A-23439, JULY 5, 1928, 8 COMP. GEN. 4

A-23439: Jul 5, 1928

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SUBSISTENCE ALLOWANCE - FRACTIONAL FOR MEALS NOT TAKEN AT MESS - ARMY ENLISTED MEN WHERE AN ENLISTED MAN OF THE ARMY IS ORDERED TO PERFORM SERVICE WHICH REQUIRES HIM TO BE REGULARLY ABSENT FROM HIS STATION DURING THE NOON MEAL HOUR THE PAYMENT OF ONE-THIRD OF THE STATION ALLOWANCE FOR SUBSISTENCE IS AUTHORIZED. IS NOT APPLICABLE WHERE ONE MEAL ONLY IS REGULARLY TAKEN BY AN ENLISTED MAN OF THE ARMY AWAY FROM HIS STATION. FOR THE PURPOSES OF THIS ACT THE MAN IS RECEIVING RATIONS AND QUARTERS IN KIND. IS IT PERMISSIBLE TO PAY ONE-THIRD OF THE RATE PRESCRIBED AS ALLOWANCE IN LIEU OF RATIONS IN TABLE I FOR EACH MEAL HABITUALLY NOT FURNISHED AN ENLISTED MAN IN KIND AT HIS DUTY STATION? 2. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE.

A-23439, JULY 5, 1928, 8 COMP. GEN. 4

SUBSISTENCE ALLOWANCE - FRACTIONAL FOR MEALS NOT TAKEN AT MESS - ARMY ENLISTED MEN WHERE AN ENLISTED MAN OF THE ARMY IS ORDERED TO PERFORM SERVICE WHICH REQUIRES HIM TO BE REGULARLY ABSENT FROM HIS STATION DURING THE NOON MEAL HOUR THE PAYMENT OF ONE-THIRD OF THE STATION ALLOWANCE FOR SUBSISTENCE IS AUTHORIZED, UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, AND THE EXECUTIVE ORDER OF SEPTEMBER 29, 1927, ISSUED THEREUNDER. THE ACT OF APRIL 15, 1926, 44 STAT. 257, AUTHORIZING CONTINUATION OF THE SUBSISTENCE WHEN ON FURLOUGH, ETC., IS NOT APPLICABLE WHERE ONE MEAL ONLY IS REGULARLY TAKEN BY AN ENLISTED MAN OF THE ARMY AWAY FROM HIS STATION. FOR THE PURPOSES OF THIS ACT THE MAN IS RECEIVING RATIONS AND QUARTERS IN KIND.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 5, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 21, 1928, REQUESTING DECISION OF THE QUESTIONS PRESENTED BY YOU AS FOLLOWS:

1. UNDER THE EXECUTIVE ORDER OF SEPTEMBER 29, 1927, IS IT PERMISSIBLE TO PAY ONE-THIRD OF THE RATE PRESCRIBED AS ALLOWANCE IN LIEU OF RATIONS IN TABLE I FOR EACH MEAL HABITUALLY NOT FURNISHED AN ENLISTED MAN IN KIND AT HIS DUTY STATION?

2. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, WOULD SUCH PROCEDURE BE PERMISSIBLE UNDER SECTION II OF THE ACT OF JUNE 10, 1922, UPON THE EXECUTIVE ORDER BEING AMENDED TO PRESCRIBE SAME SPECIFICALLY?

3. IF EITHER OF THE ABOVE QUESTIONS IS ANSWERED AFFIRMATIVELY, WOULD A REGULATION PRESCRIBING THAT A SOLDIER ON FURLOUGH FROM A STATION WHERE HE IS IN RECEIPT OF THE CONTEMPLATED FRACTIONAL ALLOWANCE SHOULD CONTINUE TO RECEIVE SUCH FRACTIONAL ALLOWANCE IN ACCORDANCE WITH THE ACT OF APRIL 15, 1926, AND THAT HE SHOULD ALSO RECEIVE AT THE SAME TIME ONE-THIRD OF THE REGULAR FURLOUGH ALLOWANCE (THE COMMUTED VALUE OF THE RATION) FOR EACH MEAL HABITUALLY FURNISHED IN KIND AT HIS STATION BE LEGAL?

THE EXECUTIVE ORDER OF SEPTEMBER 29, 1927, ISSUED IN PURSUANCE OF THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, PROVIDES THAT WHEN RATIONS IN KIND ARE NOT FURNISHED ENLISTED MEN OF THE BRANCHES OF THE SERVICE MENTIONED IN THE ACT, THE ALLOWANCE FOR SUBSISTENCE SHALL BE AS FOLLOWS:

TABLE 1

MEN ON DUTY WHERE QUARTERS OR RATIONS IN KIND ARE NOT FURNISHED WILL BE GRANTED DAILY ALLOWANCES AS FOLLOWS:

CHART

NO GOVERNMENT GOVERNMENT

MESSING FACILITIES MESSING FACILITIES

FURNISHED FURNISHED

A. GENERAL:

(A) SUBSISTENCE ---- $1.20 $1.00

AN EXAMPLE OF THE SITUATION IN CONNECTION WITH WHICH THESE QUESTIONS ARISE IS STATED BY YOU TO BE FOUND IN THE CASE OF A DETACHMENT ON DUTY WITH THE RESERVE OFFICERS' TRAINING CORPS UNIT OF A UNIVERSITY IN A LARGE CITY, WHERE THE NEAREST MESS TO WHICH THE MEN CAN BE ATTACHED FOR RATIONS IS 4 OR 5 MILES DISTANT THROUGH CONGESTED THOROUGHFARES AND THE SCHOOL SCHEDULE IS SUCH THAT THE TIME BETWEEN CLASSES IS INSUFFICIENT TO PERMIT THE MEN TO REACH THE MESS FOR THEIR NOON MEAL. THIS SITUATION HAS IN CONTEMPLATION THE CASE WHERE ENLISTED MEN UNDER COMPETENT ORDERS ARE REQUIRED TO PERFORM SERVICE WHICH REQUIRES THEM TO BE REGULARLY ABSENT FROM THEIR STATION DURING THE NOON MEAL HOUR.

IN SUCH A SITUATION NO ILLEGALITY IS PERCEIVED IN THE PAYMENT OF ONE- THIRD OF THE STATION ALLOWANCE FOR SUBSISTENCE FOR THE NOONDAY MEAL UNDER THE TERMS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, AND THE EXECUTIVE ORDER ISSUED THEREUNDER. WHILE THE ORDER FIXES A RATE PER DAY AND DOES NOT SPECIFICALLY PROVIDE FOR A FRACTIONAL PAYMENT, IT IS OBVIOUS THAT WHERE THE CONDITIONS OF SERVICE REQUIRE THE ABSENCE OF THE MAN FROM HIS REGULAR STATION DURING A SINGLE MEAL, PROVISION SHOULD BE MADE, TO PROVIDE WITHIN THE LIMITS OF THE LAW AND THE EXECUTIVE ORDER, A SUBSTITUTE FOR THE MEAL NOT FURNISHED HIM IN KIND. THE ORDER RECOGNIZES FRACTIONAL PAYMENTS WHERE THERE IS A KIND. THE ORDER RECOGNIZES FRACTIONAL PAYMENTS WHERE THERE IS A CHANGE FROM A STATION TO A TRAVEL STATUS, OR VICE VERSA, INDICATING THE PURPOSE TO FURNISH THE MAN WITH AN ALLOWANCE IN MONEY, ADEQUATE IN THE DIFFERENT SITUATIONS OF HIS DUTY, FOR THE PURCHASE OF SUBSISTENCE; THE PROVISIONS OF THE ORDER IN THIS RESPECT DO NOT IMPLY THAT IN NO OTHER CIRCUMSTANCES MAY THERE BE A DIVISION OF THE PER DIEM RATE FIXED. THE REGULATIONS PERMIT SUCH A PRACTICE, AND THE REGULATIONS ARE COMPETENT UNDER THE LAW. THIS OFFICE HAS RECOGNIZED AS AUTHORIZED THE PRACTICE SUGGESTED BY YOU WITH RESPECT TO PAYMENTS IN THE NAVY AND MARINE CORPS. IT IS, OF COURSE, ASSUMED THAT THE ORDERS WILL BE SO WORDED AS TO AUTHORIZE THE PAYMENT ONLY ON DAYS IT IS ACTUALLY NECESSARY FOR THE MAN TO BE AWAY FROM HIS STATION AND WILL NOT AUTHORIZE PAYMENTS FOR SUNDAYS AND HOLIDAYS UNLESS HIS DUTY ASSIGNMENT REQUIRES HIS ABSENCE ON THOSE DAYS.

ON THIS VIEW OF THE MATTER NO ANSWER TO YOUR SECOND QUESTION IS NECESSARY.

THE ACT OF APRIL 15, 1926, 44 STAT. 257, IS NOT APPLICABLE TO THE SITUATION YOU HAVE DESCRIBED. FOR THE PURPOSE OF THAT ACT THE MAN IS RECEIVING RATIONS AND QUARTERS IN KIND. IT IS ONLY BY REASON OF HIS ABSENCE ON DUTY ON SOME DAYS THAT HE IS NOT FURNISHED ALL MEALS IN KIND. IN SUCH A CASE IF THE MAN IS GRANTED A FURLOUGH HE WILL BE ENTITLED ONLY TO THE FURLOUGH RATION.