B-106535, JUNE 9, 1952, 31 COMP. GEN. 651

B-106535: Jun 9, 1952

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PERSONNEL MESSING SEPARATELY WHILE ON TEMPORARY DUTY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS GRANTED PERMISSION TO MESS SEPARATELY WHILE ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY AT A STATION WHERE GOVERNMENT MESSING FACILITIES ARE AVAILABLE IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE PRESCRIBED IN SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949. REGARDLESS OF WHETHER OR NOT GOVERNMENT QUARTERS ARE AVAILABLE AT THE TEMPORARY DUTY STATION. 1952: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14. YOUR FIRST QUESTION RELATES TO THE RIGHT OF AN ENLISTED MEMBER TO SUCH ALLOWANCE WHERE SUCH MEMBER IS ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY AT A STATION WHERE GOVERNMENT MESSING FACILITIES.

B-106535, JUNE 9, 1952, 31 COMP. GEN. 651

SUBSISTENCE ALLOWANCE - MILITARY, NAVAL ETC., PERSONNEL MESSING SEPARATELY WHILE ON TEMPORARY DUTY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS GRANTED PERMISSION TO MESS SEPARATELY WHILE ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY AT A STATION WHERE GOVERNMENT MESSING FACILITIES ARE AVAILABLE IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE PRESCRIBED IN SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, REGARDLESS OF WHETHER OR NOT GOVERNMENT QUARTERS ARE AVAILABLE AT THE TEMPORARY DUTY STATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JUNE 9, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1951, REQUESTING DECISION AS TO WHETHER AN ENLISTED MEMBER OF THE UNIFORMED SERVICES MAY BE ENTITLED UNDER THE PROVISIONS OF SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, TO A BASIC ALLOWANCE FOR SUBSISTENCE AS A MEMBER PERMITTED TO MESS SEPARATELY UNDER THE CIRCUMSTANCES HEREINAFTER INDICATED.

YOUR FIRST QUESTION RELATES TO THE RIGHT OF AN ENLISTED MEMBER TO SUCH ALLOWANCE WHERE SUCH MEMBER IS ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY AT A STATION WHERE GOVERNMENT MESSING FACILITIES, BUT NO GOVERNMENT QUARTERS, ARE AVAILABLE AND WHO REQUESTS AND IS GRANTED PERMISSION TO MESS SEPARATELY.

SECTIONS 301 AND 303 OF SAID CAREER COMPENSATION ACT, 63 STAT. 812, 813, UNDER THE SUBTITLES " BASIC ALLOWANCE FOR SUBSISTENCE" AND " TRAVEL AND TRANSPORTATION ALLOWANCES," RESPECTIVELY, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 301. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, EACH MEMBER OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION. FOR ENLISTED PERSONS SUCH ALLOWANCE SHALL BE ONE OF THREE TYPES: (1) WHEN RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; OR (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. OFFICERS SHALL, AT ALL TIMES, BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS. ENLISTED PERSONS SHALL BE ENTITLED TO THE APPROPRIATE ALLOWANCE ON A DAILY BASIS.

(B) * * * PROVIDED, THAT ANY SUCH ALLOWANCE SHALL NOT ACCRUE WHEN SUCH PERSONS ARE, IN FACT, BEING SUBSISTED AT GOVERNMENT EXPENSE.

(D) THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION.

(E) MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE PURSUANT TO THIS SECTION SHALL BE ENTITLED TO RECEIVE THE FOLLOWING AMOUNTS:

OFFICERS--------------------------------------- $42.00 PER MONTH.

ENLISTED PERSONS WHEN RATIONS IN KIND ARE NOT

AVAILABLE------------------------------------ 2.25 PER DAY.

ENLISTED PERSONS WHEN PERMISSION TO MESS

SEPARATELY IS GRANTED------------------------ 1.05 PER DAY.

ENLISTED PERSONS WHEN ASSIGNED TO DUTY UNDER

EMERGENCY CONDITIONS WHERE NO GOVERNMENT

MESSING FACILITIES ARE NOT TO EXCEED

AVAILABLE------------------------------------ $ 3.00 PER DAY.

SEC. 303. (A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS (1) UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY * * * THE TRAVEL AND TRANSPORTATION ALLOWANCES WHICH SHALL BE AUTHORIZED FOR EACH TYPE OF TRAVEL SHALL BE LIMITED TO ONE OF THE FOLLOWING: * * * (2) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR * * * PLUS A PER DIEM IN LIEU OF SUBSISTENCE NOT TO EXCEED $9 PER DAY * * *.

PARAGRAPHS 3 (C) AND (E), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, PROMULGATING PRESIDENTIAL REGULATIONS UNDER SECTION 301 OF THE ACT, PROVIDE AS FOLLOWS:

(C) THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. SUCH TERM SHALL ALSO BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS DURING ALL PERIODS OF AUTHORIZED LEAVE, INCLUDING PERIODS OF LEAVE OR DELAY WHILE EN ROUTE BETWEEN DUTY STATIONS.

(E) THE TERM "BEING SUBSISTED AT GOVERNMENT EXPENSE" SHALL BE CONSIDERED APPLICABLE TO ENLISTED MEMBERS WHO ARE SUBSISTED IN KIND BY THE GOVERNMENT, AND TO ENLISTED MEMBERS WHILE THEY ARE IN A TRAVEL STATUS AND ARE ENTITLED TO A PER-DIEM ALLOWANCE IN LIEU OF SUBSISTENCE OR TO A MILEAGE ALLOWANCE.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHEN PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATIONS INCLUDING PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH 4200 THEREOF PRESCRIBES PER DIEM ALLOWANCES FOR ALL PERIODS OF TEMPORARY DUTY AND TRAVEL IN CONNECTION THEREWITH. PARAGRAPH 4205-5 OF THE SAID REGULATIONS FIXES THE RATE OF PER DIEM FOR ENLISTED MEMBERS ON TEMPORARY DUTY IN A TRAVEL STATUS AT $9 PER DAY WITH DEDUCTIONS OF $4.50 PER DAY IF GOVERNMENT QUARTERS ARE AVAILABLE AND $1.50 PER MEAL FOR EACH MEAL AVAILABLE OR FURNISHED BY THE GOVERNMENT. WHILE IT IS ALSO STATED IN SAID PARAGRAPH THAT ENLISTED PERSONS WHILE IN A TRAVEL STATUS ARE NOT ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE, SUCH JOINT TRAVEL REGULATIONS ISSUED BY THE SECRETARIES UNDER SECTION 303 OF THE ACT MAY NOT BE REGARDED AS CONTROLLING QUESTIONS ARISING UNDER SECTION 301, SUBJECT TO PRESIDENTIAL REGULATIONS.

PARAGRAPH 3 (C) OF THE EXECUTIVE ORDER, SUPRA, ISSUED UNDER THE PROVISIONS OF SAID SECTION 301, CONCERNING PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED MEMBERS WHEN PERMISSION TO MESS SEPARATELY IS GRANTED REFERS TO ENLISTED MEN ON DUTY "AT STATIONS" AND WOULD APPEAR TO APPLY TO SUCH MEMBERS WHILE THEY ARE PERFORMING DUTY AT EITHER THEIR PERMANENT STATIONS OR THEIR TEMPORARY DUTY STATIONS. THEREFORE, ON THE BASIS THAT WHERE AN ENLISTED MAN'S TRAVEL PER DIEM AT HIS TEMPORARY STATION IS REDUCED BECAUSE MEALS ARE AVAILABLE HE IS NOT REQUIRED OR EXPECTED TO PROVIDE HIS OWN MEALS FROM THE REDUCED PER DIEM, IT IS CONCLUDED THAT HE IS NOT TO BE VIEWED AS "ENTITLED TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE" WITHIN THE MEANING OF THAT PHRASE IN THE EXECUTIVE ORDER UNDER SECTION 301 OF THE CAREER COMPENSATION ACT, SINCE IN THAT SECTION THE WORD SUBSISTENCE" CLEARLY MEANS RATIONS OR MEALS AND THE SECTION AUTHORIZES ALLOWANCES IN LIEU OF SUCH RATIONS OR MEALS. FOLLOWS THAT IF PERMISSION TO MESS SEPARATELY IS GRANTED HE WOULD BE ENTITLED TO THE STATUTORY ALLOWANCE PROVIDED THEREFOR, THE SAME AS AT HIS PERMANENT STATION. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND QUESTION IS THE SAME AS THE FIRST EXCEPT THAT IT ASSUMES THE ADDITIONAL FACT THAT GOVERNMENT QUARTERS ARE AVAILABLE AT THE TEMPORARY DUTY STATION. FROM WHAT HAS BEEN SAID ABOVE, IT WILL BE SEEN THAT SUCH FACT HAS NO BEARING ON THE LEGAL QUESTION INVOLVED AND YOUR SECOND QUESTION ALSO IS ANSWERED IN THE AFFIRMATIVE.