B-175190, JUL 17, 1972, 52 COMP GEN 23

B-175190, JUL 17, 1972, 52 COMP GEN 23

MILITARY PERSONNEL - MISSING, INTERNED, ETC., PERSONS - QUARTERS AND SUBSISTENCE - ENTITLEMENT ENLISTED MEMBERS OF THE UNIFORMED SERVICES, WHETHER WITH OR WITHOUT DEPENDENTS, WHO PRIOR TO BEING CARRIED IN A MISSING STATUS (37 U.S.C. 551- 558) WERE QUARTERED AN SUBSISTED BY THE UNITED STATES GOVERNMENT UNDER THE CONCEPT OF "CHANGED CONDITIONS" MAY BE CREDITED WITH QUARTERS AND SUBSISTENCE ALLOWANCES FROM THE BEGINNING OF A MISSING STATUS. THE STATUTORY PROVISIONS INVOLVED IN 23 COMP. GEN. 207 AND 895, WHICH WERE THE BASIS FOR DENYING ALLOWANCES TO MEMBERS ENTERING A "MISSING STATUS," HAVE BEEN SUPERSEDED BY SECTIONS 301 AND 302 OF THE CAREER COMPENSATION ACT OF 1949(37 U.S.C. 403) TO PROVIDE THAT A MEMBER ON ACTIVE DUTY IS ENTITLED AT ALL TIMES TO SUBSISTENCE AND QUARTERS IN KIND OR ALLOWANCES IN LIEU THEREOF AND, THEREFORE, MEMBERS DETERMINED TO BE IN A MISSING STATUS ARE ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE AND QUARTERS IN KIND FROM THE BEGINNING OF THE MISSING STATUS, SUBJECT TO 31 U.S.C. 71A.

TO THE SECRETARY OF DEFENSE, JULY 17, 1972:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 10, 1972, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), IN WHICH DECISION IS REQUESTED ON QUESTIONS RELATING TO THE PAYMENT OF QUARTERS AND SUBSISTENCE ALLOWANCES TO MEMBERS WITHOUT DEPENDENTS WHO ARE CARRIED IN A MISSING STATUS PURSUANT TO 37 U.S.C. 551-558.

IT IS INDICATED IN THE LETTER THAT ENTITLEMENT TO THESE ALLOWANCES HAS BEEN DENIED OVER THE YEARS TO MEMBERS ENTERING A "MISSING STATUS" ON THE BASIS OF OUR DECISION OF SEPTEMBER 20, 1943, 23 COMP. GEN. 207, WHEREIN IT WAS HELD THAT AN ENLISTED MEMBER OF THE NAVY WHO WAS ABSENT FROM HIS SHIP IN A MISSING STATUS (UNDER THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 143) WAS NOT ENTITLED TO QUARTERS AND SUBSISTENCE ALLOWANCES AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363.

THE ASSISTANT SECRETARY POINTS OUT THAT THE LAW CURRENTLY IN EFFECT RELATING TO THE PAYMENT OF PAY AND ALLOWANCES TO MISSING MEMBERS IS SIMILAR TO THAT IN EFFECT IN 1943(SECTION 2 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 144).

IT IS ALSO NOTED THAT UNDER THE PROVISIONS OF 37 U.S.C. 403 A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS, WITH THE EXCEPTION OF A MEMBER WHO IS ASSIGNED TO "QUARTERS OF THE UNITED STATES" AND A MEMBER WHO IS ON "FIELD DUTY" UNLESS HIS COMMANDING OFFICER CERTIFIES THAT THE MEMBER WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS EXPENSE, OR WHILE HE IS ON SEA DUTY.

THE ASSISTANT SECRETARY STATES THAT THE DECISION IN 23 COMP. GEN. 207 IS BASED ON THE PREMISE THAT THE PURPOSE OF THE STATUTE IS TO PROVIDE FOR THE PAYMENT OF QUARTERS AND SUBSISTENCE ALLOWANCES WHEN THE DUTY ASSIGNMENT OF THE MEMBER MAKES IMPRACTICAL THE FURNISHING OF QUARTERS AND SUBSISTENCE NORMALLY FURNISHED. IN CONTRAST, IT IS POINTED OUT THAT 37 U.S.C. 403 EXPRESSLY PROVIDES THAT "EXCEPT AS OTHERWISE PROVIDED BY *** LAW, A MEMBER *** WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS," AND, HE SAYS, THE QUESTION OF DUTY ASSIGNMENT IS NOT MENTIONED IN THE STATUTE.

IT IS ALSO STATED THAT UNDER 37 U.S.C. 402 A MEMBER WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE "WHEN RATIONS IN KIND ARE NOT AVAILABLE." IT IS INDICATED IN THE LETTER THAT AN ENLISTED MEMBER HAS BEEN CONSISTENTLY CONSIDERED TO BE ENTITLED TO BE SUBSISTED IN KIND BY THE U.S. GOVERNMENT OR TO BE PAID AN APPROPRIATE MONETARY ALLOWANCE IN LIEU THEREOF WHEN NOT SO SUBSISTED. THE ASSISTANT SECRETARY NOTES THAT "REGULAR MILITARY COMPENSATION" HAS BEEN DEFINED TO INCLUDE QUARTERS AND SUBSISTENCE IN KIND OR AN ALLOWANCE SUBSTITUTE (H.R. REPORT NO. 92-82, MARCH 25, 1971, P. 24).

IN THE DISCUSSION IN THE ASSISTANT SECRETARY'S LETTER RELATING TO THE MISSING PERSONS ACT IT IS INDICATED THAT UNDER THE PROVISIONS OF 37 U.S.C. 552 A MEMBER WHO IS IN A MISSING STATUS IS ENTITLED TO THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF ENTERING A MISSING STATUS OR TO WHICH HE MAY THEREAFTER BECOME ENTITLED. IT IS POINTED OUT THAT THE FACT THAT A MEMBER WAS NOT ACTUALLY ENTITLED TO A MONETARY ALLOWANCE FOR QUARTERS AND SUBSISTENCE AT THE BEGINNING OF THE MISSING STATUS (BECAUSE HE WAS FURNISHED SUCH BY THE U.S. GOVERNMENT) WOULD NOT APPEAR TO BE DETERMINATIVE OF HIS ENTITLEMENT TO SUCH MONETARY ALLOWANCES AFTER HE ENTERED A MISSING STATUS IN VIEW OF THE INTENT OF PUBLIC LAW 90- 207 APPROVED DECEMBER 16, 1967, AND THE "CHANGED CONDITIONS" UNDER WHICH ENTITLEMENT TO THESE ALLOWANCES SHOULD "THEREAFTER BECOME" EFFECTIVE, AS STATED IN 23 COMP. GEN. 895(1943) AT PAGE 897:

*** IT IS NOT TO BE PRESUMED THAT THE STATUTE CONTEMPLATES THAT THE PAY STATUS OF A MISSING PERSON IS TO BE COMPUTED DIFFERENTLY FROM THAT OF ANY OTHER OFFICER ON ACTIVE DUTY, NOT IN A MISSING STATUS, WHOSE PAY AND ALLOWANCES OBVIOUSLY ARE AFFECTED UPON THE HAPPENING OF CHANGED CONDITIONS. CF. 23 COMP. GEN. 21. AN OFFICER NOT IN A MISSING STATUS WOULD NOT BE ENTITLED TO A CONTINUATION OF RENTAL ALLOWANCE FOR A WIFE FOLLOWING HER DEATH OR UPON CESSATION OF THE MARITAL RELATIONSHIP; AND THE SAME RULE IS TO BE APPLIED IN THE CASE OF A MISSING OFFICER. SIMILARLY, THE SAME RULE WOULD BE FOR APPLICATION, INSOFAR AS RENTAL ALLOWANCE FOR DEPENDENTS IS CONCERNED, WHEN THE DEPENDENTS OCCUPY PUBLIC QUARTERS, WHETHER (1) SUCH OCCUPATION OF QUARTERS BE AN INCIDENT TO THEIR RELATIONSHIP TO THE OFFICER, THAT IS, THE ASSIGNMENT TO HIM OF QUARTERS FOR HIS DEPENDENTS, OR (2) BECAUSE OF THE DEPENDENT'S STATUS AS A MEMBER OF THE ARMED FORCES BY REASON OF WHICH SHE IS FURNISHED QUARTERS IN KIND OR PAID A CASH ALLOWANCE IN LIEU THEREOF.

THE ASSISTANT SECRETARY CONTINUES BY STATING THAT, WHILE THE MEMBER WAS BEING QUARTERED AND SUBSISTED BY THE U.S. GOVERNMENT IMMEDIATELY PRIOR TO ENTERING A MISSING STATUS, DUE TO "CHANGED CONDITIONS" THE U.S. GOVERNMENT CAN NO LONGER QUARTER OR SUBSIST THE MEMBER AND UNDER NORMAL CIRCUMSTANCES HE WOULD THEN BECOME ENTITLED TO RECEIVE A MONETARY ALLOWANCE FOR QUARTERS AND SUBSISTENCE. IT IS EMPHASIZED THAT IN 23 COMP. GEN. 207 IT WAS HELD THAT, HAD THE MEMBER AT THE TIME HE ENTERED THE MISSING STATUS BEEN SERVING UNDER CONDITIONS WHICH ENTITLED HIM TO THESE ALLOWANCES, HE WOULD HAVE CONTINUED TO RECEIVE THE ALLOWANCES WHILE IN A MISSING STATUS. IT IS INDICATED THAT IT APPEARS SOMEWHAT INCONSISTENT TO HAVE ENTITLEMENT TO THESE ALLOWANCES BASED SOLELY UPON THE HAPPENSTANCE OF THE CONDITIONS UNDER WHICH A MEMBER IS SERVING AT THE TIME OF ENTERING A MISSING OR PRISONER OF WAR STATUS IN VIEW OF THE PROVISIONS OF PUBLIC LAW 90-207.

IN LIGHT OF THE FOREGOING, DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. IS A MEMBER, WITHOUT DEPENDENTS, WHO WAS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT THE BEGINNING OF A PERIOD OF "MISSING STATUS," ENTITLED TO CREDIT FOR SUCH ALLOWANCE WHEN HE ENTERS A MISSING STATUS?

2. IS A MEMBER WHO WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE AT THE BEGINNING OF A PERIOD OF "MISSING STATUS," ENTITLED TO CREDIT FOR SUCH ALLOWANCE WHEN HE ENTERS A MISSING STATUS? IF SO, AT WHAT RATE?

IT IS ALSO REQUESTED THAT, IF THE ABOVE QUESTIONS ARE ANSWERED IN THE NEGATIVE, STATUTORY AMENDMENTS BE SUGGESTED WHICH WOULD PERMIT THE CREDITING OF THESE ALLOWANCES.

THE QUESTIONS PRESENTED BY THE ASSISTANT SECRETARY HAVE NOT BEEN CONSIDERED BY THIS OFFICE IN LIGHT OF THE LAWS CURRENTLY IN EFFECT.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS EXCEPT WHEN ON "FIELD DUTY" OR "SEA DUTY" OR WHEN ASSIGNED TO "QUARTERS OF THE UNITED STATES." IT APPEARS THAT A BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED UNDER THE ABOVE-CITED SECTION AT ALL TIMES TO MEMBERS WHO ARE ENTITLED TO BASIC PAY WITH THE EXCEPTION OF WHEN THEY ARE ASSIGNED TO QUARTERS OF THE UNITED STATES OR ARE CONSIDERED TO BE IN A STATUS WHERE THEY ARE FURNISHED BY THE UNITED STATES WHATEVER QUARTERS ARE UTILIZED SUCH AS WHEN ON FIELD DUTY OR SEA DUTY.

SECTION 402 OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

(A) EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION OR BY ANOTHER LAW, EACH MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE.***

(B) AN ENLISTED MEMBER IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE, ON A DAILY BASIS, OF ONE OF THE FOLLOWING TYPES -

(1) WHEN RATIONS IN KIND ARE NOT AVAILABLE;

(2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; AND

(3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO MESSING FACILITIES OF THE UNITED STATES ARE AVAILABLE.

(C) AN OFFICER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS, AT ALL TIMES, ENTITLED TO THE BASIC ALLOWANCES FOR SUBSISTENCE ON A MONTHLY BASIS.***

IT WOULD APPEAR IN VIEW OF THE ABOVE-QUOTED LANGUAGE THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO BE EITHER SUBSISTED IN KIND OR PAID A MONETARY ALLOWANCE IN LIEU THEREOF AT ALL TIMES.

THIS VIEW IS SUBSTANTIATED BY THE LEGISLATIVE HISTORY OF PUBLIC LAW 90- 207, APPROVED DECEMBER 16, 1967, 81 STAT. 649, WHICH AUTHORIZED AN INCREASE IN THE BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES AND IN SECTION 8 ALSO PROVIDED FOR INCREASES IN SUCH PAY WHENEVER AN INCREASE IN THE COMPENSATION OF FEDERAL CIVILIAN EMPLOYEES IS AUTHORIZED. THE HISTORY OF THE ACT CLEARLY INDICATES THAT IN ESTABLISHING THE RATES OF COMPENSATION OF MEMBERS OF THE UNIFORMED SERVICES, THE RATES OF THE QUARTERS AND SUBSISTENCE ALLOWANCES ARE CONSIDERED.

FOR EXAMPLE, SENATE REPORT NO. 808 ON H.R. 13510 AT PAGE 5 IN DISCUSSING THE INCREASE IN BASIC PAY FOR MEMBERS OF UNIFORMED SERVICES, IT WAS STATED THAT "*** THE 5.6 PERCENT PROPOSED BASIC PAY INCREASE IS CONSIDERED THE EQUIVALENT OF 4.5 PERCENT CIVILIAN INCREASE WHEN THE FOLLOWING FACTORS OF MILITARY COMPENSATION ARE TAKEN INTO ACCOUNT - BASIC PAY, SUBSISTENCE ALLOWANCE, QUARTERS ALLOWANCE, AND TAX ADVANTAGES." IN HOUSE REPORT 787 ON THE SAME BILL AT PAGE 3 IT IS STATED THAT: "'REGULAR MILITARY COMPENSATION' IS DEFINED AS BASIC PAY, QUARTERS, AND SUBSISTENCE ALLOWANCES, EITHER IN CASH OR IN KIND, AND THE TAX ADVANTAGE THEREON."

IN VIEW OF THE ABOVE THERE CAN BE LITTLE DOUBT THAT QUARTERS AND SUBSISTENCE EITHER IN KIND OR A MONETARY ALLOWANCE THEREFOR IS AN INTEGRAL PART OF THE TOTAL COMPENSATION OF A MEMBER OF THE UNIFORMED SERVICES TO WHICH HE IS ENTITLED AT ALL TIMES.

SECTION 552, TITLE 37, U.S. CODE, IS A CODIFICATION OF SECTION 2 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, WHICH PROVIDED THAT A MEMBER ABSENT FROM DUTY IN A MISSING STATUS WOULD BE ENTITLED WHILE SO ABSENT TO RECEIVE OR HAVE CREDIT TO HIS ACCOUNT "THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED THEREAFTER." THE ACT OF AUGUST 29, 1957, PUBLIC LAW 85- 217, 71 STAT. 491, AMENDED SECTION 2 TO PROVIDE THAT A MEMBER OF THE ARMED FORCES IN A MISSING STATUS WOULD BE ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT "THE SAME BASIC PAY, SPECIAL PAY, INCENTIVE PAY, BASIC ALLOWANCE FOR QUARTERS, BASIC ALLOWANCE FOR SUBSISTENCE, AND STATION PER DIEM ALLOWANCES FOR NOT TO EXCEED NINETY DAYS, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE ***."

IN OUR DECISION OF SEPTEMBER 10, 1964, 44 COMP. GEN. 127, WE POINTED OUT THAT THE LEGISLATIVE HISTORY OF THE 1957 AMENDMENT TO THE MISSING PERSONS ACT INDICATED THAT IT WAS THE LEGISLATIVE INTENT THAT MEMBERS IN A MISSING STATUS SHOULD HAVE CREDITED TO THEIR ACCOUNTS THE SAME PAY AND ALLOWANCES THEY WOULD HAVE RECEIVED WHILE PERFORMING ACTIVE DUTY, WITH THE EXCEPTION OF TEMPORARY ALLOWANCES SUCH AS A PER DIEM FOR TRAVEL EXPENSES.

THERE IS NO DOUBT THAT BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE ARE ALLOWANCES TO WHICH A MEMBER IS ENTITLED WHILE IN A MISSING STATUS IF HE WAS ENTITLED TO THESE ALLOWANCES AT THE TIME OF ENTERING A MISSING STATUS. 23 COMP. GEN. 360(1943). IT APPEARS REASONABLY CLEAR THAT, INASMUCH AS QUARTERS AND SUBSISTENCE ALLOWANCES ARE PAYABLE EXCEPT WHEN A MEMBER IS FURNISHED THESE ITEMS IN KIND, ENTITLEMENT TO THE ALLOWANCES IN LIEU THEREOF EXISTS WHEN THE UNITED STATES NO LONGER FURNISHES THESE ALLOWANCES.

AS NOTED ABOVE THE ASSISTANT SECRETARY POINTS OUT THAT IN 23 COMP. GEN. 895(1944) REFERENCE WAS MADE TO "CHANGED CONDITIONS" WHICH WOULD BE DETERMINATIVE OF AN OFFICER'S ENTITLEMENT TO RENTAL ALLOWANCE UNDER SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942. IN THAT DECISION THE "CHANGED CONDITIONS" REFERRED TO ENTITLEMENT TO A RENTAL ALLOWANCE BASED ON A DEPENDENT WIFE WHO WHILE THE MEMBER WAS IN A MISSING STATUS BECAME ENTITLED TO BE QUARTERED AND SUBSISTED BY THE UNITED STATES IN HER OWN RIGHT BY VIRTUE OF HER ACTIVE DUTY STATUS IN A UNIFORMED SERVICE.

WE AGREE WITH THE VIEW OF THE ASSISTANT SECRETARY THAT THE CONCEPT OF "CHANGED CONDITIONS" SHOULD ALSO BE APPLIED IN THE CASE OF A MEMBER RECEIVING QUARTERS AND SUBSISTENCE IN KIND FURNISHED BY THE UNITED STATES WHILE ON FIELD DUTY WHO ENTERS A MISSING STATUS UNDER THE MISSING PERSONS ACT AND AS A RESULT OF SUCH STATUS CAN NO LONGER BE FURNISHED QUARTERS AND SUBSISTENCE IN KIND AND THAT THEREFORE SUCH A MEMBER IS ENTITLED TO THE MONETARY ALLOWANCES IN LIEU THEREOF.

QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE AND HENCE NO NEW LEGISLATION IS REQUIRED. THE RATE OF BASIC ALLOWANCE FOR SUBSISTENCE PAYABLE TO ENLISTED MEMBERS IS THAT PAYABLE WHEN RATIONS IN KIND ARE NOT AVAILABLE.

THE STATUTORY PROVISIONS CONCERNING MONETARY ALLOWANCES IN LIEU OF QUARTERS FURNISHED IN KIND BY THE UNITED STATES WHICH WERE INVOLVED IN OUR DECISIONS 23 COMP. GEN. 207 AND 895 HAVE BEEN SUPERSEDED BY THE PROVISIONS OF SECTIONS 301 AND 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, WHICH IN TURN ARE NOW CODIFIED IN 37 U.S.C. 402 AND 403. SINCE UNDER SUCH STATUTORY PROVISIONS A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY IS ENTITLED AT ALL TIMES TO BE FURNISHED SUBSISTENCE AND QUARTERS IN KIND OR ALLOWANCES IN LIEU THEREOF, MEMBERS OF THE UNIFORMED SERVICES DETERMINED TO BE IN A MISSING STATUS UNDER THE PROVISIONS OF 37 U.S.C. 552 ARE ENTITLED TO A MONETARY ALLOWANCE IN LIEU THEREOF, SUBJECT, OF COURSE, TO THE PROVISIONS OF 31 U.S.C. 71A. SUCH ALLOWANCES MAY BE CREDITED FROM THE BEGINNING OF THE MISSING STATUS.