFORMED THE DUTY. PRESUMABLY IT WAS FOR THIS REASON THAT IT MADE THE PERFORMANCE OF SUCH DUTY VOLUNTARY WITH THE MEMBERS.

WE RECOGNIZE THAT UNDER THE PROVISIONS OF 37 U.S.C. 1002/B) THE SECRETARY HAS AUTHORITY TO FIX THE RATE OF COMMUTATION IN THESE CASES AND WE HAVE BEEN RELUCTANT TO QUESTION THE RATES FIXED BY HIM. UNDER THE LAW, HOWEVER, THE RATES MUST RELATE TO THE SUBSISTENCE AND QUARTERS FURNISHED IN KIND BY THE SERVICES INSTEAD OF TO THE COST TO MEMBERS OF SUBSISTING THEMSELVES BY THE USE OF NON-GOVERNMENT OR COMMERCIAL FACILITIES AT THE DUTY STATION. COMMUTATION ON A NON- GOVERNMENT SUBSISTENCE COST BASIS WOULD BE TANTAMOUNT TO PAYMENT OF A PER DIEM AND PAYMENT OF A PER DIEM AT THE DUTY STATION IS NOT AUTHORIZED BY THE LAW.

WE HAVE NOT QUESTIONED THE COMMUTATION RATES SET OUT IN COMMITTEE ACTION 214. HOWEVER, THE AGGREGATE RATE OF $4.50 PER DAY FOR MEALS IS IN EXCESS OF THE MAXIMUM COMMUTED SUBSISTENCE OR RATION RATES FIXED BY 37 U.S.C. 402 FOR OFFICERS AND ENLISTED MEN. ALSO, THE DAILY RATE OF $4.50 FOR QUARTERS IS IN EXCESS OF THE DAILY BASIC ALLOWANCE FOR QUARTERS RATES PRESENTLY AUTHORIZED BY 37 U.S.C. 403 FOR ALL RANKS AND GRADES BELOW GRADE 0-6. ACCORDINGLY, WE DO NOT BELIEVE ANY FURTHER INCREASE IN THE RATES CAN BE JUSTIFIED AS A COMMUTATION OF SUBSISTENCE IN KIND AND QUARTERS IN KIND UNDER PRESENT LAW AND ANY PAYMENTS BASED ON RATES IN EXCESS OF THOSE PRESENTLY AUTHORIZED WILL BE SUBJECT TO QUESTION IN THE AUDIT OF THE DISBURSING OFFICERS' ACCOUNTS.

WE ARE NOT UNMINDFUL OF THE PROBLEM WHICH THE SERVICES SEEK TO SOLVE BY THIS PROPOSED INCREASE IN THE COMMUTATION RATES. IF, HOWEVER, PRESENT LAW DOES NOT AFFORD A SUFFICIENT BASIS FOR MEETING THE NEEDS OF THE ARMED FORCES, THE APPROPRIATE STEP TO REMEDY THE SITUATION WOULD SEEM TO BE A PRESENTATION OF THE MATTER TO CONGRESS WITH A REQUEST FOR THE ENACTMENT OF CORRECTIVE LEGISLATION.

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