B-159511, OCT. 31, 1966

B-159511, OCT. 31, 1966

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 20, 1966, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) REQUESTING A DECISION OF THE COMPTROLLER GENERAL AS TO THE LEGALITY OF A PROPOSAL TO PAY BASIC ALLOWANCE FOR SUBSISTENCE TO MEMBERS AUTHORIZED TO MESS SEPARATELY, AT A MONTHLY RATE INSTEAD OF A DAILY RATE UNDER THE CIRCUMSTANCES DESCRIBED.

IN THE LETTER IT IS STATED THAT SIZEABLE NUMBERS OF MARRIED ENLISTED PERSONNEL IN THE ARMY ARE AUTHORIZED TO MESS SEPARATELY WHICH, IN MANY INSTANCES, IS PROJECTED OVER AN EXTENDED PERIOD. IT IS SAID THAT THOSE ENTITLED TO BASIC ALLOWANCE FOR SUBSISTENCE ARE NOW PAID ON THE REGULAR MONTHLY PAYROLL VOUCHER (ON A CALENDAR MONTH BASIS) ACCORDING TO THE NUMBER OF DAYS IN EACH SUCH CALENDAR MONTH THAT PERMISSION WAS GRANTED TO MESS SEPARATELY.

IN ORDER TO REDUCE THE WORKLOAD OF PROVIDING CHANGES TO THE AMOUNT OF ENTITLEMENT OF SUBSISTENCE ALLOWANCE CAUSED BY THE UNEQUAL NUMBER OF DAYS IN CONSECUTIVE MONTHS, IT IS PROPOSED, WHEN THE PERIOD INVOLVED EXTENDS OVER AN ENTIRE CALENDAR MONTH, TO ESTABLISH A STANDARD MONTHLY RATE OF BASIC ALLOWANCE FOR SUBSISTENCE IN LIEU OF THE PRESENT DAILY RATE FOR ENLISTED MEMBERS. IN INSTANCES WHERE ENTITLEMENT IS LESS THAN THE TOTAL DAYS OF THE CALENDAR MONTH, IT IS SAID THAT ENTITLEMENT WOULD CONTINUE TO BE BASED ON THE DAILY RATE TIMES THE ACTUAL NUMBER OF DAYS. THE ASSISTANT SECRETARY ASKS WHETHER OR NOT THE PROPOSAL WOULD SATISFY THE REQUIREMENTS OF THE CURRENT LAW, 37 U.S.C. 402 (B).

SECTION 402B (2) OF TITLE 37, U.S.C. AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE "ON A DAILY BASIS" TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHEN PERMISSION TO MESS SEPARATELY IS GRANTED. SUBSECTION (F) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION.

SECTION 2 OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, RECODIFIED EFFECTIVE NOVEMBER 1, 1962, AS 37 U.S.C. 402, PROVIDED GENERALLY THAT THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED, WITH RESPECT TO THE PERSONNEL OF THE UNIFORMED SERVICES IN HIS DEPARTMENT, WAS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS,"NOT INCONSISTENT HEREWITH," AS HE MIGHT DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THE ORDER AND OF SECTION 301 OF THE ACT. SIMILAR PROVISION IS CONTAINED IN SECTION 302 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964. THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE ARMY ARE CONTAINED IN CHAPTER 4, ARMY REGULATIONS 37-104 DATED FEBRUARY 15, 1964.

THE LEGISLATIVE HISTORY OF THE 1949 ACT SHOWS THAT SECTION 301 (B) OF THE THEN PROPOSED LEGISLATION (H.R. 2553, 81ST CONGRESS), RELATING TO BASIC ALLOWANCE FOR SUBSISTENCE, PROVIDED IN PERTINENT PART AS FOLLOWS:

"ENLISTED PERSONS SHALL BE PAID THE APPROPRIATE ALLOWANCE ON A DAILY BASIS WHEN RATIONS IN KIND ARE NOT FURNISHED, WHEN PERMISSION TO MESS SEPARATELY IS GRANTED, OR WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE: PROVIDED, THAT, IF ANY SUCH ALLOWANCE IS PAYABLE TO AN ENLISTED PERSON FOR A PERIOD IN EXCESS OF 30 DAYS, IT SHALL BE PAID ON A 30-DAY-MONTH BASIS.'

MAJOR GENERAL JOHN E. DAHLQUIST, U.S. ARMY, IN COMMENTING ON THIS PROVISION IN HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, 81ST CONGRESS, STATED:

"* * * OUR FINANCE PEOPLE--- THE ONES WHO HANDLE THE MONEY--- SAY THAT IT WILL BE MUCH BETTER FOR THEM AND MUCH BETTER FOR THE ENLISTED MAN IF WE STRIKE THAT PROVISO OUT AND PAY THE ENLISTED MAN ON A DAILY BASIS.' MR. LADIMER, SPEAKING FOR THE HOOK COMMISSION, STATED:

"IN THE CASE OF THE COMMISSION, IT IS THEIR BELIEF IT SHOULD BE HANDLED ON A 30-DAY MONTH, AND THAT CAN BE SPLIT, IF IT IS LESS THAN A MONTH, BY TAKING A ONE-THIRTIETH FOR EACH DAY. THE COMMISSION HAD IN MIND RULING OUT A ONE TWENTY-EIGHTH OR A ONE THIRTY-FIRST, AND HAVE THEM ALL ON A ONE- THIRTIETH BASIS * * *.'

FURTHER COMMENTS WERE AS FOLLOWS:

"MR. BLANDFORD. YOUR RECOMMENDATION IS TO STRIKE THAT PROVISO * * *.

"GENERAL DAHLQUIST. OUR RECOMMENDATION IS WE STRIKE THE PROVISO ENTIRELY.

"MR. JOHNSON. IS THAT THE WAY IT IS DONE NOW?

"GENERAL DAHLQUIST. YES.

"MR. JOHNSON. IT HAS WORKED OUT?

"GENERAL DAHLQUIST. YES.

"MR. KILDAY. IT IS SOMETHING THAT IS INTRINSIC IN THE SERVICE?

"GENERAL DAHLQUIST. THAT IS RIGHT.

"MR. COLE. IS THE COMMISSION'S ATTITUDE VERY ADAMANT?

"MR. LADIMER. NO; AS A MATTER OF FACT THE COMMISSION ACCOMPLISHED IT BECAUSE IT UNDERSTOOD THAT IS WHAT THE SERVICE WANTED. * * *.

"MR. KILDAY. IF THERE IS NO OBJECTION, THE AMENDMENT SUGGESTED WILL BE AGREED TO.'

SEE PAGES 1668 AND 1669 OF THE HOUSE HEARINGS ON SUCH LEGISLATION.

THUS A PROVISO SIMILAR TO THE PRESENT PROPOSAL AUTHORIZING PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED PERSONNEL ON A MONTHLY BASIS, WHICH WAS SUGGESTED FOR INCLUSION IN THE CAREER COMPENSATION ACT, WAS STRICKEN BY THE LEGISLATIVE COMMITTEE BECAUSE OF SERVICE OPPOSITION.

THE FACT THAT A PROVISION SIMILAR TO THE PRESENT PROPOSAL TO PAY BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS WAS SPECIFICALLY CONSIDERED AND REJECTED BY THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, INDICATES THAT, AT THAT TIME, IT WAS BELIEVED THAT A CHANGE IN METHOD OF PAYING BASIC ALLOWANCE FOR SUBSISTENCE REQUIRED A CHANGE IN THE STATUTE ITSELF.

IN THESE CIRCUMSTANCES, AND IN VIEW OF THE PLAIN LANGUAGE OF THE APPLICABLE STATUTORY PROVISION WHICH ESTABLISHES FOR ENLISTED MEMBERS AN ENTITLEMENT TO SUBSISTENCE ALLOWANCE ON A DAILY BASIS, WE ARE OF THE OPINION THAT THE PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS, AS PROPOSED, IS NOT AUTHORIZED UNDER THE LAW. IT IS OUR VIEW THAT SPECIFIC LEGISLATION SHOULD BE OBTAINED IF IT IS DESIRED TO PAY SUBSISTENCE ALLOWANCE TO ENLISTED MEMBERS ON THE BASIS PROPOSED.