B-128338, B-128339, JUL. 17, 1956

B-128338, B-128339, JUL. 17, 1956

TO THE SECRETARY OF DEFENSE:

IT HAS COME TO OUR ATTENTION IN THE AUDIT OF THE PAY RECORDS OF MEMBERS OF THE UNIFORMED SERVICES THAT "FAMILY SEPARATION ALLOWANCE" PAYMENTS ARE BEING MADE UNDER PARAGRAPH 4304, JOINT TRAVEL REGULATIONS, AS ILLUSTRATED BY A PAYMENT OF $118.80 MADE ON VOUCHER NO. 477-56, MARCH 1956 ACCOUNTS OF F. C. EWALD, TO COMMANDER HARRY B. LONG, USN, FOR STATION PER DIEM ALLOWANCE (SUBSISTENCE) AT THE DAILY RATE OF $1, PLUS "FAMILY SEPARATION ALLOWANCE" AT THE DAILY RATE OF $3.40 COVERING THE PERIOD MARCH 1 TO 27, 1956, WHILE HE WAS ON DUTY AT AN OVERSEAS STATION WHERE HIS DEPENDENTS DID NOT RESIDE.

PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS PURPORTS TO AUTHORIZE, EFFECTIVE MARCH 1, 1956, THE PAYMENT OF A "FAMILY SEPARATION ALLOWANCE" TO MEMBERS WITH DEPENDENTS, AS DEFINED IN PARAGRAPH 4301-1 OF THE REGULATIONS, WHO ARE NOT ASSIGNED QUARTERS FOR THEMSELVES AT THEIR PERMANENT DUTY STATIONS OUTSIDE THE UNITED STATES AND WHOSE DEPENDENTS DO NOT RESIDE AT OR IN THE VICINITY OF THEIR PERMANENT DUTY STATIONS. THIS REGULATION APPARENTLY WAS ISSUED UNDER SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WHICH PROVIDES AS FOLLOWS:

"WITHOUT REGARD TO THE MONETARY LIMITATIONS IN THIS ACT, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES: *

IT IS SELF EVIDENT THAT, IRRESPECTIVE OF ANY OTHER LIMITATION, THE PER DIEM PAYMENTS AUTHORIZED BY THE ABOVE PROVISION OF LAW MUST BE PRESCRIBED ON THE BASIS OF DIFFERENCES IN LIVING COSTS RESULTING FROM A MEMBER'S ASSIGNMENT TO OVERSEAS DUTY, THAT IS, DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA. THE "FAMILY SEPARATION ALLOWANCE" PER DIEM RATES, WHEN EXAMINED IN CONJUNCTION WITH THE MONTHLY RATES OF BASIC ALLOWANCE FOR QUARTERS, GRADUATED ON THE BASIS OF RANK, AND FIXED BY STATUTE, ARE SHOWN TO HAVE BEEN ARRIVED AT BY DIVIDING BY 30 THE MONTHLY RATES OF BASIC ALLOWANCE FOR QUARTERS PAYABLE TO MEMBERS OF THE SEVERAL SERVICES OF VARIOUS RANKS AND GRADES WHO ARE WITHOUT DEPENDENTS. THUS, THE OBVIOUS EFFECT OF THE PAYMENT OF THE "FAMILY SEPARATION ALLOWANCE" TO MEMBERS AT PERMANENT OVERSEAS STATIONS WHO ARE NEITHER ACCOMPANIED BY THEIR DEPENDENTS, OR ASSIGNED QUARTERS FOR THEMSELVES, IS TO GIVEN THEM, IN ADDITION TO THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR MEMBERS WITH DEPENDENTS, AN AMOUNT EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAID TO MEMBERS WITHOUT DEPENDENTS WHO ARE REQUIRED TO SECURE QUARTERS FOR THEMSELVES AT, OR IN THE VICINITY OF, AN OVERSEAS STATION. AS IN THE CASE OF PAY, BASIC QUARTERS ALLOWANCES, WHILE PERHAPS DESIGNED TO MEET A LEVEL OF RENTALS ORDINARILY ENCOUNTERED BY MEMBERS FOR RENTAL OF QUARTERS IN THE VICINITY OF MILITARY INSTALLATIONS COMPARABLE TO GOVERNMENT QUARTERS TO WHICH THEY WOULD BE ASSIGNED IF AVAILABLE IN SUFFICIENT NUMBER, ARE FIXED BY STATUTE IN SPECIFIC AMOUNTS. THESE AMOUNTS ARE UNIFORMLY PAID REGARDLESS OF WHETHER THE ACTUAL EXPENSE INCURRED FOR RENT IS MORE OR LESS THAN THE AMOUNT OF THE ALLOWANCE. IN THIS LIGHT, IT SEEMS CLEAR THAT NEITHER THE STATUTORY BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS WITHOUT DEPENDENTS NOR, CONVERSELY, THE STATUTORY BASIC ALLOWANCE FOR A MEMBER WITH DEPENDENTS, IS A PROPER MEASURE OF INCREASED LIVING COSTS, EVEN THOUGH IT COULD BE CONCLUDED THAT SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949 IS AUTHORITY FOR PAYMENT OF A PER DIEM TO COMPENSATE FOR EXPENSES INCURRED BY MEMBERS IN MAINTAINING DEPENDENTS AWAY FROM THEIR OVERSEAS STATIONS. IT IS BELIEVED, HOWEVER, THAT THERE ARE COMPELLING REASONS WHY SUCH A CONCLUSION IS NOT WARRANTED.

AN EARLIER STATUTE, THE ACT OF AUGUST 2, 1946, 60 STAT. 853, 859, AUTHORIZED THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. THIS STATUTE, BEYOND QUESTION, AUTHORIZED PAYMENT OF SUCH PER DIEM ONLY ON THE BASIS OF HIGHER PERSONAL LIVING COSTS ENCOUNTERED BY MEMBERS AT OVERSEAS STATIONS OVER THOSE PREVAILING IN CONTINENTAL UNITED STATES. THE COMPLAINT THEN WAS THAT THIS STATUTE AFFORDED MEMBERS WITH DEPENDENTS NO RELIEF FROM THE PROPORTIONATELY GREATER IMPACT OF INCREASED EXPENSE SUFFERED BY THEM BECAUSE OF THE PRESENCE OF THEIR DEPENDENTS IN THE HIGHER COST AREAS. THE LANGUAGE OF THIS EARLIER STATUTE WAS REENACTED IN THE CAREER COMPENSATION ACT OF 1949 WITH NO SIGNIFICANT CHANGE OTHER THAN THE ADDITION OF THE WORDS "AND THEIR DEPENDENTS.' IN THE ABSENCE OF ANY STATEMENT IN THE LEGISLATIVE HISTORY OF THE CAREER COMPENSATION ACT EXPRESSING A CONTRARY INTENTION, AND NONE HAS BEEN FOUND, THE ADDED WORDS MUST BE REGARDED AS INTENDED ONLY TO AUTHORIZE THE PAYMENT OF A PER DIEM TO A MEMBER ON DUTY OVERSEAS, NOT ONLY ON HIS OWN ACCOUNT BUT ALSO ON ACCOUNT OF HIS DEPENDENTS, IF ACCOMPANIED BY DEPENDENTS. THAT THIS, TOO, HAS BEEN THE ADMINISTRATIVE VIEW FOR A NUMBER OF YEARS IS EVIDENCED BY THE TREATMENT OF THIS PARTICULAR PROVISION OF THE STATUTE IN PART G, CHAPTER 4, JOINT TRAVEL REGULATIONS, FIRST EFFECTIVE APRIL 1, 1951, AND CONTINUED IN EFFECT WITHOUT RADICAL CHANGE UNTIL MARCH 1, 1956.

AS STATED ABOVE, THE PRESCRIBED "FAMILY SEPARATION ALLOWANCE" PAYMENTS ARE MADE IN FIXED AMOUNTS (BASED ON RANK) WITHOUT REGARD TO THE OVERSEAS LOCATION OR ANY INCREASED COSTS OF LIVING SUSTAINED BY EITHER THE MEMBER OR HIS DEPENDENTS BY REASON OF HIS FOREIGN SERVICE, AS COMPARED TO A MEMBER SERVING IN THE UNITED STATES UNDER THE SAME CIRCUMSTANCES. MEMBER IN THE UNITED STATES RECEIVING A QUARTERS ALLOWANCE FOR HIMSELF AND DEPENDENTS GETS NO ADDITIONAL ALLOWANCE BECAUSE HIS DEPENDENTS ARE NOT WITH HIM AND NO QUARTERS ARE AVAILABLE FOR HIM PERSONALLY AT HIS STATION. A MEMBER OVERSEAS IS NO DIFFERENT IN THAT RESPECT, EXCEPT TO THE EXTENT THAT IN CERTAIN HIGH COST FOREIGN AREAS IT MAY COST HIM MORE TO OBTAIN PERSONAL QUARTERS FOR HIMSELF THAN IT WOULD GENERALLY IN THE UNITED STATES. BUT THAT DIFFERENTIAL IS COVERED BY OTHER PROVISIONS IN THE REGULATIONS. IT FOLLOWS THAT THE ADDITIONAL "FAMILY SEPARATION ALLOWANCE" IS NOT BASED OR CONDITIONED ON THE EXISTENCE OF ANY INCREASED LEVEL OF LIVING COSTS OVER THOSE PREVAILING IN THE UNITED STATES. UNDER THE REGULATION A MEMBER WOULD GET THE ADDITIONAL ALLOWANCE EVEN THOUGH THE LEVEL OF LIVING COSTS AT HIS STATION OVERSEAS WAS SUBSTANTIALLY LOWER THAN IN THE UNITED STATES. A MEMBER RECEIVING A QUARTERS ALLOWANCE FOR HIMSELF AND HIS DEPENDENTS IS NOT ENTITLED AS A MATTER OF RIGHT TO PERSONAL QUARTERS FOR HIMSELF AT HIS STATION, ALTHOUGH HE MAY BE PERMITTED TO OCCUPY, WITHOUT CHARGE, SUCH SINGLE QUARTERS AS MAY BE AVAILABLE. THAT IS THE RULE OVERSEAS THE SAME AS IN THE UNITED STATES. IF NO SUCH QUARTERS ARE AVAILABLE AND HIS DEPENDENTS ARE NOT WITH HIM, A MEMBER MAY BE PUT TO THE EXPENSE OF PROVIDING PERSONAL QUARTERS FOR HIMSELF IN ADDITION TO MAINTAINING QUARTERS FOR HIS DEPENDENTS ELSEWHERE. BUT THAT IS TRUE IN THE UNITED STATES THE SAME AS OVERSEAS, AND ANY SUCH ADDITIONAL PERSONAL EXPENSE IS CLEARLY NOT ATTRIBUTABLE TO HIGHER LIVING COSTS, IF ANY, AT THE OVERSEAS STATION.

IN THE UNITED STATES, SUCH A MEMBER GETS ONLY THE STATUTORY QUARTERS ALLOWANCE FOR HIMSELF AND HIS DEPENDENTS. UNDER THE REGULATIONS, A MEMBER OVERSEAS GETS THE STATUTORY QUARTERS ALLOWANCE FOR HIMSELF AND HIS DEPENDENTS PLUS THE EQUIVALENT OF A STATUTORY QUARTERS ALLOWANCE FOR HIMSELF AS A MEMBER WITHOUT DEPENDENTS, OR ALMOST TWICE AS MUCH AS THE MEMBER IN THE UNITED STATES, ALL WITHOUT REGARD TO ANY DIFFERENCE IN THE COST OF LIVING OVERSEAS. WE THINK THAT SUCH ADDITIONAL PAYMENT IS IN EFFECT A BONUS OR GRATUITY NOT BASED ON ANY INCREASED "COST OF LIVING" OVERSEAS AND, HENCE, THE CONCLUSION APPEARS REQUIRED THAT PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS GOES BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AND IS OF NO EFFECT.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TO WITHHOLD CREDIT IN DISBURSING OFFICERS' ACCOUNTS FOR ANY AMOUNTS PAID AS "FAMILY SEPARATION ALLOWANCE" UNDER PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS, AND IT IS SUGGESTED THAT PROMPT ACTION SHOULD BE TAKEN TO RECOVER ALL PAYMENTS SO MADE.

IT ALSO MAY BE SUGGESTED THAT, BEFORE PROMULGATING A REGULATION DEPARTING SO RADICALLY FROM PRIOR CONCEPTS OF THE STATUTE AND PURPORTING TO AUTHORIZE THE INDEFINITELY CONTINUING EXPENDITURE OF LARGE SUMS OF APPROPRIATED MONEYS, THE RESPONSIBLE ADMINISTRATIVE OFFICIALS MIGHT VERY WELL ..END :